Tuesday, April 22, 2014

Why I like mediation?

Here are a few reasons that I like mediation instead of litigating a family law matter:

1.  Private & confidential in a relaxed setting - the courthouse can be scary and intimidating.

2.  You control the process.
You can take one session or more than one session if you want to do so.

3.  It's final if a full agreement is reached.

4.  You can do a partial agreement and limit the issues to go before the judge for a final decision.
That makes the trial shorter & should save you on attorney's fees.

5. The mediator can listen to things that a judge cannot hear.
There are no subjects not allowed to be discussed at mediation.

6. Your concerns (or worries) can be addressed.

7.  The judge has to follow the Texas Family Code - a mediator does not

8.  Casual - you don't have to dress up.
You can go outside to smoke if you need to do so.
You cannot leave the courtroom usually & you normally have to pay to park.

9. You get it done and you can go on with your life.

Calculating Child Support in the State of Texas

There are several websites that have a child support calculator on them to help you estimate what you (or the other parent) will pay in child support.

Look on the Texas Attorney website for information regarding Texas child support.

The Texas Attorney General has a child support calculator on their site.

You will find that each calculator might be a little different.
I don't know why.

There is a paid I-phone application called Texas CS Calculator available for under $10.

Child support is based on a chart in Texas.

You start with a person's gross weekly, monthly or annual income.

I can promise you that the net income for Texas will NOT match a person's paystub for a variety of reasons - miscellaneous deductions, federal income tax withholding is different than what the State of Texas thinks it should be, etc.

All sources of income are used to determine child support - not just a person's income.

For example, there was a father than did not work.  He worked several office buildings in downtown Houston.  His federal income tax form showed his income to be over $500,000/year.  He did not think he should pay child support because he did not work but merely managed his properties.  The judge ordered his child support based on the income from other sources on his tax return.

Items like bonuses, rental income, investment income, second jobs, over-time, etc. is used to calculate child support.

If you are "purposely under-employed" then child support will be based on the job that you should have.
For example, an engineer making $200,000 a year quit to become a grocery store bagger.  The judge set  this person's child support based on an annual income of  $200,000 year.  This parent was free to work as a bagger but since this parent had been an engineer and had voluntarily quit being an engineering job the judge determined he was "purposely under-employed" to avoid paying child support.

The Texas Family Code is available for free.  You can read it.

It contains the definition of "net income" and the chart for determining child support.

If you don't work, then your child support will be set at minimum wage at 40 hours per week. That comes out to approximately $225/month.  You don't have to work but you are obligated to support your minor child in the State of Texas.  Even prisoners are ordered to pay child support in Texas within 30 days of getting out of prison.

Finding a mediator in the State of Texas

There are many websites that mediators can pay to be included on to get their services known.
I've listed a few below.

Prices can vary so check around.

I charge $300 per party for 4 hours.
After the first 4 hours, I charge an hourly fee if everyone wants to continue the mediation process.

A person can be a mediator and not be an attorney in the State of Texas.

There are some excellent non-attorney mediators.
BUT you might want to use a mediator that understands (and knows) Texas family law.
A non-attorney mediator is not always less expensive than an attorney-mediator so look around.

I encourage you to hire someone that belongs to one of the alternative dispute resolution (ADR) professional groups.  They require that mediators take extra classes to be a member of their organization and be listed on their website.

Anyone that takes the 40-hour basic mediation class can call themselves a mediator.
If someone has only taken that beginner class, I would not use them.
You need someone that takes the role of serving as a mediator seriously and takes ongoing education classes to improve their mediation skills.

Ask anyone that you contact what groups they belong to and how many hours of mediation training they have taken since they completed the first 40-hour course.

In order to join the attorney-mediators group, I had to have 2 recommendations.

TAM and TMCA require their members to submit their qualifications on an annual basis in order to maintain their membership in those 2 Texas mediator groups.

I encourage you to use a credentialed mediator in the State of Texas - there are not many family law mediators that are credentialed in Texas!



Texas Association of Credential Mediators - membership required

Texas Mediator Credentialing Association - membership required


Association for Attorney Mediators - membership required

Association for Conflict Resolution - membership required

Association for Conflict Resolution - Houston - membership required

Should I file for divorce or mediate first?

I prefer that people file a lawsuit (aka divorce or paternity) THEN make an appointment to mediate.

Why?  Because you will be assigned to a court and you will have a court number.

Then, if a settlement is reached, any written agreement is final and binding on the parties.

If both parties sign the AGREEMENT TO MEDIATE and the proper wording is included in the MEDIATED SETTLEMENT AGREEMENT and signed by both parties and the mediator, the agreements are binding on both parties and the agreements entered into cannot be revoked later.

Should I hire an attorney?

A mediator is a neutral trained third party that cannot represent either party at the mediation.  Therefore, you might want to hire an attorney to advise you of all the possible outcomes at the courthouse.  Then you can make an informed decision about what binding agreements that you want to enter into.

Can a mediator do the paperwork?

No, in Texas if an attorney mediates then the attorney cannot prepare the paperwork for the judge to sign.

How does the judge know we mediated?

Either you or the mediator needs to file the paperwork at the courthouse so that the judge knows that a mediation has occurred.  In Harris County, efiling is now used exclusively.  There is a small fee to file legal documents with the Harris County District Clerk's office.

How do I file the Mediated Settlement Agreement or the Impasse document?

You can file it in person at the courthouse or on-line.  In Harris County, the Harris County District Clerk's office is located in the Civil Justice Center at 201 Caroline Street, Houston, Texas - downtown.
Or, there is a private company located at the Harris County Law Library on the first floor that will do the scanning and processing for you for a small additional fee (approx. $10).  Attorneys have access to the Texas e-filing service providers that file legal documents at courthouses for a fee (usually under $5 for no-fee documents).

Where can I find an attorney to draft legal paperwork?

The best free websites are www.avvo.com and www.lawguru.com or the State Bar of Texas website lists all attorneys in the State of Texas - look under "find a lawyer" button.

There are many websites where attorneys pay to be listed.
I could list hundreds of these sites.  Just because they are listed does not mean that the person is a family law practitioner or has any "special" expertise. Most of these sites charge to be listed.

You need to call around because every attorney might quote a different price to prepare the final paperwork.  If there are minor children involved, there are a lot of papers that need to be filed before you go to Harris County to prove up your divorce.

What is prove up a divorce mean?

In Texas, one of the parties (normally the person that files the divorce but not required) must appear in front of  a judge and under oath read a statement and ask the judge to grant the divorce.  Without this final step, your divorce will not be granted.  If anyone tells you that you don't need to appear in front of judge to finalize a divorce -- they do not practice law in the State of Texas.

I'm in the military and stated overseas and I cannot appear in court.  What do I do?

There are steps in place in the State of Texas to accommodate our military personnel.  I encourage you to hire an attorney to help you finalize your divorce.  You must have a document notarized and the attorney must appear in front of the judge and the prove up can be handled that way.  It is complicated so I encourage you to hire a family law attorney to help you.


Call me at 713-847-6000 and I will try to help you.

Mediation Settlement Agreements must be filed with the Court

If a Mediated Settlement Agreement (MSA) is reached and signed by the parties, it must be filed at the courthouse.

I encourage people to file a document at the courthouse (petition) before attending mediation -- so that there is a court of jurisdiction and a cause number.

The MSA must contain certain "magic" language to be enforceable and final.  Normally it will states that this MSA resolves all disputes between the parties and "THIS AGREEMENT IS NOT SUBJECT TO REVOCATION" or similar language.  

There are partial MSAs that resolve only some of the issues between the parties.  If so, the MSA should clearly state what has been agreed to and what is still in disagreement.  If this is done, the judge would only hear those issues NOT resolved at the mediation.  This can save time and money by making your trial faster and limited.

All parties need to sign an "Agreement to Mediate" when they enter the mediator's office.  This assures that the parties were given the "rules to mediate" and that they understand that if they come to an agreement that this is a final agreement and cannot be revoked at a later date.

Medical Bills for Minor Children

Here is a basic guideline for medical reimbursement claims in Texas.

1.  Get clear copy of the medical bill for the child.  It should contain the child's name, the doctor information.

2.  Sign a HIPPA Release at each doctor that you take the child to so that the other parent can call the doctor's office and talk about the bill and/or to the doctor.

3.  Submit medical bill to insurance company.  You will eventually receive a "Explanation of Benefits" form that shows what the insurance company paid to the doctor an/or reimbursed you.

4.  Send items #1 and #3 to the other parent.  Normally this is done certified mail, return receipt requested with a confirming copy by first class mail.  If the certified copy comes back as "undeliverable" or "refused" do NOT open it -- leave it alone & put it in a safe place to show the judge if a contempt action is ever necessary.

5.  Don't let these bills build up -- you are normally ordered to submit to the other parent within 30 days.

6. Over the counter medications, parking, travel time, etc. is not reimbursable.

7.  Do not use the children to deliver these bills.  Keep them out of it!  This is "adult business" and only the adults should be involved in this matter.

8.  In the paperwork, the custodial parent is normally listed as a "contact" so that that parent can talk to the insurance company.  If this is a problem, ask parent (in writing) to submit whatever the insurance company requires to talk to you.

9.  If there are going to be some sort of large bill - such as orthodontics - include the other parent in the plan.  Let the other parent talk to the doctor or service provider to prove that the medical expense is "medically necessary".  If a child wants an optional service - like a nose job -- and the other parent does not agree then the judge will probably not order that parent to reimburse you and/or pay for a non-medically necessary procedure.

10.  If there are going to be payments made on a large bill, such as orthodontic treatment then encourage the other parent to enter into their own arrangement with the doctor's office to pay that doctor directly.  You would pay your portion & the other parent would pay their portion (normally 50/50) that insurance is not going to cover.  Doctors are willing to enter into 2 contracts with both parents - I've done it personally and it worked great.  It eliminated me having to submit a monthly bill to the other parent & he got to pay the doctor directly.

11.  If there is going to be a large expenditure and it's not an emergency, then try to get more than one bid and share that information with the other parent.

12. If medical bills are not sent to the other parent in a timely manner, the parent is still responsible for their portion (normally 50%) of the costs for the child.  But the judge will normally give the parent more than 30 days to pay.

For example, in one of my cases, mother submitted to father $10,000 in medical reimbursement for 10 years for their 5 children.  After he had not paid in 30 days, her attorney filed contempt demanding dad pay immediately.  Judge held that since mom was tardy in sending medical reimbursement claim that dad could enter into a monthly payment plan to pay the $10,000 without any interest accruing.

If you are going to file contempt against the other parent, you must come to court with evidence proving you did everything you were ORDERED to do by the judge AND you must have "clean hands".  Judges do not like people that try to use the courts to "punish" the other parent.  Judges expect people to act in a reasonable fashion & to co-parent their children together.

Will mediation save you money in a divorce? The answer is usually.

This article was written by the gentleman, Gary Shaffer, shown below.  I don't know Mr. Shaffer, but I thought he wrote an excellent article that was posted on a mediator blog.

It is fairly well accepted that divorce mediation is a far better way to handle the details of unwinding a marriage than litigation.  If there are any assets and any kids, the parties typically know the details of both, and with proper guidance are capable of figuring out how best to proceed so that the kids and assets are dealt with fairly and everyone can move on to leading happy and productive lives.
There are two caveats with divorce mediation.
  1. It won’t work where there is spousal abuse, and if there is any indication of such abuse, the mediation needs to stop. Spousal abuse indicates a severe power imbalance and the threat of physical harm.  A mediation cannot take place when one spouse is in fear of the other.
  2. Hidden assets can become a stumbling block if that is an issue, though it is by far the exception rather than the rule.  Even one spouse knowing more about the family finances than the other, which can often be the case, does not usually raise an issue of hidden assets.  More typically it is a learning issue, something that can be addressed as part of the mediation process.  
Divorce mediation deals with difficult and painful issues, but couples are remarkably capable of addressing their personal and family needs as the mediation progresses.  Sometimes those needs first become apparent during the mediation.  This can mean challenging and moments, but at least the discussions take place in a safe setting with a third person present who often facilitates discussions that would otherwise be difficult to have.
Whether a couple ends a divorce mediation with a signed agreement or not – and most do – they almost always know better what they need and how they want to proceed after their breakup.  They know their finances better, know better how they can handle their children, and an ex with whom things have not worked out.
I always urge couples to have their own attorneys, at some point during the mediation process, especially to review any agreement before it is signed.  A divorce is usually a life altering event and it’s important to have an independent attorney, whose interests are solely yours, review matters before finalizing.  This is far, far less costly and more effective than litigating what in the end, a couple will have to decide anyway.  Even if a mediation does not result in an agreement, and the process breaks down – again, very much the exception – the couple is typically far better off than if they had just gone to lawyers and had them start duking it out.

Gary ShafferGary Shaffer

Wednesday, April 16, 2014

Harris County Parenting Classes

Here are some 4-hour parenting classes:

Online Parenting Programs
starts at $39.99
also offers co-parenting classes, high-conflict classes, ager classes ad parenting skill classes
755-886-0869 - based in Carson City, Nevada

Stop the Conflict
Bill Ferguson
Price - unknown

Parenting Choice.com


Family Services of Greater Houston
Se Habla Espanol
also offers classes on anger management, substance abuse assessments and other parent education classes

This list is only an example of some of the classes offered in the Houston area -- look on-line for more classes.

The 308th Judicial District Court of Harris County likes for people to attend in person - the judge does not like on-line classes

Monday, April 7, 2014

Timeline for removal of a child by CPS

If the Department of Family and Protective Services (DFPS) also known as CPS take possession of a minor child in the State of Texas without the agreement of a parent or guardian, the following deadlines apply.  The date is calculated from the date the child is removed from the home.

Day 1 - Removal of a Child /Emergency Hearing

Day 14 - Adversary Hearing

The court will make temporary orders regarding the child or return the child to the parent, guardian or relative if the court finds it is safe to do so and is in the child's best interests.

"Best interest of a child" is not defined in the State of Texas and every judge has their own definition of this term.

Day 60 - Status Hearing

Day 180 - Permanency Hearing

Day 270 - Permanency Hearing

Day 360 - Trial/Dismissal of Suit or Extension of the Case

Day 720 - Trial or Dismissal of Suit

The judge must either dismiss the case or the court will enter a final order regarding the conservatorship of the child by this date (Day 720).

As you can see, you need to immediately retain the services of an attorney if your child is removed from your home.

If your child is removed, you definitely need an attorney at the hearing on Day 14.
If you miss this hearing, then you won't get a chance to go before the judge again until 2 months have passed.

If CPS gives you a "service plan" you need to do it!
CPS is free to modify the "service plan" whenever they want to do so.
Keep a detailed log of everything going on.
Write down each phone call, email, etc. to CPS - date, time and name of person you called.
Also, contact the person's supervisor if you don't hear back within 24 hours.
Be aware that CPS workers have a very high turn-over rate - you might end up working with 2-4 different CPS workers during your case.

There will be an attorney appointed to represent the child.  Contact this person immediately.  Normally it is a family law attorney.  Judges take the attorney ad litem's recommendations under serious consideration.

If you want to take the child into your home, you need to show up to court and let the judge know that you want the child.  Your background will be thoroughly checked by CPS.  If you are a non-relative, you need to show some sort of "ongoing" relationship with this child.

Flat-rate uncontested family law (such as divorce, name change, modification, emancipation) cases

I am willing to do uncontested family law cases if everyone agrees and there is no need to go to court and litigate:

Below are my basic flat-rate costs for 2015:

If your case is more complex, I reserve the right to quote you a higher rate at the time we meet and enter into a Legal Services Agreement.

(Generally filing fees in Harris County are around $300)

Adult Name Change $2,500 plus all court costs & filing fee costs

Divorce - no kids - $2,500 plus all court costs & filing fees

Divorce - with children - no QDRO or unusual visitation orders - $3,500 plus all court costs and filing fees

Customized visitation arrangements - $5,000 plus all court costs and filing fees

Divorce with children & a QDRO prepared by a QDRO company
(this still involves me doing more work on the case) - add an additional $1,000 to above fees

Emancipation of a Minor Child - $2,500 plus all court costs and filing fees (approx. another $500) - and both parents (or legal custodians) must agree to sign all necessary paperwork. Plus, the judge may appoint an attorney to represent the person wanting to be emancipated & you will have to pay their fees too (usually at least another $1,500 or more). Anticipate spending around $5,000.

Modify Custody or Child Support - $2,500 plus all court costs and filing fees.

Add another conservator to the court order - $3,500 plus all court costs and filing fees.

If you think my prices are too high, call attorney Rose Cardenas at 832-419-4110. She often flat-rates cases cheaper than me.  However, I'm easier to get ahold of by phone than Rose is.  Rose is a great attorney --but she is often in court and is often difficult to reach.  She does a lot of court appointed amicus work and is often not available to answer her phone. Please don't call me if you hire her & you cannot reach her - I'm NOT her personal secretarial service.

CPS Emergency Removal of a Minor Child

CPS may conduct an emergency remove of a child if a CPS worker finds:

There is a present danger of serious harm to the child in the home;

The caregiver's protective capacities are insufficient to keep the child safe from the harm;


There are reasonable efforts that CPS can make to prevent removal of the child that would be consistent with the safety of the child.

If a child is removed by CPS (without a hearing) an emergency hearing must be held by a court on the "first working day" after removal of the child, but no more than three (3) days after removal.

See Texas Family Code Section 262.106

At this hearing, the judge will determine if the factors listed above exits.

If the judge finds any of the 3 above listed reasons exist, then the child will remain in the possession of CPS until further order by the court.

To read more go to www.tyla.ortg and download "What You Should Know about your Child Abuse, Neglect or CPS case.

Hire an attorney immediately to represent you in court if CPS has taken your child.

Look on www.avvo.com for an attorney in your area.
It's the best free website that I know of for people looking for an attorney.