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.  

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