Dallas Divorce Law Blog by Michelle O'Neil

The outcome of your divorce proceedings will change the course of your life forever; so invest the time and money to find the lawyer who will do the best job for you.  Here are some suggested questions to ask during your initial interview:

• Do you practice family law exclusively? What percentage of your practice is family law?
• What is your retainer? Is this fee refundale?  What is your hourly rate?
• What is your billing technique?
• Approximately how much will my divorce cost?  Your lawyer can only provide you a general idea of costs based on the information you provide and a guess about how amicable the process will be.  Even if you think your case is simple, but the other side makes it unnecessarily complicated, you can expect your costs to increase.
• What do you think the outcome will be?  Remember you are looking for an honest assessment, not necessarily what will make you happiest.
• If you spouse has retained an attorney, ask your prospective lawyer what she knows about this attorney. Have you worked with her before? Do you think she will work to settle?
• What percentage of your cases go to trial?  You actually want to choose a lawyer with a balance of settled cases versus trials.  Do not choose a lawyer that tries too many cases because that shows a lack of willingness to settle and will be more costly for you in the long run.
• How long will the process take?  Again, the best this can be is an approximation.
• What are my rights and obligations during this process?
• Will you actually handle my case or will someone else in your firm be responsible for my case?
• Should I consider mediation?
• What information will you need from me?
• What happens next?

An effective witness is one that is perceived as honest and likeable.  Particularly important for witnesses that are not aligned with one of the parties, it is important to be seen as impartial.  For example, if a teacher is asked to come to court by one of the parties, she should maintain her neutrality and avoid acting too cozy with either of the parents.  After all, she should be there for the child and not to advocate for either party.  If she is perceived as being an advocate for either party, her credibility will be shot with the Judge.

Dick Price recently posted 7 Tips for Witnesses on his blog.  Here are his tips:

“To be an effective witness requires preparation and forethought by the prospective witness. Ideally, there should be coordination and discussions with the attorney who is calling the witness. In the best situation, there would also be a rehearsal in a simulated courtroom environment, although that rarely happens in the ordinary case. The following are some basic steps that can be taken to prepare a witness to testify.

1. Review the facts, records or whatever will be testified about. Refresh your memory so that you remember the important facts and are clear about what happened. Sometimes, there is a long time between the event that occurred and when the testimony takes place. Be sure to review all the facts and any records about the event. It’s a good idea to record your observations right after an event occurs so that you can review that later to help remember what happened.

2. Talk with the attorney about what to expect. This would include reviewing possible questions, objections and strategies. Have the attorney try to anticipate what will be discussed so you can prepare for it. There is nothing unethical about rehearsing your answers to some questions, but you need to be careful to avoid appearing too rehearsed because that might appear dishonest or not credible. It’s nice to not be surprised. You can give a more accurate answer and be more helpful to a judge or jury if you have had time to think about an issue and have a clear memory about it.

3. Always follow the judge’s instructions. The judge is in charge and you will not win an argument with him or her. You can hurt your credibility if you don’t do something the judge ordered you to do.

4. Be sure to listen to the question before you start to answer. Think about your answer before you start giving it. This isn’t a race — you don’t have to hurry an answer. Pause before answering. Be sure you pay attention and hear the whole question, and then answer. If you don’t understand the question or didn’t hear it clearly, you can ask that the question be clarified or repeated.

5. Pay attention to basic courtroom etiquette.

• Don’t argue with the other attorney, and especially not with the judge.
• Don’t interrupt the questioner.
• If there’s an objection, stop talking and then do whatever the judge tells you to do — answer the question or don’t answer it.
• Just answer the questions. Don’t ask a question in response.
• Speak up so everyone can hear you.
• Don’t lose your temper. That will hurt your credibility enormously.

6. Don’t try to carry the whole load–rely on an attorney. The attorney will have a fresh perspective and be able to look at the big picture. If the attorney does not think that asking you a certain follow-up question will help, the attorney normally will more on to more important things. If you think you got “hurt” by some questioning, it is better to let the attorney decide whether to get back into the issue. The attorney is in a better position to determine what is important and what is not essential. If you get cut off and cannot give a full answer when you are being cross-examined, let your attorney decide on whether to pursue it.

7. Tell the truth! Don’t embellish, exaggerate or generalize. Attorneys and judges are usually very literal-minded. Don’t guess at the answer if you’re not sure. It is OK to say you don’t remember something. Just be truthful.

If you follow these simple tips, your experience as a witness will be less stressful, more productive and more effective.

Dallas County was the first county to implement the Standing Order in family law cases. Several other counties have followed their lead. The Standing Order is a set of orders that applies to every divorce (regardless of whether there are children of the marriage) and every suit regarding children (whether or not it is a divorce). I call them “do-right orders” because the main purposes of the orders are:

1. Minimize disruption to the children by ordering each parent to refrain from hiding the child, changing the child’s school or day-care, or saying negative things about the other parent to the child.

2. Preserve the property of the parties by ordering each party not to hide assets, change or deplete accounts, run up debts, open each other’s mail, turn off utilities at the residence of either party, or locking the other party out of the house.

3. Preserve the financial and personal records by ordering both parties to refrain from destroying important records.

4. Maintain insurance by prohibiting cancelation of insurance policies or changing beneficiaries.

5. Generally regulate the conduct of the parties by prohibiting the use of vulgar language, making harassing telephone calls, or threatening the other person.

Most of the orders are behaviors that normal people not in a divorce would know they should not engage in, but during a divorce people sometimes act out.

Nothing about the Standing Order for family law cases prohibits either party from conducting their usual business or occupation, hiring and paying for a lawyer’s services, or spending money or debt on reasonable living expenses.

Prior to adopting this Standing Order, and in counties that do not have a Standing Order, a Court would enter a Mutual Temporary Restraining Order containing the same provisions. (Do not confuse a Mutual Temporary Restraining Order as described with a Protective Order that addresses issues of domestic violence.)

As I’ve posted recently, issues often arise about how to handle kids and divorce.  One of the problems has received recent media attention from Hulk Hogan’s divorce.  Apparently Hulk is sending messages to estranged wife Linda through their 17-year-old son and otherwise discussing divorce issues — the sale of the marital residence — with him, causing the son to developed emotional issues.  See article here.

One would think it goes without saying that parents should not put their children in the middle of communication about grown-up issues. Most Texas divorce courts enter orders prohibiting discussions about the litigation in the hearing of the child as soon as the divorce is filed.  Some counties, including Dallas, Collin, Tarrant, and Denton, call these “Standing Orders” (see blog post Dallas Divorce Lawyers Know…).  But, sometimes parents still allow their judgment to be clouded by the emotion of the divorce to the extent that they forget to put the kids first.

Dick Price has a good blog post on his website about Divorce No No’s that he says can lead to emotional and behavioral problems.  His list of No No’s includes:

1. Make a child into a messenger.
2. Let the kids overhear comments about the other parent.
3. Let the kids be present, in person or on the phone, to hear arguments about the kids.
4. Make comments directly to the child about the other parent.
5. Discuss the “facts” or “truth” about the divorce with the kids.
6. Inform the kids, or let them know, about what they are missing out on becasue they will be with the other parent.
7. Ask the kids to make choices between parents.

To read more of Mr. Price’s article, click here.

More Men Get Alimony as Stigma Lessens

By Debra Cassens Weiss

As more men sacrifice their careers for their higher earning spouses, more are receiving court-ordered alimony. And more are willing to talk about it.

The percentage of men receiving alimony rose to 3.6 percent in the five years ending in 2006, compared to 2.4 percent in the previous five-year period, the Wall Street Journal reports.

Among those receiving alimony is actor John David Castellanos, who used to star in The Young and the Restless. He gets $9,000 a month. He claims he helped his wife move up in her career, until she began to make more money than him. Another alimony recipient is toilet salesman Joe Garnick, who quit his job to raise the kids and take care of the house. He received $50,000 a year for four years from his ex-wife, who was a global equity derivatives strategist for Merrill Lynch.

The story suggests alimony figures will rise based on 2005 data that shows wives made more money than their husbands in 33 percent of all families. Men often argue they sacrificed their careers or stayed at home to raise children for their spouses.

“Today’s men are shaking off the stigma of being supported by their ex-wives,” the story says. “Several agreed to talk on the record for this article, in part because they say the popular image of the male alimony recipient is unfair: He’s not always a slacker.”

The New York Times ran an article on February 13, 2008, about the increasing controversy over religion in custody cases. See article here. Increasingly, people of different religions marry and divorce, then disagree over which religion(s) to introduce to the children. Or, tensions can emerge when one parent becomes more fundamentalist in their faith than previously.

As a general rule, a judge will not — and probably cannot — pick one religion over another as preferable. The constitutional freedom of religion that we here in American experience also carries over to custody cases. A judge may decide whether either or both parents have the right to make decisions about the child’s religion while the child is in that parent’s care. Usually, a parent may address religion or religious beliefs with the child while the child is with them during parenting time. But, short of finding some harm to the child from the parent’s religion or beliefs, a judge will probably stay out of the fray.

Kanye West, Hip Hop superstar and Grammy winner, gives advice to people wanting to get married: “If you aint no punk holla We Want Prenup, WE WANT PRENUP! Yeaah! It’s something that you need to have…” (From “Gold Digger” off of the Late Registration album (Roc-A-Fella/Def Jam 2005)) In other words, he recommends that everyone should get a prenup before getting married.

Jessica Simpson didn’t listen to this advice when she married Nick Lachey without a prenup.

But, Britney Spears did heed the warning. Apparently Britney even staged a fake wedding because Federline hadn’t signed the prenup in time. Britney’s prenup gave K-Fed $250,000 for each year of the marriage, which is rumored to have been increased to $500,000 per year during settlement negotiations.

Some celebrity prenups go far beyond the standard identification of assets owned before the marriage and what each party leaves the marriage with, including clauses like:

* Limiting the wife’s weight to 120 pounds or she must relinquish $100,000 of her separate property.

* Allowing a spouse to perform random drug tests, with financial penalties for positive results.

* Requiring a husband to pay $10,000 each time he is rude to his wife’s parents.

Infidelity clauses are common, where a spouse gets paid if the other is unfaithful. Michael Douglas agreed to pay Catherine Zeta-Jones millions should he stray, and Denise Richards made similar requirements of Charlie Sheen.

Custody of pets is another common concern, especially since most divorce courts will treat the pets like an item of property.

However, prenups are important for almost everyone planning to get married, regardless of celebrity status. A prenup can be as simple as defining who has what at the time of the marriage. It can also address how property acquired during the marriage will be treated upon divorce, which spouse will be responsible for payment of the marital obligations, and how the property will be distributed upon death of one of the spouses.

For assistance with a prenup or marital property agreement, please contact The May Firm for an appointment. But, don’t wait until the last minute, as prenups require plenty of planning and discussion.

I have been honored to be featured in the Texas Bar Journal February 2008 edition Technology column. To see the article, click here. I have also been listed at the Texas Bar’s list of attorney blogs. See that website here.

If you are in need of a Texas Board Certified Family Law attorney, please contact us.

March 1, 2008
Welcome to The May Firm Newsletter!
As a service to our clients, we at The May Firm and Divorce Magazine are pleased to provide you with this monthly e-newsletter and hope that the information and articles contained within are helpful, supportive, and entertaining. Michelle May O’Neil is nationally recognized as a leader in family law. Her firm emphasizes high-quality representation in family-law matters, with a particular emphasis on child-custody disputes, complex marital-property litigation, and appeals of family-law matters. For more information, please click here: www.DivorceMagazine.com/TX/pro/may.shtml or view our website at: www.themayfirm.com.

If you wish to schedule an appointment to further discuss your situation, please contact us.

Useful Articles:
1. CHILDREN AND DIVORCE: Within a child’s heart
2. MEDIATION: A fair negotiation
3. DIVORCE RECOVERY: Full esteem ahead
4. RELATIONSHIPS: Sex and divorce
5. BUSINESS VALUATION: How will you find value?
6. FINANCIAL PLANNING/INVESTMENT: Charting your expenses
________________________________________
1. CHILDREN AND DIVORCE
Within a child’s heart
A glimpse into the journey one boy faced when his parents divorced.
http://www.divorcemag.com/articles/Children_and_Divorce/childsheart.html
2. MEDIATION
A fair negotiation
Negotiation skills will help you achieve your needs without alienating or angering the other parties. Here’s how to use negotiation to build better interpersonal relationships.
http://www.divorcemag.com/articles/Mediation/negotiation.html
3. DIVORCE RECOVERY
Full esteem ahead
Reclaiming your self-esteem after divorce is a critical part of the healing process. Here are some suggestions to help you on your way.
http://www.divorcemag.com/articles/Divorce_Recovery/full_esteem_ahead.html
4. RELATIONSHIPS
Sex and divorce
Coping with divorce and the prospect of new sexual relationships can be emotionally challenging, to say the least. Here’s a look at some of the pitfalls and opportunities up ahead.
http://www.divorcemag.com/articles/Relationships/sexanddivorce.html
5. BUSINESS VALUATION
How will you find value?
Many business owners realize the importance of having buy-sell agreements in place for their closely held businesses, but few realize the problems that can arise if these agreements have not been properly thought out.
http://www.divorcemag.com/articles/Business_Valuation/determining_the_price.html
6. FINANCIAL PLANNING/INVESTMENT
Charting your expenses
Here’s some help with the task of budgeting for your family’s past, present, and future expenses.
http://www.divorcemag.com/articles/Financial_Planning/chartexpenses.html

In my previous post, I discussed the difficulty in gauging a win or loss in divorce. Most people feel that there are never any winners in any divorce and mostly everyone loses, no matter the outcome. But, there are some ways to make any divorce a little easier.

Approach the divorce from a logical perspective.

It is often the emotion — hurt feeling and unmet expectations — that cause people to have difficult and messy divorces. Obviously, some divorces have issues that must be fleshed out and will be messy out of necessity. But other divorces can be made much easier if both parties can set their emotions aside and approach the issues involved in accomplishing the divorce from a logical perspective. Separate the causes of the divorce — who did what that made the divorce happen — from the issues such as division of property or sharing parenting responsiblities.

Shift your perspective from one of spouses to one of business partners.

You may no longer be able to have a loving, married relationship, but, if you have children, you will continue to be partners well into the future. After the marriage ends, approach your relationship with your ex-spouse as if you were in the business of raising children. Ignore things that do not directly relate to that business and focus on the task at hand. There will be many issues that need your cooperation, from discipline, dating and driving, to report cards, curfews, and colleges.

Educate yourself on your assets and debts.

Knowledge is empowering. No matter whether your marital estate is small or large, negative or positive, knowing the nature of your assets and debts will help you make smart decisions about a fair division. Each spouse may have different interests in what property and debts they have after the divorce. One spouse may value retirement assets more highly, where the other spouse may want disposable cash assets now. One spouse may be more interested in maintaining the house, and the other spouse may be more interested in taking a business interest.

Look at the divorce from the other spouse’s perspectivie.

Evaluate what interests your spouse may have in the divorce. Seeing things from a different perspective can provide a broader insight to creative solutions. Often, by seeing things through the other spouse’s eyes, you find that both have the same ultimate goal. Maybe both share a common goal of providing for the children’s college education — this can provide common ground for negotiation.

For assistance with your divorce in North Texas – Dallas, Collin, Denton, and Tarrant Counties — call The May Firm and schedule an appointment to discuss how we may be of assistance to you.