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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Today I was just about finished writing a very exciting blog post about student loan debt in divorce when my phone rang.  I stopped writing to speak with opposing counsel in a custody modification case.  She called to give me the sad news that her client was killed in a car accident yesterday.   It got me thinking about how much we all take for granted that we will make it home safely every time we set out on the road.  We also take for granted that the other people in our lives will all make it home safely, too.

In dealing with child custody cases on a daily basis, I see many parents who love their children more than life itself but who truly despise the other parent of those children.  (To be clear, that was not the case in the situation today, but it just got me thinking in general.) Some disputes are huge with very legitimate concerns, others are small with much more minor concerns.  Today a new concept entered my mind that really had never occurred to me before when thinking about child custody litigation.  At the end of the day, how would your child feel if the other parent were suddenly gone forever?   In the end, we all love our children and want what is best for them.  In the vast majority of cases, it is best for the child to have a relationship with both parents.  Treating your child’s other parent with kindness can really go a long way towards accomplishing that goal.  I think if most separated parents would treat their ex with kindness, it would make a huge impact on their children.

For those of us who are married (or with the other parent of our children), we can use this reminder, too.  Have you ever said something unkind about your spouse in front of your children?  Have you gone to bed annoyed at your spouse for not doing the dishes?  I am choosing to use this reminder to show kindness to the father of my children, especially in front of my children.  I pray that I never have to be their only parent, but if the unthinkable ever happens, I would hope that being kind to their father now would result in a better long-term outcome for them.

While we’re at it, we can all probably use a reminder to show kindness to our children and our parents.  I certainly don’t want the last thing my daughter remembers about me to be yelling at her for making pancakes at 5:45 am this morning (true story).  Hug your children a little tighter and show love and kindness to everyone (even when they may not seem to deserve it), since we never really know what tomorrow may hold.

kindness 2

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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Any debts incurred during the marriage are presumed to be debts of the community.  Any debts incurred prior to marriage are the separate debts of the party who incurred them.  However, the party trying to argue a debt should be separate would need to prove the debt existed prior to marriage to prove its separate nature.

The only way a debt incurred during the marriage can be confirmed as a separate debt would be if there was a written agreement for the creditor to look only to the separate estate of the party, not to the community estate. One spouse applying for the credit individually is not the same as the creditor agreeing only to look to her separate estate for payment.

The court will divide debts as part of a “just and right” division of the entire community estate.  However, the court does not have the ability to influence a third party creditor.  Even if the court awarded a debt to a certain party, the creditor would look to the person whose name is on the debt to pay it (regardless of who the court ordered to pay it in a divorce decree).  Normally debts are either paid off with available assets or proceeds from the sale of property or the person whose name the debt is in takes it (but is often compensated with additional property to make up for it).

The court will look at the following factors when determining how to allocate debt in a manner that is “just and right”: (1) the spouse’s ability to pay; (2) the property securing the debt (if a party takes the property security the debt, that party takes the debt); (3) the relationship to the creditor (if wife borrows from wife’s family, she’ll end up with that debt); and (4) the party responsible for creating the debt.

It is extremely common for clients to have concerns about credit card debt the other party has accumulated.  If the charges on the credit card are for ordinary living expenses, those will definitely be considered community debts and will very likely divided 50/50.  (This doesn’t mean each is paying half of the credit card bill, it just means we are factoring in a 50/50 split of the debt into the division of the estate.)  If the wife is buying gifts for her boyfriend on the card, then she is most likely going to get hit with that debt.  If the husband is just a spender, it’s most likely going to be divided 50/50.  If someone is doing really insane, crazy spending, then they may end up taking a bigger portion of the debt.

Student loans will almost always go with the person who received the education tied to the student loans.   Secured debts generally go with the property to which they are secured.  For example, if the parties have a car with a loan, the spouse who takes the car will take the loan.  If that loan is in both parties’ names (or the name of the spouse not taking the car), the spouse taking the car will generally have to refinance into his or her own name within a certain amount of time.  If he or she cannot do that, then the car usually must be traded in or sold.

Child Support

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In Texas, the grounds to have a marriage annulled are extremely narrow.  Specifically, a court can grant an annulment only if one of the following applies:

  1. One of the spouses was under the age of 18  and did not have the appropriate consent or a court order;
  2. One spouse was under the influence of drugs or alcohol at the time of the marriage, lacked the capacity to consent as a result, and the parties never lived together after the effects wore off;
  3. A party was permanently impotent at the time of marriage, the other spouse did not know, and the parties did not voluntarily live together after the other spouse learned of the impotency;
  4. The respondent used fraud, duress or force to induce the petitioner into marriage, and the petitioner has not voluntarily lived with the respondent since learning of the fraud or being released from the duress or force;
  5. One of the spouses is mentally incompetent, lacked the ability to consent to the marriage, and the parties have not lived together since the discovery of the mental disease or defect;
  6. The respondent divorced a third party within 30 days before the date of marrying petitioner, at the time of marriage the petitioner did not know of the divorce, and since discovery the divorce, the parties have not lived together; or
  7. If the parties were married less than 72 hours after issuance of the license, the marriage can be annulled only if filed within 30 days after the marriage.

If none of the above grounds apply, the parties cannot annul the marriage.  Although there are a few other situations where a marriage can be voided (incest, bigamy, a party is a minor, or one party is a current or former step-child of the other), most people looking to dissolve a marriage who cannot get it annulled will need a divorce.

Divorce

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Unfortunately, the state of Texas is not very kind to stay-at-home parents in divorce.  Texas is a community property state, so anything made by the working spouse during the marriage is subject to being divided (usually 50/50).  This is great if the couple has been good about saving during the marriage.  If not, the stay-at-home-parent is really going to be in a bind.

Texas does not have alimony absent an agreement for contractual alimony between the parties.  Spousal maintenance exists, but it is very hard to get.  In order to receive spousal maintenance, a stay-at-home parent would have to prove that s/he lacks sufficient property to meet his/her minimum reasonable needs and s/he meets one of four statutory bases for spousal maintenance: (1) the spouses have been married for at least ten years and s/he is incapable of earning a sufficient income to meet his/her minimum reasonable needs; (2) his/her spouse was convicted of or received deferred adjudication for a criminal offense that constituted family violence against him/her or his/her child; (3) s/he is disabled and lacks the ability to earn sufficient income; or (4) s/he must care for a disabled child, which prevents him/her from earning a sufficient income.

As you can see, the criteria above are very specific and most stay-at-home parents do not meet any of them.  Did you give up your career so your husband could take a new job?  Not a reason for spousal maintenance.  Did you give up your career because your wife made enough money to support the family and you decided together that you would stay home?  Also not a reason.  Did you giving up your career years ago to raise the children mean you can never get back into that position again?  Not a reason.

A stay-at-home parent can expect to receive child support, assuming s/he is going to be the primary parent after the divorce.  However, child support is rarely enough to support the family.  The stay-at-home parent will almost certainly need to start working in order to have sufficient income to support him/herself and his/her children.

Divorce

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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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This is one of the most frequently asked questions I hear during divorce consultations.  The answer is much more complicated than a simple yes or no.  There are several questions that need to be answered first:

  1. Is the house community property or separate property?  If the house was purchased by either one of you before the date of the marriage, or if either one of you entered into the contract to purchase the house before marriage, then it is separate property.  If your spouse is the one who purchased it before marriage, you are almost certainly not going to be able to keep the house, no matter how long you have lived in it.  If you purchased the house during the marriage, then it is community property.  If the house is your separate property, you can almost certainly keep it (provided you can buy out any reimbursement claims your spouse may have).  If the house is community property, you may be able to keep it, depending on your answers to the following questions.
  2. How much equity is in the house?  It is very important to know how much equity is in the house.  This is determined by how much the house is worth minus how much is owed on the mortgage.  If you purchased the house a year ago with very little down, then there is probably very little equity in the home.  If you purchased it 20 years ago, the equity is probably significant.
  3. Can you afford to buy out your spouse’s share of the equity?  Most of the time, the community estate is going to be divided 50/50, so your spouse is probably entitled to 50% of the house.  That money does not necessarily have to come from the house, though.  For example, if the equity in the house is $100,000, you need to have $50,000 somewhere to put on your spouse’s side of the ledger.  Perhaps there is an investment account that has $50,000 in it that can be awarded to the spouse.  If there is not another $50,000 out there, can you cash out enough money on the refinance to buy out your spouse’s share?  If you cannot afford to buy our your spouse’s share of the equity one way or another, the odds are very slim you will be able to keep the house.
  4. Can you refinance the mortgage into your own name?  In order to keep the house, if the mortgage is not solely in your name, you would have to be able to refinance it into your own name within a certain period of time.  I normally see anywhere from 90 days to 6 months after the date of divorce, although in certain rare situations I have seen parties agree to a longer period of time.  If your income is not sufficient to qualify for the refinance on your own, you will not be able to keep the house.  If you have been a stay-at-home parent, even if you recently started a job, you will most likely not have a long enough work history to qualify to refinance within the necessary amount of time.
  5. Can you afford to pay the mortgage on your own?  I always recommend against including expected child support in the budget when trying to determine if you can afford the house.  Too many people fail to pay child support in a timely fashion, and the child support could be modified down the road for a variety of reasons.

In the majority of cases, I see divorcing couples selling the house.   Sometimes, parties sell the house because everyone wants a fresh start.  Sometimes parties sell the house based on the answers to the questions above.

house pic

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