How Can it Take a Long Time to Resolve a Simple Case?

Recently, I was talking with a potential client and we got to the point of discussing attorney fees. She clearly viewed her case as a fairly simple matter, and it could be in some circumstances. I quoted a substantial retainer and she asked why it would be so much for a limited case, which was a perfectly understandable question. I explained that I didn't know how many hearings there would be and she asked how there could be more than one hearing. So I gave her a number of possible scenarios that could lead to delay and multiple court dates. She was surprised, but understood.

Why does a case take so long? Here are some of the common reasons why any family law case may get delayed over a long period of time.

1. It may not really be simple at all. Although a party may think it is uncomplicated, an attorney may look at a situation and instantly see many possible problems that have to be dealt with.

2. One party or the other may have received short notice of a hearing, so the hearing must be reset to comply with the rules or for fairness.

3. A party may need time to hire an attorney.

4. A party may need time to get money to pay for an attorney.

5. An attorney may have a scheduling conflict.

6. An attorney may need time to prepare for an unexpected issue.

7. Discovery of information and records may need to be done before the case can proceed.

8. The case may need to go to mediation.

9. The judge may not be available or may be too busy for a hearing on a given day.

10. Bad weather can cause a postponement.

11. There may be a holiday (federal, state or local).

12. Someone may be on vacation.

13. A witness may be unavailable.

14. Some important details may change.

15. A new witness may have been found and further preparation may be necessary.

16. Someone may be ill.

17. There could be a problem in taking care of a child on a given day.

18. The judge may need or take more time to decide.

19. The judge may order the attorneys to prepare a brief on an issue.

20. A hearing may take longer than planned and the conclusion may have to be reset later.

The above are all legitimate reasons that come up and cause delays in cases. On top of that, the other party may stall intentionally for various reasons, and that's hard to control.

Sometimes, delay helps you and sometimes it doesn't, but you have to be prepared for delays in any litigation. It's just part of the process. Talk to your attorney early if you have concerns about the timing. Good luck in getting your case resolved.

Waiting on the 60-Day Waiting Period

One of the most common misperceptions regarding divorce is the idea that a divorce is, or must be, completed when the 60-day waiting period is up. Under Texas law, the parties must wait for 60 days, beginning with the date they file for divorce, before they can be divorced. Even then, the divorce doesn't happen automatically.

There is actually much more to be done before the divorce can be finalized. That's not to say that the divorce won't be completed just after the 60 days is up. It only means that you can't just file for divorce, wait for the 60 days to pass and then be divorced without further action.

So, what needs to be done? Start by discussing the situation with your attorney. Make sure he/she knows you want the divorce over with as soon as possible. Here are some things that he or she will need your help on.

1. Your spouse must be notified "officially". You can serve papers on him/her or he/she can sign a Waiver and accept the papers. Most people won't sign a Waiver without having the opportunity to see and sign the final papers (decree). Serving papers is less friendly and more expensive. If you are trying to do a quick and friendly divorce, the Waiver is probably a better bet. If you can't find your spouse, talk to your attorney about your options.

2. You need to gather information and get it to your attorney. The attorney wants to make sure everything is properly covered by the final decree of divorce, so it is important that the attorney gets to review the details of your finances. In addition, the children, if there are any, must be provided for: allocation of the powers, rights and duties for raising the children; visitation; and child support. The attorney depends on you to furnish the information and also to state what terms and arrangements you would prefer.

3. If you want a quick divorce, you and your spouse generally need to agree on the details of how to divide things up and how to deal with the children. It's not enough to just turn over information to the attorney. Your attorney can suggest some terms, but you and your spouse need to agree to those or come up with variations that you both agree on. Usually, the more complex the issues, the longer it takes to resolve them. You can help speed up the process by reaching agreements with your spouse.

Divorces are not automatic in Texas. Attorneys can't just file papers and wait for the time to run. We need to get information and suggestions from clients. If you are anxious to get your divorce completed quickly, you need to help your attorney by providing information and details on how you would like things resolved. You can be divorced in just over 60 days, but plan on actively working with your attorney to accomplish that.

How to Find the Best Lawyer in Tarrant County, Texas

Many people apparently are looking for the best lawyer in Tarrant County, Texas. Not just any lawyer, the best lawyer. I know that from some research I have done about what people are asking Google and other search engines. It is certainly understandable that someone who suddenly needs a lawyer to end a marriage would want to find the best one around. It's not only part of our competitive nature, but it's also common sense.

Or, sometimes they want the meanest lawyer. I previously wrote about getting the meanest lawyer -- that's a different discussion! For now, let's discuss how to find the best lawyer, wherever you are. Here are some things to consider.

1. You need to define what makes a lawyer the best one for you. What are the most important qualities that you are looking for? Do you want a business-like personality or someone who is very personable and casual? Do you want a very structured attorney or a looser approach? Some lawyers are somewhat to very abrasive and others are instantly your best friend. You should meet with several lawyers and get to know something about their personalities and approach to practicing law.

2. Another stylistic option is whether you want a decision-maker or an option-developer. Some lawyers get the facts of the case and then start telling clients what to do. Other lawyers help clients develop a variety of options and then assist them in choosing a course of action. Some clients just want to turn over their legal matter to their attorney and let the attorney take care of it. How involved do you want to be?

3. What is the financial range of fees you are comfortable with? Generally, the more experience or more demand there is for a lawyer, the higher the fees will be. More expensive lawyers aren't always the best, but they often are much better than inexpensive lawyers. If your case is very complicated or unusual, you may want to hire an experienced attorney, but make sure you can afford the attorney. Even among very good attorneys, there will be a range of fees that they charge.

4. Do you want or need a trial lawyer or a settlement specialist? Don't assume that you necessarily want to take your case to trial. Likewise, you shouldn't assume that you case will be settled. It is true that most family law cases settle, but some have to be tried. You should consider both approaches and find out how prospective lawyers view your case.

5. Sometimes, location can be a consideration. You generally want to hire a lawyer in your own county, or wherever the suit is located. But, you may or may not have to go to your attorney's office very much after the attorney is hired. Much of the contact between lawyers and clients takes place over the Internet or by phone or fax. However, you probably should hire someone local who is familiar with the local courts, judges and courthouse personnel.

Ultimately, your decision should consider a number of factors. Chemistry is a key element. Does your personality fit with the attorney's personality? If you don't get along with or like the attorney, don't hire him or her. Look up the attorney on line and combine that information with your observations. Don't go just on reputation. Go with your gut feeling on whether this will be the best lawyer in Tarrant County for you.

Time to Plan Your Summer Visitation Schedule

This is a brief Public Service Announcement.

Attention all Texans with a Texas standard visitation schedule! If you read your summer schedule section, you will probably see that you have to notify the other parent of your desired summer possession schedule by April 1 or April 15, depending on whether you have the right to choose the primary residence of the child. If you don't have primary custody/possession of the child, you probably are required to notify the other parent by April 1. If you don't do so, you will probably have have the child for the month of July.

Please read the language of your court order very carefully. Sometimes the language is customized and the dates and other details may be different from the standard provisions.

If you have a standard Texas visitation schedule, and if you have primary custody of your child, you probably have until April 15 to designate your summer possession times.

Please read the language of your court order very carefully. Sometimes the language is customized and the dates and other details may be different from the standard provisions.

There are two lessons to be remembered here: (1) Dates and deadlines in court orders are important and may limit your choices, so you should plan ahead. You can act before the deadlines. (2) It is important to read the exact language of your court order and follow the directions. Don't guess or make assumptions about what your order says. Read it and then act.

The Good News:

Of course, you and the other parent can agree on whatever time-sharing arrangement for the summer that you want. Be creative and you can figure out how both parents can enjoy the summer with your child. How ever you do it, have a great summer vacation with your child!

Can You be a Friendly Parent?

While scanning the Internet the other day, I ran across an interesting article in "The Australian". I don't remember how I got there, but it was fun reading about what was going on in Australia in the realm of family law.

While I don't have all the context of Australian law, it is apparent that some revision of their family law statutes is being considered. The article mentioned what they referred to as the "friendly parent provision". It appears that judges in Australia will consider, in making a custody decision, whether each parent has been cooperative or "friendly" with the other parent. An uncooperative, unfriendly parent apparently will be at a disadvantage in a custody fight.

While Texas and probably all other American states don't explicitly list that as a statutory factor to be considered in a custody fight, being a friendly parent certainly is an important component to be considered. It is clearly a factor considered by many judges and I have seen it have a major effect on custody decisions.

Why Being a Friendly Parent is Important

• It can help minimize stress for both parties and the children. Naturally, the less fighting there is, the less stressful the situation will be. Even if the parties disagree about some things, they can do so respectfully and at appropriate times and places. They can still make changes in their schedules with the kids and share information about school and the kids' activities, even if there are some underlying tensions. Kids don't need to participate in or observe their parents' disagreements.
• Parents can teach kids how to behave as adults by modeling good behavior with each other. There will always be some disagreements between parents and kids, and parents need to be able to count on each other and work together to provide a safe and secure environment for their kids.
• Cooperative parents can maximize their "quality" time with their kids. Instead of fighting over turf or trying to be inflexible to maintain control over the situation, parents can arrange to adapt their times with the kids to meet work, travel and family schedules. If a parent must work on a weekend, it makes sense to trade that time for other time when the parent will be available to be with the kids. Everybody has conflicts from time to time that can't be avoided. Being flexible with the other parent will create goodwill, future time trades and better times with the kids.

How Can You be a Friendly Parent?

• Be willing to changes schedules. Be flexible. Don't just insist on following the rigid court order.
  
• Don't keep strict score of who has the most time with the kids. Recognize that not all time is equally valuable. Make sure that the kids have valuable time with each parent.
  
• Figure out what the kids really want or would want. Keep their best interests in the forefront.
  

It looks like we could learn a lot from our friends in Australia. Being a friendly parent will pay dividends, not just in "winning" custody, but in raising children in the best possible environment.

IRS Forms and Information Resources

Jeanne M. Hannah is a family law attorney in Traverse City, Michigan who has written an excellent family law blog for a number of years. She recently gathered links to a number of IRS tax resources and publications and published them in her blog. The following is the text of her post of March 14, 2011:

The IRS has released updated publications and forms that help divorced and divorcing people understand and deal with these issues:

• income tax filing status
• the right to claim tax exemptions
• how to protect against tax liabilities arising from FOC intercepts of tax refunds on joint returns when, in fact the intercept is for child support arrearages of only one spouse and some of the tax refund belongs to the other spouse.
• how to claim "innocent spouse" relief from liability caused by unreported income by the other spouse are now available.

See, in particular, IRS Publication 504 Divorced or Separated Individuals [January 10, 2011]

Other recently published and/or updated publications or IRS Forms that family lawyers' clients will find helpful and informative are:

Injured Spouse Relief: IRS Form 8379 is filed by one spouse (the injured spouse) on a jointly filed tax return when the joint overpayment expected was applied (offset) to a past-due obligation of the other spouse (e.g., a tax intercept for unpaid child support arrearages. This is how the injured spouse recovers her tax refund. See also the instructions for using Form 8379 here.

IRS Publication 971. How to Claim Innocent Spouse Relief. [Revised February 2011]

Innocent Spouse Relief: IRS Form 8857 is used to request exemption from tax liabilities cause by the under-reporting of income by the other spouse on a joint return filed during the marriage. See also Instructions for Filing Form 8857

Other recently revised publications of interest to those recently divorced or divorcing are these:

Publication 501: Exemptions, Standard Deduction, and Filing Information [Published January 5, 2011]

Publication 544: Sales and Other Dispositions of Property, including transfers to spouse, rollovers or retirements accounts

Publication 555: Community Property, including information about how to handle income from separate property [Revised December 2010]

Publication 590: Individual Retirement Arrangements (IRAs) [Published February 3, 2011]

This should be useful information for anyone going through a divorce, considering starting a divorce, staring at an impending divorce or recovering from a divorce. For other interesting and helpful information, you can check periodically on Ms. Hannah's blog, Updates in Michigan Family Law. I highly recommend her work.

Starting with the Small Stuff

There's an old saying that has application to negotiations as well as other life issues. "How do you eat an elephant? One bite at a time." In other words, don't try to take on the whole task all at once. Take it a step at a time.

Seth Godin recently had a post on his blog that got me thinking about negotiations. His point was that people shouldn't start with fighting the impossible battles first. You should start with smaller battles and have some wins before moving up to the more difficult fights.

In many contexts, we are often admonished to "don't sweat the small stuff". That's usually good advice, but in negotiations, it sometimes works out better to start with the small stuff instead of the overriding issue that will eventually have to be resolved.

I have had many clients who insisted on starting on the biggest, most difficult overriding issue in negotiations to test the willingness of the other side to "be reasonable/realistic/fair", etc. These clients didn't really expect to reach agreements, whether the case was in mediation, Collaborative Law or just plain negotiations between the parties or attorneys. They say they don't want to waste time negotiating if they the other side isn't committed to doing the right thing.

Such an approach ignores the need to build a road to reach the goal they want. The road requires a foundation and planning. Roads are usually built in small sections, rather than building the whole road all at once. Negotiations in family law cases also require a foundation and planning, working a section at a time.

In a custody case, the parties may be able to come to agreements on how to share the powers, rights and duties of parents, even where they can't immediately agree on who should have "primary custody". (Part of the underlying problem may be the use of certain labels that make one parent appear to be inferior to the other, but that's a topic for another post.) If the parents will spend some time reaching agreement on the sub issues, such as the parental decision-making powers, how they share time with the kids and sharing involvement with extracurricular activities, for examples, they may not have such a big issue remaining.

When the parties have to negotiate property division terms, there will always be some assets that are pretty easy to divide, and that can make a good starting point. Beginning with some simple decisions can help build momentum that can lead to more progress on the bigger items. Working on furniture and personal property, or the IRAs that are in each party's name, can be a low-conflict point where they can readily agree. As the smaller items are eliminated, sometimes it becomes easier to resolve the other issues because the end is in sight.

Similarly, when dealing with taxes, retirement, debts, investments or many other issues, it makes sense to start with the small, easy-to-agree-to terms. Momentum develops and sometimes a little good will is created when each side sees the other side sacrificing or at least being reasonable.

When you are starting to negotiate a settlement in a family law case, your chances for success will be enhanced if you plan ahead and start work on some smaller issues so that your successes will build momentum to help with the bigger issues.

Having an Exit Plan

For a variety of reasons, some people get surprised or ambushed by the news that their spouse wants to get a divorce. No matter how unhappy a spouse may have been or how many times one or both spouses talked about divorce, it is not unusual for a husband or wife to be taken off guard by the announcement that their spouse is leaving and filing for divorce.

If you get hit by the unexpected news, or if you see it coming, you probably immediately start wondering what to do. Taking a rash or dramatic action is probably not in your best interest. Instead, you should take some small, defensive steps and allow yourself time the think and the opportunity to get expert help.

From an entirely unrelated source, the Attorney at Work blog, I recently saw an article about what an attorney should do if facing a loss of a job. The suggested emergency exit plan for an employment situation easily translates into some useful steps for someone to follow who is "losing" their marriage. Here are my slightly modified suggestions for an immediate exit plan in case of impending divorce:

1. Gather your legal documents. It's never too early to gather up what you can, make copies and then put them in a safe place, which could be with a friend. Even if your spouse is just "thinking about" getting a divorce, it would be wise to get all the financial records you can while you have your greatest access to them. Waiting is not a good idea. Documents tend to disappear.

2. Get a referral for a divorce lawyer. While you still have some time, seek out recommendations from friends and other people you respect. Do some research on line. Look at web sites and blogs to find out about what to expect in the process and to get a feel for how the author would approach a case. You can look at on line directories and rating services to get more information about possible attorneys.

3. Control and limit what you say. That is true about face-to-face discussions (don't escalate arguments), as well as on line opportunities, such as Facebook, Twitter, LinkedIn or listserves. Also, be very careful what you put in writing, including by texting. It's easy to do audio recording anywhere and to take movies and photos anywhere. You should always think about how what you say, do or write would appear if presented in court.

4. Protect personal information. That includes information on computers, laptops, telephones, etc. Don't leave personal information accessible. Use passwords and don't leave the hardware lying around.

5. Breathe. Remember the airline announcements just before takeoff when the flight attendants tell you to put on your own air mask ("in the unlikely event of an emergency") before you put your child's mask on him/her. In any crisis, it sure helps to stop for a second and take some deep breaths. It will help clear your head and reduce your stress level.

These are all helpful suggestions for a sudden potential divorce emergency, but the original article also has good ideas for anyone facing a job loss, an unfortunately all-too-common occurrence. Anyway, while you are initially searching for answers and starting to come up with a plan, these suggestions are a good starting point.

How to Save Money in a Divorce

Divorce and other family law issues really are tightly connected to emotions. They are obviously very personal and usually involve some hurt feelings. People do go through stages of grief when a relationship ends, and that makes it tough for a while for most people to operate effectively. Some people, however, have anger issues that make it almost impossible for them to function rationally in some situations. The anger may be triggered by financial consequences of their situation, or by perceived slights or the loss of relationships. Others are upset because of new responsibilities they must assume, or by their loss of assets they worked hard for, or maybe just by change itself.

Whatever the cause, it is often difficult to deal with family law issues on a rational basis. Because of anger or other emotional issues, people have trouble dealing with the big picture and often end up focusing on small details. Some people keep score, tracking their wins and losses as if every action were equal to every other action.

Even though many people do not understand this, family law cases are not competitions. It is possible for both parties to win or to lose in a divorce. If you add in children, both parents and the children can all win or lose. It is not necessarily a situation where there must be one winner and one loser. If you operate on a minute level and agonize over how to split the pots and pans, then you can have a "winner" and a "loser" regarding who ends up with the 6-inch sauce pan. On the other hand, if there is a focus on providing two homes with some pots and pans, keeping in mind that they are replaceable, it is possible for both sides to have an adequate set to start.

On an often more emotional issue, paying child support, how the parents approach the issue makes a huge difference with satisfaction in the outcome. If they have a common goal of providing adequate support from both parents to keep the child's standard of living as similar as possible to the pre-divorce standard, the parents can probably make an agreement that's satisfying or acceptable to both sides.

Some people start keeping score and believe that their case is a disaster if some rulings by a judge go against them. Some people will start to see a trend when two or three small issues don't go their way. Rational people know that they will win some and lose some, and that not all issues are as important as others.

The Lessons

1. You can waste a lot of money focusing on the small things. If you insist that your attorney fight over every small thing, it will be expensive. It's easy for an attorney to stay busy preparing letters and pleadings, making phone calls, and negotiating over pots and pans or small sums of money. (It's not fun for the attorneys, but it's easy.) In reality, you are better off financially putting your time and money into achieving your higher level objectives, such as getting an adequate share of the retirement assets, providing funds to pay for your child's college expenses or getting the house sold so each party can purchase their own home, for examples.

2. Fighting over the small stuff unnecessarily increases your stress level. Stress isn't good for you, but many people ignore that and plunge right into battles over minutiae. It's not worth damaging your health over small issues. It's easy to get lost in a jungle of small, but intertwined, issues, and you can easily get stressed out, if you're not careful.

3. If your attorney tells you to focus on the big picture, that's good advice. Your attorney is more objective than you and is in a better position to judge whether you have gotten bogged down in the less important issues. It's easy to get distracted and get off course, so pay attention to your attorney. If you have a vague feeling that things aren't going your way and you aren't "winning" enough, please talk to your attorney about it. Your attorney should be able to help you keep things in perspective.

You know the old saying about not being able to see the forest for the trees. There is a lot of truth to that. It can be costly and stressful if you get off track and don't focus on the big issues. You're a lot better off financially and health-wise if you look at the big picture instead of letting yourself be distracted by smaller issues.

What to Do if You Get a Bad Result

Most people, once they reach a certain age and maturity level, realize that there's not always a happy ending and that they don't always get what they want. And sometimes I would have to disagree with the Rolling Stones who famously said that if you don't get want you want, you'll get what you need. Unfortunately, sometimes there are just bad days and things don't go well for you in court or in negotiations. If you find yourself in such a situation, what can you do or what should you do? Here are some suggestions.

Prelude: Keep in mind that bad results are rarely fatal. As bad as things may be or seem to be, soon things will get better. Time passes and you begin to work out of the hole you may be in. Take some deep breaths and try to put the situation in perspective. Get some help from a non-depressing friend. (We all know some "downer" friends who always see the glass half empty. Don't go to them for support.) Sometimes, experiencing a real let-down opens up new points of view that can help you change directions and may lead you to great improvement in the future. In addition to this attitude recalibration, there are some steps you can take in the legal arena.

1. Have an attorney review the situation right away. You should act quickly because there are often deadlines of 7 or 30 days, or some other time period, for you to take action. An attorney can tell you if the "bad result" is normal or is something that should be attacked, or if any action is cost-effective. Find out what your options are.

2. Get a second opinion. Do it all over with a second or third attorney to make sure you have a thorough review and understanding.

3. You might file a motion for new trial or a motion to reconsider. That is a way to bring everything back before the court, but you should have something new to add to the hearing: new facts, new law or new analysis. You may have to file a motion for new trial if you want to appeal.

4. You can appeal. There are different types of appeals provided in family law situations. Some matters go to a court of appeals, and that's very expensive and time consuming. Other appeals are less formal and can go back to the district court. Your attorney can advise you about these choices.

5. Consider a motion to modify. That might require some passage of time and a change of circumstances, but the delay may help you gather information to support the need for change, and it would also give you time to raise money to pay your legal fees.

6. Try working with your (ex)spouse. Sometimes, people can be reasonable and recognize that a result isn't right or won't work. Sometimes they want to avoid the cost of litigation, so you may be able to work informally with the other side.

7. Consider using mediation or Collaboration. If you and your ex can't work well on your own, maybe having a mediator would help, or you could enter the Collaborative process, with each having your own attorney and other neutral professionals as needed. It doesn't necessarily take a war to undo a bad result.

Postlude: Part of the problem may be your perception. Make sure that your expectations are realistic. When you are talking with attorneys and other trusted advisors, ask whether they think you are being realistic. You may be asking for something that is way out of line. Do a reality check.

As you can see, there are several options for you to consider if things don't go your way. Don't overreact. Stop and think before acting. Get some good advice and then follow through. Good luck!