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.  




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.  




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 to 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.  




Thursday, October 27, 2016

What to do if you are unmarried and pregnant in Texas or having a baby with a man that is not your husband

I often receive phone calls and emails from new mothers that did NOT talk to an attorney before giving birth.

I urge you to consult with an experienced family law attorney while pregnant - especially if you are unmarried.

Many women put the man's name on the birth certificate and/or give the child the man's last name when the baby is born.

When you do this you are potentially creating problems for yourself in the future.

I recognize that being pregnant is stressful and that you have a lot of things on your plate.  But I urge women to consult with an attorney BEFORE the baby is born.

You could potentially be "opening a door" that you wish later had never been opened.  You are signing legal paperwork that cannot easily or cheaply be fixed later if you change your mind.

PLEASE CONSULT WITH AN ATTORNEY IN YOUR COUNTY IF YOU ARE PREGNANT AND UNMARRIED.

OR -- IF YOU ARE MARRIED AND PREGNANT WITH BABY THAT IS NOT YOUR HUSBAND'S BABY!


Monday, October 24, 2016

What do I do if I'm being stalked?

This is an incomplete list of what you need to do if someone is stalking you or threatening you.

1. Make copies of everything that they send you - on social media, texts, emails, etc. Keep a diary of all events. Keep it factual - who? what? when? where? what happened? why?

2. Quit responding to the person. Silence usually makes things get worst before they get better. Be aware of this! Think about changing all your phone numbers. Don't use your voice on your voice mail. Screen all calls. They often use other people's phones, email or social media accounts to access you.

3. Get off all social media. Merely "unfriending" them is NOT enough. Don't reply to social media posts. Be silent. And remember their family members or a friend might be "helping" the person or "feeding" the person info on you.

4. Go to the police and file a report. There are anti-stalking laws in Texas. The policing agencies are overwhelmed with complaints  - but you need to document and they might contact the person and ask the person to stop. This will either work or they will escalate and get mad.

5. Develop a safety plan. Go on the internet and do research.  Have clothes, money and other necessities in a bag or stashed at someone's home in case you must "disappear" for a few days.  Have a place to go where he/she does not know - a co-worker, a friend they don't know or a shelter.  Going to a shelter is usually not the option you want but it might get you access to a bunch of free services. Do not go to your best friends home or your parent's home.

6. Notice your employer and neighbors of the stalking situation and ask them to be on alert. Ask your neighbors to call the police if they see suspicious activity around your home.

7. This person will escalate if they cannot contact you.

8. Be careful! Murder-suicides happen all the time. You might need to be on high alert for years! People that are mentally unstable cannot control their actions and they sometimes fixate on a person for years.

9. A restraining order is easier to get than a protective order -- but neither will protect you from fists, chairs, bullets, knives, etc.

10. Change your routine. If possible, drive someone else's car that is not in your name or rent one. Wear a disguise or hat to cover your face and hair. If a female with long hair, pull it up.

11. If possible, move, change jobs.

12. It's hard to out think someone who is "crazy". I know. I've been stalked. I had to go into hiding. Within 2 weeks of changing my Texas Driver's license it showed up on the internet on a free website. Scared me! I defeated everything I'd put into place.

13. Get security system at home. Go to Best Buy or a similar store. They cost less than $900 and are easy to install and use - no wiring required.

14. Do internet research on stalking and follow the advice.

15. You cannot ever be too careful. You are not paranoid - YOU ARE IN DANGER - BE CAREFUL!

16. It's rare but sometimes if really bad you can change your social security number.

17. On a regular basis "google" yourself and see what's on the internet. It's scary!

18. Protect your identity. Often to "punish" you then will attempt to destroy your credit. So put alerts on all credit reporting agencies and monitor your credit.

19. Just because they are "silent" for 6 months don't get sloppy. My stalker disappeared for months then started up 6 months later after I moved my home. And, he had "strange" men calling me at all hours of the night - he must have posted my phone number somewhere.

20. Sometimes they just do "little" things (like just move all all your flower pots on your porch) to let you know they are watching. It's really scary.

21. Keep your home, automobiles locked and ideally garaged at all times. Don't walk to your car alone - have someone at work walk with you or have security at a store walk with you.

Thursday, October 13, 2016

Article from Texas Homes for Sale

FRAN BROCHSTEIN, LLC OFFERS CARING FAMILY LAW MEDIATION SERVICES
Family disputes often bring out the worst in people. During her time as a lawyer in the family courts, Fran Brochstein, Attorney & Mediator, saw plenty of bitterness and few solutions. She says that she found her time in family law litigation to be frustrating.
"You see good people at their worst. Litigation is expensive and is a slow process. Most family court dockets are full and sometimes even getting a hearing on an emergency situation can take up to a month, when a child is potentially in harm's way waiting several weeks to get before a judge is unacceptable."
In 2003, after a brush with breast cancer, she decided on a career change from litigation to mediation: "I offer an alternative to going to court. Many courts now require mediation prior to trial. In fact, some courts now require mediation before a person can request even a hearing before the judge." She took her first mediation training in 2004 and is now qualified to train mediators. She has a full-time mediation practice in Houston, Harris County and surrounding counties, focusing on family law cases like divorce, child custody, child support, property division, and modifications.
Mediation is widely used in cases such as small claims court, civil cases, family law and elder cases. It has many advantages over litigation, Brochstein says: "Mediation is a confidential process that uses an impartial third party to help people engage in conflict constructively and discuss their issues. The mediator helps the parties come to an agreement that all the parties can live with. The mediator does not tell the parties how they should resolve their differences but the mediator may offer suggestions for the parties to consider."
Brochstein explains that mediation is less formal than going before a judge. While judges are bound by the rules and have to follow the law, mediators can "think outside the box" and come up with solutions to which both parties can agree. Mediation also saves both sides having to go through a time-consuming and costly court trial. It preserves their confidentiality and unlike family law cases that are tried in the courts, private matters don't have to become matters of public record.
Brochstein recalls an usual mediation case she handled earlier this year, which ended well. A couple in their 60s were getting divorced after being married for forty years, and she was contacted by their grown son to help his parents. The wife had no experience of handling financial affairs but hired a financial consultant and got her first credit card.
Thanks to Brochstein's mediation, the process was respectful and gentle, and the couple were able to reach an agreement that suited both. Once the agreement was finalized, the legal paperwork was handled by an attorney.
Even though she has been licensed as an attorney in the State of Texas for twenty-five years, Brochstein cannot serve as attorney in cases where she is also the mediator. She does have a list of trusted attorneys that she can recommend to clients. Finding a good attorney whom you can trust can be challenging, and Brochstein's advice is to meet with the attorney before signing a Legal Services Agreement.

Here is the magazine article...


http://www.texashomesforsale.com/articles/fran-brochstein-llc-offers-caring-family-law-mediation-services

Fran Brochstein, LLC Offers Caring Family Law Mediation Services

Fran Brochstein, LLC Offers Caring Family Law Mediation Services

Wednesday, October 5, 2016

Texas Holographic (handwritten) will

Texas allows for a will to be entirely hand-written.  Of course, if you don't do it properly then your heirs will pay extra for probating a will with a problem. I holographic will is better than no will but there are many cases where you could be hurting your heirs if you don't do it correctly.

If your estate is over $1 million then please hire an attorney. At least meet with one in person and go over the pros and cons of having a professional draft your will for you.

A will lawsuit can cost thousands of dollars and take months (or years) to resolve. I doubt that anyone wants their heirs to have to suffer through a long drawn out lawsuit.

To write a will in Texas you need to be over the age of 18.

You must be of "sound mind".
That means at minimum that you know what property you own.
You understand what you are doing is writing a will.
And, you need to determine how you want your property divided at your death.

Many things can pass without a will.
Such as...
   Life insurance if you list a person then that person gets the money and the will does not apply.
You can always divided the life insurance between 1,2 or more people. 

   Retirement can pass directly to the people you list. Then the will does not apply.

   Bank accounts - talk to your banker about how to do this so that a designated person or persons get the money directly. One way is "payable on death" or "right of survivorship". The right of survivorship usually means that it's a joint account and that person can also have access to the money - you might not want that while you are alive.

   Vehicles - The State of Texas has forms to transfer ownership of a vehicle when a will is not probated. I recently did this when a friend died. Quite frankly it took months and 4 visits to the vehicle registration office in Houston but the vehicle finally was transferred out of the dead person's name. 

So to write a will you need to write at the top of the page "Will" or "The Last Will and Testament of ____ (your name) ___".

Then you need to identify yourself.
"I, __(your name)__, of  (your address), (your city), (your current) County, Texas on this date, __(write in the exact date with month day and year)__, that am over the age of 18 and of sound mind.  I am writing this holographic will with the intent of setting forth my wishes for the disposition of my estate after my death."

Then follow it with a paragraph revoking old wills.
"I expressly revoke all prior wills and make them invalid and without any legal binding force".

If you truly want any old wills to not see the light of day then shred every copy of your old will(s). This is known as revocation by destruction.

You might want to have the old will be "reserected" if there is ever a will contest. I've known people that were not talking to their family members to do the same (or very similar will) every 2 or 3 months so that there are many wills to attempt to avoid any future lawsuits.  If the first will probated is held to be invalid then the next will is entered for probate and the fight starts all over. Therefore, if you have 4 of the same will there will be 4 will lawsuits and the cost usually deters people from fighting. It also shows the judge that you had intent to have your wishes followed.  

If you anticipate a will contest (lawsuit) I urge you to hire an attorney to make sure there are witnesses and a notary willing to come to court to testify that you were mentally competent and there was no undue influence used on you to write a new will.  You might also want your primary medical provider to note in your file of a recent medical visit and in the notes include that you were of sound mind and not suffering from any mental issues or dementia.

Then there should be a paragraph on dividing your property.
"I want xxx (full legal name) who lives in ____ (full address)__ who is __(my brother, spouse, good friend, caretaker, etc.) to receive __ (100% or whatever you want to say) of my estate. Or, some people divide their estate equally between 2 or more people. Or, some people say " I want to divide my estate as shown on Exhibit 1 attached hereto and made a part hereof of my will that is also signed and dated by me."  Then attach a separate sheet dividing your things and sign and date that too.

Then there should be a paragraph on who you want to serve as executor of your estate.  You need to pick someone smart and willing to do a lot of paperwork and spend time taking care of your financial affairs. It can be quite a lot of work and time.
"I want __ (full name, date of birth, address and phone number if you know all this info.)__ to be my independent executor to serve without a bond."

At the end of the will be sure to sign it as you normally sign things and date it.

DO NOT TYPE IT! The hand-written will must be 100% in your hand-writing. Do not put it on fancy stationery. It must be on plain paper that is easy to read.

If you have more than one page I suggest you number each page and initial each page.

You do not need witnesses to your signing this legal document.  However, if there is a lawsuit no one can testify that you personally signed it and that you were of sound mind and no one forced you to do so or used undue pressure on you to get you to do it.

Be sure to NOT put your will in a safety deposit box. Put the original in a safe place where it can be located after you have died.  You might also give a person a copy of your will too.

Once again a holographic will in Texas is better than no will in Texas.  However, if you have a large estate you might want to set up a trust or do something unusual.  Then only an attorney can help you.

Please don't buy a kit off the internet.

The best free website in Texas for info is www.texaslawhelp.org

If you have no money, there are pro bono (free) legal clinics throughout Texas. Most will have you meet with an attorney and do your will and other highly recommended estate planning documents for free.

Lastly, if in doubt then I would hire an attorney and do it the right way.