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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When a couple divorces, one of the key issues is determining how property and debt should be divided. Often, one spouse or the other has handled the finances in the family and the other spouse has little or no idea what assets and debts actually exist.  In the vast majority of divorce cases, we will have the parties exchange what is known as a sworn inventory and appraisement.  Sometimes you will hear this referred to as an “inventory” or an “I&A.”

An I&A is a super long form that lists out all the assets and all the debts for the community estate and each party’s separate estate.  The list includes everything from real estate to retirement plans to jewelry to airline miles and everything in between.  It also includes all types of debts, such as mortgages, car loans, student loans, and credit card debt.  For most people, many sections on the list will not apply.

An I&A is more than just a list.  It details how much the asset (or debt) is worth on a given date, how much it was worth at the time of marriage (if it existed then), identifying information for an account, the nature of the account, etc.  Often we will have the parties included supporting documents to backup the information on the inventory.  This could include the most recent statement, a current snapshot of an account, an appraisal, etc.

Each party will swear that the I&A is accurate to the best of his or her knowledge before a notary, and then the attorneys will exchange them.  Because the inventories are usually very long,  I then take the information from both inventories and put it into an excel chart.  This allows everyone to easily compare the inventories and easily move assets or debts into different columns for dividing the estate.

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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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There are two types of property in a marriage:  separate property and community property.  Separate property is defined as anything either spouse owned before the marriage or anything either spouse received during the marriage through inheritance or a gift.  Community property is any property owned during the marriage that is not separate property.  Property issues can be very complex, and this post is designed to give just a brief overview of a few issues.

In Texas divorce cases, there is a presumption that all property is community property.  In order to prove separate property, the proponent must establish by clear and convincing evidence that the property is separate.  It will generally not be enough for one spouse to simply claim that he or she had certain property before the marriage or that it was received as a gift / inheritance.  He must show records to back it up.  Below are a few examples of separate property issues and how a party could prove them.

Example 1:  Husband owed Home 1 prior to marriage.  Wife moves into Home 1 with Husband.  Two years later, the couple sells Home 1 and uses the $50,000 proceeds from the sale of Home 1 as a down payment on Home 2.  Home 2 is now co-mingled community property and separate property.  Husband must be able to prove (a) that he owned Home 1 as his separate property prior to the marriage, and (b) exactly how much money from Home 1 was put down for Home 2.  He could show that Home 1 was his separate property by producing a deed for the house dated before the marriage and showing him as the owner.  He could show how much money from Home 1 was put down for Home 2 through closing records from the sale of Home 1 and the purchase of Home 2.  Through those records, Husband has established a separate property claim for $50,000 in Home 2.  Husband would be entitled to a dollar for dollar credit for that separate property.

Example 2:  Wife has a separate property bank account before the marriage that contains $100,000.  The account is in her name alone.  Wife marries Husband and continues to have her paycheck deposited into the account.  Her paycheck is community property, and now she is commingling community funds and separate funds.  If Wife is making withdrawals from the account over time, Wife will need to providing a tracing of the account to prove her separate property.   There are a variety of different tracing methods used in Texas.  The most common is the “community out first” rule.  This provides that all withdrawals are presumed to be community so long as there are community funds in the account.  Wife deposits an additional $20,000 into the account during the marriage.  She withdraws money numerous times, for a total of $30,000 in withdrawals.  Under the community out first rule, the first $20,000 out would be the community funds.  The next $10,000 would be her separate property.  In the end, the community would have $0 in the account and Wife would have $90,000 in separate property.  There are other methods of tracing that could lead to a different result.

Example 3:  Husband and Wife are married for 30 years.  Husband receives an inheritance of $50,000 ten years into the marriage.  Husband deposits the $50,000 into the parties’ joint bank account.  Over the years, hundreds of deposits and withdrawals are made from that account.  Twenty years later, the parties divorce.  Husband is unable to provide tracing to prove what happened to the $50,000 because it was hopelessly commingled with community funds.  Husband is most likely out of luck in trying to keep any of the inheritance as his separate property.   The community property presumption will prevail.

Separate and community property issues can be complex and far exceed what can be put into a single blog post.  It is important to have an attorney familiar with the rules and the various ways to characterize property in order to ensure that it is done right.  It is also important to have an attorney who will help you understand the cost benefit analysis of trying to prove separate property.  Is it worth it to spend thousands of dollars on a forensic accountant to trace the money in an account?  Maybe.  It depends on the amount of separate property at issue.

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