Transcript

Nicole Voyles: The most important thing to get out of litigation is an order that has teeth and an order that you can actually enforce the provisions.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Nicole Voyles to the Texas Family Law Insiders podcast. Nicole is an attorney with Laura Dale and Associates in Houston, Texas, with experience in complex property disputes, custody matters, paternity matters and premarital and marital property. Nicole graduated from the University of Texas in Austin with a degree in marketing prior to attending law school at SMU. After law school she practiced insurance defense and general litigation before turning her focus to family law.

Nicole has been board certified since 2010, and is a fellow of the American Academy of Matrimonial Lawyers. She’s often asked to write for and speak at CLE seminars throughout the state. Nicole is active on Family Law Counsel and Gulf Coast Family Law Specialists, sitting on the board of both. She’s been extremely active with the Houston Bar Association, having served as co chair on several different committees. Outside of practicing law, Nicole enjoys working out and competing and running races and hiking. She enjoys hanging out with her family, which includes her husband, her almost two year old and three stepchildren. Thank you so much for joining us today.

Nicole: Of course. Thank you for having me.

Holly: So why don’t you tell us a little bit about your background.

Nicole: Yeah, certainly. So I went to law school, I was the typical person who went straight from undergrad to law school, having no idea what type of law I wanted to practice. And once I got out, obviously most people know that, you know, SMU is a fairly corporate law school. And so once I got out, I started practicing in insurance, defense. I hated it. And I wondered what I’d, you know, sold my soul for. And someone I knew that had had, like their parents had been divorced, the parent was like, I think you’d be good at family law. So I actually had no real experience in family law.

Before I got into it. I took one family law class, because it was a bar exam class, and really only had one friend growing up that her parents were divorced. And in fact, that parent lived in a different state. So it wasn’t a typical situation where I saw a lot of interaction. So I think I’m one of the few family lawyers that sought out family law. I didn’t get pushed into it, I really wanted to get involved. And I actually was interested because I wanted to go to court, I wanted to have that experience. And I got extremely lucky because I went to work for Brian Webb.

And if anyone knows, Brian, that they know that he was kind of a legend of family law. And he took me under his wing. And then when I moved to Houston, I went to work for a firm called Jenkins Kamin that also had two really great family lawyers and then went to work with Angela at Tindall England. And so I’ve had a lot of really great exposures to amazing lawyers to kind of learn the things that they do that I really want to emulate, and then also kind of figuring out, you know, what I wanted to be as a lawyer as well.

Holly: So how would you describe your current practice?

Nicole: Um, well, I mean, as most people would say, we deal with a lot of crazy clients sometimes. But I think that, you know, at this point in my career, I deal a lot with high net worth divorces. And as most people do, once their billable rate gets a little higher, I deal with a lot of contested custody cases. People that you know, want to have a fight, and they come to me seeking out a fight. I also do a lot of modifications, paternity cases. And I feel like in the last couple years, definitely delved into more premarital and post marital agreements.

But my area of practice, I deal a lot with people with for one reason or another, this is not going to try to solicit more of this business, but people that have addiction problems on one side or the other, and, unfortunately, a lot of mental illness. And that probably just goes with the fact that I take a lot of contested custody cases.

Holly: So I came across your presentation at Advanced this past year, and I thought it would make for a really interesting topic for the podcast, and specifically that’s with drafting orders with an eye for enforcement. Why is it so important for attorneys to do this?

Nicole: Well, I think that, you know, the most important thing to get out of litigation is an order that has teeth and an order that you can actually enforce the provisions. I thought that this was a really great topic that I was asked to speak on. In fact, just this week, I was asked to speak at South Texas law school on it. I think that a lot of people, and one of the things that Pamela George said, Professor Pamela George, is that she was shocked when she went to practice how many people don’t draft enforceable orders. And I’m sure you’ve seen that in your practice as well. I mean, there’s attorneys that have been practicing for a very long time, and you’ll get an order from them.

And it’s not enforceable. The same thing, you know, when you get out of state orders. And so, you know, if you spend all this money and all this time, and you have an order, that’s not enforceable, it’s pretty much worthless. And then, you know, I think when you’re talking about drafting orders with an eye for enforcement, one of the things that I spoke on and I feel very strongly about is, is telling clients early on what is enforceable and what isn’t enforceable, because there seems to be a lot of misconceptions regarding that.

Holly: And I think, you know, as we try to be more creative, and try and come up with solutions for clients to help them get their cases resolved, it’s especially important in those creative orders, to think about enforcement, because you can’t pull those from the family law practice manual.

Nicole: Exactly. And I think, you know, I learned this, and it’s in my paper. When I was a younger lawyer, you know, you have two types of lawyers. You have the types of lawyers that draft, and so they’re knowledgeable about what they’re telling a client to put into an order, whether or not it’s enforceable. And then, you know, as you know, sometimes you have those older partners who don’t draft and so they’ll tell a client, oh, well, we’ll put this in an order. And it’s not enforceable at all. And so you know, what I tell people is until you actually know how to draft an order, you don’t really know if you can create something to be enforceable or not. And so when you do get creative, you have to know it’s one thing to state what you’re going to do, it’s another thing to draft it.

Holly: So what would you say is the number one rule about drafting an enforceable order?

Nicole: Well, you do need to know Ex Parte Slavin very well. I tell people, the first time I did an enforcement I did get poured out by a Dallas court. Luckily, it was a pro bono case. But I think at that point, in my very young career, I probably did not understand Ex Parte Slavin like I needed to. And so to make an enforceable order, you need to be thinking through every provision that you put on there, whether or not it specifically states what a person is to do, when that person is supposed to do it, and where they are supposed to do it. And I think that if you can create an order that does address those issues, then you have an enforceable order.

Holly: So for any attorneys out there who aren’t familiar with Ex Parte Slavin, can you give us a little bit of rundown?

Nicole: Yes, certainly. I mean, basically, it was just saying that if you’re going to enforce some, an order and put someone, hold them in contempt, which obviously is a very strong, you know, concept, that they, it cannot be up for interpretation, what the order says. They need to be directed to what they need to do so there’s no questions when they’re reviewing the order. Certainly when the judge is reviewing the order, whether or not that person understood what they’re being asked to do.

Holly: So I know in your, in your paper, which if anybody’s interested in more details on this topic, after you listen to this podcast, Nicole has a great paper from Advanced this past year, and you give some tips for creating enforceable orders. Can you go through those tips for us?

Nicole: Yeah, I would love to. One of the things that I think is important, and I actually spoke with several judges when I was writing my paper, including the judge that I spoke with Judge Jermaine Tanner. And one of the things that they said is use this family law practice manual. It’s been created to be a tool for attorneys. And it is so very important. There are going to be things that you want to put in your order that may not be in there. But I don’t know if you’re like me, I mean, 99% of what I put in my order was probably in the Texas Family Law Practice Manual. And I had, you know, when I was teaching that class, they asked, you know, what’s the difference between Pro Doc and Texas Family Law Practice Manual.

The one thing that Texas Family Law Practice Manual is great about doing is updating their provisions and their order to keep up with legislative changes. You know, for instance, the hole that was created in the summer possession and access schedule that you didn’t, the person was not notified, was not made to notify the other parent of where they would be for the pickup in the summer that’s been corrected. And that’s in the Texas Family Law Practice Manual. So make certain you have the most updated version of it. And I think it’s important when you’re going to mediation, I a lot of times cut and paste those provisions into a mediated settlement agreement to just make sure that there’s no discrepancies on what language will be used.

Or we put in the mediated settlement agreement that we’re going to draft based on the Texas Family Law Practice Manual. I think the second point that’s important to create an enforceable order is keeping the language simple. I don’t know if you’re like me, but I’ve represented attorneys that are not practicing family lawyers in divorce matters and custody matters. And for some reason, attorneys think that if they restate something 12 times it’s stronger than restating it, you know, one time. Those are always interesting clients to have.

But you know, make certain when you’re reading through your order, and what you’ve drafted, that it’s simple, and that it can be understood, and that there is no room for interpretation. I talked about this a little bit earlier, I think the third important factor is to educate your clients. And for me, that means starting to educate my client, when I start meeting with them at the first initial consultation. You know, they come in, and you have a lot of clients who come in, and they’re like, well, my cousin had this in their order, or my, you know, my last husband allowed me to do this in the order. And you have to tell them on some of those provisions, whether or not they’re enforceable.

You know, I think the one of the big ones, and we’ll probably talk about a little bit more, as, you know, college expenses. I mean, the majority of the clients that come walking in your door want college expenses in their order. And what I have to tell them is, you know, the other party believes in orders and believes in following things. Sometimes it’s worthwhile to put language in an order, kind of as a rule of law for both of them. But whether or not you’re going to have an actual enforcement for a child over the age of 18, that accomplishes anything on college expenses, is really yet to be known. I don’t see it happening very often.

And I think the best you’re gonna get is a judgment out of it. And as we know, judgments are very difficult to collect on. And so, you know, start early on advising your client, that, you know, the majority of things they’re taking up time in mediation requesting are just not enforceable. The other thing is, you know, think about enforcement early. What I said earlier about making certain you put your full language in your mediated settlement agreement, I think that’s a really important concept for people because a lot of people go to mediation, and they just kind of put, throw down some bullet points on an order, on the mediated settlement agreement. And then you’re left really digging into drafting issues.

You know, we’ll talk about right of first refusal. I mean, that’s one of the most convoluted provisions that goes into an order. And I don’t think you’ll find, you know, two attorneys that think the same way on how to draft those. This was something that one of the judges said to me, and I actually probably would not have thought about it without that insight. Think long and hard before filing and enforcement. As we know, with certain areas of law, if you don’t have a strong, you know, say you file a protective order and it gets denied and sometimes inflates the other side.

If you file an enforcement and you do it wrong, or it’s not enforceable with the teeth that you want it to have, and you fail in court, that may give the other side you know, some leverage or an advantage that they didn’t have if you hadn’t filed it in the first place. And then another thing is if you are filing enforcements and you find that your language is not enforceable, please make certain to remember to ask for clarification from the judge. All the judges I spoke with said that they will actually clarify language, if they’re asked to do it to make certain that it, you know try to make it more enforceable in the future.

Holly: So I know in your paper and your talk at Advanced, you went through a lot of common errors, common problem areas in drafting. So I’d like to kind of go through some of those and see if we can give some tips to avoid those problems for people. I know, let’s start with possession and access. What are some common areas of concern you see with possession and access?

Nicole: I think with possession and access, one of the most common areas of issue is when you try to get too creative. And I know it’s very difficult because everyone has their own idea of how it’s going to work, you know, shuffling children from home to home. But if you go back to what I stated that Ex Parte Slavin requires is a time, place and manner. If you leave too much in the air as far as a possession and access schedule, I don’t think that the court can actually enforce what you have put in there. And so a lot of times we do provisions where we say you know as agreed to by the parties.

And one of the things I said at Advanced was, I’m not certain judges will ever sign those anymore. Because they are so vague. They’ve had enough issues with those that they won’t. But, for instance, when you’re talking about fluctuating schedules, like a firefighter, or a doctor, or someone who, a police officer. A lot of times a pilot. They do a fluctuating schedule where perhaps the other person gives notice of when they’re going to take a period of possession. And then I’m not certain a notice requirement outside of a court order will ever do you any good on an enforcement.

And so what I would tell people to do on those type of schedules, and I know it’s difficult to do it, but try to pin down, like I recently did one where he was a policeman. And it was a fairly convoluted schedule, but he knew on certain weeks, he would be off Thursday through Sunday, or on other weeks, he would be off, you know, Friday through Saturday. Make certain to try to modify to actually fit the parties that you’re representing. The standard possession order is definitely not, you know, it doesn’t fit all. And so you do have to think outside the box on some of those things. But like, for instance, if you’re representing someone that’s very young in their career, they are not going to be able to put in and take time off, possibly to effectuate a schedule.

But if you have someone who’s been years, within, you know, the force or things like that, they can probably put time in, time off request in to accommodate whatever schedule is in the order. So I just tell people to make certain, you know, the older I get, as a family lawyer, I try to make certain that that order is concrete. And then just make certain that you don’t have issues with holes in your order. That’s probably the biggest thing that you’ll see. When you’re coming up with creative schedules. I know for the 50/50 schedule, you know, there’s times when, you know, say you’ll have pickup at school on a Tuesday morning. And then you might have, the next person gets period of possession at the time school releases.

Well, in that typical situation, if there were an emergency to happen, or something was going on during that school day, a Tuesday, that’s a hole in your order. And I have had those clients who call me and say, well, I’m not certain who’s supposed to pick up the child. And so just make certain that when you’re reviewing the order, you’re thinking about all those, those areas that could create issues. One of the things I learned last year was, you know, living in Houston, when we have hurricane evacuations. And we had a hurricane evacuation. And so it wasn’t the normal typical language you have in the order that states that at the time school is released, normally released didn’t apply, because that wasn’t a normal release.

And so if you’re in an area that might have, you know, it seems like more and more reason to have emergency evacuations, you might want to modify that language to say normal release or at the time the school releases for an emergency or something like that. So I think that those are important things to think about. And then, you know, as far as some of the other areas that you know, you need to address to make certain you have an enforceable order on possession and access that I see, is pick up and drop off at an airport. You know, I have a client right now. And I don’t know why they did it this way.

But in their prior, in their divorce decree, even though they lived in different cities, they did not require pickup and drop off at the airport. My client now lives in Alaska, and he lives in Houston, and he has to drive, he has to fly to Houston, get a rental car and go to the house. So you need to have that pickup and drop off at the airport in order to make certain that that person doesn’t relinquish that child at the airport, that that’s an enforcement action you can file. I think a lot of times people think, oh, we’ll agree to these type of things after the divorce and that just doesn’t happen.

Another area I see is the same with a passport and international travel language. Making certain that that’s clear and concise. I don’t think anyone does a better than Texas Family Law Practice Manual on that, so I wouldn’t even try to draft it. And make certain all orders even if you’re going to just put together a quick Band Aid order has surrender and return language. Because without surrender and return language, you are not addressing the time, place and manner where that child is to be exchanged. So that’s important things to remember on those.

Holly: So one of the things I picked up on in your paper that I really liked was you mentioned, basically you should never ever do the every other weekend.

Nicole: Oh gosh, yes.

Holly: And I can’t even begin to say how many people ask for every other weekend. So what do you tell those people? And can you explain a little bit about why you think that’s so bad?

Nicole: Yes. So I actually will say, luckily, I feel like I’ve gone through, you know, enough, I haven’t had as many of those people come in recently, thankfully. Because the problem with the every other weekend, and the reason that people do it is they have this fifth weekend conception of they just can’t imagine, you know, not being able to see their child two weekends in a row. And so they think, oh, I need to do every other weekend, that seems to be more fair.

The problem with that, as you’re planning your life, is, you’re never going to know what every other weekend looks like in a year or two years. And so, you know, for many reasons. If you want to plan, say, you’re going to get remarried, and you want to plan on a weekend that you’re going to have your child, you’re so much better off being able to look at an order and say first, third and fifth weekend, or second and fourth weekend and track it in that way to be able to know. The other part about that is can you imagine a court meeting to ascertain what weekend a parent was to have possession and access 10 years from when the order was entered if it said every other weekend.

And so I mean, one of the ways that I deal with that is if you have those clients that are still adamantly opposed to, you know, the fifth weekend, I might do first/third weekend, and second and fourth, and then maybe alternate that fifth weekend. But as us practicing family lawyers know that only occurs three to four years per year. So it’s not the daunting provision that most people think of.

Holly: So another area where it’s common to see some drafting problems relates to unreimbursed medical expenses. Can you talk a little bit about that?

Nicole: Yeah, certainly. I hate unreimbursed medical expenses. I’m not certain anyone actually likes to draft an enforcement action on that. It is so much paperwork in order to actually have an enforceable unreimbursed medical expense. One of the things, the biggest problem with those is the delivery issues. So I don’t know when they started, I guess when our family wizard and some of the other, you know, communication tools came out that the parties can communicate about, then they could start exchanging invoices through that, or through email or something like that.

But before then, they had this archaic, you have to send a certified mail return receipt requested document every time you had a medical expense. I can’t imagine how difficult as a, you know, mom or dad trying to run their life, it was to go to the post office to send a certified mail every time you wanted $15 back through your unreimbursed medical expense. So whomever came up with that, you know, obviously was not the one at the post office doing that. But I don’t know if you’re like me, Holly, but the only time I see people really want to file unreimbursed medical expenses is once things go awry in the party’s relationship, and they usually come in, and they have two years of unreimbursed medical expenses that all of a sudden they want to start exchanging.

And we know that in our orders that you usually have within 30 days to provide that and then the other person has 30 days to return and pay the money. So I’ve asked the courts what they do in those situations, whether or not they’ll add them all up and give them a longer period of time to pay them. They certainly can’t hold them in contempt if they’ve not gone with what’s in the court order. But I think that for unreimbursed medical expenses, what I tell clients is stay on top of it. You know, if you do have, you know, monthly expenses, send them as soon as you get them.

And not only do you have to send what the bill was you have to show your method of payment. Because if you think about filing an enforcement on it, the court needs to know that this amount was owed, but also that you paid it and therefore you’re entitled to a reimbursement on it. And so I think what happens is a lot of times once the clients realize how much work goes into actually proving up the enforcement. If you’re like me, a lot of times people don’t actually follow through with it, because they don’t really want to do the work.

But we have, you know, a lot of great communication methods like our family wizard out there now that allow this to be done easily. And if you don’t want to pay through our family wizard, there’s other areas, there’s other apps like split ease and things like that, that you can put in the amounts and divide them up and do it pretty well with that. But yeah, I just tell clients and I think it should be in your closing letter when you finish the case in order to notify the clients of what we’re requirements they will have on that.

Because I think a lot of times they think they’ve never read their order and they think, oh, I just had that receipt you know, when my child gets picked up on a Friday afternoon. And as us practicing lawyers, no, that’s not effective for your court purposes and also your children probably shouldn’t be in the middle of you negotiating your unreimbursed medical expenses.

Voiceover: This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation for nonparent custody cases, jurisdictional issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access. For more information, visit draperfirm.com, or call 469-715-6801.

Holly: Another area that you touched on a little bit before, but let’s dive a little bit more into it, is the right of first refusal. Do you, and I have conversations with clients all the time about how difficult it is to enforce and how really, you only know if the other side isn’t following it because the child told you that and how are you ever going to get it into court? Do you think we should even bother with rights of first refusal?

Nicole: I personally think they’re kind of pointless. And why I think that they’re kind of pointless is I think it’s a control issue. And I think it’s a control issue that exists when you’re first going through a divorce where you cannot imagine, you know, say you’re the mom, you can’t imagine your significant other moving on, and having a new significant other watch that child. You can’t imagine not being able to have access to your child if they go out one night, or if they go on a trip. But I think that parents should have the opportunity to make decisions that they think is in their child’s best interest. And there’s so many carve outs you have to create in a court order in order to even effectively have a right of first refusal.

I mean, does this apply if someone remarries, and they have a significant other, you know, spouse that will watch the child. Does this apply for a sleepover? Does this apply for a grandparent or summer camp. And I have personal experience with the right of first refusal because I married a man with three children. And I will say a lot of couples end up doing it, even if it’s not in a court order, because that’s what’s in their child’s best interest. But there were times when you know, he could have offered the children to his ex wife for the night. But we were only going to dinner and we would be back by 10.

And he wanted to be able to see them in the morning when they woke up. And I think that that’s a right that a parent has. The enforceability of it is almost an impossibility unless you hire a private investigator. And one of the things that, you know is important about to remember on some of these is, what are you really effectively doing with an enforcement action on a right of first refusal. I mean, if this is someone who’s schlepping their child to a grandparent, every time they have access, or you know, letting them stay with people that are just random, then you might need a modification. You know, I’m not certain, you know, a hand slap for right of first refusal, not telling the other parent isn’t really going to do any good.

And as we talked about vagueness earlier in the order, I’m not certain you could ever create a right of first refusal. I tried, I mean, it’s in my paper. And it was based on a client that was an ER doctor, and had to go in in the middle of the night. The first refusal they used was not effective. So I tried to rewrite it. I haven’t heard back from the clients in a couple of years. So maybe it actually works. Or maybe they just realized that going through the litigation system wasn’t their cup of tea, and they want to stay out of it as much as they can, which most people realize after they’ve come through it.

But I don’t, if you have a right of first refusal, it is very difficult to ascertain what the actual time, place and manner to return that child is. Because it’s usually, as soon as you get done your activity, you go pick up the child. And that takes a lot of communication between two parties that may not communicate well. So if I have clients that are adamant about putting it in a court order just like you, I will do it. But I definitely educate them on what it looks like. And you know if the preference would be that those two parents do it outside of court order and when it’s in their child’s best interest.

Holly: Another topic that you reference as being common for drafting errors is child support, which I find a little surprising because I would think that’s one that should be relatively cut and dry. So what problems do you see there?

Nicole: Well, I think that it is cut and dry if you actually follow the Texas Family Law Practice Manual. I don’t know why anyone would try to draft an enforcement of child support without using that form. It is too convoluted. I think the enforcement issues on that is mostly making certain that you get a copy of the AG documentation showing what’s paid out. What I find most people get wrong with child support issues is when they start trying to make everything as additional child support.

And, you know, that means provisions like extracurricular, that means, like having health insurance until a child’s over a certain age, or paying for college. And so that’s why I think that people, we know that in order to have something have teeth, it has to be a child supports. So if you’re going to put in there that one parent is going to pay for summer camp, and you don’t have it as child support, then it’s just a judgment you can get. If you have a by child support, they could, you know, go to jail for not paying it.

But I don’t know most good lawyers are never going to allow their clients to actually pay things as additional child support. So the only time I usually see it drafted in a court order that something says additional child support other than child support, is if that person was pro se and got the wool pulled over their eyes during their divorce. I don’t know if you’re the same way. But I think that people just have to know that you can label something as child support, but it doesn’t always mean it’s going to be easier to enforce it, like college expenses.

Holly: I certainly, when I’m representing the one who’s trying to receive those funds, for example, with extracurricular activities or something like that. I like to label it child support if we can get away with it, because then they have a much greater chance of being able to collect on it

Nicole: Completely. But I mean, realistically, how many times has opposing counsel actually agreed to that? Not often.

Holly: Every once in a while. So speaking of extracurricular activities, where do you see problems in drafting on that issue?

Nicole: Oh, my goodness. So extracurricular is like my nemesis. And I will tell you, again, I have personal experience with extracurricular activities. I mean, we have kids in a lot of different activities. And you know, what we’ve kind of done towards the end, as one parent pays for one thing, one pays for the other. And they don’t get into the same nickel and diming that they did early on after their divorce. Like, for instance, I don’t know if you have those clients who want to do a joint bank account. Oh my lord, that is the most difficult.

Holly: Worst idea ever.

Nicole: Worst idea ever. Because you know what you didn’t get along when you’re married. Now you’re going to have a joint bank account and trust that each of you are going to put a certain amount of money in it, and you’re going to be agreed upon what’s going to be removed. But the hard thing about extracurricular activities is they can be so expensive. I mean, if you have a child in club soccer or club baseball, it can be outrageously expensive. And then the other question is, what do you include as extracurricular? Is it the hotel room when you have to go out of town for five days? Is it the travel expense costs? I’ve had it come up, where is it the uniform? Do they have to buy two uniforms? So there’s a uniform at each house?

So I think that, you know, your problem with extracurricular activities and enforceability is the same as you are running into unreimbursed medical expenses. It’s how do you exchange that information, and what specifically is included in it. And you have to have language about when it’s paid, who it’s paid to. And you have to be able, I mean, a lot of times you can do it through Venmo, or you can do it some other way. It has to do within a certain period of time it has to be reimbursed. I tell clients, you know, if you have the opportunity, always try to just pay your 50%, if you split it 50%.

Do not try to pay your 100% and get reimbursement because a lot of times you just won’t. And then you’re stuck going down there having, you know, a court go through a bunch of documents on extracurricular activities. So I don’t know, I think when you’re working with clients, you know, and it’s harder with the younger children and you don’t know what type of activities they’re going to be in. But the cleanest way to handle it is if you know that there’s a certain amount that they’re going I mean, say you have a child that’s a junior, and you know that for the next two years, they’re going to do a certain amount of activities, and they’re going to cost this amount of money.

Obviously in a perfect world, if the opposing counsel will agree, you would like to get it as additional child support in a finite number. Or, you know, if one parent strongly believes that child should be involved in piano and the other parent believes that child to be, you know, in karate, maybe you’ll each pay your own. So because it can be an enforcement nightmare.

Holly: Yeah, with older kids, the older they are, probably the easier it is to get specific in the drafting because you know, you know, Johnny plays like soccer and Susie’s on the competitive gymnastics team. But when you have little ones, it’s really hard. But I think even with older kids, I think you still want some sort of catch all because you know, that competitive gymnast quits and switches to competitive cheer. If your order only addressed gymnastics, then maybe you don’t have, you know, now you’re on the hook for those expensive travel costs.

Nicole: Yeah, and I mean, I think everyone tries to get that as agreed to in writing language in there. And again, the ones that I see someone doesn’t do as agreed to in writing is usually the pro se person who’s coming to see me after the fact when they’re getting all these invoices and are like I didn’t quite know what I signed up for. Well, you signed up for everything. So including the hair bows.

Holly: So that one well, and as the mom of a former competitive cheerleader, those hair bows aren’t cheap, so

Nicole: No, definitely not.

Holly: But so moving from your nemesis to mine, the morality clause.

Nicole: Well, I also don’t like the morality clause. It is, so I believe and this is just a personal moral thing. I don’t think you should traipse people through the house, when these kids are, you know, moving past a divorce. And this is a totally new environment. And they’ve never seen mommy or daddy with anyone else. As a person, don’t believe in that. But I think when you’re trying to control someone’s behavior, and just the issues that are involved in a morality clause, first able to prove it’s actually been violated is usually has to do with, you know, calling in third party witnesses or calling in a PI.

But I think that the thing is, I mean, we’re talking about mostly it’s 11pm to 7am, or 10pm to 7pm. The issue you have is you might have your significant other over and 10 other friends and at 10pm, that significant other needs to leave, and your 10 other friends stay. I mean, let’s be real, the whole reason people don’t want a morality clause. I guess there’s two reasons. They don’t want little Bobby to see daddy in bed with a woman in the morning.

That’s one of the main reasons. I think the other reason is they don’t want anything scandalous going in their house, that, you know, once they’re divorced. But the reality is, for the most part, I would say is if someone is going to have someone spend the night, or they’re going to, you know, do those type things. Are they really flaunting it in front of the children? Probably not. You know, and I ask clients all the time, and what do you think your spouse is going to do in the future. And if you’re trying to fix issues and trying to create morality, where there may not be morality, I find that one of the better ways to address this is maybe putting something in place where the children can’t be introduced to a significant other until they’ve been dating in a monogamous relationship for a certain amount of time.

Something that really gives a little bit of clarity to the other party, that they’re not going to just be introducing this child to every single person, they, you know, date on Bumble or whatever. And so if Bumble is even around, it may not be. I’m sure it’s some new thing. But I think that that’s the main thing with a morality clause. And honestly, courts don’t care. I mean, I don’t know if your judge, I will never see a court grant a morality clause on file.

Holly: Never, never.

Nicole: And so I do think if you’re going to include it, put some sort of timeline amount on it, or really just with your client, try to address what their real reason for wanting it is.

Holly: I see a lot where people want to put that, you know, until they’ve been dating for six months or whatever. I think that’s really hard to prove, too, because.

Nicole: Oh, it’s so hard.

Holly: When did we start the clock on that. Did they give you notice that okay, on January 7th, we became a couple. Maybe they put it on Facebook. And otherwise, how do you ever even prove that?

Nicole: Oh, it’s so difficult. And then the one that I get it, and that’s put in orders. I mean, we all put things in orders that is the having to have a conversation, introducing the you know, the girlfriend or the boyfriend to the to the ex prior to the introduction. Have you ever had that go well? No. But people want it in there.

Holly: So, another topic that we have a, I think a lot of problems within orders is related to electronic communication. I mean, I cannot tell you how often I see in an order that the parties will be allowed, quote, reasonable electronic communication during the other period, other side’s period of possession. And there’s nothing less enforceable than that, in my mind,

Nicole: Completely. So I actually am a proponent of electronic communication. I think that probably the majority of the judges aren’t. You know, a lot of times, they won’t do it, except maybe a couple times a week. And they feel like it’s invasive in the fact that, you know, it’s used as an interrogation technique for the one parent to find out what the other parent is up to. But, again, my husband has always talked to his kids every night, and his ex wife has always talked to kids every night.

And I think if you put it in there in the language, I include in my order is it’s just a period of time, let’s say between 6:30 and seven, that you have the opportunity to call and have a quick check in. And that if that person misses that phone call, because they might be preoccupied, they just return the phone call before bed. And you might do that twice a week. It may not be every other night.

But I think, you know, you have to explain to your clients. And this is part of, you know, the beginning of talking to them about this. If your child is three years old, and you’re trying to FaceTime with them, they are not going to be paying attention to you. I can’t tell you the amount of times that the kids got on the phone and said, hi mommy, when they were talking to dad, because they were watching some TV show and they were distracted. And that’s typical. And you want your kids to be enjoying their time at their other parent’s house.

And so I think that, you know, you have to be cognizant of what’s going on in someone else’s life. And you know, if they’re at their aunt’s wedding on a Saturday night, and they’re not available between 6:30 and seven, it’s not the end of the world. Because I do think people use this against their other parent in a very bad way. But I do also know that a lot of people want a proof of life on their child. And especially, maybe let’s say that first summer where that child’s away for a longer period of time.

But I do think that there’s ways to put it in there that it is a little bit more clear on what is reasonable. Because I don’t know if you have those clients and no offense, but it’s mostly men, who are like, oh, well, I want to talk to them every morning as they’re going to school. And in the evening. And I’m like, have you ever tried to get a kid to school? There is not a lot of flexible time in order to facilitate a phone conversation. I mean, usually there’s a lot of hustling, there’s maybe some screaming. I mean, there’s just not time to have that conversation.

Holly: So, we’re almost out of time. But there was one last area I wanted to talk about. Because I think this is something we see quite a bit surprisingly in a high number of cases where we have to deal with alcohol issues. So and sometimes, you know, if we’re doing sober link, or something like that, it’s pretty easy to create an enforceable order and to have these parameters. But what about if we are, you know, doing other types of alcohol injunctions?

Nicole: You obviously have sober link. You have the opportunity, if there is wanting for testing, there’s ETD. But I found that that’s kind of gone to the wayside because someone has to go somewhere afterwards. But our courts have a very tough time putting injunctions in place. And one of the reasons I think is that, is how do you determine whether or not someone’s intoxicated? Obviously, it’s very clear if there’s an injunction in place that says that they can’t drink alcohol at all. Maybe they drink a glass of wine and a PI catches them, then you know.

But again, most people don’t agree to not being able to have a glass of wine or a margarita with their child. And so to be able to enforce it, if you, I find that sometimes people are just like, okay, let’s just go to the next fix, which is to the point of intoxication. And everyone knows that intoxication requires so many factors. I mean, what you’ve eaten that day, how much you weigh, whether or not you had a hard workout. And so I don’t think any court is going to get into the mind of the person to determine whether or not they’re intoxicated.

So I truly think for an enforcement issue, if you are looking for, to make certain that you can mandate whether or not alcohol is enjoined, you have to do something like sober link or an ETD test that you can call in after a period of possession and access. But I’ve had those cases, you know, it says 36 hours and you know, that client goes at 37 hours, because that’s the only time that they’re going to be clean. I think it’s very difficult. And I find that more and more of our judges don’t quite understand alcohol, and how important it is to be enjoined from if clients have an issue. So it’s a tricky one to prove.

Holly: So I know in your paper, there are several other topics. So what was the title of your paper? If anyone wants to go find it from Advanced?

Nicole: Yes, certainly. It was Orders With Bite: Drafting Orders With An Eye For Enforcement. And I’m more than willing to send it to people. So don’t have to go through all the articles for Advanced Family Law. And my email is [email protected].

Holly: Excellent. So one of the questions I like to ask everyone who comes on the podcast is this. If you could give one piece of advice to young family lawyers, what would it be?

Nicole: I actually probably have two, but they’re short. One, I think that baby family lawyers need to be reading CLE articles, they need to read the Texas Family Law Handbook. I mean, that is how you learn how to be a lawyer. Going and talking to other attorneys and getting that advice is important. But it’s after you’ve done the research. And then I think the second one, speaking of going and talking to other family lawyers is to get a mentor.

Get someone that can counsel you, not only through the legal requirements of being a family lawyer, but you know, the it’s a very stressful job. And you need to have people you can bounce ideas off of and understand what you’re doing, and why you do it. And basically to give you a break from what can be fairly toxic with our clients.

Holly: So I know you already gave your email address, but beyond that, where can our listeners go to learn more about you?

Nicole: Certainly, you can look at my firm website, Laura Dale and Associates, and I’m also on Facebook. It’s Nicole Voyles Marrs and on Instagram, it’s Nikki n i k k i v 35. I must warn you if you go to my Facebook or my Instagram account, you’re gonna see lots of cute pictures of my baby.

Holly: Well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast take a second leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at draperfirm.com.