Monthly Archives: May 2008

Don’t Believe Everything on the Internet

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.

Should You Represent Yourself in Your Divorce?

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.

Texas Alimony Not So Bad After All

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.

Blended Families

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

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.

Child Support Guideline Cap Raised

One of the most far-reaching revisions to the Texas Family Code in decades was the increase in the child support guideline cap that went into effect in the Fall of 2007.

The statute is Texas Family Code Section 154.125.

This was the first time since 1995 that the amount of the cap had been raised. The increase will only impact cases were the payor makes over $100,000 per year, but my guess is that literally tens of thousands of divorce and paternity orders per year in Texas fall into this category and will now yield a higher child support amount.

Under the old guidelines a Court was limited to considering the first $6,000/ month of payor “net resources” (a statutorily defined term that is usually close to the payor’s after-tax pay). The amendment raised this cap amount to $7,500/ month.

The end result is that a court setting child support under the guidelines in a case where the payor has an annual gross income of $125,000 and one child will be setting the child support at $1,500/month. Under the old law this would have been $1,200/month.

It should be noted that the amendment did not automatically effect previous orders and applied only to cases filed on or after September 1st.

Anyone receiving child support under an existing order who was subject to the old cap may have the right to a child support increase based on this statutory change by filing a modification case. Given the large number of existing child support orders that were set based on the old cap, there are probably a huge number of cases in the state where there are very good grounds for a modification.

Shaq O’Neal Divorce Spending

Steven Ballard had an interesting post about Shaq O’Neal’s divorce case revealing a shockingly high level of spending by the NBA star. What was really amazing is how someone can make $20 million a year and still have almost nothing left over to save or invest.

 

Youtube Divorce Video

By now you have probably heard about the so-called “Youtube divorce video.”  The homemade video has gotten a huge amount of attention and publicity with over 2 million viewings currently.

Here is the link to the divorce video.

The basic story is that Tricia Walsh-Smith, a former actress and playwright, is upset about the status of her Manhattan divorce proceedings.  She is married to Philip Smith, a very wealthy Broadway producer.  Philip is 25 years older than Tricia and had her sign a premarital agreement.

Trisha is now upset over several of the premarital agreement terms, especially the one that allows him to evict her from their luxury apartment.

Tricia’s response to the situation (probably not surprising given her theatrical background) was to post a tell-all video for the world to see.  In it she describes the unfairness of the situation, makes some embarrassing claims about their sex life, and goes through their wedding album pointing out certain family members and describing them as “bad” or “evil.”

Will this help Tricia in her divorce case?  I doubt it.  The video’ s theme is rather vindictive and is probably going to irritate the very judge who will be deciding the legal issues in her case.  All in all, not very helpful.

Unfortunately, my guess is this will become a trend.  Making a video and posting it online has become so simple and quick that I doubt that this is the last divorce video we will see.

Welcome to the Houston Divorce Lawyer Blog

Hi and Welcome to the Houston Divorce Lawyer Blog. This blog is a collection of my thoughts on a variety of divorce and family law related subjects – some serious, some informative, and some that are downright silly. I hope you find it useful and entertaining. I invite you to participate in the blog by commenting on any posts you find worthwhile. I also encourage you to visit my homepage for additional information on Texas divorce and family law issues.

Scott Morgan