Beau T. Sinclair: Family Law Attorney

Over the last five years, I have become increasingly disillusioned with Child Protective Services.  I have seen many children left in extremely dangerous situations and even more children removed from families that did not need to be removed from those families.  I will go on in this blog to state some of my observations of the problems with Child Protective Services and in subsequent blogs I intend to address many of these areas specifically, giving examples and further explanations. It appears that despite the stated goals of Child Protective Services, the actions of Child Protective Services indicate that they have lost much of the compassion they profess for the families they are assigned to help.  Their actions often reveal a bureaucracy designed to cover their tracks as opposed to serving the public interest in the protection of children and maintaining family integrity.   Let me be clear what my problem with Child Protective Services is: it’s not just their compassion fatigue, but rather it is my dissatisfaction with bureaucracy, my fear of big government, and outrage at the escalating costs.  It’s more than concern regarding the number of families disrupted and destroyed or sorrow at the human and financial cost of intervention in normally sacred and private family matters.  It goes beyond disillusionment at the highly public failures to rebuild families and protect children.     The core problem with Child Protective Services is the manipulation of public consent and the consent of the families that Child Protective Services is supposed to be serving. I, along with many members of the public, am disillusioned with the way in which Child Protective Services and politicians have used moral and humanitarian arguments regarding child safety to extract public support and family support for emergency interventions in family matters.  After garnering that support, they then conduct those interventions in ways that ultimately displayed Child Protective Services’ true lack of commitment to those principles.   Most people do not realize it, but Child Protective Services routinely interviews children in schools without any parental consent or even knowledge that the interview is happening.  Often, these interviews are the result of a vague and unfounded report of child abuse or neglect.  It is not unusual for Child Protective Services to show up at a family’s doorstep and demand a drug test.  If someone asserts there is no need for a drug test, it is not uncommon for the caseworker to say, “If you refuse, we will just get a court order.”   This drug test is more than just a theoretical invasion of someone’s privacy: potentially innocent people are then asked to open their mouths so a government agent can put something inside their mouth and “swab” the inside of their cheek.   Child Protective Services must be reformed.  This reform begins with an increased respect for the integrity of family and the rights of individuals.  Meanwhile, if you have any interaction with Child Protective Services and wonder if you need a lawyer, let me help you out: yes, you need one.

Beau

[email protected]

1. Never do anything that is not in your children’s best interest.  This applies even if the other side engages in that type of activity by hiding the children, telling the children disparaging things about their parents, etc. This rule applies no matter how old your children are.  A 25 year old daughter is sometimes as devastated by her parents’ divorce as her 12 year old brother. 2. Treat the other side fairly.  Remember this is a FAMILY law case.  Often you will have continuing ongoing contact with these folks.  If you are fighting over the child, remember one day that child will be grown and getting married.  It will be nice if you can stand next to one another for pictures at the wedding; 3. Insist on being treated fairly.  No matter how lousy a spouse you may have been you deserve fair treatment.  For example, spouses who give their ex all the property, because they feel guilty about an affair, often become bitter years later because they were taken advantage of; and 4. Never … use “Just get this over!” as a decision making basis.  During litigation it seems like the litigation will never end.  But it will.  Don’t let the grief you are experiencing cause you to end the case in a way that will defeat your continuing interests. 

Given this approach, you need a lawyer who takes a long-term view of this family dispute.  Instead of responding to your pain with an attack on the other party, good family lawyers will listen and care for you. Experienced lawyers can help you understand what happened, what is happening and most importantly what is likely to happen in the future.  These lawyers can make sure that the conflict level is as high as it needs to be, without being higher than it needs to be.  Good family lawyers do not throw gasoline on the fire.     A lawyer’s staff and procedures are also important in helping a family law client during this chaotic time.  You should be treated as an individual, not a case number.  Your calls should be returned promptly and your questions patiently answered.  Many services are provided by an attorney and his staff as a matter of procedure; however, the best law offices provide these services because they truly care about helping their clients through a very difficult time. We know about this pain.  As anxious as we are to avoid feeling your discomfort, we need to connect with you on this most personal level.   If you become involved in a family law case, you do not just need a lawyer.  You need a lawyer with a “warm and tender hand.”

A growing area of family law is cases involving children whose parents were never married to each other.  In part, this growth has been driven by the destruction of the American family … divorce, children born out of wedlock, drug abuse causing the inability of parents to care for their children and worse.  These cases are cases in which the parent, or occasionally somebody else, seeks to establish and identify the legal rights of each parent to their child(ren).. In Texas, if a child’s parents are not married, there is a certain set of rights for each parent that is set out in the law.  Big picture, parents have identical rights and one parent can remove their child from the possession of anyone in the world, except the other parent. No one else has any rights to possession of their child. If the child’s parents are living together happily, this can work with only some inconveniences, such as conversations with daycares and schools.  However, if the child’s parents are not living together and not getting along, this can become a mess.  The child is essentially subjected to “tug-of-war” parenting.  “Tug-of-war” parenting is never good for kids. In situations like this, it is possible to go to Court and get specific rights, periods of possession, and child support issues outlined.  In Texas the law suit used is called a Suit Affecting the Parent-Child Relationship (SAPCR).  It is my experience that though divorce is bad for kids; SAPCRs are even worse.  The law is less developed in this area and the parents often have less history of commitment.   The first thing to know about a SAPCR is that not anyone can file such a lawsuit.  Most of these lawsuits are filed by the parents, followed closely by the Texas Attorney General filings (to insure child support is being handled).  Other filers, permitted by law are grandparents or another relative of the child; however, only if there is a significant problem with the parents, for example drug abuse, mental illness, or criminal behavior.   When Child Protective Services removes a child from the parents the agency files a SAPCR to get into a courtroom. Sometimes the initial area of conflict is selecting the correct Texas county in which to file the lawsuit.  The lawsuit should be filed in the county in which the child lives.  However, if the parents live in two different counties, the child is deemed to reside in the county in which the parent in possession at the time of the filing lives.  It doesn’t matter where the child has spent the majority of time, or where the child goes to school, or how much time the filing parent has actually had possession of the child.   This can create a huge problem. Frequently, the first time this type of case comes to Court is when the Attorney General’s Office seeks to establish child support.  Usually, this is because one parent has asked the AG’s office for help … but not always.  If the child receives any type of government assistance, such as subsidized daycare, or Medicaid, the AG will eventually get around to filing a SAPCR.   If you become involved in a SAPCR, seek the advice of an attorney right away.    It can be a costly error to not seek legal counsel at the beginning of this type of suit.  Additionally, there can be negative legal consequences to you, and your child, connected to what happens in the initial suit.  Often “undoing” what happened in the first suit is an extremely difficult and lengthy process. Never let anyone talk you out of speaking to a lawyer, or tell you that you do not need an attorney.  Furthermore, you should never sign any agreement regarding your child without having your own attorney review the paperwork.  Keep in mind, representatives of the Attorney General’s office, or employees of CPS, are not representing your interests.   Not only is it wise to have a lawyer, your child is depending on you to make sure you know what you are doing as you decide what is in that child’s (your child’s) best interest.    

Here is how “FindLaw” defines the term “family law.”

Family Law n: an area of law dealing with family relations including divorce, adoption, paternity, custody, and support - See more at: http://dictionary.findlaw.com/definition/family-law.html#sthash.7afprNm6.dpuf

Family law is the one area of law that most people will come in contact with.  Some come in contact with this area of law voluntarily and some are pulled into family law as a dispute grows inside their family.  The definition found in “FindLaw” is somewhat limited because family disputes sometimes spill over into other areas of law such as criminal law and personal injury law.

In my practice, most of the cases I see can be sorted into the following categories:

1.     Cases involving the breakup of a marriage:

a.     Divorce without children

b.     Divorce with children

2.     Cases involving children whose parents have never been married to each other.

a.     Paternity Lawsuits

b.     Custody Lawsuits

c.     Child Support Cases

3.     Cases that are follow-ups to the original lawsuit involving children – Modifications.

a.     Some of these are natural based on the child’s aging and conditions.

b.     Some of these are really resolutions of issues that were never really addressed in the original lawsuit.

c.     Some of these are vindictive and opportunistic lawsuits to continue making the ex miserable.

4.     Cases asking for enforcement of orders previously issued by a Court.

a.     Common enforcement suits include:

                                               i.     Non-payment of child support;

                                              ii.     Failure to follow the Court’s order regarding     when each parent has the child;

                                             iii.     Violation of a Court’s injunction such as “no       overnight visitors with a romantic involvement during periods of possession of the child.”

                                            iv.     Failure to surrender property as ordered.

b.     Most enforcements are civil lawsuits in nature but there are elements of “criminal conduct” … contempt.

In addition, the tone of the cases listed above can be changed and take on new dimensions based on some “special” participants. Here are some “special” participants:

1.     Other family Members;

a.     Grandparents;

b.     Siblings;

c.     Children (both adult children and minor children)

2.     Governmental agencies;

a.     Child Protective Services

b.     The child support Title IV agency (in Texas that is the Attorney General’s office.)

c.     Federal Agencies such as the IRS and Social Security.

What distinguishes family law cases from all other areas of law is the relationship of the litigants.  Family law cases are disputes with folks who know you well and generally, once loved you. Now for whatever reason, you are engaged in a technique of dispute resolution just one step short of violence – litigation.

Whenever I am trying to help people resolve their cases without further courthouse action, I remind them that I can think of almost nothing worse for children then having the people they love engage in courtroom destruction and vilification of their parents.

Family law is a fast growing area of the law.  Generally, that growth is in part driven by the destruction of the American family … divorce, children born out of wedlock, drug abuse causing the inability of parents to care for their children and worse.  

If you can avoid family law cases … it is probably a good idea.  The case will eventually end, but the residue of bad feelings generated will be around for years.  If you cannot avoid the litigation, hire a competent and experienced lawyer.  You need one.  

 Beau

[email protected]

I recently wrote about hiring an attorney in a family law case.  I haven’t changed my mind … If you are getting a divorce, or are involved in any type of family law litigation … you need an attorney.  Really, no exceptions.  Importantly, you need a competent attorney who you trust, communicate with in an effective manner, and handles your case professionally.  

Sometimes no matter how hard you work at picking an attorney … you get the wrong one. If that happens … you may need to fire that attorney and get another attorney.  This is a serious decision.  This decision will have consequences in your case that may include, cost, delay, making your case seem weak, or making you personally seem like a problem to the other side and the Court.

Still, sometimes changing attorneys has to happen. Here is how I suggest you proceed if you think you are having a serious problem with your current lawyer and you may have to get a new lawyer.

·       First … check yourself.  Since the attorney-client relationship is just that … a relationship, you probably have some part in this situation.  Have you been realistic?  Have you followed the attorney’s instructions? Have you changed direction?  Did you realistically tell the attorney what the case was really about when you hired that attorney?  Have you paid the attorney as requested?  Are you mistaking normal for a problem?

·       Next … check to see if the attorney is really the problem.  Sometimes people think the attorney is responsible for things beyond the attorney’s control.  For example, most delays are out of the attorney’s control.  Court’s reschedule cases all the time.  Everything in family law cases seems like it takes more time than it should to the client.  If you are unhappy with an outcome, look to see if the outcome of a hearing or trial was the result of the attorney’s actions, like preparation, or simply the result of the Court’s opinion.  

·       Next … talk to the attorney you have.  What is her/his view of the situation?  Tell the attorney you are considering changing attorneys.  Some attorneys get mad if you tell them you are considering changing lawyers.  Too bad, discuss it with them anyway.  In family law, the attorney-client relationship requires trust and open communication.  If you cannot discus major items, such as you problems with the attorney, how can you proceed to end the case successfully?  

·       Next … if your conversation with your lawyer doesn’t resolve your concerns, get a second opinion.  Your attorney should not be offended if you contact a second or third attorney in order to investigate to decide if you should hire someone else.

·       Finally, if you decide to fire your attorney and get a new one, do not bad mouth or complain about your old attorney during the remainder of your case.  Never! If something really bad happened such as attorney misconduct it will keep until after your case is over.

If you decide to get a 2nd opinion on your case, get a good one.  Use a lawyer with lots of experience and credentials. On occasion I am consulted for a 2nd opinion on an existing case.  Usually, the person consulting with me has some major issue with their current lawyer. When I am consulted for a 2nd opinion, I give a 2nd opinion.  This opinion consists of reviewing how the case is proceeding, the nature of the client dissatisfaction with the current lawyer, how I would proceed on the case and the potential outcomes of the case. I also remind the person consulting with me of the potential consequences of changing their lawyer mid-case.

In forming my 2nd opinion, I usually lean towards keeping the existing lawyer and repairing the relationship.  This saves money and often time.  If the client decides to fire the lawyer that is their decision.  I also tell the person getting the 2nd opinion, they need a new lawyer immediately.  

I hope this doesn’t happen to you.  I hope your first pick of a lawyer is wise and appropriate.  If unfortunately you must change lawyers, proceed carefully.  

If you really don’t know what to do, you can call me.  I will try to help you.

 Beau

[email protected]

If you are getting a divorce, or involved in any type of family law litigation … you need an attorney.  Really, no exceptions.  People I know and sometimes people who come to see me as potential clients occasionally ask me … Do I really need an attorney for a divorce?  My soon to be ex and I have agreed on everything.  These are famous last words.

I remind these folks that they once agreed on everything before … but they didn't keep the agreement.  I also remind them that if they and their soon to be ex were getting along all that well, they would not be called a soon to be ex. Seriously, divorcing yourself without a lawyer, ripping apart your assets and debts, along with you children’s lives without an attorney is like yanking your gallbladder out without a doctor. People who really understand what you are doing, will think you are crazy.

Once you are past the first question, the next question is how to pick an attorney.  Start by talking to your friends, colleagues and associates. The best attorneys tend to be recommended by people who actually know them, current clients, former clients and people who have come into personal contact with them. After speaking to some folks you will probably have a list of two or three candidates.

Next … a little research.  Check out the State bar website for any attorney you are thinking about hiring.  Generally, local and state bar associations maintain a record of attorney discipline and the years that an attorney has practiced. Expand your search to the internet world.  Look these potential lawyers up by name and see what shows on the major search engines.  Look for news articles, areas of practice and individual case stories that may have found their way to the internet.

Next … interview the lawyer.  Big picture, hire an attorney you will be comfortable with - both personally and financially!   Before you sign a contract with an attorney in a family law matter, ask about that attorney’s experience.  Ask about the attorney’s references. Ask about the fees - not only how much he/she charges per hour but how much, generally, you should expect to spend with the attorney. Ask how after hour emergencies are handled.

The first attorney you contact should not be offended if you contact a second or third attorney in order to investigate that "comfort level.” Look around to the extent you deem it necessary.  Family law litigation is very difficult.  You and the lawyer you pick will have to interact on personal and serious matters. Like it or not you and your lawyer will learn many things about each other.  Probably, some stuff neither of you wanted to know and would never know in another setting.  You have to get along.

Here is a list of some things to think about and discuss with any attorney you talk to:

1.     Certification … Texas and some other states have attorney certification.  That means an attorney has met certain standards of experience, competence and ethical behavior in a certain field.  For example, I am Board Certified in Family Law by the Texas Board of Legal Specialization.  Any licensed lawyer can practice family law but some are “certified.”  Depending on the complexity and nature of the issues you should consider these certification credentials.

2.     Focus … Even if not “certified” many firms focus on family law.  You can find out about that by asking the attorney you are speaking to about the percentage of cases in his/her office that are family law cases.  Likely, you will want to avoid if possible someone that practices family law as a small side practice. I usually advise people that if an attorneys case load is less than 80% family law and their case has any unusual or highly contested issues, that attorney is not appropriate.

3.     Ask any potential attorney about their familiarity with the Court, the issues and the opposing counsel.  The more they know the better.  

Once you have hired an attorney, make sure that you work at getting along with that attorney. Ask questions and follow directions. In the long run, the relationship you establish with your family law attorney is the most likely indicator of success in your case.  Good luck, if you need help picking an attorney anywhere in Texas you can contact me. I will try to help.

 Beau

[email protected]

Sadly, many times people end up dead in family law cases. Most of the fatalities are women. Each year the Texas Council on Family Violence (TCFV) gathers the sad data and publishes the data respectfully with a bit of information on each woman who died at the hands of an intimate partner.  Here is a link to their web-site … http://www.tcfv.org/resources/facts-and-statistics

 I just looked at the data for the last available ten years (2004 through 2013).  In Texas, 1,210 women were murdered in that timeframe.  To break that down … on average 121 dead women each year, 2.32 dead women each week.  That means if you are reading this on Wednesday, likely one woman in Texas has been murdered by an intimate partner and at least one more will be killed by Saturday.  

 The situation is even worse than the TCFV data indicates.  The TCFV data “only” counts dead women.  The data does not include women beaten again and again.  The data does not include children killed alongside their murdered mothers. The data does not include the deaths of intimate partners who killed themselves and the data does not include the death of other family members, sisters, brothers, and parents of the dead woman who died in a killing rampage.

 Since, I am a practicing family lawyer, with a large practice you would think I would know some of these women myself, and I do, at least three … Kenzie, Charity, and Jelena. Three women, all from my cases – dead.  I pray often, there will not be another one on my watch.  .

 So, what do we do?  The problem seems immense and insolvable.  Here are some of my ideas on where to begin. I welcome yours:

Men …

Resolve to stop this abuse of women.  If your sister, mother, niece or the neighbor is being beat or totally isolated and you know … make it stop.  Call the police, make your family aware, and let the potential abuser know you are watching.  Do not be part of the silence that surrounds these women and permits this abuse.  If you do not know what to do … you can call me. I will try to help.

Law Enforcement …

Officers, you know this problem first hand.  I know you probably become tired of listening to the he said/she said.  And after all, if she keeps staying with him, she is part of the problem. Isn’t she? Please … remember your training. She is powerless and in great danger. Decide on the side of safety and protection.  Make arrests … let the system sort it out.  I have spoken to officers, you probably have as well, who wish they had taken a stronger line with an abuser.

 Lawyers …

If a women, tells you about physical abuse, do everything you can to stop it.  Apply for protective orders, put her in touch with safe houses and call the police.  My experience tells me that one of the biggest problems you will have in dealing with an abused woman is the abused women herself.  She may want to go back.  Please do not get mad.  Remember, back in law school, we committed ourselves to protect the powerless.  Do everything you can to protect the powerless women right in your office.  

Judges …

Please do not get mad at abused women.  Please do not let someone talk you into some version of the “She is the problem” defense.  Impose consequences on the abuser.  Things like pay attorney fees, go to jail and give up your guns should be imposed for as long a period as necessary.  A three month protective order is no protective order at all.

I know everyone wants to believe that once the current litigation is over, the danger has passed and life can return to normal. So, it follows, we only need the protective order until the end of the case.  That is just not true and there are dead women to prove it.

 We all have a role to play.  We each need to think about how we will handle the next family violence event we encounter, and how we handled the last one.  We each as individuals need to resolve … NOT ONE MORE DEAD WOMAN … EVER!

  Beau

[email protected]

Don’t have a new boyfriend or girlfriend during a divorce.  As old fashioned as it may sound, you are still married.  

If you are in the middle of a divorce, you are going through one of the worst times of your life.  You are hurt, maybe humiliated, and ready to reassure yourself you are still attractive to other potential love interests.  The middle of a divorce is no time to find the love of your life. Almost surely, you will make your situation worse if you get yourself a new boyfriend or girlfriend.

When I tell clients not to have a boyfriend or girlfriend while their divorce is pending, here is what they sometimes say to me:

·       “My soon to be ex is having an affair. I can too.”

o   I reply … clear thinking shows this is illogical. My clients usually know on a global level that bad behavior on someone’s part does not justify bad behavior on their part.  They teach their children that, and their parents taught them that. Let me remind you of something you probably already know at some level … an affair on your part will not undo the hurt of betrayal.  It just makes you a perpetrator as well as a victim.  

·       “Sometimes life just brings you surprises at the wrong time.  I cannot let this person slip out of my life.”

o   I reply … this is likely wishful thinking. What is really unique about this time is your vulnerability.  If this person really is a long term love interest, they can wait.  If they will not wait then you need to let them go completely. If they will wait … then they really have to wait.  That means, no dates, no kisses, and no lingering looks. Just break it off with an appointment to meet four months after you are divorced.

·       “We are just friends.”

o   I reply … friends sometimes turn into lovers. You do not kiss friends.  You do not go on dates with friends.  Do not fool yourself.  You are very vulnerable.  

o   Facebook friends are public friends, be careful what you post and who you “friend.”

·       “I am in love.”

o   In reply … I remind clients that love is a commitment.  As the spouse of someone else, and a litigant in a divorce case, they are in no position to make that sort of commitment.  Divorce is so traumatic I usually don’t like my client to buy a new car, or get a pet … it is too big a commitment for someone in the midst of trauma. If a new car or pet is too much of a commitment, certainly a new love is not OK.

·       “Don’t worry, after what I have been through, I will never have a love life again.”

o   I reply … this is almost certainly not true. Often I hear this remark in the context of birth control. Sometimes, a woman client tells me she is using a long list of drugs, but no birth control.  So … What you are doing for birth control?  Then she says … “not having sex.”  This is a recipe for disaster.  Reminder … you are very vulnerable.  Men … same question applies to you.  Do not be surprised by a sudden romantic and irresistible encounter.  It never ceases to amaze me how many folks become pregnant or impregnate someone while in the middle of a divorce.

Affairs, even after separation, are used to extract concessions in property and child care negotiations.  If the case goes to trial, the Judge and the Jury will hate that you had an affair.  If it was a payback affair, the Judge and Jury will think both you and your soon to be ex deserve each other.  

Divorce is a life altering event.  You will never be the same again.  However, you will heal; things will get better; and one day love may come again.  Focus on yourself and your situation.  When the time is right, love will find you.  

  Beau

[email protected]

Most parents will tell you that one of their most important goals is to make the time a divorce is pending as painless as possible for the children.  Parents ask …

o   How will we care for the children while the divorce is pending?

Kids suffer as a result of their parents’ divorce. Parents who tell themselves … “the kids will be fine” are just fooling themselves.  Divorce is horrible for children.  Their worlds are changed forever in ways that no one can predict, including the persons that children depend on the most … Mom and Dad. The divorce may be necessary and best from an adult perspective, but it is almost never good for the children.

One of the worst parts of divorce for kids is the time immediately following their parents decision to divorce.  Eventually, the situation will stabilize; but during the divorce litigation, most things are at best “loosely” held together for the children,

Divorce cases take somewhere between two months and two years.  I tell clients to use six months as a planning number for the length of their case. That’s a long time for the lives of children to be up in the air, no matter how you count it.  This transitory state makes the fear and uncertainty for children worse.  Their relationship with extended families is strained, their school work is disrupted and now … they are going back and forth between two parents … and two households.  The Courts have predictable things they will do to help the children during this transition.  

In Texas, the primary vehicle used to handle the children and the children’s lives, while a divorce is pending, is the temporary orders hearing.  A temporary orders hearing will usually take place two or three weeks after the divorce is filed. At the temporary orders hearing, the Court will make orders for the children that the Court thinks are in the children’s best interest.  

Almost always, if the parents agree to how the children should be handled, the Court will go along with the parents ideas.  Usually, it is a good idea to agree with the other parent if at all possible.  After all, the Judge, well intentioned as he/she might be, cannot pick your children out of a crowd.  Your children … the children you love are only abstractions to the Judge.      

While each case is different, the Courts in Texas usually use the following approach in establishing, on an interim basis, the rights and duties of the parents, the possession time of each parent along with any unique conditions of possession, child support, and the provision of health care.  

1.     Rights and duties – The Court will establish the rights and duties of each parent on a temporary basis using a straight forward and somewhat simple analysis.  The idea is this … whoever has been the primary caretaker of the children should continue to be the primary care taker of the children unless there is a big problem.   Courts often look at the following:

a.     Disqualification – Is one of the parents disqualified to care for the children and how disqualified are they?  This often includes looking at illegal or excessive drug use, criminal conduct, domestic violence, mental illness and similar potentially major impediments to parenting a child.

b.     The history of child care in this family – who has always done what?  Remember the Courts know that disruption should be minimized for the children. Let’s keep the kids’ lives as stable as possible.

c.     Special conditions – such as breast feeding, medical training and infant care.

2.     Possession and Access – The kids should normally have access to everybody.  Most of the Texas Courts use the Standard Possession Order (about 40-45% possession) as a starting place for fit parents.  Some more adventuresome Texas Courts use a 50/50 starting place.  You and your attorney need to know the starting place the Court your case is assigned to uses.

3.     Temporary Child Support and Health Insurance – Whoever has been providing health insurance for the kids will be ordered to continue to do so absent some highly unusual circumstances.  Child Support is a numerical calculation based on the parents’ income.  If you tell an experienced Texas lawyer how much each parent makes, that lawyer should be able to tell you how much each parent will be ordered to contribute to the support of the children.  

These basic items ordered by the Court, will help you and your children as you navigate through a divorce lawsuit.  However, Court orders are no replacement for parental love.  No matter how angry you or your soon to be ex are … both of you have to get over it. The kids need you both.  

If your ex refuses to get over it, you still need to do what is best for the kids.  Remember … one day you will be at your son or daughter’s wedding, your ex will be there too! It will be nice if at the wedding, you and your ex can be cordial.  It will be even better if you and your ex can congratulate each other on putting your children above your differences.  

Beau

[email protected] 

How do I make sure that my routine bills like car payments and the house will be taken care of during the divorce process? Specifically,

o   How will the money be handled?

o   How will the bills be paid?

o   Who will pay each bill?

o   Who will live in the home?

Clients often want to know how long a divorce proceeding will take.  The short answer is “I do not know.”  Generally speaking, I tell clients to use six months as a planning number for the length of their case.  A divorce proceeding could and often does take much longer to complete.  Meanwhile, while the case is pending, there are a lot of things that go into a state of “limbo.”  This transitory state generates fear and uncertainty.  The Courts have some tried and true things that can be done to make sure the transition will be handled in an orderly manner.

In Texas, the primary vehicle used to handle interim allocation of income and assets, while a divorce is pending, is the temporary orders hearing.  A temporary orders hearing will usually take place two or three weeks after the divorce is filed. At the temporary orders hearing, the Court makes orders that routinely include payment of bills, allocation of the parties’ income and who gets to live in the marital residence.

While each case is different, the Courts in Texas usually use the following approach.

1.     The parties’ combined income while the case is pending is usually allocated to pay bills, then the balance is split roughly … 50/50 between the husband and wife.  That means if you make only a little each month and your soon to be ex-spouse makes a lot, some cash may be coming your way after the bills are paid.  These interim payments, after the bills are paid, from one spouse to another spouse are typically called interim spousal support.

2.     Everybody gets temporary and exclusive use of some property.  Generally, each spouse gets temporary exclusive use and possession of the car they are driving and personal property.  Business interests will likely be allocated, while the case is pending, to the person with the knowledge of the business and who is least likely to run a business into the ground.

3.     The marital home is usually allocated using the following model:

a.     First, if there are kids … the kids get to live in the house.  Divorce is disruptive for kids and everyone knows it.  The idea behind having the kids live in the house is simple … less disruption. Whichever parent gets custody of the kids, gets the house as well.  

b.     Next, if there are no kids, the Court will look at alternative housing arrangements.  If one spouse can stay cost free with a family member, while the divorce is pending, and the other spouse would have to get an apartment and pay rent, the overall cost of housing is reduced if the marital home is given to the spouse that would have to rent and the spouse with the family member lives there.  

c.     Finally, if the other two basis for decision don’t yield a result, the Court will look at who will likely end up with the house. The logic is that the party who will end up with the house will take the best care of the house, and be incented to preserve the value of the house.  

If you don’t want the “typical” analytical model to apply to you, you must tell the Court and convince the court why it should not apply that model in your particular case.  This can be done and is done often.  If you think your soon to be ex will be telling the court not to apply the analytical model, you must be prepared to defend that model.  

If you are getting a divorce, an experienced family law attorney will advise you on how to proceed to make sure the bills are paid. You need expert advice to make sure that the worse doesn’t happen while the divorce process moves along at what will seem like a snail’s pace.  

  Beau

[email protected]

Naked Pictures??? Yikes!

In a Courthouse battle over the terms of a divorce or any form of custody litigation, anything might happen.  Nothing that was done in private is likely to stay private.  

Divorce court cases and custody cases are one step short of all out warfare and … it is a small step.  If you and your spouse or ex-spouse engage in courthouse battles, do not expect anything to be off the table. A litigant who sees themselves as fighting for their children is unlikely to hold anything back, despite promises to the contrary.  Also, remember, you are in a courtroom battle with someone who likely knows your innermost secrets.

I am using naked pictures as an example but other examples include … details of sexual conduct, confessions of past criminal or irrational behavior, details of betrayals long since forgotten by the betrayed, every bad thing you have ever said about your family, including complaints about your parents treatment of you, medical records, discussions in front of a therapist, statements you made about your sister’s divorce and affairs, and the like.

This, public revelation of normally and previously private matters, is one of the reasons that these cases are better off resolved in private.  Once this type of stuff is used in litigation, it is hard to expect much cooperation in child rearing over the next few years.  But, lots of time, these things are used in order to leverage a case, or as an attempt for one side to prevail.  Let me illustrate:

·       Husband and wife are divorcing, the husband uses the wife’s secret college affair with her now bother-in-law to get a lower child support amount.

·       Husband and wife are divorcing, the wife uses questionable expense account reporting by the husband at work to threaten his employment if the husband insists on seeing the kids every week.

·       Mother and Father have been divorced for a while, Mother threatens to “post” photos of ex dressed as a woman.  Father is a policeman.  Mother insists that father must allow her to move 600 miles away with the children, or else.

·       Wife testifies she is afraid of Husbands temper. Husband enters naked pictures of wife sent in a text message, in a happier time into evidence to show she was never afraid.  The pictures are passed from Juror to Juror as wife sits and cries.

·       And … so on.

I would like to tell you I am kidding … but each of the above is a real life example. So, what do you do?  Here is the general plan, try if possible to settle without all out courthouse warfare.  If you do have to have a highly contested trial, man up or woman up as the case may be.

Although each of these items would feel humiliating in a courthouse setting, I can assure you everyone has some dirty laundry.  You are not the only one with these types of “private” or “secret” items.  The strategy for the case is still … always do what is best for your kids and insist on being treated fairly.   If you give in to “blackmail” now you can expect more latter.  

If you are afraid these items will be used against you or your kids during a divorce or custody battle, I suggest you consult with an experienced family law attorney to help you, if you already have an attorney … tell him or her the secret and the concerns you have. You need expert advice and your attorney needs to figure out how to handle these items. Courthouse surprises to your attorney are the last thing you need.  

One last thought on naked pictures, if you don’t what them used against you or published on the internet, or passed around … don’t take them … EVER!

Beau

[email protected]

Sometimes tempers flare and even normally sane and even tempered people do insane things during a divorce.  One joker at the Courthouse says … some divorce clients are crazy and some just act that way.  Divorce is a horrible life experience.  The litigants in a divorce are in crisis. People in crisis are unpredictable and sometimes destructive.  

Like it or not … emotions run high and people react in strange ways and do things that  when they look back on it years from now, they will regret.  Meanwhile, great damage can be done, expensive damage.  As a result, it is important during a divorce to make sure the property is protected and an angry soon to be ex cannot and does not destroy the value of the property.

Here are some things that should be done:

·       Take pictures of everything.

o   Pictures resolve disputes about the condition of items, the location of items and the existence of items.  I had a case once where the opposing party swore up and down that there never was a Rolex watch.  The story went out the window, when I produced a picture with the watch and a calendar on the front seat of his car.  

·       Make copies of important documents.

o   You can almost always get copies of important documents somewhere, but, it takes time and can cost lots of money.  If you make a copy, you will have it when you need it.

o   Documents also prove what property exists or existed, along with dates the property was acquired or disposed of.

·       Secure irreplaceable items.

o   Sometimes thing of little general value but great sentimental value will be destroyed by a vindictive soon to be ex-spouse.  If it is irreplaceable to you, secure it.  Get some temporary storage, a safe deposit box or keep it at a friend’s house.  

o   You will need to account for these items at the end of the case … but at least they will exist.

·       Change your passwords.

o   Data is valuable.  Accounts will allow transfers, changes and withdrawals if you have the passwords.  

o   A soon to be ex knows your mother’s maiden name; so now is a time for good passwords and security questions.  

·       Use your burglar alarm and your auto alarm.

o   Change the code, write to the alarm company and let them know that only you can make change.  Change the passwords and control terms.

o   Turn your alarm on.  If it is not on, it is of no use.  Keep in mind your soon to be ex knows you had a habit of not turning the alarm on.

·       Account for all keys to cars and garage door keys.

o   Make sure you have all the keys.

·       Get appropriate Court Orders.

o   Court Orders are just paper, they cannot stop destruction by someone determined to do it.  But they can make entitlement to possession clear and insure financial accountability.

 Last and not least … make sure you do not do anything to destroy the value of the property.  No matter what you soon to be ex does … do not be egged on.  You do not want to be the one answering to a judge for stupid and destructive behavior.  

Many times when I first meet with divorce clients, I am asked “Is this a fair way to divide our property?” The new client then presents me with some “division” that they and their soon to be ex-spouse have drawn up. My answer is always the same … “I don’t know.”

A fair division of property requires some things:

1.     First, you have to know what property is to be divided.

2.     Next, you have to know the nature of the property. Is it separate property, community property or what?

3.     Third, you have to value the property to be divided. How many apples is one orange worth?

4.     Lastly … you have to know what a “fair share” would be. Is it 50%? 55% because one spouse has a better job? Or what???

One of the most important things that needs to be done in a divorce is clearly identifying all the property and debt, then dividing it appropriately. You may not have a lot of money and assets to be divided but it is all you have. A restart of life after divorce takes many things. One of those things is money.

Experienced family lawyers in Texas, use a four step process in developing a property division.

·       First … you must inventory the property and debt.

o   Everything owned by the parties and all debt of the parties must be inventoried. No matter when you got it … no matter how you got it … just inventory it.

o   Do not make any prejudgments about who will get what. I cannot tell you how many times I hear … “that is his … it belonged to his grandma.” It doesn’t matter everything must be inventoried and divided.

o   If you fail to take something into account it may come back later to haunt you. I once talked to a fellow who did a “do it yourself divorce” and didn’t list his oil wells because they were “his.” He inherited them. Well that may have been true, but 90 days after the divorce was final, the unlisted oil wells were characterized by the Court as undivided community property and split 50/50 between him and his very happy ex-wife. The fellow saved about $3,500 on attorney fees with a “do it yourself” divorce but lost about $300,000 in oil wells.

·       Second … you must characterize each item of property and debt.

o   Once you have a list of property and debt you have to characterize it. Is the item “separate property” or community property? Sometimes this can be a complex analysis. You need an experienced lawyer for this. Don’t do this yourself.

·       Third … you must value each item of property and debt.

o   What is the value of each item? Approaches to determine the value of things range from looking the value up in the “blue book” to hiring a property or business appraiser.

o   Sometimes the parties will value the item differently. An item may be worth $40,000 to the wife and only $30,000 to the husband. This happens all the time. In such a case the wife can have it for $40,000 and the husband will take $40,000 of something else.

·       Last … you must divide the property and debt with a target percentage in mind. This is often done using a spreadsheet analysis. What is a fair percentage? Well, that depends. Maybe the wife has a better job than the husband and it makes sense to give him a bit more property. Maybe 50/50 is a good split. The Texas Courts usually start at about 50/50 and vary only slightly absent seriously bad facts.

If you are thinking about dividing property yourself … think again! You need an experienced family law attorney to help. Property division in divorce is too difficult for amateurs. You need expert advice.

Beau

[email protected]

At the beginning of a case, I try to sit with a client and develop objectives for the end of the case. The first objective I focus on is:

·       Protecting the children to the degree possible from the disruption and heartbreak associated with the divorce of their parents or ongoing custody battles.

Everyone knows that Divorce or any type of custody litigation is disruptive to children. This type of litigation undermines your children’s lives.

Almost always … I recommend the following strategy …

·       First, never never, and I mean NEVER, do anything that is not in your children’s best interest.

o   That means no matter what the other side does or does not do. Just because they say nasty things about you to the children is no excuse for you to do likewise.

o   Sometimes you will have the other parent over a barrel … maybe even your foot on their neck. Take your foot off. You will never regret it. One day you will be at your child’s wedding and they will be there too.

·       Next … don’t make a lot of changes;

o   The kids need to be left alone. To the degree possible, don’t move them. Don’t change their schools; and don’t change their routines.

o   Kids need stability and their world is changing way too fast.

o   Do not introduce the children to a dating interest. This can wait until the case is over and the children have had a chance to digest their new lives.

·       Lastly … do everything you can to encourage the children to have healthy and frequent contact with the other parent.

o   Never say anything bad about the other parent. Even if the kids tell you bad things about the other parent don’t encourage it. Watch out that you might even inadvertency encourage the kids to tell you what you want to hear.

o   Go the extra mile to make sure the other parent has easy access. Drive farther than they do. Inconvenience yourself more than they do and be as flexible as possible. Someday, the shoe may be on the other foot.

If you are involved in a messy divorce or custody litigation of any kind, I suggest you consult with an experienced family law attorney to help you set your case strategy. Divorce is a sad, difficult experience … you and your children need expert advice to make this terrible time for the kids less stressful.

Beau

Potential clients sometimes ask me … Can this case be won? Can you (meaning me) win this case? Can you beat the other attorney? I understand this line of questioning and why a potential client would ask those kinds of thing. I generally have a hard time answering questions like that. Mostly because … it depends on what you mean by win.

How do you know if you won a divorce case? Some things associated with “winning” are unlikely to happen in a divorce. No one got married to get a divorce, so by definition, there is some degree of loss for both husband and wife. At the end of a divorce or custody fight, very few people are happy. I always say if being married makes you unhappy … wait until you start the divorce process.

Usually, at the beginning of a case, I try to sit with a client and develop objectives for the end of the case. These objectives often include:

·       Protecting the children to the degree possible from the disruption and heartbreak associated with the divorce of their parents.

·       Making sure that custody arrangements associated with the case match the needs and best interests of the children … both short term and long term.

·       Clearly identifying all the property and dividing it appropriately.

·       Making sure the property is protected and an angry soon to be ex cannot and does not destroy the value of the property.

·       Making sure that the parties and children will be taken care of during the divorce process. For example:

o   How will the money be handled?

o   Who will live in the home?

o   How will we care for the children while the divorce is pending? and

o   What should be done to prepare for single life and life as a single parent?

Clients sometimes have some short term objectives that I urge them to leave behind … for example:

·       They had an affair and I want to get even.

·       I want to take her or him for everything they own.

·       He or she is a butthead and I don’t want them around our children.

·       I want to screw them to the wall.

Almost always … I recommend the following divorce strategy …

·       First, never never do anything that is not in your children’s best interest.

o   That means no matter what the other side does or does not do. Just because they say nasty things about you to the children is no excuse for you to do likewise.

·       Second, treat the other side fairly in the property division. In the long run, treating the other side fairly makes your healing from the trauma of divorce easier.

·       Third, insist on being treated fairly. Do not let the other side walk over you just because you do not want to fight or want the divorce to be over quickly. You may not have a lot of assets and money in the marriage but you will need your fair share to get on with your life. You will resent having given the other side more than their fair share.

·       Lastly … do not be in too big a hurry. I know this is painful but it will one day be history. It is more important to divorce properly than quickly

One of the questions I am frequently asked by potential new clients is "How much will this cost?"  The answer any experienced family law attorney will give is pretty simple ... if not very helpful ... "I don't know!"

The cost of family law litigation is driven by many things that are out of a lawyer's hands.  For some examples ... What is the opposing party going to do? Who will opposing counsel be? What Court are we in? Who is the Judge? (Some Judges will spend more of your money than others.) How much money will the other side spend? and so on ...

For these reasons almost all good lawyers charge by the hour for family law cases. 

When I estimate the cost of a case, I am really estimating the number of hours I think the case will require from me and from my support staff.  I can usually get pretty close based on my experience.  Over the years, I have tracked my estimates against the actual cost and while I am USUALLYpretty close, sometimes I am way off.  All the risk is on the client.  I get paid by the hour and unlike the Midas Muffler man ... my estimate is NOT guaranteed. Further, custody litigation is the most difficult to estimate because emotions run extremely high and sometimes the most unbelievable facts and parental conduct turn up during the case.

Usually when I give a client an estimate of the cost it sounds something like this.  "I think your divorce will cost you somewhere between $4,500 and $7,500.  My retainer (by which I mean prepaid deposit of fees to be earned) will be $5,000.  But ... I charge $275.00 per hour and your actual cost is based on the time I and my staff spend."

When you pick a family lawyer and consider cost here are some things that might be helpful to look for:

What is the hourly rate for the lawyer?

What is the hourly rate for administration and support staff?

How does the lawyer's office look? If the lawyer's office looks disorganized and chaotic, maybe the lawyer's cases are handled that same way.  Disorganization costs you money.

Is the lawyer experienced?  Less experienced lawyers tend to have lower rates ... but it might take longer to get things done.  Remember ... cost = rate x time spent.

What portion of the lawyer's case load is family law?  It is more inefficient if lawyers hadnle more types of case.  Inefficiency costs you money.

How conveniently located to the courthouse is the lawyer's office? Travel is usually billed at the hourly rate.  You should be sure to ask about the lawyer's policy regarding travel time.

In a divorce or for that matter any type of family law case the top priorities are children and appropriate resolution of conflict.  But ... if you run out of money in the middle of a case you are in trouble.  Cost and budgeting should be considered and planned for at the beginning of the case and are a major part of successful litigation.

Beau

In the middle of family law litigation, I often hear … “I just want this to be over!”  While this statement is understandable, it is a really bad strategy. 

Family law litigation is full of pain, physically and emotionally exhausting, and financially draining.  However, the best strategy is to remain focused on the long term.  Like it or not, most likely you will continue to have interaction with your adversary.  You may be raising children together; you may have extended family relationships.  You may have financial assets that require your continued interaction.

Experienced family lawyers know that the case strategy cannot be driven by the client’s natural desire to “be done.”  I often tell clients that all things being equal, the first party to become physically, emotionally or financially exhausted – loses.

I generally recommend the following case strategy:

1.    Do everything you can to encourage the other parent to see the children.  Often young parents are afraid that the other parent will see the children too much.  The studies are clear … once a child’s parents are separated; the children are likely to see one parent less and less as the years go by; the best thing for the children is continual and frequent contact with each parent.

2.    Insist on being treated fairly.  Even if you can end it all a little earlier by caving in on certain issues … don’t do it.  You will come to resent your decision down the road when you are in less pain and more yourself.

3.    Treat the other side fairly.  Just because you can doesn’t mean you should.  Don’t let the other party’s actions form the basis for your actions.  Remember you have to live with yourself.