Monday, September 23, 2013

Mediation Thoughts

Note: I might use the term "divorce mediation" but it applies to all form of mediation!
Mediation uses a mediator which a trained neutral third party. In other words, mediation is a process in which parties to a dispute (say, a divorcing couple) communicate about their conflict with the help of a trained neutral, called a mediator, with the goal of reaching a settlement. This agreement is something that the parties reach by themselves voluntarily.  The mediator does NOT force them to come to an agreement.  Some divorcing couples may be able to work out all issues dividing them without help. Sometimes the agreement maybe a partial agreement & then the parties go before the judge for only a limited number of issues - in order to save time and money.  However, it is usually the case that people going through a divorce (or other family conflict) will need some assistance to reach an agreement that most effectively meets their needs and the needs of any children who may be involved.
Effective family mediation requires a discrete & unique set of skills and attitudes that is quite different from the set of skills and attitudes characteristic of an effective litigation-oriented lawyer. Attorneys making the transition to mediation frequently must un-learn behaviors that made them successful as litigators. In short, some attorneys are wonderful mediators; others are not. Whether a mediator is an attorney is just one factor to consider among others, such as the mediator’s reputation, mediating style, fee structure, availability, and overall compatibility with the clients. Mediators must be flexible & carefully listen to the needs and wants to the parties.  The parties control the mediation.  
Some mediators offer an informational interview, either in person or by phone, during which potential clients may meet the mediator and ask questions about the process. The purpose is for potential clients to gather information about mediation process and to assess whether the particular mediator consulted is a good fit for them, before signing an agreement to mediate.  The mediator must be careful in order to remain a neutral during the entire process.  However, both parties must feel that the mediator is "listening" to them.  
The primary benefit of mediating a divorce is that the parties control the terms of their agreement. In essence, they create their own customized agreement, tailored to their unique situation. While there are certain statutory items that must be considered, agreements made in mediation can cover a wider spectrum of issues, with more creative, individualized results, than would be possible if a judge were to control the process. In addition, mediation is confidential. Everything said during mediation, any draft resolutions or unsigned mediated agreements are considered settlement negotiations, and therefore will NOT be admissible in court. There are some very narrow exceptions to confidentiality that are beyond the scope of this article.  
In Texas, the judges must follow the Texas Family Code.  The mediation process allows for more flexibility.  In the courtroom the judge must follow the TX Rules of Evidence.  The mediation process allows for more flexibility.  The parties just talk.  People are allow to share their feelings, concerns and worries.  A judge can only allow testimony about concrete evidence in the courtroom - a party's worries about potential future events is not allowed into evidence at a trial before a judge since it is only an potential event in the future.  
Research indicates that when the parties are involved in crafting their own agreements, the long-term compliance rates are much higher than when a court imposes terms on a couple. This is a big plus when there are children involved. Also, once parties have come to agreement in mediation, if circumstances change, they are more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances.  Parties feel empowered because they were able to make decisions about their future and their children's future.  They also understand the agreements they made - rather than the orders that the Judge orders from his bench that most people don't understand.  
The Process
Couples can enter divorce mediation at any point during the litigation process.  Some couples complete mediation of their entire agreement before they file the petition. Others file the petition, mediate their settlement agreement, and then complete the rest of the statutory process. Some couples start out litigating with attorneys, and then enter mediation with or without their attorneys present. There is no one right way.  Many paths may lead to agreement.  Every mediation is unique because the parties are different and the parties control the process.  
I personally prefer that a petition be on file at the courthouse before the couple come to me for mediation. That way if we reach an agreement, our signed agreement can be filed at the courthouse and it is binding on the parties and the judge.  I also prefer that the parties have attorneys representing both parties.  Even though I am an attorney, if I act as a mediator, I am not supposed to give legal advice.  In family law cases, TX family law is complex.  Most parties do NOT understand Texas family law.  TX family law has changed a lot in the past 10 years and an attorney is need to explain all of the options available regarding child visitation - which has many variables available in the mediation process.  Often when I begin to explain some of the options available, pro se litigants eyes begin to "glass over" and I lose them.  It is much quicker and easier for me, as a mediator, if the parties have attorneys so that the mediation process can move quicker.  
If the parties have the monetary resources, then outside experts might even be brought in for their input, such as for pension evaluations or business valuations, appraisals of the family home, or various kinds of economic analyses. There may even be times when outside experts are desirable for evaluating what is best for the children.  
The scope of the mediation is up to the parties. In a typical comprehensive divorce mediation, all of the statutory requirements are addressed: identification and division of property and debts, parenting plans, and child and/or spousal support. In addition, the parties may choose to mediate topics that a court would not necessarily consider on its own, such as visitation by children with extended family, consequence of one parent moving far away, unique arrangements for payment of the spousal support obligation, and many more. The divorce mediator aims to find ways for each party to meet his or her needs. In popular terms, mediators strive to facilitate the clients in thinking outside of the box, so the clients can develop solutions appropriate to their unique situation and to accommodate their new family arrangement.  As I often tell parents, you are divorcing, but you will be co-parenting your children for the rest of your lives.
In the State of Texas, most courts require mediation before a trial can be held.  What most attorneys do NOT tell a client when they first walk into their office - 95% of cases settle before trial.  Why not? Because when a person first walks into an attorney's office that person wants a fight.  They are mad and angry.  The attorney knows it.  So the attorney initially prepares for a fight and going to trial.  Gradually, if the client is sane, the anger will diminish and the person will recognize that settlement is healthier & also less expensive.  After the client receives a few hefty monthly legal bills and their pocketbook is much lighter the client will begin to recognize that litigation is NOT the way to go - the client will beg the attorney for an alternative.  A smart attorney will then mention mediation and the advantages of mediation.  As a mediator, this is when I like to see parties come to mediation...when the parties have fought for awhile, they are tired & they want this case to be settled.  They are now pliable and ready to settle.  They have been separated for several months, been co-parenting in two households, the children have adjusted and things have settled down.  Now they are ripe for mediation.  
The actual process of mediation is highly variable, depending on the issues brought by the parties and the style of the mediator. I have done one session that lasted 12 hours and I have done multiple sessions.  Most people want to do one session.  Sometimes multiple sessions are needed.  Why?  If the parties do not have the information necessary to reach an agreement and more homework is needed to be done or one of the parties needs time to ponder the offer.  I have found that all of the multiple sessions have been very productive.  
The end product of divorce mediation is an agreement, in writing, that addresses all of the issues required or desired to be settled by the parties. It may take the form of a  which sets out all of the terms of the agreement, or a Mediated Settlement Agreement (MSA), which is filed with their judgment of divorce.
The Paperwork
Typically, the mediator is responsible for preparing a written document that sets out the terms of the mediated agreement, Mediated Settlement Agreement (MSA). The actual petition for dissolution of marriage and subsequent legal paperwork is a separate task. Although some couples try to handle the divorce paperwork themselves, it can be a daunting project. Filing the petition for dissolution is fairly straight-forward, but filing and serving all of the papers required to complete the process and obtain a valid judgment is more complicated and can be stressful. Obtaining competent assistance is essential in most cases. Frequently, court clerks return self-prepared documents for corrections, sometimes more than once.
One party may retain an attorney to file the case as an uncontested default, either after a mediated agreement has been reached, or in anticipation that an agreement will be reached. Some clients opt for a legal document assistant to help them with the paperwork. The quality of service provided by legal document assistants can vary widely, so careful selection of an assistant is essential.
Even though I am an attorney, if I act as a mediator, I cannot do your paperwork in the State of Texas.  You must have another attorney do your paperwork.  I can refer you to someone or you can find someone to do it for you.  There are many attorneys that will do this for you.
I do NOT recommend the internet kits since most are sold by out-of-state companies that do not comfort with
TX laws.  Also, they do not contain the REQUIRED TX and local forms that you will need.  Plus, in Texas one of you must stand in front of the Judge and under oath ask for the divorce to be granted in order for the Judge to actually sign the Divorce Decree.  Why? Because it is the law in the Sate of Texas.  You have to do it or the divorce paperwork will not be signed by the Judge - the case will be dismissed and all the work you have done and the money you spend will have been wasted!
Costs of Mediation?
Typically, when one household is splitting into two, money is tight. Fees for mediators can vary widely, ranging from $150/hour up to $700/hour or more divorce mediators. Other costs include the court filing fees for the petition - Harris County charges approximately $300. There will be fees for experts for necessary services such as pension evaluations, appraisals, and fees for consulting attorney.  Preparation of special orders known as qualified domestic relations orders (QDROs) for division of certain kinds of pensions cost approximately $500. 
My rates are purposely low even though I am one of the few Credential Advanced Mediators in the Houston area by the Texas Mediator Credentialing Association.  Why? Because kept my over-head low and I have kept my fees low because the Harris County judges like it!  I get referrals from the judges because of my low rates.  Also, the local family law attorneys like my rates.  My rates are under $300 per side for 4 hours.
There is no exact way to predict how long  a mediation might be. The bottom line is that the higher the level of conflict in the relationship, the more it will cost because more sessions will likely be necessary to come to agreement. Equally, if the couple’s financial situation is complex, more sessions may be required, and more expert opinions may be necessary. If there are minor children, probably at least a couple of sessions would be devoted to developing a parenting plan and appropriate child support.
People want a mediation to fly!  It does not go that way.  People need to get their feeling out.  That takes awhile.  Usually one party is much further along in the emotional process that the one party.  The mediator must let the process unfurl as necessary.  The mediation process is a process.  It cannot be hurried.  The mediator is the person in charge of this process - not the parties.  Often the parties are put into two separate rooms in order to allow them to share their feelings openly and honestly with the mediator.  Even if no resolution is reached at the end of the mediation process, most participants feel that they have been heard and that they were treated with dignity and respect.  Mediation can be a magical process where healing can begin to happen.  It is not therapy and it cannot fix the past.  It can encourage people to look forward and not backward.  
In order for mediation to be successful, the parties must negotiate honesty and with integrity.  All assets and debts must be revealed.  Normally a paragraph is included in the Mediated Settlement Agreement that is anything is "hidden" that it dealt with in the future or it goes to the "innocent" spouse.  That encourages the parties to be honest in their dealings.  Both parties must negotiate in good faith.  Mediation is also not appropriate if one party intends to intimidate or "force" the other to settle.  I have only stopped one mediation in my career when one party wanted me to "force" his spouse to sign the Mediated Settlement Agreement - he then threatened to hurt me & I had to have him removed.  I then had to have his wife taken to a shelter for abused women.  
Not Therapy
Mediation is not therapy.  I am not a therapist.  I encourage people to go to a counselor or therapist. But mediation is not designed to be therapy.  I cannot solve problems in a 4-hour session.  
Mediation provides many benefits over litigation or court-ordered settlements. Mediation is client-centered. The parties control their agreement, which they may shape to accommodate their unique set of circumstances. Mediation is forward-looking, and can plan for the future of the changing relationship between parents and their children. Because long-term compliance rates for mediated agreements are higher than for litigated cases, mediation provides more stability for the children. As circumstances change, the couple is more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances. Finally, mediation tends to be much less expensive and less stressful than the litigated divorce. Mediation reduces the physical and emotional costs of litigation, as well as the financial costs.

Friday, September 6, 2013

Effective 9/1/2013 child support increase if you make more than $7,500/month

If your net income is more than $7,500 per month, effective September 1, 2013, your child support can be raised the next time the other parent wants a child support modification.

The new maximum net income that the Texas Legislature is going to look at is now $8,550/month.

Net income is defined as looking at all sources of a person's income such as employment as well as other sources of income including overtime, bonuses, interest on investments, rental income, etc.  You will need to be able to produce copies of your last 2-3 years of tax returns in order to help the judge (court) determine your gross income so that your net resources can be adequately determined so that your child support can be established.

So the maximum of amount of child support based on the percentage for one child will increase from $1,500 per month to $1,710 per month.

The net monthly income figure to which the above percentages apply are calculated as gross income minus taxes and minus any amounts paid for the child's health insurance insurance.

Generally, in addition to child support, you will be responsible for covering the child on health insurance or reimbursing the other parent for health insurance for the child.

Then there is the uninsured medical expenses for the child - generally shared 50/50 with the other parent.

Child support is calculated as follows:
20% for one child
25% for two children
30% for three children
35% for four children
40% for five children

If there are additional children being supported (not step-children) then these percentages are reduced a small amount.

You can look at my older blog posts on this blog site for these charts where I have shown the calculations when there are other children.

There are some other changes that the TX Legislature made when they met in 2013 to the Texas Family Code.  Overall the 2013 changes were not dramatic to the TX Family Code.

Monday, September 2, 2013

Adult Adoptees in Texas - Opening Adoption Records

Update January, 2015:

A couple of people have emailed me that the suggestions I made have not worked for them. I'm sorry if my ideas have not worked.  I open my adoption file in 2003 and perhaps some things have changed.

I still have not found the file.  I continue to look for my adoption info from 2003.

Original blog:

I moved over a year ago and I cannot find my file with all my information containing what I did to open my adoption file!  I've looked everywhere!  I'm hoping that I will find it soon - maybe if I quit looking it will "pop up"!

In the past 8 months, at least 5 people have called or emailed me about my old blog post regarding my journey to open my adoption record.  The blog post I am referring to is probably 7-8 years old.

Here is a quick summary of 2 of my ideas:

1.  If you are over the age of 18 the State of Texas has a Texas Central Adoption Registry for you to try to locate your birth family.  It costs $30.  Their phone number is 888-963-7111 extension 6279.  Their address is Central Adoption Registry, Department of State Health Services, P O Box 149347, Austin, Texas 78714-9347.

You can "google" this information and all the information regarding how to register for this site will show up.

Please be advised that I registered for this site over 10 years ago when I tried to find my birth family.  Due to some incorrect information, my birth family and I did not connect.  So if you and your birth family incorrect information and/or slightly different information, the employees will not connect you.  I suspect that they don't want to be held responsible for "connecting" the wrong families.  But it is certainly worth a try and it is not a lot of money.

2.  The other idea is to apply for a "Non-certified copy of your original birth certificate" for $10. This is done by writing the Department of State Health Services, Texas Vital Statistics, P O Box 12040, Austin, Texas 78711-2040.  They say on their website to allow 2 months.

You can "google" this information and read all about this birth certificate and get a copy of the forms that you will need to send into Austin.  They do ask for your adopted parents names as well as your birth mother's name.  So if you have not accessed your adoption file, you might not have this information.

Other ideas:

1.  If you had an adoption through an adoption agency, begin there.  Even though they will "black out" a lot of information.  It is the easiest place to begin.

2.  Hire a private investigator.  I did.  I am thankful that I did.  She specialized in helping adoptees. I do not have her name.  It's in the missing file.

3.  Be prepared for the worst.  I'm sure that are happy reunion stories.  Mine was not.  Another friend of mine did not have a happy one either  - she located her bio mom in a homeless shelter.
DO NOT GIVE ANY OF YOUR RELATIVES MONEY!  YOU DO NOT OWE THEM ANYTHING -- a bio mom gave me this information as I started the search for my bio family & it was good advice -- follow it!

4.  Going to Court to Opening Your Sealed Adoption Record --

I recommend hiring an attorney to help you do this!  Please don't do it on your own.

A lot of people attempt to go to court and ask a judge to open their "sealed" adoption records after they turn 18.  Even with a medical necessity, some judges do not want to open adoption records.  Judges in Texas have a lot of discretion.  Once a file is assigned to a specific court, it is impossible to get the file transferred to another court.  Therefore, if you attempt to handle this matter yourself without an attorney and the judge refuses to open the file - DO NOT DO ANYTHING TO UPSET THE JUDGE.  It will come back to haunt you in the future.

I strongly urge you to retain an attorney that knows the judge.  How do you find an attorney that knows the judge?  Great question.  This is often difficult to determine.  It must be done very discretely.  Patience is required.  Do not be a bull in a china shop.  Quietly ask around for the best lawyer to use in that judge's courtroom.

I know that you feel that you are "entitled" to see your adoption file.  Unfortunately, there are some judges do not agree with you.  In fact, they feel strongly that you are never entitled to see the file ever - no matter if you feel it is a life and death matter.  (Somehow your file might suddenly "disappear" - it could suddenly get misfiled somewhere in their voluminous court files never to be found or it might disappear in the bottom of a locked desk drawer -- you never want something like this to happen to your file because it could be "lost forever"!)

That said, there are some judges that will easily & gladly open a person's adoption file.  If  you are one of the lucky ones, count your blessings.  I only get the phone calls from the people that are hitting the brick walls.

5.  If you expect to be greeted with open arms - you probably won't be -- you might be the "secret" that no one talked about in the family!  If you were the product of a rape, an affair or incest do you really want to know?  Be sure you are prepared for the worst before you open this can of worms!  You might consider counseling before beginning this journey.

6.  I do not recommend anyone under 25 years old search out their bio parents.  I was almost 50 years old when I found my bio family.  They were really a screwed up bunch.  I'm really glad that I did not try to locate them when I was younger - they would have really played "head games" with me if I'd been younger and innocent!  I understand why judges don't want to open adoption records for people -- they are actually trying to protect you from yourselves!

Good luck on your journey.  I wish you only happiness and love at the end of your trail.