When you need a lawyer, you may not even know where to begin. There are so many lawyers out there. We see ads on billboards, in magazines, online and on TV. But how do you determine which attorney is the best fit for you?  If you find yourself facing a divorce or a lawsuit involving your children, you need a family law attorney. There are many wonderful family law attorneys in Collin County and Denton County, but it’s important that you find an attorney that is right for you. As family law attorneys, we handle cases very dear to our clients: cases involving children, families, adoptions, terminations, etc. It is absolutely critical that clients interview attorneys until they find the right fit for them. Just like one key doesn’t fit every lock, one attorney is not the right fit for every client.

Finding a great attorney

So with all of the options out there, how can you find a great attorney?  In addition to researching an attorney online, personal referrals and referrals from attorneys in other areas of law are two great options.

Personal referrals – Talk to people in your community, including friends and family. They may have been in your shoes and know an attorney that they highly recommend. Ask specific questions about any attorneys they refer to you. Get as much information about each referral as possible, narrow down the list based on what you are looking for and then meet or talk with with at least one attorney yourself to see if you agree that he or she will be the right fit.

Lawyer referrals – Another good way to find a great lawyer is to ask another lawyer. You may know a lawyer who handles corporate law but not one who handles family law. Ask that corporate lawyer. That lawyer will almost certainly know some excellent family lawyers. The attorneys at The Draper Law Firm, PC pride ourselves on referring our clients to attorneys in other areas who have integrity and who will be great advocates for their clients.  We want to send people to attorneys who we know will take good care of them, and we know most other attorneys feel the same.

What should you look for when choosing an attorney?

Attorneys are definitely not one-size-fits-all.  There are a number of factors that may go into deciding which attorney is right for you.

Attorney Philosophy – Finding an attorney with a great general philosophy for handling your types of cases is one of the most important things you can do.  Does the attorney prefer to start amicable to try and reach agreements whenever possible?  Or does the attorney start aggressive and prefer addressing things in court?  The attorney’s philosophy is so important when deciding if that attorney can help you meet your goals, and certain philosophies tend to be a lot more expensive in the long run than others.

Size of Firm – The size of the firm may be an important factor in your decision.  Larger firms tend to have more support staff, fancier offices, and partners with lots of litigating experience, but larger firms (especially those experienced partners) usually come with a higher price tag.  Smaller firms and solo attorneys may or may not have just as much experience and may or may not provide more personal service.  Ask your potential attorney about his or her experience and how other attorneys and support staff in the firm may be involved in your case.

Communication – You have to be able to trust that your family law attorney has your best interest at heart. When the need for a difficult conversation arises, your attorney should be able to deliver the news in a way that resonates with you and take time to thoroughly explain the situation. Communication is key! You want to find an attorney who will communicate with you in a way that is effective, who truly listens to you, and who keeps you updated about what is going on in your case.

A good attorney will advocate for you and focus on your best interests and your goals.  By doing your due diligence, you can find an attorney that will be the best fit for you.

The Draper Firm

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If you ever find yourself involved in a family law matter (or you can envision yourself ending up in one down the road), you may wonder what you should or should not do.  Although many of these DOs and DON’Ts may seem obvious, rest assured all of these issues have actually come up in real family law cases in Texas (many of them multiple times).  With the input of dozens of Texas family lawyers, I have compiled the following list of DOs and DON’Ts to keep in mind:

DOs

  1. DO hire an attorney.  If you do not have the funds to hire an attorney, borrow them.  Take out a loan, borrow from your parents, etc.  Pro se divorce forms and google research are no match for a licensed attorney on the other side.
  2. DO follow your attorney’s advice.  There is a reason you are paying your attorney.
  3. DO tell your attorney any bad facts that exist for you in your case.  Attorneys do much better with that information in advance and do not like to be surprised by it in court.
  4. DO assume anything you put in writing will show up in a courtroom and be seen by a judge.
  5. DO keep a journal with dates and important information that you write down shortly after it has happened.
  6. DO use social media with extreme caution.  See No. 4 above.   Perhaps consider getting off social media completely.
  7. DO communicate with the other party in writing whenever possible.  Not only can it back up your position, but the best exhibits in court are often what the other side has put in a text or e-mail.
  8. DO keep texts and e-mails.  It is a good idea to screen shot important texts and e-mail them to yourself, as deleted texts can generally not be recovered.
  9. DO consider opening up a new e-mail address exclusively for communicating with your attorney.
  10. DO assume anything you say is being recorded.
  11. DO consider saving your questions and combining them into one e-mail or phone call for your attorney on a periodic basis rather than sending countless e-mails or making constant calls.  It will cost you a lot less for your attorney to respond to one lengthy e-mail or have one longer phone call on a periodic basis than to respond to multiple e-mails or calls daily.
  12. If you choose not to follow the advice in No. 11, DO remember not to get upset about it when you get the bill.
  13. DO try and obtain current statements and screen shots for all accounts.
  14. DO remember that your lifestyle is going to change significantly if you are getting divorced.  What once supported one household will now have to support two.  Start making a budget for post-divorce so you can figure out what life will look like for you.
  15. DO start actively looking for a full-time job if you have been a stay-at-home-parent.  Generally, you cannot be a stay-at-home-parent after divorce.
  16. DO remember you are not going to get everything you want.
  17. DO make a list of priorities to figure out what is most important to you.  See No. 16 above.
  18. DO focus on putting yourself and your children in the best position to move forward, instead of focusing on punishing the other party.
  19. DO remember that the court can’t miraculously make more money appear.  You can’t get reimbursed for $250,000 if the estate is only worth $100,000.
  20. DO assume you are being followed by a private investigator and act accordingly.
  21. DO provide whatever your attorney has asked you to provide by the deadline your attorney has given you.
  22. DO know your children’s teachers and doctors and be actively involved in your children’s lives, especially if you want primary custody of them.
  23. DO whatever you can to be a good co-parent with your ex.  Be the bigger person when needed.  Your children will be better for it.
  24. DO remember that you chose to marry this person or have babies with this person, and now you will have to deal with this person for the rest of your life.
  25. DO pay your attorney according to the terms of your fee agreement.  If you don’t, do not be surprised when your attorney withdraws.
  26. DO realize that your children love their other parent, too, and encourage that relationship as much as you can.

DON’Ts

  1. DON’T lie to your attorney.
  2. DON’T lie to the court.
  3. DON’T talk bad about the other parent in front of the kids or within ear shot of the kids, and DON’T allow anyone else to do so either.
  4. DON’T agree to take a drug test without first telling your attorney you have been doing cocaine (or meth or pot or some prescription drug for which you do not have a valid prescription).
  5. DON’T hack into your ex’s e-mail account.
  6. DON’T put stupid things in writing.  See No. 4 under DO’s above.
  7. DON’T compare your situation to your friend’s or family member’s situation.  Your situation is not the same.
  8. DON’T assume that your google research is better than your attorney’s research.
  9. DON’T start out messages to the opposing party with “I probably shouldn’t say this.”  If you have to say that, then don’t say it at all.
  10. DON’T date someone else when going through a divorce.
  11. If you are going to ignore No. 10, DON’T flaunt it, DON’T introduce the new boyfriend / girlfriend to your kids, and definitely DON’T bring your new boyfriend / girlfriend to court.
  12. DON’T post something, take a picture of something, or put anything in writing that you would not want the judge to see.
  13. DON’T bring your minor child to court unless you have been specifically ordered to do so.
  14. DON’T get pregnant with someone other than your current spouse.  A woman can’t get divorced until after giving birth, even if everyone agrees the husband is not the father.
  15. DON’T get pregnant with the spouse you are currently divorcing.  You will not be able to finalize the divorce until after the baby is born, and things just got more complicated.
  16. DON’T sleep with the opposing party, especially if you just had your attorney obtain a temporary protective order or temporary restraining order against him or her.
  17. DON’T listen to your sister’s boyfriend’s cousin’s friend about what should or should not be happening in your case.
  18. DON’T spend money or incur debt for anything other than reasonable living expenses and attorney’s fees.
  19. DON’T make it about revenge.
  20. DON’T ask your attorney if you should do something and then blatantly disregard his or her advice.
  21. DON’T expect your attorney to be able to do anything for you at night, on weekends or on holidays.
  22. DON’T drink and drive, not even a little.
  23. DON’T post pictures of your new boyfriend / girlfriend on social medial during your divorce.
  24. DON’T let your new significant other dictate how you co-parent.
  25. DON’T alienate your children from the other parent.  It is in your children’s best interests to have a good relationship with both parents.
  26. DON’T be petty.  Focus on what is really important.
  27. DON’T use bugs or tracking devices on the other party or your children.
  28. DON’T do drugs.  This includes pot and prescription drugs for which you do not have a valid prescription.  A positive drug test can be a ticket straight to supervised-only access to your children.
  29. DON’T assume an attorney will work for you for free or do pro bono work for you.  If you qualify for legal aid, go through the appropriate channels to find a pro bono attorney.

Do's and Don'ts

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Many clients have questions about mediation. They have heard the term but are not sure what it means or why it is advantageous when they have a list of demands and are pretty sure the other party will not agree to all of them.

Mediation is a very productive tool in family law cases. It is more of a collaborative approach to resolving a family law case and far less adversarial than going to trial and airing everyone’s dirty laundry on the record. Both parties are represented by counsel in mediation and are typically in separate rooms. A neutral third-party (the mediator) works with the parties and their respective attorneys in an attempt to reach a final agreement in the case. Many courts require mediation. Denton and Collin Counties both require mediation before final trial.

While each party to a divorce or child custody matter comes into the case with his or her own unique perspective and list of demands, if children are involved it’s important that they can each focus on the best interests of the child. Each party’s attorney will work to prepare them for mediation. They will give them the lay of the land and work on a proposed settlement offer prior to the day of mediation. It is important that the parties have completed and provided any necessary documents such as inventory and appraisements, proof of income and proposed possession schedules to their attorneys, if requested. This helps save valuable time in mediation.

Mediators can help parties and attorneys think outside of the box and get very creative with language to include in a final order. Further, the parties can agree to things in mediation that a judge could never order in a trial.  Examples include possession schedules for pets, creative ways to allocate community assets that are not yet liquid, and unique possession schedules for the children that are personally tailored to a particular family’s lives. Often, while each party has their list of demands, each tends to have different priorities.  By focusing on priorities, we can encourage a settlement that both are reasonably happy with.

Once an agreement is reached and the mediated settlement agreement signed, both parties know exactly what the key terms of the final order will contain. There is no guessing what a judge or jury will do. The parties don’t have to leave mediation discouraged only to find that the attorney needs to conduct more discovery, file more motions and prepare for a full day (or longer) trial in his or her case.

Best of all, after a successful mediation, parents can simply focus on moving forward with their lives and  their children without the worry of litigation looming. After mediation, attorneys will work to draft an order based on the agreements reached that will be signed by all parties and attorneys. That order will then be entered, signed by the judge and the case closed.  The order is usually significantly longer than the mediated settlement agreement, but the terms will all be the same. (Blog post by Soheyla Dixon)

The Draper Firm

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It is important to meet with an attorney to determine whether temporary orders are necessary in your family law case. Depending on your county, you may have Standing Orders that govern the conduct of the parties while the case is pending. Standing Orders are binding on the parties immediately and continue until the case is finalized unless specifically modified by the court.

Temporary orders can be very helpful in setting the tone for the case and making sure certain issues are presented and ruled on early on. Temporary Orders are not effective immediately and must be requested by a party. Hearing dates will be set according to the court’s docket and how full the calendar is.

Temporary orders can be entered in any family law case to govern what will happen with various aspects of the case while it is pending.  Temporary orders can relate to child(ren), property and financial matters, including bank accounts.

Typical temporary orders related to children in either a divorce or child custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) what the possession schedule will be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children if the county’s standing orders do not already do so.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In Denton County, temporary orders hearings are typically limited to thirty minutes a side. In other counties, such as Dallas County, you are often given significantly more time for a temporary orders hearing.  (Post by Soheyla Dixon)

Divorce

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Under the Texas Family Code, a party can modify child support in three situations:  (1) the parties have agreed to modify child support; (2) when the parties meet the three-year modification rule; and (3) when there has been a material and substantial change to justify a modification.   Parties can accomplish child support modifications either through a private attorney (generally much quicker but attorney’s fees are involved) or through the Attorney General (free but the process can take 6-9 months to even get started once a request is made.)

If the parties agree to modify child support and the court finds the modification to be in the best interests of the child, it is quick and easy to get child support modified with an attorney.

The three-year modification rule provides that the court can modify a child support order without a material and substantial change if it has been three years since the prior child support order and the new amount would differ from the prior amount by either 20% or $100 under the current child support guidelines.  Even if the 20% / $100 difference is not met, the Court could still modify child support if it feels it is in the best interest of the child.  If the prior order was based on the agreement of the parties and was not based on the child support guidelines at the time, the Court cannot use the three-year modification rule to modify child support.  In that situation, child support can only be modified by agreement or by proving a material and substantial change.

Finally, the Court can modify the amount of child support if the circumstances of either a parent or the child have materially and substantially changed since the prior order (or since the date of the mediated settlement agreement or collaborative law agreement on which the prior order was based).  The person requesting the modification has the burden of proving a material and substantial change.  If the change was anticipated at the time of the prior order, it does not justify a modification.  The court will look at a variety of factors such as changes in jobs, increases or decreases in pay, changes in financial circumstances, the birth of another child, etc. to determine if a material and substantial change has occurred.   The party requesting the change must show what the conditions were at the time of the order as compared to the conditions at the time modification is sought.

Child Support

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Child support is a critical element of a child custody case in Texas.  In the majority of cases, one party or the other does end up paying child support.  Here are several important factors to consider in determining whether or not you would have to pay child support (or if you would receive it) and, if so, how much that would likely be:

  1. What is the possession schedule?  If Parent A has primary custody and Parent B has a standard possession order or expanded standard possession order, then Parent B will almost universally pay guideline child support.  However, if Parent A and Parent B have a 50/50 schedule, then the issue of child support is not as clear cut.  If they have some other unique possession schedule, we would look at the percentage of time the child has with each parent and go from there.
  2. If there is a 50/50 possession schedule, what are the incomes of the parties?  There is nothing in the Texas Family Code about 50/50 possession or about what to do with child support when the parties have a 50/50 schedule.  However, I see 50/50 possession schedules on a very regular basis.  If Parent A earns a very high income (well over the child support cap of $8,550 per month in net resources) and Parent B earns a very low income or no income, Parent A will likely still pay guideline child support, even with a 50/50 schedule.  If Parent A’s income is not super high but Parent A makes more than Parent B, then we will usually see a child support offset.  That means we would calculate what Parent A would pay under the guidelines, calculate what parent B would pay under the guidelines, and the parent who makes more (Parent A) would pay the difference.   Sometimes with 50/50 schedules, parties will reach agreements on splitting expenses (daycare, extracurricular activities, etc.) instead of having one party pay child support.
  3. What are the child support guidelines?  The Texas Family Code provides guidelines for calculating child support.  To calculate child support, you simply multiple the paying parent’s net monthly resources (up to the cap of $8,550) times the percentage applicable.   The guideline calculations are easy if the paying parent has no other children to support.  Those guidelines are as follows:  1 child (20%), 2 children (25%), 3 children (30%), 4 children (35%), and 5+ children (40%).  If the paying parent has other children to support, there is a chart that shows the various percentages based on the numbers of children.  For example, a parent with one child in the current case and one other child to support would pay 17.5% under the guidelines instead of 20%.
  4. Can we agree to no child support?  That depends on a few factors, such as the possession schedule, the income of the parties, and whether there are extenuating circumstances that would weigh in favor of no child support.  I have seen many parties agree to no child support, but I have also seen a few judges balk at it.

The best way to determine whether or not you would need to pay child support (or whether or not you would receive child support) in any particular case is to speak with a knowledgeable family law attorney.

Child Support

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In most courts in Collin, Denton and Dallas counties, mediation is required before you can have a final trial in a family law matter.  In some of the courts it isn’t required but is “strongly encouraged.”  In my opinion, almost every case is appropriate for mediation before you have a final trial.

Mediation is a confidential process that takes place outside of the courthouse.  The parties hire a neutral, third party mediator to help try and get the case settled.    Although some mediations occasionally involve an opening session with all parties, I have not seen that happen in a family law mediation in many years.  Each party sits in a separate room with his or her own attorney.  The mediator goes back and forth between the rooms to help the parties reach a settlement.  The parties usually won’t even see each other, unless they happen to cross paths walking to the restroom or the parking lot.

Mediation can be a very slow process.  Most divorces involving child custody issues will take a full, eight hour day.  Sometimes they can last well beyond eight hours if there are a lot of issues in dispute.  Cases involving only property issues can take less time unless there are significant property issues to address.  Although many mediators offer half day (four hour) mediations, it is extremely rare for a family law case to settle in that short of a time.

Although mediation can get expensive when you add up the mediator’s fees and attorney’s fees on both sides, it is usually a lot less expensive than going to trial.  Further, it is a great way to help get cases settled in creative ways.   Judges are limited in what they can order in a trial, but the parties can agree to all kinds of arrangements at mediation.

The vast majority of my clients are convinced that their cases  have no hope of settling at mediation, but the vast majority of those cases do actually settle at mediation.  Parties tend to think that if they cannot settle the dispute on their own, why would it settle at mediation?  But the reality is that mediators have jobs for a reason.  Their help can be critical to getting cases settled.

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Waivers of service are quite common in family law cases in Texas.  They do exactly what they say – they waive service of process.   A waiver of service does NOT mean that the other person is not contesting anything in the case.

When I am trying to approach a divorce, child custody case, or any other family law matter in the most amicable way possible, I almost always ask the opposing party to sign a waiver of service.  This means that we will not be having a constable or private process server take the petition and citation and hand it to the person.  Instead, the opposing party is acknowledging receipt of the petition, providing up-to-date contact information for the court, and saying that he does not need to be served.  The waiver of service must be signed before a notary and filed with the court.  I generally have the opposing party return the waiver to me for filing.

In general, I have no issue with someone signing a waiver of service.  However, if you are asked to sign one, you need to read it very carefully to ensure you are not waiving any of your other rights.   I have seen waivers prepared by other attorneys that say the person is waiving the right to be notified of any future hearings or things like that.  The purpose of the waiver should be solely to waive being served and to enter your appearance before the court, nothing else.

If you someone presents you with a family law petition and a waiver of service and you plan to hire an attorney, you do not need to sign the waiver.  Instead, take the petition to the attorney.  The attorney will answer on your behalf.  This still eliminates the need to be served.

Why would we want to eliminate serving someone?  There are a few reasons.  First, most people do not want to be served, especially at work.  Therefore, asking them to sign a waiver eliminates that potentially unpleasant experience and sets the stage for a more amicable process.  Second, it costs money to serve someone.  You need to pay the clerk to issue a citation (and maybe more, depending on the circumstances), plus you need to pay for service by either the constable or a private process server.  I almost always use a private process server, as I find it to be the most effective means of serving someone.  However, if the opposing party is difficult to find or dodges service, the costs can skyrocket.

There are times when I do not use a waiver of service and move straight to serving someone.  Most often this occurs when the client needs urgent relief through some type of emergency order and/or temporary orders.  If we need to set a hearing right away, we will need to serve the other side.

If you are presented with a waiver of service and have any doubts about what you are signing, it is best to contact an attorney before signing.

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In any family law case (divorce, child custody, child support, etc.), you may hear the term “discovery” used.  Although there are many kinds of discovery, this term is typically used to refer to formal, written discovery.  Common types of written discovery include a Request for Disclosure, Requests for Production, Interrogatories, and Requests for Admissions.

A Request for Disclosure is a standard set of questions that comes from Rule 194 of the Texas Rules of Civil Procedure.  It is used in all types of civil cases, not just family law, and therefore many of the questions are not relevant in a family law case.  There is some helpful information to be gained from a Request for Disclosure, such as a list of persons with knowledge of relevant facts, so it is still common to see this type of discovery in family law matters.

Requests for Production ask a party to produce documents or other tangible things.  There is no limit to the number of requests for production a party can request, and it can become extremely time-consuming for a party to gather the requested documents.  It can also be extremely time-consuming to review the documents produced by the other party.  Examples of commonly requested documents are tax returns, school records, medical records, diaries, e-mails and texts.

Interrogatories are questions that seek a written answer from the other party.  In most case, parties are limited to serving 25 interrogatories on the other side, so it is important to make them count.  Common interrogatories include asking for a list of trial witnesses, asking for information on medical issues, or asking for specific financial information.

Requests for Admissions ask the opposing party to admit or deny a certain fact.  I normally find that people will deny almost everything based on some type of technicality, so I don’t use Requests for Admissions too often.  There are certain cases where there are facts that you really want the other party to admit or deny, so on occasion these can be helpful.

In my practice, I rarely initiate written discovery.  Most often I feel it is an unnecessary expense for the client where a lot of needless information is sought.  If there is a document or information I need, most attorneys will hand it over voluntarily.  That type of informal discovery streamlines the process tremendously.  However, if the other party serves written discovery, I will always serve written discovery on that party.  Some firms make it a standard practice to use written discovery in most cases.   If you are served with written discovery, it is important to meet the deadlines to answer or any valid objections you may have will be waived.

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Temporary restraining orders (“TROs”) can encompass a wide variety of issues in family law cases dealing with both property and children.  Often they involve allegations of domestic violence or abuse.  A temporary restraining order is granted without a hearing based on affidavits by the requesting party.

In most cases, TROs are requested at the very beginning with the petition is filed.  In that case, the judge will grant the TRO “ex parte,” which means that the other side, the respondent, does not have the opportunity to appear or respond.  The judge simply reviews the petitioner’s affidavits and determines whether or not the affidavits, on their face, provides enough to grant the temporary restraining order.  The respondent can attempt to dissolve the TRO once it is entered, but most often it is dealt with at the hearing.

Occasionally something happens during a case that makes one side request a TRO.  In that case, the attorney for the party requesting the TRO must notify the other side that a request for a TRO is being filed and give the other side the opportunity to appear before the judge and contest the entry of the TRO.  If the other side files for a TRO against my client, I quickly get my client (and any other relevant witnesses) to draft affidavits with their side of the story.  I then meet the other attorney at the courthouse when he is presenting the TRO to the judge.  I give the judge my affidavits and try to prevent the entry of the TRO, if possible.  In cases where there are allegations of abuse, the judge will almost always err on the side of caution and grant the TRO pending a hearing.  The judge just simply cannot take the risk that the allegations are true.

After a TRO is granted, the court must hold a hearing within 14 days.  If there is no hearing within the time limit, the TRO will expire absent an agreement or another court order extending the TRO.

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