Thursday, June 21, 2018

Houston Bar Association Fee Dispute Committee

The Houston Bar Association has a little known committee that handles attorney fee disputes. I've served on this committee for several years. It is under-utilized.

They are interesting cases. I've enjoyed volunteering for this committee.

Unfortunately, the last one I did was family law case.  The attorney's legal services agreement was old and out-dated. She was not responsive to my suggestions on how to improve her agreement to comply with current legal agreements and to bill on a monthly basis and not let the bill build up. Billing every 6 months is just not a prudent way to run a law office.

The 3 person panel (2 attorneys and a lay person) handled the case in a very professional manner. We cut her bill down a bit and gave him 6 months to pay since it took her 6 months to bill him. Both were very happy with the outcome. Both parties felt "heard" and respected.

Basic child issues in Texas

1. You don't want guardianship. You want conservatorship in Texas. There is a big difference.

Guardianship is in probate court. Conservatorship is in family court.

Family court is more liberal that probate court - less reporting to the judge, etc. If possible, use the Family Code not the Estate Code in Texas.

2. Joint Managing Conservatorship or Sole Custody in Texas.

There is no "shared custody" or whatever people make-up.

It's PRESUMED JMC in Texas. BUT JMC can be overcome with proof. Sometimes it's not worth it for the time, cost and aggravation.

3. Texas is a gender-neutral state.

Mommies get no extra points for being mommies.

It's in the TX Family Code that it's neutral.

That said, some judges (often less and less around Texas) prefer mommy to daddy when the child is young. And I've seen female judges in Harris County that favor men over women. So getting a female judge does not guarantee that mommy wins.

I got men custody BEFORE the laws changed to favor dads -- over 22 years ago! So men have always been able to get primary custody in Texas. It used to be harder - but it was doable. I did it and I saw it in Hrris County.

When a man tells me he could not get custody then I often say you hired a bad lawyer. I did it many times. I also picked good daddies and bad mommies and it made it easy for the judge to rule in my client's favor.

At puberty, many men fight and get primary custody.

4. I don't advise men to "put themselves on child support" with the TX A G office. You need an attorney. TX A G is only here to set up child support. They don't care if you never see your child.

Spend the money and hire a private lawyer. PLEASE!

And I have seen typos in the TX A G paperwork - so you truly need an attorney to make sure they do the paperwork correctly. 

5. Rights and Duties - these are important. These are probably the most important thing to fight about. Decisions can be made solely by one parent, independently, after consultation with the other parent or by agreement with a medical tie-breaker.

Don't ignore your parental rights and duties.

There are some rights you have 24/7 - read them!
You have the right to get report cards, go to school, talk to teachers, be informed of your child's health education and welfare, etc.

There are rights you have when you have the child with you -
take the child to the doctor or hospital if it's an emergency (such as a high fever, lots of blood, broken bone, etc.). Plus the right to take the child to any church you want. You have the duty to feed, clothe and shelter them when you have them. So mom can send the child with nothing & you have to have a toothbrush, toothpaste, change of clothes, pjs, toys, etc.

6. It is very common for a decent and experienced family law attorney to add extra stuff not in the Texas Family Practice Manual - such as phone calls, right of first refusal regarding visits, etc.

I encourage you to only hire a lawyer that does family law as their primary practice. I personally dislike having to deal with attorneys that do corporate, criminal or other areas of the law that represent their family members or friends in a "simple" divorce. The attorney is doing a huge disservice to their client.

7. If you don't have much money look around for a lawyer. For example, a basic divorce takes at least 10 hours. With kids bump it up to 20 hours.
If you hire a $500/hour lawyer that's $5,000 - $10,000. Can you afford it?
If not, find someone else cheaper.

Just because someone charges $600 an hour does not mean they are better than someone that charges $300 an hour. Many of the expensive lawyers just have huge overhead.

I office in a cheap space. I save money anyway I can. I don't have a "fancy" office with staff. If you need all the bells & whistles expect to pay for it.

8. Don't hire and fire lawyers. There is an unwritten rule to never be the 3rd lawyer (and to never been attorney 4 or 5) on a divorce case - it shows that usually the client is unrealistic in their expectations or difficult. If you find a good lawyer and you have hired and fired other attorneys then plan on paying a premium.

9. Don't try to hire a lawyer at the last moment. Most competent attorneys won't sign onto a case with less than 90 days to prepare for trial. Attorneys are held to a professional standard and they don't want a grievance because the client is unhappy at the end of a case.

10. Due to the huge number of grievances against family law attorneys, family law attorneys must protect themselves from a future grievance from an unhappy client. So you can expect them to do "discovery" to determine what assets and debts exist.

11. Beware of lawyers that promise you the sun, moon and stars. I know of no judge in Texas that gives one party everything they ask for. I had one judge say I always give something to both sides because I don't want anyone to feel like they left with nothing

12. A trial is expensive. Most lawyers charge at least $5,000-$10,000 due BEFORE the trial begins.

13. A jury trial is very very expensive. Expect to pay over $10,000 if a jury request is asked for.

Plus remember you get the 12 dumbest people that could not figure out how to get out of jury duty.

Most juries are mean - they are mad at being picked, missing work, sitting in uncomfortable chairs, sitting next to people they don't know, eating bad food, having to go to court early each morning & finding a parking spot, etc. In Harris County, I've seen some really mean juries that often don't apply the law correctly. They can be scary.

14. Around 90% of all cases settle at or before mediation.

Why? It works, the judges know it and will keep sending you to mediation - sometimes 2-3 times.

Some reasons are that people run out of money. People surrender & give up. The attorney withdraws if you don't pay their bills. You are left hanging. It's not pretty.

That is why I shifted my practice to 100% mediation over 13 years ago. I saw where family law was going in Harris County & I wanted to actually help people. I made a lot less money being a mediator  -- but my hugs and thank you's went up 1,000% & I can sleep at night knowing that I help people.

15. The only forms in Texas to use are on www.texaslawhelp.org

Avoid all other websites! Don't pay for forms!

16. If you have someone else's child over 6 months you have legal standing to file for custody. Do it!

17. If you are pregnant, talk to a family law attorney BEFORE the baby is born. It's sad when a young lady has a baby and does stuff before talking to a lawyer. Sometimes it is worthwhile not to apply for Medicaid and food stamps. Sometimes it's best not to put a man's name on the birth certificate.

18. After practicing over 27 years, no case is ever identical.

Many cases are similar -- but none are identical.

And your case is not unique or special.

Most divorces are pretty much the same. I rarely see a truly unique case.
After practicing 27 years, I have been involved in 3 really "interesting" cases with unique facts. Such as "sex slave", "nursing while on drugs" and "husband hiding all of wife's stuff & lying to the judge" (he was a truly evil and mentally ill fellow but looked & acted totally sane).

And, a $3-5 million dollar estate is not that much money in Houston.

I've handled mediations with lots of zeros -- it's just "stuff" that needs to be divided.

19. If you go to trial the judge will access who is telling the truth and your attitude. Judges don't like people that refuse to "co parent" or "bad mouth" the other parent. I've seen judges limit visitation when one parent cannot control themselves when bad mouthing the other parent. Judges know about parental alienation and they take it seriously in Harris County.

20. Talk to a lawyer before you do anything. I would talk to a lawyer before separating.  PLEASE!

21.  Texas does not have legal separation. You are married or divorced.

22.If you are married, then you cannot have a "common law marriage" with another person.

23. If you think you might be married, please talk to a lawyer before getting married again.

24. There are a lot of bigamists out there. It's more common than you realize.

25. Many family law attorneys and mediators get death threats. I've had so many that my husband refuses to allow me to take new cases or be appointed an amicus attorney for kids in cases anymore. I get about 1 a year.






Wednesday, June 13, 2018

Advice from a Judge about divorce and children


Profound Advice From A Judge About How A Few Words Can Hurt Your Child
Parents involved in high conflict divorces are often so emotional that they forget the impact a few harsh words can have on their child.  We hear parents daily in the courts saying terrible things about the other parent; it is often reported that, for example, a mother says to her child, “Your father is an idiot,” or a father says, “Your mother is a fool.”  Those few words, while said about a child’s parent, are also a direct criticism of the child.  Lawyers, judges, therapists and child advocates tell parents not to make such statements to their child or within hearing of their child, but no one has explained why better than in the following advice from retired Minnesota Judge, Michael Hass.
Judge Haas retired in December 2002 after 26 years of service as a Judge in Cass County, Minnesota. Below are his remarks from a particularly difficult divorce case.
“Your children have come into this world because of the two of you. Perhaps you two made lousy choices as to whom you decided to be the other parent. If so, that is YOUR problem and YOUR fault.
“No matter what you think of the other party – or what your family thinks of the other party – these children are one-half of each of you. Remember that, because every time you tell your child what an ‘idiot’ his father is, or what a ‘fool’ his mother is, or how bad the absent parent is, or what terrible things that person has done, you are telling the child half of HIM is bad.
“That is an unforgivable thing to do to a child. That is not love! That is possession. If you do that to your children, you will destroy them as surely as if you had cut them into pieces, because that is what you are doing to their emotions.
“I sincerely hope that you do not do that to your children. Think more about your children and less about yourselves, and make yours a selfless kind of love, not foolish or selfish, or your children will suffer.”
Judge Hass’ words are well known in the family law community.  Judge Haas’ advice is so well regarded that his words of wisdom have been referenced in multiple appellate court decisions, law review articles and other legal publications.
Hopefully parents remember these profound words as they consider how to proceed with what no doubt is a very difficult time in their and their child’s lives.



Wednesday, May 30, 2018

You need a mediator to have a "mediation" be valid

The case below reflects that you must have a mediator present to have a real mediation.
Kitchen table agreements between the parties do not count as a mediation.




158 S.W.3d 612 (2005)

James Franklin LEE, Appellant,
v.
Jane Clarius LEE, Appellee.

No. 2-03-359-CV.
Court of Appeals of Texas, Fort Worth.
February 10, 2005.
McClure Duffee & Eitzen LLP, Clint Westhoff, Dallas, for Appellant.
Harris Cook, L.L.P., Chris Harris and David Lee Cook, Arlington, for Appellee.
Panel A: CAYCE, C.J.; DAUPHINOT and GARDNER, JJ.

OPINION

LEE ANN DAUPHINOT, Justice.
The issue before this court is whether a mediated settlement agreement requires mediation. We hold that it does.
Appellee Jane Clarius Lee retained an attorney, and, on May 15, 2003, filed a petition for divorce from her husband, Appellant James Franklin Lee ("Jim"). On June 1, 2003, Jane and Jim met in Jane's home to discuss settling the case. No one else was present at this meeting. They negotiated an agreement. The first page of the agreement was prepared by Jane's attorney. Jim typed the remaining pages. The agreement, entitled "Binding Settlement Agreement," contains the following language on the first page: "PURSUANT TO SECTION 6.602 OF THE TEXAS FAMILY CODE, THIS AGREEMENT IN [SIC] NOT SUBJECT TO REVOCATION." Jim and Jane both signed the agreement. Jim was not represented by an attorney at the time he signed the agreement. Before the rendition of divorce and the property division, Jim revoked or attempted to revoke his consent to the agreement, but the trial court found *613 that the signed agreement between the parties "is ... not subject to revocation." Similarly, on November 13, 2003, the trial court entered the following conclusion of law: "The Agreement meets the requirements of Texas Family Code section 6.602(b) and is therefore not subject to revocation."
In Jim's first issue, he questions whether the written agreement can be a mediated settlement agreement when there was no mediator. Section 6.602(b) and (c) provide:
(b) A mediated settlement agreement is binding on the parties if the agreement:
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.
(c) If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.[1]
As Jane points out, neither mediated settlement agreement nor mediated is defined in section 6.602. As this court has already held when construing another part of this statute,
In construing a statute, our objective is to determine and give effect to the legislature's intent. When terms are not defined in a statute, we apply their ordinary meaning. We also presume that the legislature intended a just and reasonable result in enacting a statute. A court will not construe a statute in a manner that will lead to a foolish or absurd result when another alternative is available.[2]
The first definition for mediation in Webster's Third New International Dictionary is "intervention between conflicting parties or viewpoints to promote reconciliation, settlement, compromise, or understanding."[3] Similarly, mediation is defined in Black's Law Dictionary as "[a] method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution."[4]
Jane argues that the purpose of a neutral third party's presence is to facilitate communication and that when a neutral third party's presence is not necessary to facilitate communication, the parties can agree to reconcile their differences, voluntarily invoke section 6.602, and reach a mediated settlement agreement without a mediator.
Given that section 7.006(a) of the Texas Family Code, which has been in force for many years, already allows divorcing parties to enter into written agreements without requiring mediation concerning the division of the community assets and liabilities as well as spousal maintenance,[5] we decline to carve a common-law exception into section 6.602(b) that allows an *614 unmediated settlement agreement to morph into a mediated settlement agreement based on mere form.[6] We hold that a mediated settlement agreement necessarily requires mediation and a mediator.
Because there was no third party present at the settlement conference between Jim and Jane, there was no mediated settlement agreement. Instead, the couple's agreement is simply an agreement under section 7.006(a).[7] Such agreements may be revised or repudiated before the divorce is rendered unless the agreement is binding under another rule of law.[8] The trial court abused its discretion in preventing Jim from revoking his consent to the settlement on the basis that the agreement was a binding mediated settlement agreement. We therefore sustain Jim's first issue. Because of our disposition of this issue, we do not reach Jim's second issue challenging the legal sufficiency of the evidence to support the trial court's finding that he and Jane intended their agreement to comply with section 6.602(b) and that they voluntarily agreed to invoke section 6.602(b).
We affirm the divorce but remand this case to the trial court for trial on all remaining issues.

Consent to treatment of a child by non-parent of the child

Section 32 of the Texas Family Code addresses how and who may consent to medical, dental, psychological and surgical treatment of a child by someone NOT a parent to the child.

Section 32.002 covers the Consent form and what is required in Texas.


Emancipation in Texas

Removal of disabilities is what emancipation is called in Texas.

You must be 16 or 17 to even apply for it. AND judges usually won't grant it unless you are able to 100% support yourself without anyone else's assistance.

I find that most attorneys won't help a minor seek emancipation without at least $5,000 on account plus all fees (filing fee is approx. $300) since it is not easy and there is a lot of work to be done to prove that a child is able to 100% support themselves without help from anyone. I find that only athletes and entertainers qualify - they need to be able to sign endorsement contracts. I don't see the regular teenager convince a judge to sign unless both parents agree to this lawsuit. And normally you still need a good reason for a judge to make you an adult.

Chapter 31 of the Texas Family Code covers "Removal of Disabilities of Minority". 

It goes into detail under Section 31.002 of the minimum required info that the Petition must contain.

Section 31.004 requires the judge to appoint an amicus attorney or attorney ad litem to represent the interests of the petitioner (the child) at the hearing. You pay for this attorney and it normally costs at least $750 and can go up to $5,000 depending on their hourly rate and how much work they have to do.

Even if you are emancipated no one HAS to lease to you or sell you a car with a note. You probably won't have any credit established in your name if you are 16 or 17. Therefore, most companies won't extend you a line of credit or lease to you until you have a credit score.

Emancipating is not "magical".

Current Texas law on getting married

The Texas legislature changed the law effective September 1, 2017.

It's Section 2.101 of the Texas Family code and it's on-line for free.

It states:
The county clerk may not issue a marriage license if either applicant is under 18 years of age, unless each underage applicant shows that the applicant has been granted by this state or another state a court order removing the disabilities of minority of the applicant for general purposes.

Removal of disabilities is what emancipation is called in Texas. You must be 16 or 17 to even apply for it. AND judges usually won't grant it unless you are able to 100% support yourself without anyone else's assistance.

I find that most attorneys won't help a minor seek emancipation without at least $5,000 on account since it is not easy and there is a lot of work to be done to prove that a child is able to 100% support themselves without help from anyone. I find that only athletes and entertainers qualify - they need to be able to sign endorsement contracts. I don't see the regular teen-ager convince a judge to sign unless both parents agree to this lawsuit.

Chapter 31 of the Texas Family Code covers "Removal of Disabilities of Minority".  It goes into detail under Section 31.002 of the minimum required info that the Petition must contain.

Section 31.004 requires the judge to appoint an amicus attorney or attorney ad litem to represent the interests of the petitioner (the child) at the hearing. You pay for this attorney and it normally costs at least $750 and can go up to $5,000 depending on their hourly rate and how much work they have to do.

If a judge signs the removal of disability paperwork then you take it to the county clerk who issues marriage licenses.

You will need a certified copy of the judge's court order. Generally a certified copy is approx. $1 per page. Clerks accept credit cards and cash. No checks.


So even with a parent's approval you cannot marry until you are 18.


Wednesday, May 16, 2018

Popular amicus attorneys in Harris County


Here is a partial list of amicus attorneys used in Harris County:

Joe Indelicato

Leo Farias

Geric Tipsword 

Rogers Beaudreaux

Israel Saldivar, Jr.

Dara Percely

Rock Pilgrim 

Marsha Reed

Patricia Bushman

Allyson Brubacher

Rose Cardenas

Myrna Gregory

Gina Gilstrap

Karleana Farias

Rogers Boudreaux

Holli Palmer

Lori Laird

Itze Soliz

Allison Travers Hamilton 

Claudia Canalas

Gigi Hedelten Oglesby

Jetty Abraham