North Texas Family Law Blog

Agreements Incident to Divorce and Final Decrees of Divorce

Jennifer Hargrave — Wed, 17 Apr 2013 09:29:15 -0600

This post is a continuation of Jennifer's Hargrave's series on now various methods of settlement are incorporated into divorce decrees. The series began with Rule 11 Agreements and Final Decrees of Divorce.

Before trial, parties to a suit for divorce can resolve issues related to the division and confirmation of marital property and spousal support through an agreement incident to divorce (AID). Tex. Fam. Code § 7.006(a). The AID can divide the spouses' community property and liabilities, confirm their separate property and liabilities, provide for spousal support, set forth the terms of the agreed parenting plan, and incorporate any other terms to which the parties have agreed (e.g., income taxes, college expenses for children, attorney's fees, health insurance and life insurance.

The AID must be submitted to the court for its approval, either in writing or made in open court and entered on the record. If the court finds that the terms of the AID are just and right, and/or in the best interest of the children, the terms are binding on the court. If the court finds that the terms are not just and right, the court can ask the parties to submit a revised agreement or set the case for a contested hearing. The court, however, cannot supply missing terms to the agreement.

Either party can revise or repudiate an AID before the court renders a final judgment of divorce, unless the agreement conforms with requirements of another law that makes the agreement binding (i.e., irrevocable settlement agreement or Rule 11). It is important to note that a court can approve the AID prior to rendering judgment. For example, if the parties have entered into an AID and submitted it to the court for approval prior to the expiration of the 60 day waiting period, either party may withdraw their consent after the court's approval but prior to the rendering of the divorce. Once the court has rendered the final judgment based on the AID, consent can not be withdrawn. Schwarz v. Schwartz, 247 S.W.3d 804 (Tex. App. – Dallas 2008, no pet).

The AID can be an important tool for preserving the parties' privacy, if that is an issue (especially in Dallas County, and other counties where court filings are readily viewable online). The AID can contain all the details of all the accounts, dollar amounts, and other terms (i.e., drug and alcohol testing) that a party might not want visible as part of the court's records. In this case, the AID will be submitted to the court for approval, the court will sign the decree reciting its approval of the AID and incorporating the terms of the AID by reference, but the AID will not be filed with the court as part of its records. Obviously, this can create an enforcement issue at a later date if one of the parties needed to enforce the terms at a later date, and clients opting for this level of privacy should be advised of the potential issues surrounding its enforceability.

Amended Dallas County Standing Order

Jimmy Verner — Mon, 15 Apr 2013 10:26:41 -0600

Many courts have adopted "standing orders." These order incorporated the injunctions regarding divorces and suits affecting the parent child relationship in the Texas Family Code. The Dallas County Family District Courts amended their standing order effective April 1, 2013. The amended Standing Orders are:

AMENDED DALLAS COUNTY FAMILY DISTRICT COURTS
GENERAL ORDER

(Revised April 1, 2013)

DALLAS COUNTY STANDING ORDER REGARDING CHILDREN, PETS, PROPERTY AND CONDUCT OF THE PARTIES

No party to this lawsuit has requested this order. Rather, this order is a standing order of the Dallas County District Courts that applies in every divorce suit and every suit affecting the parent–child relationship filed in Dallas County. The District Courts of Dallas County giving preference to family law matters have adopted this order because the parties, their children and the family pets should be protected and their property preserved while the lawsuit is pending before the court.
Therefore, it is ORDERED:

1. NO DISRUPTION OF CHILDREN. Both parties are ORDERED to refrain from doing the following acts concerning any children who are subjects of this case:
1.1 Removing the children from the State of Texas, acting directly or in concert with others, without the written agreement of both parties or an order of this Court.
1.2 Disrupting or withdrawing the children from the school or day–care facility where the children are presently enrolled, without the written agreement of both parents or an order of this Court.
1.3 Hiding or secreting the children from the other parent or changing the children's current place of abode, without the written agreement of both parents or an order of this Court.
1.4 Disturbing the peace of the children.
1.5 Making disparaging remarks regarding the other party in the presence or within the hearing of the children.

2. PROTECTION OF FAMILY PETS OR COMPANION ANIMALS. Both parties are ORDERED to refrain from harming, threatening, interfering with the care, custody, or control of a pet or companion animal, that is possessed by a person protected by this order or by a member of the family or household of a person protected by this order.

3. CONDUCT OF THE PARTIES DURING THE CASE. Both parties are ORDERED to refrain from doing the following acts:
3.1 Using vulgar, profane, obscene, or indecent language, or a coarse or offensive manner to communicate with the other party, whether in person, by telephone, or in writing.
3.2 Threatening the other party in person, by telephone, or in writing to take unlawful action against any person.
3.3 Placing one or more telephone calls, at an unreasonable hour, in an offensive or repetitious manner, without a legitimate purpose of communication, or anonymously.
3.4 intentionally, knowingly or recklessly causing bodily injury to the other party or to a child of either party.
3.5 Threatening the other party or a child of either party with imminent bodily injury.

4. PRESERVATION OF PROPERTY AND USE OF FUNDS DURING DIVORCE CASE. If this is a divorce case, both parties to the marriage are ORDERED to refrain from doing the following acts:
4.1 Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.
4.2 Misrepresenting or refusing to disclose to the other party or to the Court, on proper request, the existence, amount, or location of any property of one or both of the parties.
4.3 Damaging or destroying the tangible property of one or both of the parties, including any document that represents or embodies anything of value, and causing pecuniary loss to the other party.
4.4 Tampering with the tangible property of one or both of the parties, including any document that represents or embodies anything of value, and causing pecuniary loss to the other party.
4.5 Selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of either party, whether personal property or real property, and whether separate or community, except as specifically authorized by this order.
4.6 incurring any indebtedness, other than legal expenses in connection with this suit, except as specifically authorized by this order.
4.7 Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by this order.
4.8 Spending any sum of cash in either party's possession or subject to either party's control for any purpose, except as specifically authorized by this order.
4.9 Withdrawing or borrowing in any manner for any purpose from any retirement, profit–sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by this order.
4.10 Signing or endorsing the other party's name on any negotiable instrument, check, or draft, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instrument payable to the other party without the personal signature of the other petty.
4.11 Taking any action to terminate or limit credit or charge cards in the name of the other party.
4.12 Entering, operating, or exercising control over the motor vehicle in the possession of the other party.
4.13 Discontinuing or reducing the withholding for federal income taxes on wages or salary while this suit is pending.
4.14 Terminating or in any manner affecting the service of water, electricity, gas, telephone, cable television, or other contractual services, such as security, pest control, landscaping, or yard maintenance at the other party's residence or in any manner attempting to withdraw any deposits for service in connection with such services.
4.15 Excluding the other party from the use and enjoyment of the other party's residence.
4.16 Opening or redirecting the mail addressed to the other party.

5. PERSONAL AND BUSINESS RECORDS IN DIVORCE CASE. "Records" means any tangible document or recording and includes e–mail or other digital or electronic data, whether stored on a computer hard drive, diskette or other electronic storage device. If this is a divorce case, both parties to the marriage are ORDERED to refrain from doing the following acts: Concealing or destroying any family records, property records, financial records, business records or any records of income, debts, or other obligations. Falsifying any writing or record relating to the property of either party.

INSURANCE IN DIVORCE CASE. If this is a divorce case, both parties to the marriage are ORDERED to refrain from doing the following acts: Withdrawing or borrowing in any manner all or any part of the cash surrender value of life insurance policies on the life of either party, except as specifically authorized by this order. Changing or in any manner altering the beneficiary designation on any life insurance on the life of either party or the parties' children. Canceling, altering, or in any manner affecting any casualty, automobile, or health insurance policies insuring the parties' property of persons including the parties' minor children.

SPECIFIC AUTHORIZATIONS IN DIVORCE CASE. If this is a divorce case, both parties to the marriage are specifically authorized to do the following: To engage in acts reasonable and necessary to the conduct of that party's usual business and occupation. To make expenditures and incur indebtedness for reasonable attorney's fees and expenses in connection with this suit. To make expenditures and incur indebtedness for reasonable and necessary living expenses for food, clothing, shelter, transportation and medical care. To make withdrawals from accounts in financial institutions only for the purposes authorized by this order.

SERVICE AND APPLICATION OF THIS ORDER. The Petitioner shall attach a copy of this order to the original petition and to each copy of the petition. At the time the petition is filed, if the Petitioner has failed to attach a copy of this order to the petition and any copy of the petition, the Clerk shall ensure that a copy of this order is attached to the petition and every copy of the petition presented. This order is effective upon the filing of the original petition and shall remain in full force and effect as a temporary restraining order for fourteen days after the date of the filing of the original petition. If no party contests this order by presenting evidence at a hearing on or before fourteen days after the date of the filing of the original petition, this order shall continue in full force and effect as a temporary injunction until further order of the court. This entire order will terminate and will no longer be effective once the court signs a final order.

EFFECT OF OTHER COURT ORDERS. If any part of this order is different from any part of a protective order that has already been entered or is later entered, the protective order provisions prevail. Any part of this order not changed by some later order remains in full force and effect until the court signs a final decree.

PARTIES ENCOURAGED TO MEDIATE. The parties are encouraged to settle their disputes amicably without court intervention. The parties are encouraged to use alternative dispute resolution methods, such as mediation or informal settlement conferences (if appropriate), to resolve the conflicts that may arise in this lawsuit.

BOND WAIVED. It is ORDERED that the requirement of a bond is waived.

THIS DALLAS COUNTY AMENDED STANDING ORDER REGARDING CHILDREN, PROPERTY AND CONDUCT OF PARTIES SHALL BECOME EFFECTIVE ON APRIL 1, 2013.

[Signed by all Dallas County Family Court judges:

Hon. James Martin, 254th Judicial District Court

Hon. Lori Hockett, 255 Judicial District Court

Hon. David Lopez, 256th Judicial District Court

Hon. Lynn Cherry, 301st Judicial District Court

Hon. Tena Callahan, 302nd Judicial District Court

Hon. Dennise Garcia, 303rd Judicial District Court

Hon. Andrea Plumlee, 330th Judicial District Court]

Divorce Without Disaster - More on Privacy

Janet Brumley — Wed, 27 Mar 2013 08:54:11 -0600

This is the 12th of a serialization of Janet P. Brumley's book about Collaborative law, called Divorce Without Disaster. This post is Chapter 2, part 4 of the book.

When litigants go to the courthouse for a hearing or an attorney's office for a deposition or witness statement, proceedings are usually on the record. People who value privacy are suddenly in an open courtroom discussing their sex lives, their finances and their taxes. This is all recorded by a court reporter and saved for posterity. Inventories and appraisements listing all the parties' assets and liabilities (complete with account numbers) are routinely filed with the district clerk of their county of residence.

Parties who resolve their divorces with collaborative law do so behind closed doors in their attorneys' offices. The law prohibits attorneys from disclosing anything they have heard, except in cases where someone declares an intent to commit a crime or poses a continuing threat of child abuse.

"Collaborative law is a cooperative effort, not a public forum," observes Mary Jo McCurley, a partner in the Dallas firm of McCurley Orsinger McCurley Nelson & Downing L.L.P. and former chair of the family law section of the State Bar of Texas. "With collaborative law, you can settle the case with a scalpel rather than a hatchet, which is what you get in court. Because the parties have crafted the agreement themselves, they own it more than if a judge has told them what to do. They're more likely to follow the terms of the agreement."

The Differences Between Collaborative and Cooperative Law

Paul Brumley — Mon, 25 Mar 2013 09:03:50 -0600

Collaborative divorce and cooperative divorce are processes by which parties may attempt to resolve their divorce cases by use of negotiation and use of professionals. They are alike in that the processes both attempt to avoid the courthouse with its incidental court appearances, formal discovery and the arbitrary deadlines of the statutes and rules. However, collaborative law and cooperative law differ in important respects.

Collaborative law is codified into the Texas Family Code in Chapter 15. The statute requires that a collaborative family law participation agreement be signed and that agreement must:

Be in a record;
Be signed by the parties;
State the parties' intent to resolve a collaborative family law matter through a collaborative family law process under this chapter;
Describe the nature and scope of the collaborative family law matter;
Identify the collaborative lawyer who represents each party in the collaborative family law process;
Contain a statement by each collaborative lawyer confirming the lawyer's representation of a party in the collaborative family law process.
Include provisions for suspending tribunal intervention in the collaborative family law matter while the parties are using the collaborative family law process; and
Unless otherwise agreed in writing, jointly engage any professionals, experts, or advisors serving in a neutral capacity.

The statute further allows the parties to include other provisions in a collaborative family law participation agreement which are not inconsistent with this chapter.

According to the statute, a collaborative family law process is concluded by:

Resolution of all issues;
Resolution of a part of a collaborative family law matter; or
Termination of the process under other specified terms in the statute or which have been agreed by the parties.

Generally speaking, a collaborative family law process terminates according to the terms of statute by the giving of notice by one party or when one party seeks court intervention.

When a party discharges a collaborative lawyer or a collaborative lawyer withdraws from further representation of a party that attorney may not continue to represent or advise that party.

The parties must comply with some reporting deadlines while the case is pending, but, upon compliance with those reporting deadlines, the court cannot intervene with settings and discovery deadlines until after the second anniversary of the date the divorce case was filed.

Cooperative law divorce is not statutory. It is a term which incorporates a myriad of hybrid options which are usually derived from Chapter 15 of the Texas Family Code and from the experiences of the parties and their attorneys. In nearly every case which has been reviewed by this author, the provision of Chapter 15 which requires the disqualification of the party or parties' attorneys upon termination of the process is included in the collaborative law agreement. The agreements to avoid litigation and formal discovery are usually incorporated into the cooperative law participation agreements. There is, however, in no instance which has been reported, a requirement that the parties' cooperative law attorneys be disqualified upon termination of the cooperative law process.

Initially, there was concern about the enforceability of cooperative law participation agreement, but in In re Mabry, 355 S.W.3d 16 (Tex. App. – Houston [1st Dist.] 2010, orig. proceeding), the court upheld the validity of the parties' "Cooperative Law Dispute Resolution Agreement" and said,

Akin to collaborative law, cooperative law "is a process which incorporates many of the hallmarks of Collaborative Law but does not require the lawyer to enter into a contract with the opposing party providing for the lawyer's disqualification." Smith and Martinez, 14 HARV. NEGOT. L. REV. at 166. "Cooperative law includes a written agreement to make full, voluntary disclosure of all financial information, avoid formal discovery procedures, utilize joint rather than unilateral appraisals, and use interest-based negotiation." Lande and Herman, 42 FAM. CT. REV. at 284. Put simply, cooperative law agreements mirror collaborative law agreements in spirit and objective, but lack the disqualification clause unique to collaborative law agreements.

The court went on further to say that Chapter 15 had no applicability to cooperative law agreements. Therefore the parties could not be guided by the provisions of Chapter 15 unless portions of the statute were included in the agreement. In disposing of the issue of enforceability of cooperative law agreements, the court said in clear wording, "Additionally, nothing in the statute or in its legislative history leads us to the conclusion that the collaborative law statute forbids parties in Texas from entering into cooperative law agreements."

Be careful what you agree to.

Rule 11 Agreements and Final Decrees of Divorce

Jennifer Hargrave — Thu, 21 Mar 2013 16:26:55 -0600

The Agreed Decree of Divorce is a final decree that contains the terms to which both parties have given their consent. The Decree is both a "judgment" of the court, and a contract between the parties. Some terms can be enforced by contempt, some terms can be enforced as a breach of contract. Parties can give their consent by simply signing the final decree, in which case one party will "prove up" the decree before the judge who may approve the agreements and enter the order. Or the Decree can be based upon some form of a settlement agreement, which has been incorporated into the Decree.

If the decree is based upon a settlement agreement, it is important to understand the different variations of "agreements." Generally, once an agreement is reached regarding the terms of the decree, one party will want to enforce that agreement in the event the other party changes their mind. Understanding the nature of the underlying agreement is important to understand the "finality" of that agreement.

The Rule 11 Agreement

The Rule 11 Agreement is an agreement that conforms with the requirements of Texas Rules of Civil Procedure (TRCP) Rule 11, which states:

Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

Rule 11 Agreements are used to settle all types of issues between the parties, from discovery matters to final property divisions. They are contractual in nature, and can be enforced as a contract – provided they satisfy the requirements of Rule 11. When incorporating the terms of a Rule 11 Agreement into a final decree of divorce, specify that the parties intend for the decree to supersede the terms of the Rule 11 agreement. That way, if there is a conflict between the two documents, it is clear that the provisions of the decree trump the Rule 11 agreement. Otherwise, the settlement agreement remains enforceable as a contract even if its terms are not incorporated into the judgment. Compania Financiara Libano, S.A. v. Simmons, 53 S.W.3d 365 (Tex. 2001). The terms of the Rule 11 Agreement also remain enforceable as a contract, even if a party withdraws his or her consent. Boyd v. Boyd, 67 SW3d 398 (Tex. App. - Fort Worth 2002, no pet).

Issues Surrounding Distributions from Texas Family Limited Partnerships

Jim Mueller — Wed, 13 Mar 2013 10:05:11 -0600

The starting point in the division of a marital estate is the characterization of the parties' property as separate or community. Allen v. Allen, 704 S.W.2d 600, 603 (Tex. App. – Fort Worth 1986, no writ). Property acquires its characterization at the inception of title. Henry S. Miller Co. v. Evans, 452 S.W.2d 426, 430 (Tex. 1970). Property owned by a spouse before the marriage is separate property. Tex. Const. art. XVI, § 15; Tex. Fam. Code Ann. § 3.001(1) (West 2006). Property possessed by the spouses upon the dissolution of the marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (West 2006); Estate of Hanau v. Hanau, 730 S.W.2d 663, 667 (Tex. 1987). A party claiming property as separate has the burden to overcome that presumption by clear and convincing evidence. Tex. Fam. Code Ann. § 3.003(b); Harris v. Harris, 765 S.W.2d 798, 802 (Tex. App. – Houston [14th Dist.] 1989, writ denied). "Clear and convincing" evidence means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code Ann. § 101.007(b); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).

To overcome the presumption of community, a spouse must trace and clearly identify the property claimed as separate. Hanau, 730 S.W.2d at 667; Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975). If separate and community property have been so commingled as to defy segregation and identification, the statutory presumption prevails. Hanau, 730 S.W.2d at 667 (citing Tarver v. Tarver, 394 S.W.2d 780 (Tex. 1965)). When separate property has not been commingled or its identity can be traced, however, the statutory presumption is dispelled. Harris, 765 S.W.2d at 802.

With these principles in mind, we turn to the characterization of a spouse's partnership interest and the distributions made from a Texas Family Limited Partnership ("FLP"). The Supreme Court has determined that the only partnership–related property a trial court can award upon dissolution of a partner's marriage is the partnership interest, not the partnership property. McKnight v. McKnight, 543 S.W.2d 863, 867–68 (Tex. 1976). A partnership "interest" is a partner's right to receive his share of the profits and losses and to receive distributions. Tex. Bus. Orgs. Code Ann. §1.002(68) (West Pamph. 2009). "Partnership property" is not property of the individual partners; a partner's "interest" does include an ownership interest in partnership property. Id. §152.101 (West Pamph. 2009); Marshall v. Marshall, 735 S.W.2d 587, 594 (Tex. App. – Dallas 1987, writ ref'd n.r.e.). Nor does a partner retain an ownership interest in his capital contribution; rather, the contribution becomes partnership property. Lifshutz v. Lifshutz, 199 S.W.3d 9, 26 (Tex. App. – San Antonio 2006, pet. denied). Thus, a partner's right to receive his share of the profits is the only partnership right subject to characterization. Marshall, 735 S.W.2d at 594.

Partnership earnings are owned by the partnership prior to distribution to the partners and cannot be characterized as either separate or community property. Cleaver v. Cleaver, 935 S.W.2d 491, 494 (Tex. App. – Tyler 1996, no writ). "[A] partnership can be an effective means of preserving the separate property character of assets contributed to the partnership and the undistributed income thereon." Lifshutz, 199 S.W.3d at 26 (citation omitted) (emphasis added). The partner's spouse has no interest in the assets of a partnership until they are actually distributed. Id. The portion of partnership income retained in the capital account is therefore partnership property, and as such, is neither the separate nor community property of either party. See Cleaver, 935 S.W.2d at 494. In fact, even the increase in the partnership interest remains partnership property and would not constitute property acquired after marriage until distributed. See Lifshutz, 199 S.W.3d at 26; Cleaver, 935 S.W.2d at 494.

The Marshall case, Marshall v. Marshall, 735 S.W.2d 587 (Tex. App. – Dallas 1987, rehearing denied), remains the leading authority that the distributions from the limited partnership are community property. In Marshall, the husband owned a separate property interest in a partnership. The partnership engaged in oil and gas exploration and production. Id. at 594. The partnership acquired all of its oil and gas leases before the marriage. Id. The partnership disbursed $542,315.72 to the husband during the marriage. Id. The husband maintained that only the $22,400.00 paid as salary was community property. Id. The court rejected the husband's argument and held that the distributions of partnership income or profits were community property. Id. at 595. So, if the partner receives her share of the profits during marriage, those profits are also community property, regardless of whether the partner's interest in the partnership is separate or community in nature. Even if the distribution was of an asset or cash, and the distribution was from the capital account, Marshall states that the "mutation of a partner's separate contribution" does not apply and the distributions will be characterized as community property because the partnership becomes the owner of the capital contribution. As such, in this case, all of the partnership distributions that a spouse received during the marriage would be considered community property.

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Using Social Media in Family Law Cases

Jennifer Hargrave — Tue, 12 Mar 2013 12:54:27 -0600

Frequently, Facebook, Instagram, Twitter and other social media sites provide a plethora of incriminating evidence that can be used in divorces or custody proceedings. Whether it's a picture of the teenage child using drugs, the wife caught in a compromising situation, or the identification of valuable assets, social media has made obtaining damaging information readily accessible and inexpensive. The challenge is getting that evidence admitted in a court of law.

If the evidence is obtained from the opposing party's social media account, it can easily be used as an admission of a party opponent if the opposing party is willing to admit that yes – they did make that statement. However, from time to time, that witness might think they can outsmart the legal system by claiming that they never made such an offensive statement. In this post, we will explore how to admit evidence from social media when a party denies authorship.

Rule 901 of the Texas Rules of Evidence sets forth the process for authenticating the evidence – i.e., establishing that the matter in question is what the proponent claims it to be. The rule sets forth "by way of illustration only, and not by way of limitation," examples of authentication. For example, an exhibit may be authenticated by a witness with knowledge that the evidence is what it claims to be. Texas Rules of Evidence, Rule 901(b)(1). An item can also be authenticated by establishing distinctive characteristics, such as "appearance, contents, substance, internal patterns or other distinctive characteristics...." TRE, Rule 901(b)(2).

When the opposing party or hostile witness denies making the statement on his or her social media account, the proponent of the evidence will need a witness who can testify that the computer print out of the social media is accurate. Printouts of pages from a social media website can be authenticated by establishing: 1) that the witness printed the exhibit; 2) the witness is familiar with the computer and printer used to print the exhibit; and the exhibit accurately depicts the web site as it appeared on that day. Rule 1001 Definitions (a), (c) & (d). The witness does not need to be the author of the website, but rather can testify to the fact that the pages printed from the website are accurate. Id.

After the computer print out has been authenticated, the next step is to link the postings to the author of the postings. This can be done by establishing that the computer print out contains distinctive characteristics that can be linked to the author. Rule 901(b)(4) permits a tendered item to be authenticated based on distinctive qualities. When a piece of physical evidence is unique or has peculiar individual characteristics, its authentication is sufficient if a witness can testify that: 1) he/she has previously seen the object; 2) noticed its individual characteristics, and 3) recalls those characteristics.

E–mails and instant messages have been authenticated by factors such as: the return–address line, the date and time of the correspondence, the subject line, the contents and context, internal characteristics such as known speaking or grammatical usage, nicknames or specialized terms, or any other circumstances, such as conversations or events either before or after the e–mail or instant message that tend to make it more likely that this message came from a certain person. See Shea v. State, 167 S.W.3d 98, 104–105 (Tex. App. – Waco 2005, pet. ref'd).

Similarly, the connection between a particular chat–room posting and a specific person can be established by the following: 1) the screen name can be traced to the identified person, who has previously used this specific screen name in chat–room conversations; 2) the identified person responded to a request for a meeting with the person using a specific screen name, 3) the person using the screen name identified himself as "X" and that self–identification is coupled with other particularized information that applies to X, such as a street address, e–mail address, job, or personal description, 4) the identified person had information given to the chat–room participant using the specific screen name, or 5) search of the identified persona's computer hard drive shows that the user of that computer used the same screen name as the chat–room participant. See United States v. Tank, 200 F.3d 627, 630–31 (9th Cir. 2000).

Just as e–mails, instant messages, and chat room sessions can be linked to particular individuals by witnesses with sufficient circumstantial evidence to make the link, postings on social websites should also be subject to this same method of authentication.

The Evolution of Collaborative Law: Cooperative Law

Janet Brumley — Mon, 11 Mar 2013 10:52:59 -0600

"Collaborative Law" is an Alternative Dispute Resolution technique. In Collaborative law, each spouse pledges to sit down in the same room to pursue settlement of the case in the most cooperative way possible. They vow to keep talking until they reach settlement, and to stay out of court at all cost.

Over the years, the Collaborative law model has sprouted several variations. One of them is "cooperative law." I used to say I would never do a Cooperative Case. For those who don't recognize the lingo, Cooperative differs from Collaborative in that there is no attorney withdrawal provision. I felt (and still feel) that the attorney withdrawal provision encourages clients to stay the settlement course when the case gets difficult.

I also felt that the opposing counsel who wouldn't do Collaborative Law probably wasn't committed to settlement. This is where I was wrong. I'm just completing my first Cooperative case. I must admit that there were moments when I felt uncomfortable. If this wasn't a pure Collaborative case and it wasn't a pure litigation case, what on earth were my rules? I waited for the opposing counsel to race to the courthouse when we had our first problem. It didn't happen. In fact, we settled the case and it was done with very little acrimony, although it was a case that could have been hotly contested.

What I learned is that what matters most isn't the form of the process you are using. It is the integrity of the attorneys and parties involved. In Collaborative Law, a party can opt out and run to the Courthouse at any time. In either Collaborative or Cooperative Law, if you have two parties and two lawyers who are committed to settling, it will happen – with or without an attorney withdrawal provision.

New Rule 902(10)(c) - Affidavit for Medical Expenses

Jimmy Verner — Sat, 02 Mar 2013 14:02:22 -0600

Yesterday (March 1) new Rule 902(10(c) of the Texas Rules of Evidence came into effect. This rule sets out an additional hearsay exception by allowing for proof of medical services by affidavit.

The new rule reads:

(c) Medical expenses affidavit. A party may make prima facie proof of medical expenses by affidavit that substantially complies with the following form:

[case style]

Affidavit of Records Custodian of ________

STATE OF TEXAS

COUNTY OF ________

Before me, the undersigned authority, personally appeared ________, who, being by me duly sworn, deposed as follows:

My name is ________, I am of sound mind and capable of making this affidavit, and personally acquainted with the facts herein stated.

I am a custodian of records for ________. Attached to this affidavit are records that provide an itemized statement of the service and the charge for the service that ________ provided to ________ on ________. The attached records are a part of this affidavit.

The attached records are kept by ________ in the regular course of business, and it was the regular course of business of ________ for an employee or representative of ________, with knowledge of the service provided, to make the record or to transmit information to be included in the record. The records were made in the regular course of business at or near the time or reasonably soon after the time the service was provided. The records are the original or a duplicate of the original.

The services provided were necessary and the amount charged for the services was reasonable at the time and place that the services were provided.

The total amount paid for the services was $________ and the amount currently unpaid but which ________ has a right to be paid after any adjustments or credits is $________.

________

Affiant

SWORN TO AND SUBSCRIBED before me on the ____ day of ____, ____.

________

Notary Public, State of Texas

Notary's printed name: ________ My commission expires: ________

The new rule has been added to Texas Rules of Evidence.

What is "Abuse of Discretion" Anyway?

Jimmy Verner — Tue, 19 Feb 2013 14:45:32 -0600

"Abuse of discretion" is a standard by which appellate courts decide whether a trial court has made a mistake in deciding a case. In short, a trial court abuses its discretion when it makes an arbitrary or unreasonable decision. The abuse of discretion standard is common in family law cases because so many issues are committed to the sound discretion of the trial court.

Let's illustrate the abuse of discretion standard by showing how it adds an extra layer of analysis to the appeal of an ordinary civil case.

Suppose Bob rearends his truck into Sue's car. Sue sues Bob for wrecking her car and because she broke her leg in the accident. The case goes to trial. Sue wins because the jury says Bob was negligent when he ran into Sue and caused her to break her leg. The jury awards Sue money damages for her medical bills plus pain and suffering.

Bob can win issues on appeal in one of two ways. First, if he can convince the court of appeals that the evidence against him was legally insufficient, then the court of appeals will reverse the trial court's judgment and dismiss the case. Legally insufficient evidence is the equivalent of no evidence at all. Bob would have to prove that Sue did not introduce any evidence on a critical element in her lawsuit. For example, if Sue did not introduce any evidence of how much her medical bills were, there would be legally insufficient evidence to support that part of the judgment.

The other way Bob can win is to convince the court of appeals that the evidence against him was factually insufficient. If the court of appeals agrees, then it will reverse the case but remand it for a new trial. Factually insufficient evidence means that there is some evidence to support an element of a lawsuit, but not enough to conclude that the element is more likely than not proved. This could occur if Sue just wrote down the amounts of her medical bills on a piece of paper and introduced that into evidence instead of introducing her actual medical bills.

Now let's add in the abuse of discretion standard. Suppose Bob and Sue got married instead of in a car wreck, but they later divorced. At trial, the trial judge awarded 75% of the community estate to Sue. Bob is outraged because he believes the division should have been 50-50. Bob appeals.

Property division on divorce is reviewed by the abuse of discretion standard. The first question the court of appeals asks is whether there was legally sufficient evidence before the trial court to prove the extent of the community property and what it was worth. If so, the court of appeals next asks whether the evidence was factually sufficient as to the contents and value of the community estate. If so, the court of appeals then asks whether the trial court abused its discretion when it divided the community estate the way it did. If the court of appeals believes the trial court abused its discretion, the court of appeals reverses the case and remands it back to the trial court to redivide the community estate.

Bob tries to convince the court of appeals that the evidence about the community estate was legally or factually sufficient, but the court of appeals does not agree. To win on his appeal, Bob must persuade the court of appeals that the trial court abused its discretion. In other words, in light of the evidence before the trial court, was the judge's decision to award 75% of the community estate to Sue arbitrary or unreasonable? If so, the court of appeals remands the case for redivision. If not, the court of appeals affirms the trial court's division of property.

A divorce court may consider many, many factors when it decides how to divide the community estate between a couple upon divorce. According to the Texas Supreme Court, some of the factors are

the spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. We believe that the consideration of such factors by the trial court is proper in making a "just and right" division of the property. Likewise, the consideration of a disparity in earning capacities or of incomes is proper and need not be limited by "necessitous" circumstances.

Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981) (citation omitted). These are the things divorce lawyers argue about when they try to settle a case or are at trial.

The Keys to Effectively Work with Your Divorce Lawyer

Scott Morgan — Fri, 08 Feb 2013 13:19:17 -0600

This post is by guest author Scott Morgan, a divorce attorney in Houston who is board certified in family law and has represented divorce clients for nearly twenty years. Here are his tips on how to have an effective relationship with your divorce lawyer.

Your divorce is likely to be the most significant legal event of your life so it is important that you work effectively with your divorce lawyer. It is not enough to simply hire someone good and then expect them to magically achieve an excellent outcome all on their own. You must work on your case with your attorney as a partner. Here are some tips on exactly how to do that.

Choose an Attorney that is Right for You

You want to find someone who listens to you when you talk, who understands your goals, has experience, and has your best interests at heart. Do not share an attorney with your spouse. Beyond that, think of what style is going to fit your personality. Some people feel compelled to hire a Rambo litigator while the reality is that they are very uncomfortable working with this kind of personality. You will be working closely with your lawyer so choose someone that you will be able to work effectively with based on your own personality.

Know Your Objectives

It is important that you understand in broad terms what you want from the divorce process. Is it crucial to you that you keep the house? Do you feel it is absolutely in your children's best interest that you have primary custody? Do you want to minimize your long-term financial obligations to your soon to be ex? You must first have some idea of what is most important to you before you can hope to achieve an outcome that satisfies you.

Be Honest With Your Attorney

Your attorney will ask you for information about your finances, your personal relationships, your spouse and your children. Your attorney is going to ask you some questions that may make you very uncomfortable. No matter how awkward it makes you feel you need to be completely honest. The lawyer can't properly advise you unless they know all the facts they are dealing with so make sure you aren't sending them off to fight for you, only to learn that they have half of the story.

Have Reasonable Expectations about Communications

Your attorney has a lot of clients, not just you. Understand that they will not necessarily be available to you immediately when you call and email. Most divorce attorneys spend a lot of time in meetings and court and ending up returning calls and answering emails in batches. If your issue is urgent you should contact the attorney's paralegal (they are usually much more available) and discuss the situation with them, determining when your attorney will be able to speak with you. Arranging for a scheduled phone conference is often a helpful way to avoid perpetual phone tag and extensive email back and forth. The most important thing to understand is that due to the nature of litigation practice you will not always be able to contact your attorney immediately and will need to have a certain amount of patience.

Do Not Expect Your Attorney to Be Unprofessional

It is counterproductive for your attorney to treat your spouse (or their attorney) with disrespect or anger. In fact, attorneys with bad attitudes can get poor reputations in the legal community and you will find your case taking longer and consequently becoming more expensive. Just remember that your attorney is on your side but he or she doesn't need to be offensive in order to be effective.

Follow Instructions

It cannot be overstated how important it is to your case to follow your attorney's instructions. Return paperwork by the deadline and if necessary, stop behavior when they tell you to do so. It may be hard to stay on task, but know that there is probably a very good reason they are asking you to do these things.

About the Author

Scott Morgan has practiced family law in Texas since 1994. He is the founder of the Morgan Law Firm which has offices in Austin and Houston.

Kudos to Bobby Wadsworth

Jimmy Verner — Thu, 07 Feb 2013 17:28:22 -0600

Dallas attorney Darren L. Schraeder is a lucky man. He is lucky because Bobby Wadsworth is his paralegal. And Bobby Wadsworth is one careful guy. He noticed something odd about our Texas child support calculator and found a small rounding error that had gone undetected thus far.

Child support in Texas is based upon the obligor's annual resources. From that amount is subtracted federal income, social security and medicaid taxes for one person claiming one exemption and the standard deduction. So what we do is gross up the obligor's pay to the annual amount before beginning our calculations. Then we break the annual amount down into monthly, twice per month, every other week and weekly payment amounts.

Simple, right? Monthly child support is the annual amount divided by 12, twice per month is the annual amount divided by 24, every two weeks is the annual amount divided by 26, and weekly child support is the annual amount divided by 52. But Bobby noticed that when he multiplied the every two weeks and weekly results on our calculator, by 26 and 52 respectively, the amount was slightly off.

So Darren Schraeder emailed me about the discrepancy and I dug into the code. Sure enough, what we had done was estimate 2.17 two-week periods per month rather than gross the monthly amount up to the annual amount then divide by 26. We calculated 4.33 weekly periods per month for the weekly calculation.

We've revised the code - the revised app will be available on iTunes in a few days. If you already bought the 2013 version of the Texas child support calculator, the fix is a free download that iTunes will tell you to get. In the meantime, your weekly and twice-per-week calculations will be very slightly off. Thanks again to Bobby for helping us to make a better product.

Child Support and the "Fiscal Cliff"

Jimmy Verner — Tue, 11 Dec 2012 12:50:55 -0600

Calculating child support in Texas requires determining the obligor's gross income, then subtracting certain amounts from gross income to calculate "net resources." After that, a percentage is applied to net resources to calculate child support. The percentage varies depending on the number of children before the court and the number of other children the obligor is court–ordered to support.

The first two deductions from net resources are:

(1) social security taxes; and
(2) federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction.

Tex. Fam. Code § 154.062(d).

Historically, social security taxes were set at 12.4% with the employer paying half for employees. In 2010, as part of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Congress dropped social security taxes to 10.4% for tax year 2012 to help stimulate the economy. At this time, the employee pays 4.2% and the employer 6.2%.

Normally, by November of each year, the IRS would publish tax rates and brackets for the upcoming year. With this information in hand, the amount of child support for the following year could be calculated in advance. But the tax margins and rates are based on the "Bush tax cuts" which were enacted in 2001 and 2003. The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 extended the Bush tax cuts through 2012.

Child support in Texas cannot be calculated for 2013 at this time. The "fiscal cliff" is looming. The "fiscal cliff" refers to the financial repercussions if social security taxes return to their prior rate of 12.4% and the Bush tax cuts expire. Because we do not know what the social security tax percentage, the tax rates and the tax brackets will be for 2013, we simply do not know right now how to calculate child support amounts for Texas in 2013.

It is even possible that child support calculation will change during 2013. If the fiscal cliff comes to pass, we can calculate child support based on the new numbers, but it seems likely that Congress will further act in the new year to change social security taxes, marginal tax rates and tax brackets, in which case calculation of child support would change during 2013. Stay tuned.

Anatomy of a Texas Family Law Appeal - Findings of Fact and Conclusions of Law

Jimmy Verner — Wed, 28 Nov 2012 11:39:07 -0600

In a prior post, we discussed findings when child support is at issue. But there is another type of findings: Findings of Fact and Conclusions of Law, per Rules 296 et seq. of the Texas Rules of Civil Procedure.

Rule 296 states that a Request for Findings of Fact and Conclusions of Law must be made within twenty days of the date the judge signed the decree, judgment or order being appealed.

Findings of Fact and Conclusions of Law can be requested when a family law case is tried before a judge. They are not available if the case is submitted to a jury. But most Texas family law cases are tried to the bench, so whether to request findings is usually an issue to be considered when appealing the case.

When a trial court makes Findings of Fact and Conclusions of Law, the appellate court inquires whether the findings support the judgment and whether there is sufficient evidence in the record to support the findings. When a family law appeal concerns parent–child issues other than child support, findings normally are not especially helpful to the appellate court because of the nature of these issues. The type of conservatorship ordered and times for possession and access are committed to the discretion of the trial court. A finding that, for example, the parents should be joint managing conservators adds nothing to the record because the appellate court still must consider the sufficiency of the evidence underlying the trial court's decision.

In addition to the findings allowed by the Texas Rules of Civil Procedure, Texas Family Code section 6.711(a) specifically provides for findings when there are property issues:

(a) In a suit for dissolution of a marriage in which the court has rendered a judgment dividing the estate of the parties, on request by a party, the court shall state in writing its findings of fact and conclusions of law concerning:
(1) the characterization of each party's assets, liabilities, claims, and offsets on which disputed evidence has been presented;and
(2) the value or amount of the community estate's assets, liabilities, claims, and offsets on which disputed evidence has been presented.

Findings of Fact and Conclusions of Law on valuation and characterization can be very helpful to the party who appeals on those issues. Because the court is forced to specify values, one can determine what evidence, if any, the record contains to support those values. One also can determine the exact proportionate division of the community property, opening up a challenge to disproportionate division. Finally, the evidence can be reviewed on characterization issues.

A Practical Application of Domestic Partnership Law

Jimmy Verner — Sun, 18 Nov 2012 11:13:10 -0600

I usually don't tell personal stories on this blog, but today marks an exception. It was brought about by a car wreck in which my stepdaughter and her partner were injured.

My stepdaughter is gay. A couple of years ago, she and her partner finally had enough of Texas and moved to the Bay Area. They rented an apartment, and each of them found jobs. They love the Bay Area, their jobs and their life together.

Both "the girls" (as we affectionately call them) got off work for a few days so they could come back to Texas for a visit. I picked them up at the airport earlier this week. On Friday, the girls headed off to have dinner with my stepdaughter's father.

The girls were driving on US 35 when somewhere up ahead, a tire came loose and started bouncing on the freeway. The drivers frantically swerved, when they could, to avoid it. The tire caused a three-stage pileup, five cars, then three cars, then two. The girls were at the end of the three-car pileup.

Both girls were pretty beaten up. They went by ambulance to Baylor Hospital where the doctors found that my stepdaughter had broken her leg. She had surgery and is OK, but it could be a couple of months before she can return to California - and her job.

My stepdaughter might or might not be able to keep her job under the Family and Medical Leave Act – we don't know yet whether her employer has enough employees. The FMLA protects a person's job up to twelve weeks. The employee is unpaid but keeps benefits. If the employer isn't big enough, my stepdaughter will not only lose her job but her medical insurance.

Here's where the good news comes in: A couple of weeks ago, my stepdaughter and her partner "tied the knot" California-style. They registered as domestic partners.

Under California law, companies with group policies that provide benefits to spouses must provide those same benefits to domestic partners. My stepdaughter's partner has a good job - with insurance - so even if my stepdaughter is not protected by the FMLA, she will have medical insurance to protect her until she gets her job back or gets another job.

The issue of "gay rights" has been highly politicized. Some say that gay people want to force "the gay agenda" on the straight community. But being gay isn't a "lifestyle choice." During one tearful conversation while my stepdaughter was coming to terms with her sexual orientation, she asked, "Why would anyone want to be gay if they had a choice? Why would you want people to hate you?"

But setting aside harsh judgments, the fact is that because of a practical acceptance of gay rights, my stepdaughter will continue to be covered by medical insurance even if she loses her job. Moreover, she will not become a public charge because of her injury or (God forbid) any future injury. Taxpayers take note.

Error in Texas Attorney General's Child Support Calculator

Jimmy Verner — Wed, 14 Nov 2012 11:44:35 -0600

Under the name VernerLegal, I publish a Texas Child Support Calculator app for iPad and iPhone. As part of quality assurance, I test the calculator against the Texas Attorney General's child support tax charts.

Recently, the AG published a child support calculator on the AG's website. A colleague emailed me to say that my child support calculator produced different results from the AG's child support calculator. Using similar but not identical figures for privacy purposes, I input gross income at $2,500 per month with five children and medical insurance of $400 per month into the AG's calculator. The calculator yielded monthly child support payable of $695.17:

My calculator, in contrast, yielded monthly child support payable of $766.75 per month. That's a difference of $71.58 per month - a huge difference if the obligor grosses only $2,500 per month.

So I went troubleshooting and discovered a flaw in the AG's child support calculator. Medical insurance paid by the obligor is one of the deductions from annual resources to reach net resources, on which child support is calculated. However, the amount of the medical insurance deduction from annual resources is limited to 9% of annual resources under Texas Family Code section 154.181(e). That section reads in part:

If the obligor is responsible under a medical support order for the cost of health insurance coverage for more than one child, "reasonable cost" means the total cost of health insurance coverage for all children for which the obligor is responsible under a medical support order that does not exceed nine percent of the obligor's annual resources, as described by Section 154.062(b).

Nine percent of $2,500 equals $225. If $225 is substituted for $400 for medical insurance on the AG's child support calculator, then the AG's calculation is correct (with minor differences due to mathematical rounding).

It's unusual that a person who makes only $2,500 per month would pay as much as $400 for medical insurance for the children. But it happened in this instance.

Attorneys and others should be aware of the error in the AG's child support calculator when obligors with a relatively low income pay high medical insurance premiums. I am informed, but do not know, that ProDocs' Texas child support calculator has the same flaw as the AG's.

Divorce Without Disaster - Use of Expert Testimony

Jimmy Verner — Mon, 29 Oct 2012 08:39:47 -0600

This is the 11th of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 2, part 3 of the book.

Frequently in divorce, the parties need help from outside experts. The parties may disagree over the fair market value of their residence and need an appraiser to determine that value. Or they may disagree on a child's medication and need the advice of a pediatrician. In more complicated divorces, there may be questions of tracing separate property, valuing the couple's interest in a trust or determining the value of a business. In each instance, the attorney for each party in a litigation divorce hires an expert to give his or her opinion to the court in the final trial. These experts realize they have been hired by one interested party and, therefore, may give an opinion that benefits that party.

This nefarious lack of integrity is not universal, but it does occur. Most lawyers who practice family law know the local experts who cannot be bought and will give their honest, professional opinion without bias. These are the experts hired in collaborative law cases. Unlike the two-expert duel in litigation, in collaborative law the parties and attorneys agree on one expert and pay the expert from the community estate.

"It's a lot easier to appraise a property, and get all the important variables that are involved, when both sides are in agreement with you being there," says real estate appraiser D.W. Skelton.

"When you're hired by only one side, the other side sometimes thinks you're going to give a higher or lower valuation based on what your side wants. They're constantly worried about that, and they may make it difficult for the appraiser to get into the home to do what he needs to do, such as take photographs or make notes. If the parties are civil to each other, no matter what type of divorce it is, you don't run into any of that."

This also applies to the mental-health experts often called on during a divorce process.

"With collaborative law, I'm hired by both attorneys, so it's clear that I have the best interest of the relationship and the family in mind," says therapist Patrick Savage.

"Since there's no other therapist involved, I'm able to render an opinion that both attorneys will honor, since it's not about winning or losing; it's about what's in their clients' best interest."

- Janet P. Brumley

Prior posts:

Free Texas and Federal Evidence Rules Online

Jimmy Verner — Mon, 22 Oct 2012 10:02:15 -0600

Jimmy Verner, partner at VernerBrumley Family Law, publishes mobile and web apps for lawyers and others under the name VernerLegal. VernerLegal has begun hosting free web versions of court rules online. The first two sets of rules are:

Links to these rules also can be found on the Research Page of VernerBrumley Family Law's website.

Divorce Without Disaster - More on Communication

Jimmy Verner — Wed, 10 Oct 2012 10:37:26 -0600

This is the 10th of a serialization of Janet P. Brumley's book, Divorce Without Disaster. This post is Chapter 2, part 2 of the book.

In a standard litigation divorce, the parties are instructed not to speak to each other directly about the case, but to talk only through attorneys. There is a good reason for this admonition. Usually tempers are short and parties are not operating at their highest level. This results in lower functioning than at most other times in their lives.

A person going through a divorce is stressed and hurt, and may not hear well or communicate effectively. It is a recipe for disaster for two angry and hurt people to try to talk substantively with no assistance. What generally happens is that the two people sit down to civilly discuss their problems and possible solutions. At first, they do well and make some progress. Sooner or later, though, one of them takes a potshot at the other (or at least that's how it is perceived) and the fight is on. When they finish, they've not only lost all the progress they made, but they've actually dug themselves into a more negative position than where they started.

Collaborative attorneys are trained to actively listen. When either attorney hears a distracting comment by the parties, he or she will use a method designed to get the conversation back on track. Collaborative attorneys prefer to do a collaborative case with another collaboratively trained attorney, rather than with an attorney who is not trained in the model.

It has been my experience that if the other attorney is untrained, but is a cooperative person with whom I have handled prior cases and built up a mutual trust, the collaborative divorce can proceed smoothly. In this situation, I will have to do most of the work–not because the other lawyer isn't willing, but because he or she doesn't know what needs to be done. If the other attorney is not particularly cooperative and is untrained in collaborative law, using the collaborative process can be difficult because so much time is spent overcoming the other attorney's aggressive attitude.

Referring back to my analogy of the hand-tailored versus off-the-rack suit, the untrained lawyer keeps trying to convince everyone it's fine that the suit is too tight and the pockets stick out. That lawyer doesn't understand why everyone won't just shut up and take the suit!

Further, in a standard litigation divorce, attorneys are prohibited from speaking directly to the client on the other side. A paradigm in which discourse is limited is not as effective as one in which everyone talks to everyone else.

"One of the very frustrating things that frequently happens in litigation is that no one is talking to each other. The clients aren't talking directly to each other, and sometimes the lawyers aren't even talking to one another," explains one collaborative lawyer.

"Your client calls and tells you something, then you call the other lawyer. If you're lucky, you can get him or her, or maybe you have to talk to the legal assistant. It's like the telephone game, and by the time you get to the end of the line, who knows what's been translated to the client? There are so many opportunities for confusion."

"But in a collaborative context,because everyone is there together, there just is not nearly the opportunity for the kind of confusion or poor communication that's built into the litigation model. In 23 years as an attorney, I have never seen litigation improve parties' communication."

Some clients report that their strained communication was strengthened and improved as a result of the collaborative process. "It wasn't an easy thing, because there are a lot of raw feelings involved, but I think that having the four parties–the two of us and our lawyers–sitting down together in a process that fosters communication, was very helpful," says a Dallas CPA who was divorced in 2000.

"We have two children in college now, so we're still dealing with those kinds of parenting issues and I think our communication has actually gotten better. Using the collaborative process as opposed to something perhaps more damaging emotionally allowed us to have better com-munication going forward. If you're going to have any kind of relationship down the road with the person you're divorcing, this process can assist in building communication skills that you can use later."

- Janet P. Brumley

Prior posts:

Online Standard Possession Order for iPhone/iPad and Macs

Jimmy Verner — Thu, 04 Oct 2012 12:23:21 -0600

Jimmy Verner has built StandardPossessionOrder.com, a website that allows the user to select among the options allowed by the Standard Possession Order and download a visitation calendar to an iPhone, an iPad or a Mac computer.

What is a Standard Possession Order?

In Texas, we don't have "visitation" with the children when the parents live apart. We call it "possession of" or "access to" the children. But a possession order is, in reality, a visitation schedule.

The Standard Possession Order is statutory. It sets most of the defaults when the parents don't otherwise agree. But the Standard Possession Order has a number of options, too. You can read all about that at the website's About the SPO section.

What Does the Website Do?

The Standard Possession Order is very complicated. So it seemed like a good idea to code the Standard Possession Order for the Calendar application that comes with iPhones, iPads and Mac computers. That way, a parent could see at a glance which parent the children were supposed to be with and when.

The website explains the Standard Possession Order. Once you understand your choices, you can click on the Choose Options tab to pick the options you want. Once you have confirmed your choices, you can buy the Standard Possession Order (through the year 2050) for $5.99. You will then download the file into your computer and sync it to your mobile devices.

Once you have installed the calendar, then you must customize it further because the Christmas holidays and Spring Break aren't the same across school districts plus some summer periods of possession must be picked.

Who Should Use the Website?

Attorneys should use this website to prepare visitation calendars for their clients when they prepare their clients' divorce or paternity decrees.

Parents can use this website, too. Most divorce and paternity decrees include the Standard Possession Order when there are minor children involved. There will be a section in the decree called "Standard Possession Order." The parent can simply input the options listed in the decree on the Choose Options tab and prepare his or her own Standard Possession Order.

Questions?

Don't hesitate to send me an email if you have any questions.

- Jimmy Verner

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