When Can a Child Decide Where to Live?

One of the most frequent searches on the Internet on family law issues is the question: "At what age can the child decide where he/she will live?" As the Oregon Divorce Blog recently stated, that's a trick question. The answer is that the child can decide at age 18. When the child legally becomes an adult, the court no longer has control over the child. Until then, only the judge ultimately decides.

There are, however, several ways to have some influence.

• The child can talk to the parents about the decision. As much as I don't like involving children in these decisions, sometimes a child is mature and has a reasonable basis for a change in living arrangements. What's potentially damaging is for a parent to want a change of custody and then recruit the child to become an advocate. That should be avoided. Sometimes parents try to act like the request originated with the child, but it usually doesn't. Another bad situation is when a child works the parents against each other.

• A Social Study can be done for the court. The social worker can interview the child and evaluate the what the child has to say. The worker ultimately makes a recommendation from all the information gathered from a variety of sources.

• An attorney can be appointed to represent the child in some cases, but the attorney isn't free. The parties have to come up with the funds to pay the attorney, in addition to paying their own attorney.

• Sometimes, a court will appoint a psychologist to interview or work with a child. That gives the child an outlet, but it's not free either.

• In Tarrant County divorce or custody cases, or for visitation issues, the court will often order Access Facilitation. That is a pretty effective process that has the two parents meet with a social worker from the court to discuss and try to resolve custody or visitation issues. There is no cost for that service.

• The child may be permitted to visit with the judge in chambers and discuss the situation without the parents and attorneys being present, but the judge will always make the ultimate decision. Children are sometimes disappointed with the outcome of that process. Most judges are experienced enough to detect when a child has been programmed or when a child is trying to manipulate the situation. There is no slam dunk result when a child actually gets into a one-on-one with the judge. Nevertheless, the judge can gain some valuable insight into the family if s/he visits with a child in chambers.
  

The element in common with all those approaches: it's always the judge who decides, and never the child.

There are certainly situations that arise where there is a serious conflict between parent and child, and sometimes a change of scenery is good for everyone. Parents should do their best to keep their children out of the middle, no matter what the case. Actually, the Collaborative Law process provides good, safe opportunities for parents or child to make changes. I will have a new post soon on that approach. In the meantime, feel free to visit my other blog, Texas Collaborative Law Blog.

Paying Attention to the Internet and Social Media in Divorces

A few days ago, I learned of an old friend from years ago who had recently passed away. After his death, I discovered that he had a Face Book page and it was still up. It got me thinking about how social media sites seem timeless, and I wondered what normally happens after the principal dies. This may seem like a bit of a stretch for a blog about family law issues, but there is probably some overlap between probate, family law and estate planning regarding how social media sites react to death and maybe divorce. Fortunately, I was able to find a answer to my question. For an excellent review of how Face Book, MySpace, various Google accounts and Twitter operate after a person's death, take a look at the recent post by Jacqui Cheng in Law & Disorder.

I have previously written here and here and here about the increasingly prominent role of Internet postings on various social media sites that come up in divorce and other family law cases. These posts generally were cautioning people to be careful about what they write on Internet sites. (They also need to be careful about texting.)

Another possibility that I haven't seen addressed and haven't heard anything about yet is the possibility that an Internet site is a valuable asset which could be included in the property division in a divorce. There are certainly reports about blogs and web sites that become very profitable and generate large incomes. There is value in such a site, but it may be pretty difficult to put a value on it. On the other hand, something that produces thousands of dollars of income a month or year can't be ignored.

In a similar vein, social media can have value that should or could be considered in a property division. A Face Book page might have some commercial value, depending on how it is focused and managed, and a Fan Page on Face Book is specifically available for businesses. Twitter accounts, You Tube and other new media can also have commercial value. The names associated with various social media, blogs or a web site can have commercial value and can be sold, just as a web site can be sold. Licensing agreements are becoming more popular in businesses that rely on the Internet, and the agreements can have value.

People should be aware of the potential issues that will arise in divorce cases where the parties have active on-line businesses and use the social media to promote them. If you or your spouse have such a business, be sure to let your attorney know. If anyone has had a divorce where ownership or value of an Internet business was an issue, please let us know about it and how it was resolved. Just like death, divorce will not necessarily end an on-line business.

The Unhappiness Gap

It seems that James J. Gross, in the Maryland Divorce Legal Crier, has an almost limitless supply of relevant, analytical and often encouraging comments about family relationships. Last week, he published the following suggestions that can be useful for people facing divorce or for people wanting to avoid a divorce.

"A recent study concludes that a happiness gap between spouses is a harbinger of divorce. It goes further to state that the odds of divorce increase if the wife is unhappier than the husband, because women file more divorces than men. Here are my two best tips for managing unhappiness, in marriage or divorce.

"1. Make a Grateful List. It is easy to look at the glass half full. It is human nature to always want more than we have. And your brain will keep pumping out negative thoughts as long as you dwell on what you don’t have instead of what you do have. An antidote for this is to write down all the things in your life that you are grateful for. Read this list out loud every morning.

"2. Keep a Good Things Notebook. Get a small spiral notebook. At the end of each day, write down all the good things that happened to you that day. Someone smiled at you or complimented your outfit. Keep it simple and short. Try to find at least five things a day."

I heard similar suggestions from a life coach in Texas several years ago, but I like trying out these ideas in the context of a marriage. Actually, they are probably not a magic shield that can protect you from divorce if you wait to try them out when there are serious relationship issues. If adopted and used regularly and early on, they can probably provide a lot of preventive benefit.

On the other hand, if you find yourself facing a divorce or deciding to pursue a divorce, following these suggestions should help ease your pain and assist in your emotional transition to single person. While it would obviously be helpful to the "leavee" (the one being left), a focus on the positive could certainly benefit the "leaver" (the one deciding to leave the relationship)as well. If nothing else, the emphasis on the "good" aspects of the situation should help avoid the often depressing situation of sitting around thinking about how bad the situation is.

There's not much work involved in following the suggestions. Please give them a try and then let us know if it helped.

5 Tips -- If You Think it Will be Amicable

Many people contact me and say they want to have an amicable divorce or child support or visitation modification agreement. They understand the benefits that come from avoiding the negativity that often accompanies litigation. They don't want unnecessary work done and want to hold down the financial cost. Truth be told, they would probably prefer to have just one attorney represent both parties, but I always explain that can't be done. (It would be a conflict of interest for the attorney and it would violate our disciplinary rules.)

Generally, the best way to have an amicable legal proceeding is to use Collaborative Law. That process keeps the parties out of court, provides the means for thoughtful and creative decision-making and utilizes the tools necessary to accomplish the objectives of the parties. Each party would have his/her own attorney (trained in Collaborative Law), but the attorneys are focused on reaching an agreement that meets the needs of both parties. The attorneys are not concerned with following all the traditional steps of discovery, pretrial motions and hearings, depositions, etc. that are expensive and often are used to just wear down one of the parties. The Collaborative process involves gathering information informally, but using experts to help evaluate it, and then going through a brainstorming process that is effective in developing options and allowing the parties to come to agreements on their best outcomes.

Unfortunately, Collaborative Law isn't always an option. The most common reason, for now, is that one of the attorneys is not trained in Collaborative Law. Sometimes, one of the parties isn't convinced that Collaborative is the way to go. Whatever the reason, the parties in a family law matter sometimes want an amicable process, but don't utilize Collaborative Law. For that situation, I have the following five tips to help them work together peacefully and effectively.

1. Be prepared by gathering needed information. If this is a divorce, make copies of the essential financial records. I don't suggest that you grab and hold all the financial records. That would be taken as a sign of an uncooperative attitude, even if you really intended to share the information. In non-divorce cases, there will be other information needed, such as income and expense records, school records, health records, etc. It will save time later if you gather up the needed information early on.

2. Choose your attorney carefully. You should probably explain what you want to do and make sure your lawyer is comfortable with that approach. Some lawyers insist on following the same game plan for every case, even if you don't want to take certain steps. If you don't feel like the attorney will do what you want done, then talk to other attorneys. There are plenty of good attorneys and you should only hire one who fits your needs.

3. Expect difficulties. Remember that even if both parties say they want an amicable case, there will still be disagreements. There can be amicable disagreements that can be resolved when there are attorneys (and maybe other professionals) who are skilled negotiators. What you want to avoid is working with someone whose answer to conflict is, "If they won't do what we want, we'll just take it to court and let the judge decide." That's not amicable and that's probably not what either party is looking for. There are plenty of ways of resolving difficult questions without going to court, if your attorney is willing to work on it.

4. Be willing to accept helpful suggestions from your attorney. I have had people come in and tell me that they have everything worked out and they just want me to prepare a document for them. I can do that, but I feel compelled to point out problems and potential issues whenever I spot them. Attorneys will make suggestions for slight wording changes that can clarify an order and help avoid confusion and conflict later. Attorneys can sometimes point out potential tax or financial issues and help you save money and avoid problems. Attorneys often know of ways to do things to more easily accomplish what you want done. You should listen to your attorney and be open to considering implementing his/her suggestions.

5. Don't let the attorneys pressure you into using the standard ways of doing things unless you completely agree. This is the corollary to point #4. You need to listen to the attorneys, but sometimes you should disagree. Doing something just because it's the standard way of doing something is not good enough. The attorney should be able to explain better reasons or benefits for any proposed changes.

If you follow these five tips, you should be able to work out solutions amicably in family law matters. Keep in mind the possibility of using Collaborative Law to get the best results.

Male Victims of Domestic Abuse

Domestic violence and abuse used to be a topic that was swept under the rug. During the past 20 years, there has been a slow, but steady increase in public awareness and concern about the problem. The issue has been around for a long time, but it hasn't been dealt with seriously until relatively recently.

The victims of violence and abuse in the home are still predominantly women, but there is a significant number of male victims as well. Most of the remedial efforts, such as shelters, to help the victims have been oriented to women. In addition to there being more female victims, women often are more willing than men to come forward to seek help. It is still very hard for women to seek help in a domestic violence situation, but it is usually much harder for men to admit that they are victims and need help (or rescue) for domestic violence.

The dynamics of the abuse suffered by men and women is similar. One or more of the following behaviors (among others) will usually be occurring:

• The victim is often physically assaulted by the abuser. There are often frequent threats about what the abuser will do to the victim if the victim doesn't do as the abuser wishes. Bullying and intimidation are common tools used by the abuser as well.

• The abuser often controls the finances, leaving the victim with no significant cash and no knowledge of the finances.

• The abuser frequently steals, hides or damages the property owned by, or wanted by, the victim, or threatens to do so. It becomes a way to control the other party and to show the power of the abuser.

• There is often a threat by the abuser to call the police on the victim, and that threat is sometimes carried out. Even worse, the victim is sometimes arrested and charged with domestic violence, which puts the victim in a deeper hole. Police look for visible blood, cuts and bruises and will usually arrest someone if they find such evidence.
  

• Many times, the abuser is able to convince the victim that she or he has not choice but to submit to the control of the abuser.

So, what can you do if you or a loved one is caught in such a situation? Here are some suggestions.

1. Think and plan before acting, unless there is an immediate threat to your safety. (In case of an immediate threat, get away fast any way you can.) Since an abuser usually does have a lot of control over a victim's life, he or she must think first, and then act. The victim should develop a plan to escape and to start over in life. Normally, such planning takes some time and help, so ...

2. Find an ally. Get a friend or family member and confide in him or her. Even though your abusive spouse will probably tell you the opposite, there are many people who care about you. And many of them may have been suspicious of your situation. There will likely be a number of people who will help, if you reach out.

3. Get professional help. Your ally can help you arrange to meet with an attorney and maybe a counselor. The counselor will help you take back control over your life. The attorney can advise you on the best course of action in the court system.

4. Get away from the abuser. Work out a plan and then move out. Move quickly, once you start.

5. Don't get "buyer's remorse" over your decision to leave. It can be tough to move and doubts are inevitable, but keep in mind the big picture. Your health and safety, and maybe the kids' health and safety, are the most important and immediate concerns. Remember, your spouse won't change. Abusers are often incredibly skilled as manipulators, and they know what buttons to push. Don't feel sorry for the abuser. If you start to second-guess your decisions, talk to your ally and your professional helpers. Don't break down and go back. Your life may depend on it.

Men and women who are victims of domestic violence and abuse should not be embarrassed to seek help from friends and professionals. Victims need to act prudently, but they cannot afford to stay long in an abusive relationship. Please contact a professional to learn more about your options.

A Divorce Fair -- Good or Bad Idea?

A recent post in the Ontario Family Law Blog discussed how there had recently been a "Divorce Fair" in Halifax, Nova Scotia, Canada. It was like a lot of trade shows with a variety of exhibitors and presentations, but they all related to divorce.

It sounded like an interesting idea that potentially could help people considering or facing divorce or possibly recovering from a divorce. I wonder how such a Fair would be received around here. If we had a Divorce Fair in Tarrant County, we could include such things as:

• Information on alternatives, such as Collaborative Law and mediation.
• Information about how traditional litigation works.
• Sources of information so people can search for information they are interested in.
• Tips for how to find and choose an attorney.
• How to benefit from using a financial professional in a divorce.
• How to benefit from working with a counselor.
• Approaches for preparing parenting plans.
• What Tarrant County courts expect from parties to a divorce.
• What programs Tarrant County provides to assist divorcing parties.

I suspect that many people would be reluctant to attend a Divorce Fair. It's just not as enjoyable as a bridal fair or even a boat show. Some people wouldn't want others to know that they were thinking about a divorce, so they wouldn't want to appear in public at a Divorce Fair.

But, I'm curious:

• What do you think about the idea of having such a fair?
• Do you think very many people would attend?
• Would you be interested in attending?

Anonymous answers are fine, but I would like to know how this would be received. Please share your opinions.

Why We Don't Do Much Pro Bono Work

We have been getting a lot of phone calls lately from people who found us on the web. Many of them have read our blogs. Unfortunately, we can't help everyone, but we do our best to refer out to good attorneys those cases that we can't help for various reasons. Sometimes the case may be outside Tarrant County or the subject matter may be something that we don't handle. Like most attorneys, we have developed a specific niche that we try to focus our work in, but we know many attorneys in this area and have created a long list of specialities and attorneys who handle them. We are pleased to give referrals that should benefit the clients and save them time.

One type of call that we have gotten a lot of lately is people asking if we do "Pro Bono" work. That's a Latin phrase (naturally -- we're lawyers) that is a shortened version that translates into "for the good of the public". The concept is that attorneys should try to provide free or low cost legal services to the truly needy.

Our position on Pro Bono is that we believe in it and we do handle such cases at no charge, but we don't take on cases as Pro Bono cases if the clients call us directly. We work with a number of organizations that contact us occasionally with a prospective client who has a legal need but lacks funds. Depending on our workload and whether we are handling other Pro Bono cases at the time, we decide whether to take on another no-attorney-fee case.

We cannot afford to work very many cases for free, so we carefully evaluate cases that are referred to us. We do not accept cases for Pro Bono if the prospective client contacts us directly and we cannot even take on every case referred to us by the organizations we work with. We do our best to help those in need, but we have expenses and need to pay bills just like everyone else. For those we can't assist, we hope the information from our web site and blogs will be helpful.

To summarize our Pro Bono policy: we believe in it, and we take referrals from a number of organizations, but we don't take on cases for no fees if the prospective client contacts us directly.

If you need an attorney, but cannot afford to pay for one, you can check with organizations where you live, you can contact different attorneys or check with your local bar association to try to find attorneys who will work Pro Bono. Most attorneys will take on some Pro Bono cases, but they have to limit that type of work since they still have to make a living. Sometimes court personnel can give you a lead on where to find help. As a last resort, there are more and more resources on line that you can turn to. Whatever you do, don't decide to do nothing. Keep talking with people and you will likely find something or someone to help you.

Revised on Feb. 28, 2010.

Why Running To Court And Refusing Divorce Mediation Is A Bad Idea

C. Sean Stephens had an excellent post this week in his Collaborative Divorce Northwest Blog about how the strategy of rushing into court to get a ruling on issues such as custody, possession schedules, support, etc. may be ill-advised. Not only is this blog one of the few dealing primarily with Collaborative Law issues, but it is always interesting and well written. This post gives the perfect example of how an attorney can misread a case, with bad results for their client, when a settlement process (here, mediation) before the hearing could have provided for an acceptable arrangement for both parties. Here's what he had to say:

"Sometimes negative examples drive home the benefits of collaborative practice the most. At Stephens Margolin P.C. we help clients with both traditional litigation cases and collaborative cases. As an Oregon lawyer practicing only family law, I frequently borrow from my collaborative law skills when working on traditional cases. The traditional side of our practice frequently reminds me of the benefits of collaborative law and the flaws in traditional practice. In our traditional cases, we usually attempt a four way style meeting and mediation prior to entering a courtroom.

"I recently made an appearance in a county which allows for hearings on temporary custody and parenting time before the parties mediate. The opposing attorney had filed for temporary custody without asking for mediation. I asked the other lawyer to mediate to see what we could work out prior to using the court’s time, but they refused. I would have been happy to have a four way meeting in our conference room and talk about some creative solutions, but they refused. Rather than mediate or negotiate, a hearing was held at the other lawyer’s insistence. The result was substantially worse for the moving party than they expected. Rather than a cooperative solution being reached voluntarily, the court imposed a decision on the parties that was harmful to the moving party.

"Refusing mediation or a face to face meeting was an enormous strategic mistake for the other lawyer. A more collaborative approach would have left the other lawyer with a happier client vs. a miserable client, and a better outcome."

Here in Tarrant County, we rarely do mediation before a temporary hearing, although it is done in some cases. (We tend to rely on mediation more for final orders.) There certainly can be a benefit to trying mediation before going to court any time. Even without mediation, it's usually a good idea to make every effort to come to an agreement before you go to court.

Sometimes, however, a party or attorney will come to believe that the facts of the case are all on their side and that they shouldn't waste time negotiating. I consider that sort of an old fashioned attitude. It's great to be confident, but you really lose control of the case when you turn it over to a judge to make a decision. It's always a gamble. Sometimes it pays off, but sometimes it doesn't. With high expectations of a favorable result, it can be devastating to a party if the judge picks up on something unexpectedly and rules the "wrong way"!

Sean is a Collaborative lawyer and like many Collaborative lawyers in Texas, he tends to use a Collaborative approach even in non-Collaborative cases. Usually, that is an effective approach. Parties should never approach a court hearing overconfident, because they are likely to be disappointed. A lot of heartache and anger can be avoided if the parties and attorneys will make a genuine effort to settle before they take a chance in court.

Recipe for a Happy Divorce

In looking around the blogosphere recently, I ran across an uplifting blog post by Marie Fahnert, a Chicago divorce lawyer. She provides a "Recipe for a Happy Divorce". While no one can guarantee the outcome of a divorce, or even how the process will work out, she presents some points that strike me as eminently do-able, even if they would take some effort. I believe that if people going through a divorce gave her approach a try, they would have a much better experience going through a divorce.

Here's what Marie had to say:

"Maintaining happiness (or some semblance of it) through your divorce might not be as difficult as you think. According to scientists, the following things make us happy:

1. Virtues: Our sense of wisdom, justice, compassion for others,
2. Gratitude: Appreciating what we have and expressing it to ourselves and others,
3. Savoring: Enjoying the moment and taking time to smell the roses,
4. Engagement: Being in our activities for the experience of it ("being in the zone"),
5. Living a meaningful life: Doing things for others and helping others.

"Studies of the Danish (the happiest people on earth) show that low expectations also make us happy. If our expectations are low, then we become happy when things go unexpectedly well. Also, Denmark's social safety net ensures people the basic necessities of life.

"How can you go through a "happy" divorce?

1. Remember that you are in control of the things that make you happy (see 1-5 above).
2. Approach the divorce—and the associated child-custody, division of property, maintenance issues—with realistic expectations.
3. Reach an agreement with your spouse and litigate as few things as possible. This will save you money and—like the Danish—you won't have to worry about the basic necessities of life."

This post is very timely because I always notice an increase in filings for divorce just after the first of the year. For various reasons, people put off filing until after the holidays, and then the divorce season gets into full swing. If you or someone you know is facing a divorce, please take the time to incorporate Marie's ideas into your life. Divorce is naturally stressful and unpleasant. If you can reduce that unpleasantness, your efforts will be well rewarded.

Should You Hire a Collaborative Lawyer for a Case in Litigation?

An issue that comes up all the time is whether a Collaborative lawyer can or will handle non-Collaborative cases. For me, the answer is yes. Some people just assume that a Collaborative lawyer will no longer participate in litigation. That is true for some attorneys, but (at this point in time) all Tarrant County divorce lawyers who are trained in Collaborative Law still handle litigation, and that is true of most Collaborative attorneys in Texas. You can just ask an attorney if you wonder about it.

A related issue is whether it is advisable to hire a Collaborative lawyer to handle a litigation divorce. Some people may have a vague fear that a Collaborative lawyer would be unprepared, uncomfortable or unable to function in a litigated case. That is a misplaced fear. Actually, the main difference is that Collaborative attorneys have extra training and experience in negotiating that some litigation attorneys don't have. Which leads to the question: How are the extra training and experience an advantage in litigation?

Let preface my answer by briefly explaining how Tarrant County divorces work, which is essentially how they occur in many of the other counties in Texas. In a litigated divorce, here are the basic steps that are commonly followed:

• One party files for divorce, gets a restraining order signed by the judge and then gets a temporary hearing scheduled. It is usually set 10-14 days after the filing date so that there is time to get the other party served with papers.

• The other party receives the papers, usually from a process server. The papers are a petition for divorce, restraining order and notice of the hearing. There will be a citation explaining the need to respond to the petition.

• If there's enough time, the two sides will sometimes negotiate before going to court to start to work out temporary or interim orders.
  

• Both parties appear at court on the appointed date. They, or their attorneys, negotiate. Although the event is called a "Temporary Hearing", there usually isn't a hearing. Cases are usually set at 8:30 or 9:00 a.m. and often the parties spend all morning at the courthouse negotiating.
  

• Negotiations can involve meetings with the judge and occasionally end in a bench conference with the judge, attorneys and parties. Even then, usually, most issues have been resolved before the conference begins and the attorneys usually only submit a few issues. Sometimes, there are negotiations in the judge's office with just the attorneys and judge present.

• After the judge decides or gives suggestions or an advisory opinion, there's often more negotiations to iron out the inevitable few remaining details.

• Temporary orders are drawn up and signed.

• The parties then begin to gather and exchange information, either informally (sometimes) or through the formal "discovery" process. In discovery, written requests for information are sent to the other party that require that other party to produce various and extensive types of information to each other.
  

• A trial date is usually set about this time, often many months away. Before the trial date, virtually every court requires mediation in almost every case. Mediation is not attempted only in the most unusual circumstances.

• Mediation occurs. It's usually either a half- or whole-day marathon in which all remaining issues in dispute in the divorce are to be resolved.

• Mediation usually works in around 90% or more of the cases. If it doesn't in a particular case, the case eventually goes to trial, although there's always the proverbial "courthouse steps" for final negotiations, and such negotiations are often successful.
  

You may have noticed that the common denominator in the above summary is the repeated occurrence of negotiations. The bottom line is that whether you end up in litigation (either by choice or otherwise) or Collaboration, you will be participating in negotiations.

Now, back to the question of the day: Should you hire a Collaborative lawyer for a non-Collaborative case? Here are some things to consider:

• Is there a good chemistry between you and the attorney?
• Does the attorney listen and communicate well?
  
• Can you afford the attorney?
• Does the attorney have the level of experience you require for your case?
• Is the attorney a Board Certified Specialist in Family Law?
  
• Is the attorney local and familiar with the judges and other attorneys?
• How would the attorney approach negotiations in your case?
  

Ultimately, you need to decide if there is good chemistry between you and your lawyer. If you don't feel good about how the attorney communicates or the strategy the attorney proposes, try another attorney. Even excellent attorneys are not always a good match for some people. And don't worry about hiring a Collaborative lawyer in a litigated case -- it may be one of the best decisions you have made.