Do You Need an Attorney for a Temporary Orders Hearing?

Yes!

This will be a short post.  I hear from people all the time who have gotten served with papers and went to a Temporary Hearing without an attorney.

Why without an attorney?  It usually is a lack of money, short notice or not knowing who to contact. 

What can happen?  You can be kicked out of the house.  You may lose custody even if you have been the primary or sole care provider for the children.  You may not get the child support or spousal support you need.  You may get stuck paying a lot of bills.  You may have restrictions put on you relating to the children or where you live or what you get to use while the divorce is pending.   And many other bad things can happen.

Why does that happen?  Because you don't have someone to speak for you who knows the law, the court rules and the procedures.  Judges try to be fair and helpful to everyone, but they have very little time for each case on their docket and there's no time to explain everything to you.  Also, Judges have to be impartial, so they can't do things for you.

Can you get the problems changed later?  Maybe, maybe not.  The sooner you act, the better.

What can you do?  You really need to hire an attorney.  Even if your spouse says he/she wants to work everything out, you need an attorney. You should hire an attorney before the first hearing.  If you don't have time, ask the Judge for more time.  They will often give you a week or so to hire an attorney.  You should take the process seriously because there are serious consequences.  This is not a good time to do it yourself.

What if you can't afford an attorney?  The stakes are so high, you need to find a way.  Courts generally won't appoint an attorney for you.  You should borrow money from friends, relatives, a bank or wherever else you can think of.  You can usually put attorney's fees on a credit card.  This is so important, you need to find a way to pay for an attorney so you really don't lose out.

When you are going to court, please don't try to do it without an attorney!

Be Informed About Alternatives

If you are facing a potential divorce or other family law issue, you should be considering what legal approach you will use to resolve it.  You actually have several choices.  Here are some comments about different options.  Fort Worth divorce and family lawyers should be able to discuss all of these options with you.  If an attorney tries to limit your choices, you should get a second opinion.

1.  Litigation.  The old standard approach is to use litigation, where one side files in court, sets a temporary hearing and serves papers on the other side.  That starts a cycle of hearings, motions, negotiations, conferences with the Judge and the gathering and exchange of information ("Discovery"), and then more hearings. Sometimes you have no choice.  Litigation is the default system that is used.  If the other attorney isn't trained in Collaborative Law, then you can't utilize it.  Your best approach is to search for a trained Collaborative lawyer who can help you decide whether Collaborative or litigation is the better approach.

2.  Collaborative Law.  This process is a way to stay out of court.  Both parties have to agree to be able to use this process.  We normally bring in a neutral mental health professional (MHP)and a neutral financial professional to work with the parties.  This approach is cost-effective because a lot of basic work is done without the attorneys present.  The parties will each meet with their attorney to discuss the financial and child-related issues.  Then the parties meet without their attorneys present with the financial professional to gather and organize financial information and with the MHP to discuss options on taking care of the children.  With information gathering and preliminary work done, the parties then meet again with their lawyers in joint sessions.

Collaborative Law turns out to be a very efficient process.  We use lower-cost, but more qualified experts to lead the effort on the financial and child-related issues, and then the attorneys help everyone consider the legal ramifications of the different options.  There are more choices and better quality decision-making.

3.  Mediation.  In Tarrant County, and most of Texas, parties do not generally go through mediation without lawyers.  In California and some other states, it is common for unrepresented mediations to occur.  In some cases, it may work out, but the more complicated the facts, the greater the need for lawyers is.  When there are retirement benefits, stock options, various investments with different tax considerations  and other substantial financial issues, the parties need more help than they can get from just a neutral mediator who is on neither party's side.  People with significant or complicated assets or liabilities should not attempt to divorce without legal advice.  A mediator cannot give legal advice to the parties.  A mediator only helps the parties come to an agreement, regardless of what the terms are.

4.  Direct negotiations.  This approach can save a lot of money.  All of the people mentioned in 1, 2 and 3 above don't participate.  On the other hand, someone is probably going to be taken advantage of, or someone will make a serious financial mistake because of ignorance.  Unless there's nothing at stake, this is probably not a good option.

5.  Using forms from the Internet.  There are a lot of bad, inaccurate or inappropriate forms out there.  Even the forms recently published by the Texas Supreme Court are not properly drawn, and are actually intended for a very small number of people.  Forms are often misused.  The results can be loss of assets, unenforceable orders and problems in collecting child support or getting to see the kids.  Unless you have no assets, no debts and no kids, you should avoid using forms to do your own divorce.

Don't Fear Mediation

In most divorce or family law cases, at least in Tarrant County, the courts encourage or require the parties to go to mediation.  There's always a line on a scheduling order to put a deadline to complete mediation.  The main reason for doing that is that the process works and very few cases actually have to go to trial.

Sometimes, attorneys don't do a good job of explaining how and why mediation works.  In case you are facing a half or full day of mediation and are wondering what to expect and how to act, here's some information that may help you.

1.     Voluntary process.  Although most judges, will require mediation, there is no compulsion in reaching an agreement.  No one can force you to agree to something you don't want to accept.  There will certainly be attempts to persuade both parties to come to agreement, but the bottom line is -- you don't have to agree to anything.

2.     Confidential process.  Whatever you say and do in mediation is confidential (with some very narrow criminal law exceptions), so both parties are encouraged to think and speak freely.  If you make settlement offers, they can't be presented in court against you.  Neither party can testify about what was said in the mediation, so you can make whatever offers and arguments you believe will help your case.  You can make a better offer in mediation than you might in court, if you wish.  That freedom can lead to creativity or more effective negotiations.  You also can feel safe in the process.

3.     Mediator neutral.  The mediator doesn't take sides or make a decision.  A good mediator will often play the role of "the devil's advocate" by questioning each party's positions and arguing like the other party might.  It helps both parties understand each other and can help break through deadlocks.  Dealing with a neutral whose job is to help both parties reach an agreement provides a safe and productive arena for settlement.

4.     Gaining information.  During a mediation, both parties tend to learn more about the other party's positions and motivations.  Mediation often provides a way to get quick and direct responses and information about issues.  That normally doesn't happen in court.  Almost always, mediation helps both parties understand more about each other.  That's helpful even if you don't settle.

5.     Cheaper than a hearing.  Mediation is somewhat costly since you have to pay for your attorneys and the mediator. Still, there is greater preparation required for trial and a greater time commitment for you and your attorney if you go to trial.  A trial is infinitely more stressful than a mediation.

If you have mediation coming up, or your attorney is talking about mediation, you need to prepare for the mediation, but you should welcome the opportunity to come to an agreement in a relatively pleasant environment.  Good luck!

How Do People Find Us?

We have made suggestions previously in several posts about how to find and choose an attorney.  After some analysis, I figured out out that these methods seem to be the most common used by clients to find us.

1st Method:  Start with names. Potential clients regularly ask others for recommendations.  They talk with:

• attorneys, 
• counselors, 
• religious advisors/leaders/ministers/rabbis/priests, 
• relatives, 
• friends, 
• neighbors, 
• physicians, 
• CPAs, 
• realtors,
• and others.  

Basically, they talk to people they trust or ones they think would naturally know the best attorneys.  Or they may just go to someone they know has had some experience in the legal system.
Once potential clients get some recommendations, and before calling for an appointment, they usually will check up on them on line to see if the information there is consistent with what the client has been told.

2nd Method: Research on line.

• Potential clients will start by searching on line, using Google, Bing, Yahoo,or some other search engine.They may start generally, such as "Fort Worth Divorce Lawyer" (or some other locale).  
• Once clients get some possibilities, they usually will investigate on line to find out about the attorneys' experience and whether they are a Board Certified Specialist in Family Law.
• Clients will also usually look at the attorney's web site.  They want to be sure that the attorney communicates well and can speak understandably in plain English.  They also want to see if the attorney answers questions and provides information in his/her web site.  Of course, if there's a blog, that's bonus information!
• Final step before calling-- check with trusted friends and advisors to get their opinion of the quality of the potential attorney.

As you can see, our experience is that people will generally research on line and ask for recommendations, which is a smart strategy.  It doesn't matter which order the search is conducted.  The main concern is that you check on the attorney and sample his/her written materials before you make the important in-person visit.

Note:  Please tell the attorney who recommended him/her.  Most attorneys are interested in that and like to thank their referral sources.  The sources will be pleased that you trusted their advice as well!

How Not to Start a Divorce

There are many articles about how to do various things, including getting divorced.  This is a "what not to do" article: 10  things to avoid that will save you a lot of grief when you start a divorce.

1.  Don't destroy records, including emails and other electronic information.  Emails and website postings are becoming more and more important in divorce litigation, and you can't destroy information like that. Helpful or hurtful, you need to not delete information. You will get in trouble with the Judge for that.  Check with your attorney if you think you need to delete things.

2.  Don't hide the kids.  A common concern of judges is whether parents are willing to cooperate with each other and share children.  If one parent runs off with the children, that is normally held against the hiding parent.

3.  Don't clean out all the bank accounts.  Each party needs some money to pay bills and survive.  If either party starts to empty bank accounts, the judge will often take money away from the money grabber, and the judge won't be happy with that person.

4.  Don't blow up and get angry with your spouse or make threats.   That will probably only lead to more conflict.  Anger and threats don't lead to compromise and reasonableness.  Fighting costs more money.

5.  Don't hide assets.  Most of the time, the assets will be found.  If a judge suspects you have hidden assets, he or she has ways to even things out, and you can be punished.  It's not worth the effort in the end.

6.  Don't hire the meanest lawyer in town unless you just want to spend a lot of money and reduce the community estate.  Sure, you can whip up on your spouse and make him or her miserable, but it will end up costing you a lot more money than if you tried to work things out.  Fighting is expensive and your aggression will likely lead to aggression in response, which won't be fun for you.

7.  Don't try to represent yourself.  Like it or not, Family Law is complicated.  If you have no assets, no kids and a fairly short marriage, you might get by without a lawyer.  Otherwise, it will cost you a lot more in the long run when mistakes have to be corrected or when you realize you gave up something, or paid for something, that you didn't have to do.

8.  Don't lie to your lawyer.  You may be embarrassed or you may think you can sneak something by, but lies almost always come back to bite you.  Save yourself some time and money and be honest with your attorney all the way through.

9.  Don't lie to the judge or another court official.  Worse than lying to your attorney is lying to the judge or other court official.  When that is uncovered, you will really be in trouble.  In addition to potential criminal liability, see the last paragraph below.

10.  Don't try to poison the children against the other parent.  Keep them out of the middle.  Judges hate to see kids used as weapons.  More importantly, it's damaging to the children.  For their sake, don't do it.

Very Important!  You may have noticed the refrain above about the judge getting mad or unhappy or not liking something.  That's an important factor because judges have a lot of discretion about how things will be divided or allocated or awarded on both a temporary basis and at final hearing.  That gives the judge a way to even things out, or favor someone who the judge may believe was mistreated by the other spouse.  Think about whether you want the judge to be making rulings if he or she is mad at you!

What to do if Your Spouse Files for Divorce

Sometimes you are happy, and sometimes you are mad or sad or in shock or in denial.  People react differently when they find out that a divorce is about to start up.  No matter what your initial reaction is, you need to start preparing right away.  Here are some quick tips you can follow to get ready.

1.  Gather basic information.  You will probably need statements for all your bank accounts and credit cards for at least the past 12 months.  If you can get up to 3 years easily, without a great cost, go ahead and get them.  You should also get copies of your income tax returns for the last 3 years.  Be sure you get all the attachments.  Computer records, such as emails, can be helpful, but only look at and copy ones that you have authorized access to.  Don't hack into your spouse's private or business accounts if you have not been given access to them.  Collect whatever documents you can and put them in a safe location, probably not at home.

1. (Tie)  Contact an attorney immediately.  Find someone who is qualified and experienced for the issues of your case.  If you want to use Collaborative Law, make sure the lawyer is trained and experienced in Collaborative Law.  You need to have a way to pay for the attorney.  That usually can be by cash, credit card or money borrowed from family or friends.  Make an appointment right away and hire a lawyer.  Don't try to represent yourself.  A good lawyer will probably charge for a consultation because the initial consultation is usually a substantial amount of time and the lawyer will discuss strategy and analyze the facts of the case -- it's not a social visit.  Be prepared when you meet with your prospective lawyer.  Bring a list of questions and concerns.

3.  If possible, make sure you have control of some cash.  That's to pay your living expenses, attorney's fees and other costs that may come up right away.  Don't clean out the accounts, but take half or whatever you reasonably need to get by. Make sure your spouse still has some resources to pay bills.  If your spouse has already cleaned out most of the assets, then take control of what's left. However you start, make sure you can account for how you have spent money and where the remaining funds are located. Don't give money away or hide it.  Judges often get mad when someone takes all the money or hides it.  You don't want to start off with the Judge mad at you.

4.  Stay on good terms with your spouse, if possible.  It's usually a good idea to try to cooperate and be amicable, but take steps to get out if it's dangerous to stay.  If you can keep a cordial working relationship, it will help your divorce be less stressful and less costly.

5.  Figure out your needs and what's important to you, so you can discuss those things with your attorney.  You will probably need a budget, so it would be helpful to start on that right away.  Do you need to pay certain bills, or will you need to purchase some furniture or other things for starting over? Think both interim, while the divorce is pending, and long-term.  Don't worry about getting all needs listed perfectly.  You will probably change priorities and needs as the divorce progresses, but you need the basics to start out.

Whenever you find out that a divorce is in the works, don't sit still.  Get active and take steps to protect yourself.  Delay can lead to problems and missed opportunities.  Moving quickly can give you some advantages as you get started.  Good luck!

Why You Should Use Mediation

Mediation is a common process used in the Family Courts system in Texas.  It involves having a neutral third party meet with the two sides and their attorneys.  In North Texas, we use mediation in most Family Law issues.  Here's why.

1.  It's effective.  Probably close to 90-95% of cases mediate will settle.  That means that the parties finally figured out a way to compromise and resolve a case before trial.  Mediation facilitates that.

2.  Mediation saves time and money.  It is much quicker and cheaper than going to trial.  Normally, mediation will take place weeks or months before a trial date.  It is much easier to find a good mediator who has time available than it is to find an open setting date on a court's docket.  Mediation also normally takes less preparation than a trial, so that saves money as well.

3.  You and your spouse (or other party) control the outcome.  Most people find that preferable to letting the judge make the decision.  A judge's decision usually makes both parties unhappy.  Your choice is to make your own decision or turn it over to the judge who doesn't know you and probably doesn't care about you.

4.  Most local judges require it.  Because the court dockets are so crowded, most judges require the parties to go to mediation before they can go to trial.  Sometimes, judges want mediation even before a trial date is set.  The reasons:  mediation works and it saves time and money.  Pretty simple.

5.  Mediation is a safe, private and peaceful process.  The discussions are confidential.  A mediator manages the process.  In North Texas, most of the time, the parties are not in the same room.  Peaceful solutions can be found in the mediation process.

Why mediate?  Judges don't have time to hear everything, and the process produces good results.  It's not 100% effective, but it generally beats going to trial.

Thinking Ahead

It's the time of the year when many people are holding back on making a decision they really want to make.  They are putting off filing for divorce until after the holidays. Nevertheless, they are still thinking about their options.  If you find yourself considering the possibility of divorce, here are some things to think about until the holidays are past.

1.  Counseling.  It's never too late.  Sometimes counseling for you will help alleviate the problems and stress.  Sometimes couples counseling works, if both sides are willing.  Sometimes the party who needs counseling won't recognize it.  If you think it's your spouse who needs counseling, please consult with a counselor to discuss the situation.

2.  If you are going to divorce, there are a number of process options.  For a current review, see my blog post in the Texas Collaborative Law Blog here for the December 22, 2012 post.

3.  What issues will come up in a divorce?  Here are some to think about:

• Investments
• Retirement funds
• Real estate
• Debts
• Taxes
• Businesses owned by the parties
• Professional careers
• Personal property
• Collections
• Guns
• Household furniture and furnishings
• Child custody
• Visitation
• Child support
• Pets
• Alimony
• Insurance

These are issues that you should start thinking about if you are considering or facing a divorce.  Your attorney will discuss them with you.  It would also be helpful for you to gather any documents that you can find that relate to any of the issues.  That will help you and your attorney prepare for a settlement or court.  It's also a good idea to gather and copy records before they disappear in the confusion once a divorce is filed.

Watch Out for the Side Effects!

I just read about a new App for a smartphone this morning.  This App was developed in California to help people figure out how to divide up their property as they go through a divorce.  It's really intended to replace an attorney's role in the process.

As admirable as that may seem, there is a great potential for creating major problems in some cases.

Full disclosure:  I am a divorce attorney and I am paid to help people undo their marriages.  But, the people who are wanting to do their own divorces don't want to hire me or any other attorney, so their decision has no real effect on me.  I'm not losing any business because they wouldn't have hired me anyway.  I do think people in short-term marriages, with no kids and little or no property, can probably do their own divorces, if they are so inclined.

This post is not to save business for me.   I am writing this so that people with children or some significant assets or debts can make better decisions on the best course of action for themselves.

Here are some possible side effects for an untrained person using some tools and trying to work out their own divorce.

1.  Tax consequences.  No one likes surprises from the IRS.  Unfortunately, tax issues are lurking everywhere in divorces.  Paying the other spouse some money may be alimony or it could be property division.  There can be taxes owed if it's not done right.  Different retirement assets have different tax consequences which can also affect the net value of those assets.  Real estate sales may trigger capital gains taxes, now or in the future, and that may affect the net value of the land. The parties need to consider their tax basis in various investments when they are doing a property division.  Tax consequences probably won't be much of an issue if someone doesn't have any of these assets.

2.  Enforceability.  In divorces, it's not uncommon for disputes to break out post-divorce about whether agreements are being followed.  The terms of the divorce decree must be clearly spelled out with proper language in order for them to be enforced.  In many cases, there needs to be some collateral or something available as a back-up. Again, if there are no significant assets, this is probably not an issue, although people will fight over anything, as you probably already know.

3.  Extra paperwork.  Many people assume a judge will simply divide everything in half.  That's one way to divide things, but it rarely happens in court.  People can decide to agree on their own to do that, but it may cause a lot of extra paperwork to complete the divisions.  There are often simpler ways to do the property division, which can be handled by an experienced attorney, but which a private party may know nothing about.  Extra paperwork means more opportunities to mess things up.

4.  Remaining connected.  As badly as one or both parties may want to be divorced and separate and independent individuals, they may end up connected for a long time due to property or debt issues that are joint.  An experienced attorney may be able to help them come up with ways to be apart.  Doing things on their own, the parties may end up still connected.

5.  Incompleteness.  Maybe the most common problem for people doing their own divorces is the failure to take all the necessary steps.  Forms may be incomplete.  Language in the decree may be incomplete.  And sometimes there are some obvious  problems that are overlooked.  Once again, with no kids and with little or no property, there may not be a problem.  Otherwise, count on problems.

These are not all the problems that can occur when people decide to do their divorce without an attorney.  In very simple cases that may be fine.  In all others, it is risky.  In addition, it is common for one party to take advantage of their spouse when the party has greater knowledge, experience and control.  Divorce is such an important event, it shouldn't be done without a lot of thought and help.

Footnote:  Each state has different divorce laws which can affect the outcome of the case.  Using California, New York or even Oklahoma law for a Texas divorce is virtually guaranteed to be a disaster.

5 Top Myths about Litigation

I often run into a client or potential client who seems unreasonably confident about the outcome of his or her divorce case.  The reason usually is that they have heard and believed some common myths about how the divorce litigation system works.  At the risk of damaging some happy feelings, I find it's necessary to expose some of the worst myths.  Better to be disappointed now than to continue to count on something that will never happen!

1.  The Court will figure out/discover the "truth".  Unspoken is the assumption that the truth found by the Court will be the same one believed in by the party.  In reality, Courts often find facts to be different from what one or both of the parties believe, or a Court may decide it hasn't been convinced by sufficient evidence one way or the other.  Truth is usually in the eye of the beholder, and Courts very often disagree with the parties about what the truth is.  What is obvious to a party may be completely invisible to a Judge, so don't count on a Judge automatically agreeing with your view of the truth.

2.  Justice will prevail.  Just like with truth, there is no universal, indisputable "justice".  Don't assume that a Judge's decision will coincide with your view of justice.

3.  The Court will divide everything 50-50.  There's nothing in the law that requires a 50-50 split of property or debts.  The Family Code calls for a division that is "just and right", a  standard equally as vague and undefined as "justice".  The Judge actually has a lot of discretion about how things are to be divided.  There is no concrete, black-and-white answer.

4.  The easiest solution is to just go to court.  HA!  There's a lot of preparation for both sides and you can expect to wait many months for your day in court.  Settlement, while sometimes emotionally difficult, is much better than preparing and going to court.

5.  I know what will happen because of what happened in my sister's (or best friend's or neighbor's or hair dresser's, etc.) case. No two cases are alike.  The facts are different and the cases are probably in different courts, with different parties, different attorneys and different issues.  Don't assume that what worked for someone else will work for you.

So, what can you do if you can't rely on these handy my?  Talk with an attorney and get some qualified advice.  Follow your attorney's advice.  Do yourself a favor.