I have added several new articles on my website
www.familylaw4u.com
If you have a family law case in Texas - particularly if you live in or close to Houston Texas then I highly recommend visiting my website and learning more about the mediation process.
Tuesday, January 24, 2017
Thursday, January 12, 2017
Texas Attorney General's office and children
I get phone calls on a weekly basis regarding people thinking about or having already gone to the Texas Attorney General (TX A G) office to establish paternity, set up child support or set up their visitation, etc.
People somehow think that the TX A G is there to help them - for free.
TX A G is assigned to collect child support on behalf of all the citizens of Texas.
The TX A G does NOT represent you or your children's best interests.
The TX A G represents all the citizens of Texas.
Here is the bottom line -- BEFORE you call the TX A G or go to their office you MUST, MUST, MUST meet with an attorney in person and discuss your case.
It will probably scare you to death.
Major complaints seem to be:
1. I did not understand what I was signing
2. I was told I could change my mind but now they say I cannot
3. They lied to me (or omitted vital information)
4. I did not understand what they were talking about
5. I did not get a copy of my paperwork
6. No one explained all of my options to me
Once you sign, you have agreed to what is printed on the paper. If it is NOT on the paper then it's not legally binding. Once you leave, a judge will sign the paperwork and the case is over. Within 30 days the case is final and legally binding on the parties that signed.
To fix "the mess" will now require an attorney and the burden shifts to YOU as to why a judge should modify what you already agreed to do.
This burden of responsibilty is not easy to do. For example, if mom is a stripper and she becomes a prostitute after the papers are signed - then it's not a change of circumstance. Therefore, the judge might not modify it.
I beg people to talk to an attorney BEFORE doing anything.
If you want to move and there is a residency restriction - then you are not moving.
If you want a residency restriction and it's not included - then it's harder to get one added later.
PLEASE PLEASE PLEASE don't go to the TX A G office without talking to an attorney first.
And, be aware that they make promises but never do anything. They are an agency assigned to collect child support. Period. They don't care if you never see your kids. They won't enforce visitation. But they will have you thrown in jail for at least 6 months for missing payments.
People somehow think that the TX A G is there to help them - for free.
TX A G is assigned to collect child support on behalf of all the citizens of Texas.
The TX A G does NOT represent you or your children's best interests.
The TX A G represents all the citizens of Texas.
Here is the bottom line -- BEFORE you call the TX A G or go to their office you MUST, MUST, MUST meet with an attorney in person and discuss your case.
It will probably scare you to death.
Major complaints seem to be:
1. I did not understand what I was signing
2. I was told I could change my mind but now they say I cannot
3. They lied to me (or omitted vital information)
4. I did not understand what they were talking about
5. I did not get a copy of my paperwork
6. No one explained all of my options to me
Once you sign, you have agreed to what is printed on the paper. If it is NOT on the paper then it's not legally binding. Once you leave, a judge will sign the paperwork and the case is over. Within 30 days the case is final and legally binding on the parties that signed.
To fix "the mess" will now require an attorney and the burden shifts to YOU as to why a judge should modify what you already agreed to do.
This burden of responsibilty is not easy to do. For example, if mom is a stripper and she becomes a prostitute after the papers are signed - then it's not a change of circumstance. Therefore, the judge might not modify it.
I beg people to talk to an attorney BEFORE doing anything.
If you want to move and there is a residency restriction - then you are not moving.
If you want a residency restriction and it's not included - then it's harder to get one added later.
PLEASE PLEASE PLEASE don't go to the TX A G office without talking to an attorney first.
And, be aware that they make promises but never do anything. They are an agency assigned to collect child support. Period. They don't care if you never see your kids. They won't enforce visitation. But they will have you thrown in jail for at least 6 months for missing payments.
Why you might not want to be an agent or power of attorney for someone
Below is the current law in Texas regarding the legal obligations of any person that becomes an agent and/or power of attorney for another person. It is scary - you can be sued. This is why many people refuse to serve -- the liability and risk is just too great.
So before you agree to be someone's agent or power of attorney PLEASE talk to a lawyer in person about this matter.
IMPORTANT INFORMATION FOR AGENT
(ATTORNEY IN FACT)
Agent's Duties
When you accept the authority
granted under this power of attorney, you establish a "fiduciary"
relationship with the principal. This is
a special legal relationship that imposes on you legal duties that continue
until you resign or the power of attorney is terminated or revoked by the
principal or by operation of law. A
fiduciary duty generally includes the duty to:
(1) act in good faith;
(2) do nothing beyond the authority granted in this power of
attorney;
(3) act loyally for the principal's benefit;
(4) avoid conflicts that would impair your ability to act in the
principal's best interest; and
(5) disclose your identity as an agent or attorney in fact when you
act for the principal by writing or printing the name of the principal and
signing your own name as "agent" or "attorney in fact" in
the following manner:
(Principal's Name) by
(Your Signature) as Agent (or as Attorney in Fact)
In addition, the Durable Power of
Attorney Act (Subtitle P, Title 2, Estates Code) requires you to:
(1) maintain records of each action taken or decision made on
behalf of the principal;
(2) maintain all records until delivered to the principal, released
by the principal, or discharged by a court; and
(3) if requested by the principal, provide an accounting to the
principal that, unless otherwise directed by the principal or otherwise
provided in the Special Instructions, must include:
(A) the property belonging to the principal that has come to your
knowledge or into your possession;
(B) each action taken or decision made by you as agent or attorney
in fact;
(C) a complete account of receipts, disbursements, and other
actions of you as agent or attorney in fact that includes the source and nature
of each receipt, disbursement, or action, with receipts of principal and income
shown separately;
(D) a listing of all property over which you have exercised control
that includes an adequate description of each asset and the asset's current
value, if known to you;
(E) the cash balance on hand and the name and location of the depository
at which the cash balance is kept;
(F) each known liability;
(G) any other information and facts known to you as necessary for a
full and definite understanding of the exact condition of the property
belonging to the principal; and
(H) all documentation regarding the principal's property.
Termination of Agent's Authority
You must stop acting on behalf of
the principal if you learn of any event that terminates this power of attorney
or your authority under this power of attorney.
An event that terminates this power of attorney or your authority to act
under this power of attorney includes:
(1) the principal's death;
(2) the principal's revocation of this power of attorney or your
authority;
(3) the occurrence of a termination event stated in this power of
attorney;
(4) if you are married to the principal, the dissolution of your
marriage by court decree of divorce or annulment;
(5) the appointment and qualification of a permanent guardian of
the principal's estate; or
(6) if ordered by a court, the suspension of this power of attorney
on the appointment and qualification of a temporary guardian until the date the
term of the temporary guardian expires.
Liability of Agent
The authority granted to you under
this power of attorney is specified in the Durable Power of Attorney Act
(Subtitle P, Title 2, Estates Code).
If you violate the Durable Power of
Attorney Act or act beyond the authority granted, you may be liable for any
damages caused by the violation or subject to prosecution for misapplication of
property by a fiduciary under Chapter 32 of the Texas Penal Code.
THE ATTORNEY IN FACT OR AGENT, BY
ACCEPTING OR ACTING UNDER THE APPOINTMENT, ASSUMES THE FIDUCIARY AND OTHER
LEGAL RESPONSIBILITIES OF AN AGENT.
Wednesday, January 11, 2017
I married somewhere else and now I live in Texas
In Texas, if you have lived here for at least 6 months then you are a legal resident of Texas.
It does not matter where you married - Las Vegas, Mexico, India, China, etc.
It does not matter if your spouse is not here. If the spouse has never lived here then the court has limited jurisdiction over the person but YOU can get divorced.
I recommend that you hire an experienced family law attorney to guide you. It's more efficient and the attorney will know what needs to be done to accomplish finishing the divorce.
If your spouse cooperates, it saves time and money but even if they don't cooperate the divorce will eventually be granted after you have jumped through a bunch of hoops.
So look on www.avvo.com for an attorney to help you.
Good luck!
It does not matter where you married - Las Vegas, Mexico, India, China, etc.
It does not matter if your spouse is not here. If the spouse has never lived here then the court has limited jurisdiction over the person but YOU can get divorced.
I recommend that you hire an experienced family law attorney to guide you. It's more efficient and the attorney will know what needs to be done to accomplish finishing the divorce.
If your spouse cooperates, it saves time and money but even if they don't cooperate the divorce will eventually be granted after you have jumped through a bunch of hoops.
So look on www.avvo.com for an attorney to help you.
Good luck!
How to divorce a missing spouse
In Texas, you can divorce a spouse even when you don't know where they are currently located.
I usually recommend that you try to find the person first. Look on www.facebook.com and other social media sites. I usually don't recommend hiring a private investigator because the attorney appointed will have to repeat all the work done. However, occasionally a pi can find the person so if you have the money to spend you might try this first.
If you can locate the person, it definitely saves you time and money.
If you truly cannot find them then hire an experienced lawyer to help you. I think it's too complex to try to do it yourself. Of course, you can try but I think you will find it frustrating and difficult. It might not be impossible but I don't see any pro se (self representing) parties successfully complete such a case when I'm in the courtroom.
If you cannot serve them personally then a "publication divorce" will be necessary. It needs to be published in an appropriate way and then the person publishing returns a certificate to the court's file. Merely publishing in your local paper is NOT enough. You MUST have the certificate of publishing filled out by the newspaper.
Then the judge will appoint an attorney to represent the interests of the missing spouse. YOU pay for this. I normally charge around $750 if I am appointed on such a case. Some attorneys are less and some are more. But normally $1,500 is the highest I've seen it go unless there are unusual circumstances.
The attorney will normally talk to you or send you questions to answer. This information will help the attorney find the missing spouse. Often people don't realize how much information they have on their spouse that can help locate the person.
What do you need to help find the person?
Full legal name
Other names used
Date of Birth
Location of Birth
Social Security number (even if it's made up - I've found people)
Driver's license number
Career info - (for example - a barber - that requires a license)
Where are the person's parents and/or siblings?
Who is the person's best friend?
Last known address
Last known phone number
Last known employer
Where did they go to high school and/or college (many alumni groups keep info on their alumni)
Photo of person
Where and when did you meet your spouse
Hobbies of the missing person
All social media presence
Criminal convictions (I've found some spouses in prison or jail)
Good luck!
I usually recommend that you try to find the person first. Look on www.facebook.com and other social media sites. I usually don't recommend hiring a private investigator because the attorney appointed will have to repeat all the work done. However, occasionally a pi can find the person so if you have the money to spend you might try this first.
If you can locate the person, it definitely saves you time and money.
If you truly cannot find them then hire an experienced lawyer to help you. I think it's too complex to try to do it yourself. Of course, you can try but I think you will find it frustrating and difficult. It might not be impossible but I don't see any pro se (self representing) parties successfully complete such a case when I'm in the courtroom.
If you cannot serve them personally then a "publication divorce" will be necessary. It needs to be published in an appropriate way and then the person publishing returns a certificate to the court's file. Merely publishing in your local paper is NOT enough. You MUST have the certificate of publishing filled out by the newspaper.
Then the judge will appoint an attorney to represent the interests of the missing spouse. YOU pay for this. I normally charge around $750 if I am appointed on such a case. Some attorneys are less and some are more. But normally $1,500 is the highest I've seen it go unless there are unusual circumstances.
The attorney will normally talk to you or send you questions to answer. This information will help the attorney find the missing spouse. Often people don't realize how much information they have on their spouse that can help locate the person.
What do you need to help find the person?
Full legal name
Other names used
Date of Birth
Location of Birth
Social Security number (even if it's made up - I've found people)
Driver's license number
Career info - (for example - a barber - that requires a license)
Where are the person's parents and/or siblings?
Who is the person's best friend?
Last known address
Last known phone number
Last known employer
Where did they go to high school and/or college (many alumni groups keep info on their alumni)
Photo of person
Where and when did you meet your spouse
Hobbies of the missing person
All social media presence
Criminal convictions (I've found some spouses in prison or jail)
Good luck!
Monday, November 14, 2016
Warn your teen-agers about "sexting"
A very upset parent just contacted me. Her daughter is a honor roll student and on the student council. She never thought this could happen to their family.
Apparently her 15 year old daughter had sex with her boyfriend who is 17 yrs. old. He videotaped her naked and they "sexted" photos of their privates to each other.
He has distributed these videos and photos all over the internet via different social media sites plus sent them to her friends.
So have a serious talk with your teens about sex, videotaping and sharing "private" info.
He is 17 yrs. old so he's an adult for criminal purposes in Texas.
She is under 17 so she cannot consent to sex. But since they are so close in age it won't be considered "statutory rape".
The parents went to talk to his parents who laughed the entire thing off.
Now the girl is embarrassed and does not want to go back to school and face her friends.
What to do?
Contact the local police.
Contact the District Attorney's office.
Contact an attorney that handles some criminal law cases as well as has knowledge on getting a restraining order.
This young lady's life is now in shambles. She is totally embarrassed. Her entire family is living a nightmare because her naked photos are on so many websites.
They were madly in love, then broke up so he decided to "punish" her.
Now his parents are probably going to have to hire a lawyer to represent him in civil and criminal court.
Ouch!
Apparently her 15 year old daughter had sex with her boyfriend who is 17 yrs. old. He videotaped her naked and they "sexted" photos of their privates to each other.
He has distributed these videos and photos all over the internet via different social media sites plus sent them to her friends.
So have a serious talk with your teens about sex, videotaping and sharing "private" info.
He is 17 yrs. old so he's an adult for criminal purposes in Texas.
She is under 17 so she cannot consent to sex. But since they are so close in age it won't be considered "statutory rape".
The parents went to talk to his parents who laughed the entire thing off.
Now the girl is embarrassed and does not want to go back to school and face her friends.
What to do?
Contact the local police.
Contact the District Attorney's office.
Contact an attorney that handles some criminal law cases as well as has knowledge on getting a restraining order.
This young lady's life is now in shambles. She is totally embarrassed. Her entire family is living a nightmare because her naked photos are on so many websites.
They were madly in love, then broke up so he decided to "punish" her.
Now his parents are probably going to have to hire a lawyer to represent him in civil and criminal court.
Ouch!
Sunday, November 13, 2016
Why doing legal paperwork is often a bad idea
On www.avvo.com - another interesting question was posted today.
Avvo is a free website where people can ask attorneys questions.
Today's question involved a do it yourself divorce question that now has possibly created a huge mess that is going to cost a lot of time and money to fix.
Guy divorces wife with dementia several years ago. No attorneys involved. Now years later her sisters apply for guardianship over the ex-wife and want husband to "re-divide" the divorce assets. Of course, since divorce the man has accumulated more assets.
I suspect if he can prove that wife was competent at time of divorce and signed all the papers properly then he's fine. However, he's going to have to hire a lawyer to go to probate court and defend him.
So here is the bottom line...
Pay a lawyer now a little bit of money to do it right or pay a lawyer a lot of money later to try to "fix" or "minimize" the mess you caused by saving a few bucks.
I am an attorney and I never represent myself in court --- I hire someone to guide me and protect me. When I'm personally and emotionally involved in a matter then I might not be thinking straight. I find it much cheaper to do it "right" the first time and avoid head-aches and aggravation later.
Avvo is a free website where people can ask attorneys questions.
Today's question involved a do it yourself divorce question that now has possibly created a huge mess that is going to cost a lot of time and money to fix.
Guy divorces wife with dementia several years ago. No attorneys involved. Now years later her sisters apply for guardianship over the ex-wife and want husband to "re-divide" the divorce assets. Of course, since divorce the man has accumulated more assets.
I suspect if he can prove that wife was competent at time of divorce and signed all the papers properly then he's fine. However, he's going to have to hire a lawyer to go to probate court and defend him.
So here is the bottom line...
Pay a lawyer now a little bit of money to do it right or pay a lawyer a lot of money later to try to "fix" or "minimize" the mess you caused by saving a few bucks.
I am an attorney and I never represent myself in court --- I hire someone to guide me and protect me. When I'm personally and emotionally involved in a matter then I might not be thinking straight. I find it much cheaper to do it "right" the first time and avoid head-aches and aggravation later.
Friday, November 11, 2016
Things to think about BEFORE mediation
People often come to mediation unprepared.
It wastes time and money.
Here are some things to consider BEFORE you show up at mediation:
1. What are the possible strengths of your case?
2. What are the possible weaknesses of your case?
Yes, all cases have strengths AND weaknesses.
Even the thinnest pancake has 2 sides.
No case is EVER a "slam-dunk".
There are always two sides to the story.
3. What has the judge done in the past in cases similar to yours?
Each case is unique -- but knowing how the judge has ruled in the past can be very helpful.
4. If you have a jury trial scheduled, how have juries in your county ruled in the past?
Remember - in family cases - juries are allowed BUT they do not make all the decisions. The law in Texas still allows judges to have input in the final outcome of the case. Talk to your attorney about this and possible outcomes BEFORE showing up at mediation.
5. To settle the case NOW, what will you do to resolve the matter today?
6. What do you think the other side would say to question #5?
Crawl in the other party's head and try to assess their best and worst day in court.
7. What is your absoute worst deal that you would accept to settle this case NOW?
8. What do you think the other side would say to question #7?
9. What is the very best outcome you can expect if you go to trial?
10. What do you think the other side would say to question #8?
In family courts, judges tend not to give either party 100% of what they ask for. Most judges try to let both sides leave feeling that they "won" something.
For example, even in a really bad property division case, the judge rarely (if ever) gives 100-0 split. Most like 50-50 or 45-55 or maybe (not very often) 60-40. After 25 years, I've seen a few 90-10 but that normally only occurs when there is little community property and the 10% party has a huge separate property estate.
It wastes time and money.
Here are some things to consider BEFORE you show up at mediation:
1. What are the possible strengths of your case?
2. What are the possible weaknesses of your case?
Yes, all cases have strengths AND weaknesses.
Even the thinnest pancake has 2 sides.
No case is EVER a "slam-dunk".
There are always two sides to the story.
3. What has the judge done in the past in cases similar to yours?
Each case is unique -- but knowing how the judge has ruled in the past can be very helpful.
4. If you have a jury trial scheduled, how have juries in your county ruled in the past?
Remember - in family cases - juries are allowed BUT they do not make all the decisions. The law in Texas still allows judges to have input in the final outcome of the case. Talk to your attorney about this and possible outcomes BEFORE showing up at mediation.
5. To settle the case NOW, what will you do to resolve the matter today?
6. What do you think the other side would say to question #5?
Crawl in the other party's head and try to assess their best and worst day in court.
7. What is your absoute worst deal that you would accept to settle this case NOW?
8. What do you think the other side would say to question #7?
9. What is the very best outcome you can expect if you go to trial?
10. What do you think the other side would say to question #8?
In family courts, judges tend not to give either party 100% of what they ask for. Most judges try to let both sides leave feeling that they "won" something.
For example, even in a really bad property division case, the judge rarely (if ever) gives 100-0 split. Most like 50-50 or 45-55 or maybe (not very often) 60-40. After 25 years, I've seen a few 90-10 but that normally only occurs when there is little community property and the 10% party has a huge separate property estate.
Monday, November 7, 2016
There are 2 terms that many mediators use --
BATNA (Best Alternative To A Negotiated Agreement)
and
WATNA (Worst Alternative To A Negotiated Agreement)
Both can be useful to help people evaluate their case and their success or failure at trial.
Mediators like to discuss the best and worst outcome a trial to help people "reality test" their case. It helps to move the negotiation process forward.
Of course, discussing BATNA and WATNA with the people should be done privately and never in a joint session. I find that people are more willing to open up privately then when they are in the same room.
As Judge Dempster (of blessed memory) used to say "even the thinnest pancake has 2 sides." A skilled mediator should encourage people to see the pros and cons of their case. Often this can be quite emotional and scary so it must be done gently.
I rarely see a case that is a "slam dunk". Most cases have pros and cons. If cases were clear cut then the courts would be empty. Unfortunately, most people can only see their side of the case and they are resistant to seeing the other party's side of the story.
Mediators who can help parties to perform a high quality and comprehensible alternatives analysis will often improve negotiation strategy significantly.
Many times there are benefits to settling that the parties have not considered - such as (1) their growing legal fees (2) how their lives are put on hold while the lawsuit is pending (3) the possibility that they will lose and (4) how the lawsuit is impacting their physical and mental well being and (5) how the lawsuit is impacting the entire family.
After being a full-time mediator for 10 years I have learned that the mediation process can be empowering and even healing for the parties involved in a nasty, contested lawsuit. Mediation is a process and it often takes time for the parties to embrace the option of resolving their disputes at mediation. When settlement happens the relief on the parties faces and body language can be remarkable.
I get a lot more hugs (and flowers) from mediations than I ever did when I litigated.
BATNA (Best Alternative To A Negotiated Agreement)
and
WATNA (Worst Alternative To A Negotiated Agreement)
Both can be useful to help people evaluate their case and their success or failure at trial.
Mediators like to discuss the best and worst outcome a trial to help people "reality test" their case. It helps to move the negotiation process forward.
Of course, discussing BATNA and WATNA with the people should be done privately and never in a joint session. I find that people are more willing to open up privately then when they are in the same room.
As Judge Dempster (of blessed memory) used to say "even the thinnest pancake has 2 sides." A skilled mediator should encourage people to see the pros and cons of their case. Often this can be quite emotional and scary so it must be done gently.
I rarely see a case that is a "slam dunk". Most cases have pros and cons. If cases were clear cut then the courts would be empty. Unfortunately, most people can only see their side of the case and they are resistant to seeing the other party's side of the story.
Mediators who can help parties to perform a high quality and comprehensible alternatives analysis will often improve negotiation strategy significantly.
Many times there are benefits to settling that the parties have not considered - such as (1) their growing legal fees (2) how their lives are put on hold while the lawsuit is pending (3) the possibility that they will lose and (4) how the lawsuit is impacting their physical and mental well being and (5) how the lawsuit is impacting the entire family.
After being a full-time mediator for 10 years I have learned that the mediation process can be empowering and even healing for the parties involved in a nasty, contested lawsuit. Mediation is a process and it often takes time for the parties to embrace the option of resolving their disputes at mediation. When settlement happens the relief on the parties faces and body language can be remarkable.
I get a lot more hugs (and flowers) from mediations than I ever did when I litigated.
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