Houston Divorce Lawyer Blog

It is surprising to me the number of people who file for divorce without having first attempted marriage counseling. In those cases where the marriage is particularly short and there are no children it is understandable, but when a marriage has lasted a decade or longer or the spouses are still raising children then marriage counseling is usually at least worth trying.

I have never advised a client to get divorced, as I feel that this is a very personal decision and one that ultimately the client is the only one qualified to make. The choice is theirs and theirs alone. There are a number of reasons people decide to get divorced. A short list includes extramarital affairs, a lack of shared interests, lack of communication and generally growing apart. When both spouses are motivated to do so many of these issues can be addressed and ultimately resolved with the assistance of an experienced marriage counselor.

The decision to divorce should never be taken lightly and should never be made immediately after an argument. You have to consider the impact of divorce not only on yourself, but if you have children, the impact on them as well. Factors include not only emotional issues, but also practical considerations such as finances, where you will live, et cetera.

Of course what I’m describing is the typical situation. A very different set of criteria comes into play when there are instances of physical or sexual abuse. With these kinds of situations you must act immediately and take appropriate action, including immediately contacting an attorney.

But when the more typical situation exists - that is, two spouses who just don’t see eye to eye on some or several issues, then a marriage counselor can be of great assistance in helping the parties to communicate more effectively and possibly resolve the problem areas.

I like to say there are not too many issues in divorce cases that I haven’t dealt with, but here is one: who gets custody of the MLB franchise? John and Becky Moores own the San Diego Padres and are in the middle of a divorce in California.

If their name is familiar it might be because they have donated a lot of money to the University of Houston where they met. In 1991 they gave over $50 million to the school.

Their situation is really not unlike that of a lot of couples who own a business that makes up the vast majority of their overall estate. The dilemma is how to equitably divide an estate when it is predominantly made up of a single asset that is nearly impossible to divide. One possibility is for each party to be awarded a share of the business, although the idea of ex’s being business partners post-divorce is not an ideal situation either.

It is one thing to have an estate that is made up primarily of a 401(k) or a brokerage account. Those kinds of assets are relatively easy to divide, especially non-retirement accounts. But things get sticky when the primary asset is something really illiquid, like a business. In that scenario, if one party is very involved in the business and the other side is not, it is often a foregone conclusion who it should be awarded to. Then the issue becomes accurately valuing the business and determining how the other party will be compensated for their share.

Sometimes the only practical solution is to sell the business and liquidate the value so that it can be divided. Probably the Moores, both of whom are supposedly very involved with the day to day operations of the Padres, are trying to avoid this result (they have already publicly stated that they won’t sell).

Hopefully they can work out a solution that is acceptable to both of them. Regardless, the franchise has an estimated value of $385 million, so we shouldn’t feel too sorry for them.

Kelly Chang is a Los Angeles family law attorney.  She wrote an excellent post on how dramatically the overall cost of a divorce can vary and what factors contribute.  However, as Kelly points out, how responsive a client is and how well they follow instructions and take your advice can play a significant role in the overall cost.

Here is a link to Al Nye’s excellent Maine Divorce Law Blog. The post is entitled ” A Dozen Things to Consider Before Divorcing.” In it he gives some great advice for anyone considering divorce. Especially on the money are his tips for obtaining as much of the financial records and details as you can get before actually filing.

Here is an interesting post about relocation cases in the state of Nevada. The author is a college professor in Nevada who blogs about his divorce experience. He describes the relocation statute and how, in his opinion, it is usually applied in a way that allows the custodial parent to move the child away from the non-custodial parent.

The Nevada statute gives very specific guidance to the court making such a decision but some of the factors seem rather weak to me. For example, the statute lists factors the court should consider in making its decision, including “whether housing and environmental living conditions will be improved,” and “whether the custodial parent’s employment and income will improve.”

The Texas Family Code has a statute that requires that all orders naming the parties as joint managing conservators (typically, divorce and paternity cases) to give the exclusive right to establish residence to one parent (this is generally what determines which parent is “primary”). That statute further requires that the order state whether the residency is restricted to a specific geographical area (and if so what area) or that there is no geographical restriction. The vast majority of Texas cases include a geographical restriction. A typical example would be a restriction to Harris County, Texas and the contiguous (surrounding) counties.

Unlike Nevada, the Texas Family Code does not provide any specific guidance as to how the courts are to determine relocation cases. So when a custodial parent with a residency restriction wants to move that parent would file a petition to modify, essentially asking the court to remove the restriction. Ultimately, the standard applied by the court in deciding the case would be whether the move was in the child’s best interest.

Although a lot of factors would be considered, in most cases the biggest factor is how involved the non-custodial parent was in the child’s life. If that parent was very involved with child, the custodial parent probably would have a difficult case to win. If the non-custodial parent was uninvolved, the custodial parent would have a much stronger case.

Tilden Moschetti’s San Francisco Family Law Blog had an interesting post showing an example of how inaccurate internet reporting on legal subjects can create a lot of misinformation. The underlying story was about comedian Steve Harvey’s divorce and the later claim by his ex-wife that she had been defrauded during the divorce process. While I don’t claim to know much about the details of that particular case, I do have some thoughts on Sharon Woodson-Bryant’s (the original author) statements on Texas family law, as reported in the Los Angeles Wave on January 3, 2008.

Ms. Woodson-Bryant’s premise is that Texas courts are generally very biased against women. A whole lot of Texas men wish that were the case, but it is just not true. Ms. Woodson-Bryant’s article stated that since Texas was not a community property state (false) that Mrs. Harvey would not be able to get 50% of the property like she could in California.

The reality is that not only is Texas a community property state, but unlike California the division of property is not automatically 50/50. In fact, Texas wives and moms frequently get disproportionate divisions of the community property (sometimes 60% or more) based on fault, needs of the children, disparity of earning capacity, etc.

Don’t believe everything you read.

In recent years I have noticed an ever increasing number of pro se litigants (people who represent themselves) at the family law courthouse. I mentioned this to a judge who estimated that 50% of her docket was comprised of pro se cases.

For several years now the basement of the Family Law Center has been occupied by a staff member of the Houston Volunteer Lawyers whose basic job is to assist the pro se litigants with the numerous document errors that are caught by the judges during what are supposed to be quick, easy uncontested prove up hearings.

It is my understanding that most of these people are using divorce form websites. They pay approximately $200 or so for the fill-in-the-blank divorce forms that are supposed to be acceptable in their jurisdiction.

Among the many problems of a divorce form website is the obvious difficulty in creating documents that are effective and current in all 50 states, not to mention addressing the various peculiarities of individual counties and individual judges. The fact that judges can and usually do find numerous errors in the documents during a very brief scanning at the prove up hearing is evidence of just how bad a job these form websites do.

My basic view on representing yourself is this: if you have no assets, no liabilities, no children, and you are just unable to financially afford a lawyer, then go ahead take a stab at representing yourself. However, for most people their divorce case will be the most significant financial and legal event of their life and it needs to be handled correctly. If it is not handled correctly the hidden error is likely to reveal itself at some later date.

Here is an example. Early in my career I was visited by a lady who had been divorced several years prior. Her ex-husband was now retired from the military and receiving his pension. During the divorce neither party had been represented by an attorney and the husband had handled the paperwork. She admitted to me that at the time she would have signed any document he asked her to and given him anything he wanted. She just wanted out of the marriage, an attitude shared by many going through divorce who later regret it.

Now she wondered if she had any right to a portion of his pension, since they had been married for about 15 of his 20 years of military service. I expected to find in the Decree the standard boilerplate language awarding all of retirement assets to the party in whose name it was held.

To my amazement the Decree was silent on the issue of retirement benefits division. It simply did not address that asset. You can guess the rest of the story. I filed a petition to divide undivided property and within a relatively short time she was receiving nearly $1000 a month out of husband’s pension.

In this case the end result was a just one and I was happy to help her achieve it. But you can bet her ex-husband felt otherwise. He could have easily avoided the result by not being so cheap and hiring a lawyer. Even the most mediocre of family law attorneys would not have made that mistake. Over the course of his life that error could end up costing him $100,000, $200,000, or more.

While this might seem like a dramatic example of a pro se error, I can give you many, many more just from the ones I have personally seen. The errors involve child support, visitation, conservatorship, alimony, property division, etc., you name it.

The bottom line is that your divorce case is far too significant and important to just hope you get it right. You need to be certain that it is handled correctly and you can only do this by hiring a quality divorce lawyer.

For any of you who pay alimony under a Texas court order, just be glad you didn’t get divorced in Canada. Andrew Feldstein’s Family Law Blog had a very interesting (and from the perspective of an alimony payor, somewhat scary) post about a Canadian Court that modified post-divorce alimony upward (something that cannot happen under Texas law). Apparently, this can routinely happen in Ontario, the jurisdiction where Andrew practices.

Ben Steven’s excellent South Carolina Family Law Blog had an excellent post on Tips to Help Blended Families Succeed. I frequently do consultations with post-divorce clients on potential modification cases. Very frequently the real issues boil down to an inability for the parents and the new stepparent(s) to co-parent effectively and communicate reasonably with one another. A lot of people in that situation would do well to follow the advice given in Ben’s post.

Selecting the right divorce lawyer to represent you is a very important decision. The following are a few criteria for use in helping to decide on the right attorney.

Experience

Any divorce lawyer you consider should have significant experience handling cases in your geographical area. A divorce lawyer who is experienced in your county will be familiar with the tendencies of that county’s judges and will be able to use this knowledge to your advantage. Additionally, that lawyer should practice primarily (preferably, exclusively) as a family law attorney. Frequently people will hire someone whose practice is mostly in another area of the law, thinking that any lawyer will do. However, family law is extremely specialized and in most states the statutes are modified frequently. It is a field that requires a constant study and a certain skill set in order to best represent a client.

Past Client Testimonials

Probably the best way to determine which lawyer is right for your is to hear what past clients have to say about the lawyer. While divorce can often be unpleasant, some divorce attorneys have more success at satisfying their clients. If you do not personally know someone who has been a client of a particular lawyer, you should consider asking for client testimonials. A good lawyer should have at least a few former clients who are willing to vouch for him or her.

Accessible

One of the most common complaints made by clients who become dissatisfied with their divorce attorney is that they were unable to communicate with the lawyer. It is very important that your divorce lawyer or someone on the staff be accessible and prompt in responding to your phone calls, emails, and requests for meetings. While you can ask about the office policy, this is another area where you can best evaluate by hearing what past clients have to say.

Fees

It is extremely important that you have a frank discussion with the lawyer about fees and what you can expect. Typically, the divorce lawyer will require the payment of a substantial retainer up front, against which that lawyer’s hourly rate and expenses will be charged. You should find out what the hourly rate is, how much the retainer will be, whether any portion of the retainer is refundable if it is not fully used, and how frequently you will receive invoices detailing the hourly charges and expenses. You should also find out how detailed and clear the invoices will be. Again, this is an area where you can get excellent information from past clients.

Are You Comfortable with the Lawyer?

While all the other issues are very important, there is one ultimate question you should ask yourself before hiring your divorce lawyer: are you comfortable with that lawyer and are you confident in his or her abilities? If the answer is anything other than a resounding “yes, absolutely” you should keep looking. Your case is too important to hire someone who does not inspire your confidence.