Dallas Divorce Law Blog by Michelle O'Neil

A lot of times clients come into our Dallas divorce law office looking for “revenge” during their divorce proceeding.  While this is understandable given the amount of emotion involved in any divorce, having your lawyer take an overly aggressive approach with the other side can end up costing you dearly.

In our experience, opposing counsel generally falls into one of three categories.  The first type is the attorney who is passive and avoids confrontation at all costs.  Obviously, this isn’t the type of attorney you want handling your case.  Second is the attorney who is the complete opposite of the first type.  Attorneys falling into this category argue for the sake of arguing and take the “tough”  approach that some equate with successful advocacy.  Attorneys falling into this category often are overly aggressive to the point it costs the client (both in attorneys’ fees and in property division).  The final category is composed of attorneys that know when to be aggressive and when to be less than aggressive.  Lawyers in this category truly see the forest through the trees and obtain the most favorable outcomes for their clients.

A prime example of the effects of an attorney being overly aggressive recently occurred in an elderly abuse case in California.  In that case, the trial court expressly noted that the attorney’s conduct in examining a witness was the final straw in ruling in favor of the opposing party.

Bottom line, the attorney’s overly-aggressive approach ended up costing his client the case, and in all likelihood increased the amount of costs and fees for both parties.  At our Dallas divorce law firm, we take pride in knowing when being aggressive is appropriate and when to take a more relaxed approach.

The Dallas Family Law section of the Dallas Bar Association held their annual conference last Friday at the Dallas Trade Mart.  This is the opportunity every year for Dallas divorce lawyers to discuss recent trends in family law litigation in Dallas, Texas.  Each year the Dallas family court judges give presentations on their preferences and local rules.  One new local rule that the judges announced was that temporary orders must be presented within 14-days of the date of the ruling and final decree must be presented within 30-days of the hearing.  The consequence for failing to abide by this rule is to risk dismissal of the case.

You may have read  recently about David Goldman whose wife went to Brazil for vacation with their son and then refused to bring him back.  She later divorced him in Brazil and remarried a Brazillian lawyer.  Recently the wife died, leaving the son with the new stepfather who refuses to return him to the Father in the U.S.  David went to court in New Jersey and got orders requiring the return of his abducted son to the U.S., but they have been ignored.

In this situation, David relies upon the government of Brazil to honor its commitment to the Hague Convention treaty, which sets out the procedure for resolving international custody disputes.  Hague Convention was adopted to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the nation-state of their habitual residence, as well as to secure protection for rights of access. Its purpose is to deter international child abduction and to provide a mechanism for the prompt return of abducted children to their home countries where the courts can resolve the custody issue on its merits.

The Hague Convention applies only among contracting states and is available only when a child is wrongfully removed from a signatory country and retained in another signatory country. The United States ratified the Hague Convention in 1988, and the Convention was implemented by the International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601 et seq. (2000).

Brazil signed on to the Hague treaty on December 1, 2003, according to the Department of State’s website.  The process, according to the State Department is this:

Hague applications are submitted to the U.S. Central Authority for forwarding to the   Central Authority in Brazil.  The Brazilian Central Authority examines the application and determines whether they will accept it.  Once the application is accepted, the Central Authority with the aid of INTERPOL determines the location of the child.  Once the location of the child and taking parent is known, the Central Authority attempts to mediate an agreement between the parents.  If an agreement is not reached, the case is forwarded to the Attorney General’s Office (AGU), who files the case with a federal court.

The petition is assigned to a federal judge within 48 hours of its filing with the court.  The court notifies the taking parent and summons their attorney to contest the petition. The AGU, acting on behalf of the Brazilian Central Authority as well as the left behind parent, then has an opportunity to respond to the taking parent’s arguments.  After both parties have been heard, the Judge submits the case for examination to a representative of the Ministerio Publico. 

The Ministerio Publico presents a formal opinion to the Court in all cases involving minors.  In Hague abduction cases, the representative will submit a report recommending either the return of the child or that the child should remain in Brazil.  In Federal cases, the representative will be a Procurador da Republica (Public Prosecutor).  If the case is filed in the local family courts, the representative will be a Promotor (State Public Prosecutor).  The Judge has complete independence to rule on the case and does not have to follow the Ministerio Publico’s recommendation in his decision.  At this stage the Judge may request additional documentation or evidence and hold a hearing with representatives from the AGU and Central Authority.  The AGU continues to follow the case, acting on the left behind parent’s behalf throughout all legal procedures until there is a final decision. There is no time limit for a verdict to be issued in the case.

Once the other biological parent passed away, David should have automatically seen the return of his son.  That he didn’t is a tragedy.  If there is an consolation for David, it must be that at least Brazil has signed on to the Hague treaty, providing remedies for him.  There are many parents whose children have been abducted to countries that have not agreed to the Hague treaty, leaving the parents with very few remedies and very few allies, fighting for their children under the laws of a foreign country.  Examples of countries that do not subscribe to the Hague treaty include Cuba, Haiti, Iran, Saudi Arabia, Japan, Pakistan, Thailand, Pakistan, Yemen.  For a complete list, check out the State Department’s map of countries. 

My heart goes out to all parents dealing with issues of international child abduction.  It is a very hard situation.  All parents who regularly see their children should be grateful and remember the tribulations of these parents when dealing with their custody issues.  Maybe they seem more trivial in comparison?

Whether or not the couple has children, the legal procedure for a divorce is similar to the procedure for other lawsuits.

The first step should be to hire an attorney. Although, it is possible to get a divorce without the assistance of an attorney, the process will be incredibly difficult, and it will be virtually impossible to know if your rights are being protected. An attorney will be able to guide you and make sure you have full knowledge about the applicable statutes. But, perhaps most importantly, an attorney will be able to approach the issues objectively, without succumbing to the emotion of the divorce.

Like many states, Texas has a no-fault divorce system, which simplifies the divorce procedure. Under a no-fault system, the spouse seeking the divorce merely files a petition with the court saying that the marriage has failed due to conflict of personalities, with no reasonable expectation of reconciliation. Under a no-fault system, a divorce can be granted without either spouse being forced to prove that the other was at fault in breaking up the marriage.  Under a no-fault divorce, usually the property and debts gathered during the marriage will be split evenly (50/50).

That does not mean that fault is never considered in a Texas divorce.

A spouse may still note in the petition for divorce that the other person was at fault in breaking up the marriage. If a court agrees that one spouse’s actions created fault, a bigger share of the property may be awarded to the spouse who is not at fault. Under Texas law, “fault” is defined as (1) adultery, (2) cruelty, (3) conviction of a felony and/or (4) abandonment.

The effect of claiming fault in the break-up of the marriage depends in large part of which county your case is filed in and which Judge will hear your case.  Some judges apply less “penalty” for fault to the division of property than others.  For example,  some judges feel very strongly against adultery and will penalize a party heavily if he or she has engaged in extramarital activities.  Other judges believe that an affair doesn’t break up a marriage — it was probably broken before the affair — so they don’t change the percentage of the division of property very much based on adultery.

No matter the fault in the break-up of the marriage, there is rarely a case where a spouse is so much at fault that one spouse will “get everything” and the other spouse will get nothing.

A recent national survey of divorce lawyers notes an increase in the number of mothers paying child support.  According to the survey, 55% of attorneys said they have noticed a shift during the past five years in which more mothers are required to pay child support. 

This mimicks the trend that Dallas divorce lawyers are also seeing locally.  Many years ago, the Texas Family Code eliminated the gender bias from the language of the law, equalizing the rights of mothers and fathers.  Over the years since, the Texas Legislature has continued to support an increase in fathers rights overall.  We could have a spirited discussion on why this is… is it because many of the Legislators are fathers that have been involved in custody situations?  or is it because many of the Legislators are male?  Regardless, there has been a definite trend toward equalizing male and female roles related to children of divorce.  This, likewise, means that when a mother is not the primary parent, she will be required to pay child support.  In years past, when a mother did not have custody of the children, most often she was not made to pay support, presuming that the father made sufficient income to support the children financially without assistance from the mother.  But, some women more than or equal to their husbands (baby’s father) and therefore are required under the law to take equal or greater financial responsibility for the children.

Texas has standardized guidelines for the payment of child support based on the income of the paying parent… For example, 20% of the net income of the parent if there’s one child, 25% for two children, etc.  The formula becomes more complex if there are children from multiple relationships, where the parent paying the child support is given a credit for support paid to the children from the other relationship.

Regardless, there has been a trend recently in Dallas area divorces where mothers are being required to pay child support.  This isn’t necessarily because of some inherent unfairness in the legal system, but more because of a trend toward equalizing treatment of each parent regardless of gender.

Married internet browsers beware:  information obtained from internet browser history and spyware is being used as evidence in divorce cases.  One survey shows 79% of divorce attorneys reported use of internet browser history as evidence, while 44% show increase in spyware use.  Many people use the internet to act anonymously, but in reality using the internet is one of the more public things a person can do.

Trackers should also beware.  Some tracking software can be considered an invasion of privacy in violation of certain laws restricting wiretapping.  Keystroke analysis is one such type of tracking that can cause problems. 

In Dallas divorces, we are seeing an increase in invasion of email accounts to obtain evidence.  This can also be problematic and a violation of the law.

Apparently Alec Baldwin has a book coming out this week that talks about his experience with the divorce process.  I read an excerpt of the book online — the introduction and part of the first chapter.  What I read seemed to be his “rant” on perceived corruption in the judicial system in California.  He calls the judges inept and the lawyers lazy.  I plan to get the book and read the rest of it just to see what he has to say.  I don’t know the lawyers or the judge involved with his case. No doubt he had a bad experience with his divorce — we all remember the ultra-inappropriate voice mail left for his daughter. No doubt the judge in his case disapproved.  I am curious to see how much of the book shows a viewpoint skewed by his bitterness and anger as opposed to a bias in the system that is more far-reaching.  I was struck immediately by a story he tells in chapter 1 about controversies with movie producers where he concludes that the producers are more corrupt than the illegal drug business.  I question his credibility in criticizing the legal system when he also calls the movie producers corrput.  Sounds like he’s saying, anything I disagree with is therefore corrupt.  Overall, his book seems like an honest, maybe even raw,  account of an embittered divorce — not so dissimilar to the experiences of many people.  He also disucsses his opinions on “parental alienation”, which he calls a syndrome, although I’ve never known of it to be a diagnosable condition. He does seem to shed light on the inequities and prejudices that continue to persevere in our country over women versus men in raising children.  Starting a discussion of those inequities in a valuable result of his book, I just hope that the good that can come from a celebrity bringing a private situation in the public eye isn’t overshadowed by his bitterness and anger. 

To consult with a dallas divorce attorney regarding your situation, click here.

Divorce can be a complex process that affects just about every aspect of your life, from financial to emotional, physical to legal.  Unless you have been married a short time and have no property, assets or kids, your divorce may be more complicated than you expect.  The central figure in your divorce (besides the obvious you, your spouse and kids) is your lawyer and her staff.  But assembling the best team to assist you through the process can help achieve your goals for the divorce more efficiently.

Financial planners (here’s one) can be useful in helping prepare budgets and examine the cash flow needed after divorce.  Accountants (here’s one) can help with tracing assets for characterizing as community or separate property and valuing business assets.  A therapist can help you with the emotional turmoil of divorce.  A litigation coach can help you navigate the waters of testifying and making strategic decisions.  Sometimes private investigators (check this out) are necessary to discover certain information.  And, forensic computer specialists may be useful to trace information contained on a hard drive.

Experienced family lawyers are familiar with the experts in these fields and can assemble the right team for your case.  If you are in need of a team that specializes in divorce, please contact us.

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.