Thursday, January 12, 2017

Texas Attorney General's office and children

I get phone calls on a weekly basis regarding people thinking about or having already gone to the Texas Attorney General (TX A G) office to establish paternity, set up child support or set up their visitation, etc.

People somehow think that the TX A G is there to help them - for free.

TX A G is assigned to collect child support on behalf of all the citizens of Texas.

The TX A G does NOT represent you or your children's best interests.

The TX A G represents all the citizens of Texas.

Here is the bottom line -- BEFORE you call the TX A G or go to their office you MUST, MUST, MUST meet with an attorney in person and discuss your case.

It will probably scare you to death.

Major complaints seem to be:
1. I did not understand what I was signing
2. I was told I could change my mind but now they say I cannot
3. They lied to me (or omitted vital information)
4. I did not understand what they were talking about
5. I did not get a copy of my paperwork
6. No one explained all of my options to me

Once you sign, you have agreed to what is printed on the paper. If it is NOT on the paper then it's not legally binding.  Once you leave, a judge will sign the paperwork and the case is over.  Within 30 days the case is final and legally binding on the parties that signed.

To fix "the mess" will now require an attorney and the burden shifts to YOU as to why a judge should modify what you already agreed to do.

This burden of responsibilty is not easy to do.  For example, if mom is a stripper and  she becomes a prostitute after the papers are signed - then it's not a change of circumstance.  Therefore, the judge might not modify it.

I beg people to talk to an attorney BEFORE doing anything.

If you want to move and there is a residency restriction - then you are not moving.

If you want a residency restriction and it's not included - then it's harder to get one added later.

PLEASE PLEASE PLEASE don't go to the TX A G office without talking to an attorney first.

And, be aware that they make promises but never do anything. They are an agency assigned to collect child support. Period. They don't care if you never see your kids. They won't enforce visitation. But they will have you thrown in jail for at least 6 months for missing payments.


Why you might not want to be an agent or power of attorney for someone

Below is the current law in Texas regarding the legal obligations of any person that becomes an agent and/or power of attorney for another person. It is scary - you can be sued. This is why many people refuse to serve -- the liability and risk is just too great.  

So before you agree to be someone's agent or power of attorney PLEASE talk to a lawyer in person about this matter.





IMPORTANT INFORMATION FOR AGENT (ATTORNEY IN FACT)

Agent's Duties
When you accept the authority granted under this power of attorney, you establish a "fiduciary" relationship with the principal.  This is a special legal relationship that imposes on you legal duties that continue until you resign or the power of attorney is terminated or revoked by the principal or by operation of law.  A fiduciary duty generally includes the duty to:
(1)        act in good faith;
(2)        do nothing beyond the authority granted in this power of attorney;
(3)        act loyally for the principal's benefit;
(4)        avoid conflicts that would impair your ability to act in the principal's best interest; and
(5)        disclose your identity as an agent or attorney in fact when you act for the principal by writing or printing the name of the principal and signing your own name as "agent" or "attorney in fact" in the following manner:
(Principal's Name) by (Your Signature) as Agent (or as Attorney in Fact)
In addition, the Durable Power of Attorney Act (Subtitle P, Title 2, Estates Code) requires you to:
(1)        maintain records of each action taken or decision made on behalf of the principal;
(2)        maintain all records until delivered to the principal, released by the principal, or discharged by a court; and
(3)        if requested by the principal, provide an accounting to the principal that, unless otherwise directed by the principal or otherwise provided in the Special Instructions, must include:
(A)        the property belonging to the principal that has come to your knowledge or into your possession;
(B)        each action taken or decision made by you as agent or attorney in fact;
(C)        a complete account of receipts, disbursements, and other actions of you as agent or attorney in fact that includes the source and nature of each receipt, disbursement, or action, with receipts of principal and income shown separately;
(D)        a listing of all property over which you have exercised control that includes an adequate description of each asset and the asset's current value, if known to you;
(E)        the cash balance on hand and the name and location of the depository at which the cash balance is kept;
(F)        each known liability;
(G)       any other information and facts known to you as necessary for a full and definite understanding of the exact condition of the property belonging to the principal; and
(H)        all documentation regarding the principal's property.
Termination of Agent's Authority
You must stop acting on behalf of the principal if you learn of any event that terminates this power of attorney or your authority under this power of attorney.  An event that terminates this power of attorney or your authority to act under this power of attorney includes:
(1)        the principal's death;
(2)        the principal's revocation of this power of attorney or your authority;
(3)        the occurrence of a termination event stated in this power of attorney;
(4)        if you are married to the principal, the dissolution of your marriage by court decree of divorce or annulment;
(5)        the appointment and qualification of a permanent guardian of the principal's estate; or
(6)        if ordered by a court, the suspension of this power of attorney on the appointment and qualification of a temporary guardian until the date the term of the temporary guardian expires.
Liability of Agent
The authority granted to you under this power of attorney is specified in the Durable Power of Attorney Act (Subtitle P, Title 2, Estates Code). 
If you violate the Durable Power of Attorney Act or act beyond the authority granted, you may be liable for any damages caused by the violation or subject to prosecution for misapplication of property by a fiduciary under Chapter 32 of the Texas Penal Code.

THE ATTORNEY IN FACT OR AGENT, BY ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER LEGAL RESPONSIBILITIES OF AN AGENT.

Wednesday, January 11, 2017

I married somewhere else and now I live in Texas

In Texas, if you have lived here for at least 6 months then you are a legal resident of Texas.

It does not matter where you married - Las Vegas, Mexico, India, China, etc.

It does not matter if your spouse is not here.  If the spouse has never lived here then the court has limited jurisdiction over the person but YOU can get divorced.

I recommend that you hire an experienced family law attorney to guide you. It's more efficient and the attorney will know what needs to be done to accomplish finishing the divorce.

If your spouse cooperates, it saves time and money but even if they don't cooperate the divorce will eventually be granted after you have jumped through a bunch of hoops.

So look on www.avvo.com for an attorney to help you.

Good luck!

How to divorce a missing spouse

In Texas, you can divorce a spouse even when you don't know where they are currently located.

I usually recommend that you try to find the person first. Look on www.facebook.com and other social media sites.  I usually don't recommend hiring a private investigator because the attorney appointed will have to repeat all the work done.  However, occasionally a pi can find the person so if you have the money to spend you might try this first.

If you can locate the person, it definitely saves you time and money.

If you truly cannot find them then hire an experienced lawyer to help you.  I think it's too complex to try to do it yourself.  Of course, you can try but I think you will find it frustrating and difficult.  It might not be impossible but I don't see any pro se (self representing) parties successfully complete such a case when I'm in the courtroom.

If you cannot serve them personally then a "publication divorce" will be necessary. It needs to be published in an appropriate way and then the person publishing returns a certificate to the court's file. Merely publishing in your local paper is NOT enough.  You MUST have the certificate of publishing filled out by the newspaper.

Then the judge will appoint an attorney to represent the interests of the missing spouse.  YOU pay for this.  I normally charge around $750 if I am appointed on such a case.  Some attorneys are less and some are more. But normally $1,500 is the highest I've seen it go unless there are unusual circumstances.

The attorney will normally talk to you or send you questions to answer. This information will help the attorney find the missing spouse.  Often people don't realize how much information they have on their spouse that can help locate the person.

What do you need to help find the person?

Full legal name
Other names used
Date of Birth
Location of Birth
Social Security number (even if it's made up - I've found people)
Driver's license number
Career info - (for example - a barber - that requires a license)
Where are the person's parents and/or siblings?
Who is the person's best friend?
Last known address
Last known phone number
Last known employer
Where did they go to high school and/or college (many alumni groups keep info on their alumni)
Photo of person
Where and when did you meet your spouse
Hobbies of the missing person
All social media presence
Criminal convictions (I've found some spouses in prison or jail)

Good luck!


Monday, November 14, 2016

Warn your teen-agers about "sexting"

A very upset parent just contacted me.  Her daughter is a honor roll student and on the student council.  She never thought this could happen to their family.

Apparently her 15 year old daughter had sex with her boyfriend who is 17 yrs. old.  He videotaped her naked and they "sexted" photos of their privates to each other.

He has distributed these videos and photos all over the internet via different social media sites plus sent them to her friends.

So have a serious talk with your teens about sex, videotaping and sharing "private" info.

He is 17 yrs. old so he's an adult for criminal purposes in Texas.

She is under 17 so she cannot consent to sex.  But since they are so close in age it won't be considered "statutory rape".

The parents went to talk to his parents who laughed the entire thing off.

Now the girl is embarrassed and does not want to go back to school and face her friends.

What to do?

Contact the local police.

Contact the District Attorney's office.

Contact an attorney that handles some criminal law cases as well as has knowledge on getting a restraining order.

This young lady's life is now in shambles.  She is totally embarrassed.  Her entire family is living a nightmare because her naked photos are on so many websites.

They were madly in love, then broke up so he decided to "punish" her.

Now his parents are probably going to have to hire a lawyer to represent him in civil and criminal court.

Ouch!

Sunday, November 13, 2016

Why doing legal paperwork is often a bad idea

On www.avvo.com - another interesting question was posted today.

Avvo is a free website where people can ask attorneys questions.

Today's question involved  a do it yourself divorce question that now has possibly created a huge mess that is going to cost a lot of time and money to fix.

Guy divorces wife with dementia several years ago.  No attorneys involved. Now years later her sisters apply for guardianship over the ex-wife and want husband to "re-divide" the divorce assets.  Of course, since divorce the man has accumulated more assets.

I suspect if he can prove that wife was competent at time of divorce and signed all the papers properly then he's fine.  However, he's going to have to hire a lawyer to go to probate court and defend him.

So here is the bottom line...

Pay a lawyer now a little bit of money to do it right or pay a lawyer a lot of money later to try to "fix" or "minimize" the mess you caused by saving a few bucks.

I am an attorney and I never represent myself in court --- I hire someone to guide me and protect me.  When I'm personally and emotionally involved in a matter then I might not be thinking straight.  I find it much cheaper to do it "right" the first time and avoid head-aches and aggravation later.


Friday, November 11, 2016

Things to think about BEFORE mediation

People often come to mediation unprepared.

It wastes time and money.

Here are some things to consider BEFORE you show up at mediation:

1.  What are the possible strengths of your case?

2. What are the possible weaknesses of your case?

Yes, all cases have strengths AND weaknesses.
Even the thinnest pancake has 2 sides.
No case is EVER a "slam-dunk".
There are always two sides to the story.

3. What has the judge done in the past in cases similar to yours?

Each case is unique -- but knowing how the judge has ruled in the past can be very helpful.

4. If you have a jury trial scheduled, how have juries in your county ruled in the past?

Remember - in family cases - juries are allowed BUT they do not make all the decisions.  The law in Texas still allows judges to have input in the final outcome of the case. Talk to your attorney about this and possible outcomes BEFORE showing up at mediation.

5. To settle the case NOW, what will you do to resolve the matter today?

6. What do you think the other side would say to question #5?

Crawl in the other party's head and try to assess their best and worst day in court.

7. What is your absoute worst deal that you would accept to settle this case NOW?

8. What do you think the other side would say to question #7?

9. What is the very best outcome you can expect if you go to trial?

10. What do you think the other side would say to question #8?

In family courts, judges tend not to give either party 100% of what they ask for. Most judges try to let both sides leave feeling that they "won" something.

For example, even in a really bad property division case, the judge rarely (if ever) gives 100-0 split.  Most like 50-50 or 45-55 or maybe (not very often) 60-40.  After 25 years, I've seen a few 90-10 but that normally only occurs when there is little community property and the 10% party has a huge separate property estate.


Monday, November 7, 2016


There are 2 terms that many mediators use --

BATNA (Best Alternative To A Negotiated Agreement) 
and 
WATNA (Worst Alternative To A Negotiated Agreement)

Both can be useful to help people evaluate their case and their success or failure at trial.

Mediators like to discuss the best and worst outcome a trial to help people "reality test" their case. It helps to move the negotiation process forward.

Of course, discussing BATNA and WATNA with the people should be done privately and never in a joint session.  I find that people are more willing to open up privately then when they are in the same room.

As Judge Dempster (of blessed memory) used to say "even the thinnest pancake has 2 sides."  A skilled mediator should encourage people to see the pros and cons of their case.  Often this can be quite emotional and scary so it must be done gently. 

I rarely see a case that is a "slam dunk".  Most cases have pros and cons.  If cases were clear cut then the courts would be empty. Unfortunately, most people can only see their side of the case and they are resistant to seeing the other party's side of the story. 

Mediators who can help parties to perform a high quality and comprehensible alternatives analysis will often improve negotiation strategy significantly. 

Many times there are benefits to settling that the parties have not considered - such as (1) their growing legal fees (2) how their lives are put on hold while the lawsuit is pending (3) the possibility that they will lose and (4) how the lawsuit is impacting their physical and mental well being and (5) how the lawsuit is impacting the entire family. 

After being a full-time mediator for 10 years I have learned that the mediation process can be empowering and even healing for the parties involved in a nasty, contested lawsuit. Mediation is a process and it often takes time for the parties to embrace the option of resolving their disputes at mediation. When settlement happens the relief on the parties faces and body language can be remarkable.

I get a lot more hugs (and flowers) from mediations than I ever did when I litigated.




Friday, October 28, 2016

Excerpt from the book "Divorce 911"


Fran Brochstein's article from the book "DIVORCE 911" available now on Amazon
           

Child Support - For someone going through a divorce in Texas and wanting to know about child support, they need to first look at their tax returns. In Texas, we take into account all sources of income also known as “net resources” (it’s defined in the Texas Family Code). For example, I've actually had people that don't “work”. I said, “Okay, how do you live and pay your bills?” For example, one man owned several blocks of downtown Houston. He lived off of his investments. Well, his child support will be based on his income based on his tax returns. He was a multi-millionaire. He was not happy about having to pay child support because he did not actually “work”.

What most people don’t realize is that other people have tried every trick in the book. At the courthouse is a syndrome referred to as “RAIDS” or “Recently Acquired Income Deficiency Syndrome”. The best example I have of that is, if I had an engineer quit his job, making over $200,000 a year. He decided to become a bagger at a grocery store making minimum wage. We went down, and the judge said, "I think it is lovely that you are a bagger at a grocery store. You are purposely underemployed and therefore you are going to pay child support at your last job at $200,000 a year." Needless to say, the guy was upset.

I had an oil executive that got laid off in the oil business. I said, "Okay, so are you going to go get another job?" He said, "Yeah." I said, "Okay, it will be based on your new job." He was upset and wanted it based on his unemployment. Judges know that most oil executives get new jobs and they are willing to wait a few months until the person gets a new full-time job with benefits.

Child Custody & Spousal Support - Since Texas is a gender neutral state, I’ve had at least 3 women in the last year that had “house husbands” that they supported 100% because the men were home raising the children while the wife worked.  In all 3 cases, the men qualified for spousal support.  I thought men paying spousal support were angry until I observed these women’s reactions. 

Many people are under the mistaken belief that Texas does not have alimony. The legislature of Texas opened that door several years ago and the door is getting opened wider every time the Texas legislature meets.  Texas is not as generous as California, but Texas has now opened the door.

Many women mistakenly believe that they get automatic custody in Texas of the minor children. Again, the Texas legislature modified the Texas Family Code many years ago to be gender neutral.  Having given birth does not automatically insure that a woman will win primary custody. Perhaps some courts lean more toward giving a mother custody of a small baby but the law is technically gender neutral. 

Any man that says a male cannot get custody in Texas is wrong! Approx. 20 years ago I started getting men custody of their children. I would screen the men that came to be carefully but I frequently was able to get the male primary custody of the minor children.  I agree that a man has a harder burden than a female, but I’ve seen it done often in the Harris County courthouses.  And, in mediation the parties often switch custody when a child reaches puberty.  After practicing law over 25 years, many men make good “mommies”!

Another term I often hear is that people want “full custody” of a child.  I have no idea that that means since it is not a legal term used in Texas.  It is presumed in the Texas Family Code that the parents will co-parent and that they will both have Joint Custody of the minor children.  Joint custody does not mean that there will be no child support.  Joint custody does not mean that the parents will equally share the children.  I urge people to talk to an experienced family law attorney when the first begin to think about separating or divorcing.

Why Mediation Works - I'm always shocked at a mediation when an attorney has not prepared the client for the reality of divorce and child custody cases. Many people have unrealistic expectations of what actually happens in mediation and at trial in front of a judge.  I believe that attorneys do a disservice to their clients but not “reality testing” throughout their legal representation with their clients.  Sometimes clients need to hear things that they don’t want to hear.  Clients need to understand the reality of divorce and child custody laws in the State of Texas.  There are no winners in the family courts – the children are the biggest losers.  If there are any winners it’s the lawyers because they make a lot of money off letting people “fight” at the courthouse.  So while the clients are draining their bank accounts the attorneys are filling theirs! 

I have been told repeatedly by Texas judges that they never give anyone 100% because they do not want one party to feel like they “won”.  Judges prefer to give each party “something” and have both leave unhappy.  Since judges in Texas are elected, judges are very sensitive to trying to be fair and impartial to all parties.  Also, even though it’s alleged often I know of no family judge in Harris County has that been “bought off”.  When I dig a little deeper with the unhappy person, I find that they did not get everything they wanted and expected so they think that the opposing attorney “paid off” the judge. 

In mediation I frequently find out more about the case then their own attorney because I ask a lot of questions. That's how I settle cases at mediation, because I actually listen to the people discuss their feelings and their fears.  Fear, anger, revenge, and other emotions can often paralyze a person.  A person that is in panic mode cannot make rational and reasonable decisions.  A person’s feelings must be addressed in order to help them make decisions that they will not regret later and move forward.  Some attorneys try to avoid discussing emotions and feelings.  In order to be an effective mediator, I must address what is motivating the people and their feelings. 

When I litigated, I often had judges ask me why I never had contested hearings and trials in their courtroom.  I would tell them that I know how they are going to rule in a case and I can therefore usually settle a case without going to mediation or trial.  A good attorney knows the judge and the judge’s approach to applying the law.  Even though the State of Texas only has one Family Code, the code is interpreted by the Judge.  Every judge is different and each judge has their own interpretation of the law.

Advice to people going through a divorce or modification - I tell people do not talk to everyone about what you're going through, because after a while you get really boring and people will begin to avoid you. Then I tell people that they should immediately go into therapy to get them through this difficult period I also can assure them that if they work really, really hard on themselves then two years from now they’ll be in a much better place and much happier.

What Judges say about talking “bad” about the other parent - One judge recently told me that 2’s don't marry 10’s.  The best example I'd like to give is when a woman says, "You know, I've got 4 kids, my husband's a drug addict, he doesn't work, he sleeps all the time and plays video games." I said to them, "I'm sorry. You chose to stay with him all these years, and have more than one child with him. The bottom line, when you go in front of the judge to complain about him, how does that reflect well on your selection process?" It shows very poor judgement and common sense on your part. People are appalled when I say that, but more than one judge told me that they picked each other and they have to live with the decisions that they have made. 
For example, several years ago one mother and father got on the stand and said how bad the other parent was. The judge stopped the process and said, "Here's the bottom line. I believe both of you. I'm calling CPS and your children are immediately going into CPS (TX Children’s Protective Services) custody." I was at the courthouse that morning and the word spread like wildfire about what the judge had done in the case. That afternoon, I got a phone call from the mommy, and she and daddy were now the best of friends because their kids were in CPS custody. I said to her, "I already heard about your case and I’m not interested unless you show up in my office with $15,000 and understand that it will probably take 6 months or more to get your children back home.” She was like, "We don't have that kind of money." I said, "You guys decided to sling the mud and say how bad the other parent was, and the judge determined that you were both telling the truth so she is obligated to protect your children." These parents had to go through a lot of time, money and almost a year of being supervised by CPS and completing the CPS parenting plan (supervised visits with their children, drug tests, therapy, parenting classes, home inspections, etc.) to get their children back home. 

Reality of Family Law in Texas Courts - People don’t understand that good attorneys resolve most of their cases, if they cannot resolve their case then the attorneys go to a mediator for help in trying to settle the case.  If the mediator cannot settle the case, then the Judge hears the case.  So if you think about it, Judges see the worst of the worst of people in their county.  Judges dockets are huge and judges don’t have the time to hear every case. In reality, in the Houston area, approximately 90% of all cases are resolved without a judge ever hearing the matter. Most attorneys will never admit it but almost every family law case settles – very few attorneys have trials these days. 

Surprise Divorces – I have often seen one spouse has been unhappy for a long time and eventually something happens (usually it’s minor) that makes them file for divorce.  When the other spouse is served with divorce papers they are shocked because they had no idea that their marriage was in trouble.  Some people have not fought in years and often they have not even spoken to each other for a long time.  At least when people are fighting they are still attempting to communicate.  The party that is unhappy wants a quick divorce so they can move on with their life.  The other party is in shock and wants to “save” the marriage.  I find that good attorneys encourage the unhappy party to be patient and gradually help the other party realize that the divorce is inevitable. I often encourage both parties to go to counseling – not to stay married but to learn how to be divorced in a healthy way.

How People should act when their relationship is ending - When spouses have children, I always encourage people to take the high road and never talk bad about their spouse to the children.  I remind people that the children are 50% of each of them and when they insult the other parent then they are also insulting the child. I encourage them to never discuss “adult business” with the child – even if the “child” is an adult.  It is the child’s job to be their child and it is the parent’s job to act like adults and do what is in their child’s best interests.  If both parents are unhappy and the child is doing well then the parents are obviously doing something right. 

My parents divorced when I was in my early 30’s and a divorce attorney.  I tell people that I don’t care if you are 3, 13, 23 or 33, when your parents divorce it is horrible.  The children of the marriage (and perhaps even grand-children) also need time to adjust to this new dynamic.  I assure people that it takes awhile but if everyone stays flexible and open-minded then everyone can adjust to the new arrangement. 

I say you should always take the high road in dealing with the other person.  Why? So that you can look at yourself in the mirror 2 years from now, and if something bad happens to the other person you know you did the right thing. 

Social Media Warning - With the internet, new areas of conflict are occurring – such as social media harassment and stalking. People post the most unbelievably damaging things on social media.  I’ve seen death threats, admissions of illegal activities, selfies of drunk people, etc. Many attorneys are now including in their legal services agreement that a person will not post anything on any social media site while the attorney represents the person. My advice, stay off of social media – especially if you have had an alcoholic beverage or lack of sleep.
I recently did a mediation, and the wife’s alcohol consumption was an issue. The husband walks in with social media posts that had been posted within the last 24 hours.  The night before our mediation the wife and her mother posted photos of them drinking in bar.  I went to her mother and said, "You knew alcohol was a huge factor in this divorce, and the two of you were in a bar last night?" Her Mom replied "Well, we only had two or three beers." I looked at her and pulled up her Facebook page, all the photos were of the mother in bars drinking.  (There were no photos of the children or anything other than bar photos.)  I said, "Here's the bottom line. Every time you get drunk, you go on Facebook. Let me give you a hint. Next time before you walk into the bar, turn off your phone."

I recently had an unusual experience at a mediation, the husband showed me his cell phone with vile text messages from the wife.  I got permission from the husband to show the wife.  (I have them in separate rooms because of domestic violence allegations.)  I show them to her, and she's like, "I never sent any of those." I said, "Well, let me see your phone." It's a different phone number. A lot of people buy burner phones, so I got my cell phone out, and I dialed the number that apparently the messages were coming from, and the guy's briefcase rang. Husband’s attorney was quiet and this case settled quickly.

My personal story – I’m on marriage #3 so hopefully I’ve learned a few things.  I’ve also been a Texas attorney approx. 25 years and I’ve been doing family law for 20 years.  My kid is over 30, and I still talk to my ex-husband all the time. We planned a wedding together – my ex, his wife and me.  After I divorced, my child was very little and we had a lot of problems. I thought getting a divorce would solve my problems, but it did not. It merely changed my problems.  So we went to therapy for 2 years.  It was the best money we could have spent.  We had to learn how to co-parent.  The counselor we used helped us learn to co-parent.  As I tell people, if you work hard then things will get better. 

At my daughter’s high school graduation party my daughter stood up and thanked her dad and I for never putting her in the middle.  She said that she was the only child of divorced parents that was only having one graduation party – most of her friends had to have 2 parties because their parents could not be in the same room with each other.  How sad – especially for the child.

In Summary - Remember, once you have children you are never truly divorced.  You will co-parent your children and your future grand-children for the rest of your lives.  At one time, you obviously loved the other parent and now things have changed between you, but that does not mean that either of you can quit being a parent or caring about your child.  I encourage people to put their kid’s first and everything else second.