Common Questions Regarding Custody, Support and Divorce

April 15, 2013 § Leave a comment

This post is designed to shed some light on common questions we get asked regarding divorce, custody, and child support. Read on…

1. Does Adultery Affect Who Gets Custody?

No. The court doesn’t see any automatic connection between being unfaithful to one’s spouse and being a good parent, unless it can be proven that the unfaithful spouse’s conduct had a direct negative effect on the child’s physical, psychological or emotional well-being.

2. Can The Kids Choose Which Parent They Want To Live With?

Yes and No. The court will consider a child’s wish if the child is 12 or older. However, the judge is not required to follow the child’s preferences. What a child wants is only one of several criteria the court considers. Children can be impressionable, are sometimes coached by a parent, go through phases, and often prefer the parent who disciplines them the least. The court is aware of all these tendencies.

3. Are Overtime, Bonuses, and Commissions Included in Calculating Child Support?

Yes. Child support is based on net income from ALL sources. This includes, overtime, bonuses etc., but does not include deductions like taxes and amounts the non-custodial parent is paying for the child’s medical insurance. The non-custodial parent will also get a break if paying child support for a different child under other child support orders.

4. Must I Still Pay Child Support When Being Denied Access To My Child?

Yes. Child support is for the child, not the other parent. The child must continue to get this support regardless of the custodial parent’s actions. A lawsuit to set court orders on visitation, or a motion for enforcement of existing court orders can be used to address the denial of access.

5. Does Child Support Include Day Care, Extracurricular, or Activity Expenses?

No. Unless the parties agree, these are not normally included. There are statutory guidelines for calculating the reasonable amount of child support. Medical support is also required to be provided. Payments toward school incidentals, soccer, karate, music lessons, etc., are discretionary and in addition to statutory child support.

6. Do We Have To Be Separated Before We Can File for Divorce?

No. Texas doesn’t even have specific provisions for legal separation. Either party can file for divorce anytime and for any reason.

7. Does Someone Have to Move Out Once the Divorce is Filed?

No. Unless the parties agree, or a court order grants exclusive possession of the home to one spouse, no move out is necessary. Even if title to the house is in one spouse’s name, both parties have the same marital right to live in the house.

8. Do I Lose Health Insurance Coverage After the Divorce?

Yes and No. If one spouse is covered under the other spouse’s health insurance coverage, the terms of the insurance policy require the coverage to terminate upon divorce. The ex-spouse has the option to obtain an extension of the coverage under COBRA (federal law) for up to 3 years.

Hope you found these questions and answers informative. Feel free to submit your questions to us via email and we will feature those questions in our future Q & A blog posts.

 

Going Pro Se – So You Are Representing Yourself?

March 8, 2013 § Leave a comment

My advice is that you try to get a lawyer if there is more than $1000 at stake, or if child custody or real property is at stake. At the very least, you should consult a lawyer first.  A lot of attorneys waive the initial consultation fee or offer a reduced rate for the initial consultation.

Some attorneys will even provide limited scope representation such as reviewing court drafts and court documents and providing guidance for procedural rules without your having to put down a hefty retainer.

So, you have reviewed all of the above and have decided that you must represent yourself. Here are some cool things to know when representing yourself in court…

Think in terms of twos – 2 x 2 x 2:

  1. Two Issues/ Defenses:  list the two main issues that bring you to court, or two main defenses (if you are the defendant.)
  2. Two Supporting Documents: locate the two most important documents you can use to support your facts – contracts, receipts, bills, exhibits, affidavits, photos, letters, emails etc.
  3. Two Requests: list two things you want the court or judge to do. Example: dismiss the case and order you to pay nothing, rule in your favor and grant you a certain amount in judgment, rule in your favor and order the opposing party to return your property etc.

If you can put this 2 x 2 x 2 together before your court hearing, your thoughts and presentation will be clearer and more organized. The more organized and clear you are, the better the chance of the judge/ court ruling in your favor.

4 Questions to Ask:

  • In what court, and what time is my hearing and what is the hearing about?
  • What are the rules for getting my evidence in front of the judge/court?
  • Are there any deadlines or notice rules that I must know about?
  • Are there any court forms that I can use?

BONUS TIPS: Dress comfortably, but  appropriately. Be respectful and polite. Relax – remember, an overly aggressive attitude only gets results in TV courtrooms!

 

 

 

Homeowners’ Association (HOA) Foreclosures and Your Rights

February 14, 2013 § 1 Comment

Getting collection notices or foreclosure notices from your Homeowners’ Association? Don’t fret. This can be handled by knowing your rights and making the law work for you.

Myth: HOAs cannot foreclose and get a property worth hundreds of thousands of dollars, for a mere failure to pay association dues. Fact: It’s quite absurd, but it is true that the HOA can foreclose on your property, and take ownership, regardless of the market value and regardless of whether you owe $500 or $5000!

Changes in the Law: New law went into effect in 2012 that requires HOAs to work with homeowners to get any delinquency cured and requires HOAs to seek a foreclosure through the court. HOAs used to be able to bypass the court system by doing a non-judicial foreclosure.

Must-Know New Protections under 2012 HOA Laws

  • HOAs must work with delinquent homeowners to come up with a payment plan that is no shorter than 3 months.
  • Collection fees may not be tacked on until a 30 day notice to cure has been provided.
  • HOAs must obtain a court order to be able to foreclose.
  • Debt must be more than 60 days old before any foreclosure proceeding is started.
  • MOST IMPORTANT: homeowners can vote to remove the “power to foreclose” from their HOA’s rules. 67% vote is all that is needed.

My law firm works diligently to hold HOAs accountable by following these new laws. However, if you know your rights, some things can be handled on your own without the need for an attorney. For the specific Bills that created these changes, feel free to email me directly.

Resolutions and Resignations

January 8, 2013 § 1 Comment

“Many years ago I resolved never to bother with New Year’s resolutions, and I’ve stuck with it ever since.” ~Dave Beard. Not being too fond of new year’s resolutions myself, in 2013, I have decided to work on mini projects throughout the year instead. Chances are you made one or more new year’s resolutions for 2012 and like most people, got to the end of yet another year without having accomplished them.

 

Nip Legal Issues in the Bud this Year

Legal issues can be time-sensitive. There is nothing worse than finding out that a small issue that could have been handled with little emotional and financial stress has now snowballed into a monster.  You don’t need to have a clear plan of execution for the whole year, just for what needs to be done TODAY. Take the initial steps to reaching your goals. If more action is needed, you will have the strength, wisdom, financial resources and guidance to take the next steps.

New Year's Resolution - 1 Day Countdown

  Four Legal Resolutions for 2013

1. Get your criminal record(s) cleared. The state of Texas has a statute that permits eligible individuals to expunge or seal their records. Find out if you are eligible and get this done as soon as possible because these records will haunt you. Criminal records can have a devastating effect on your chances for employment, renting, immigration, admission into law school, professional licenses and so on. Shocking? Yes. I agree it isn’t fair, but that is where clearing your record comes in. It can be done. I know this because I particularly enjoy helping people leave the past behind and get a clean record in order to level the playing field.

2. Know your credit score and improve it. According to LendingTree.com the average credit score out there is 678. Chances are your score could be improved. Don’t delay, talk to a professional that can analyze your credit reports and guide you in what actions to take to start improving your score. Did you know that your score affects all aspects of your life such as interest rates, credit limit, renting, insurance quotes, employment etc? Again, this may not always be fair, but this is the way the system works. Until we can change the system, we must make it work for us. Most credit reports have errors in them that can be fixed to boost your score. I not only know this from personal experience and from analyzing reports, but also from the statistics out there. You owe it to yourself to at least get expert eyes to look at your reports to see what you can do proactively to improve your score.

3. Get a Will drafted. We all need one of these – no ifs or buts. When we are feeling young, healthy and invincible, the idea of a Will seems ridiculous and even a little morbid. You may say; “Nah, I am too young”; or “Nah, I don’t own any assets that can be put in a will.” The truth is that if you have brought a child into this world, you do need a Will. You owe it to your child and loved ones. A basic will provides for expenses, lists an executor or personal administrator, and provides for specific distribution of real and personal property. It will also appoint a guardian for minor children. People over age 21 with no children may need one too, at least to appoint a power of attorney for medical/ incapacitation reasons. It always makes it easier for loved ones left behind to sort things out. Please consult an attorney for more information on getting a Will drafted in 2013.

4. Get child support. Quite a number of parents are entitled to child support by virtue of a court order, or by default due to the law. However, quite a few don’t do anything about it for years, probably because they find the process daunting. My advice is that you talk to an attorney that can guide you on what needs to be done. You deserve to get financial assistance from the other parent. It is hard enough if you are not getting their emotional support. You can at times get the Attorney General to help you with the process, or, you can talk to a private attorney that handles family law matters. Don’t delay on the issue of child support, give yourself a break.

The Empowered Client & the Project Manager Attorney

December 11, 2012 § Leave a comment

This past weekend, hubby and I watched a DVD called Making Marriage Work by John Gottman. According to Gottman, relationship “masters” approach conflict like a soccer ball and kick it around between them, and relationship “disasters” try to throw the ball at each other, or pin it on each other. I had planned to write a blog post using project management as an analogy for attorney-client relationships but Dr. Gottman’s soccer ball analogy is too poignant not to share!

The attorney needs the client and the client needs the attorney. I have yet to come across a case where I didn’t depend on the client for one or more of the following: the client’s account of events; relevant documents in the client’s possession; client’s signature on court/ other documents; or the client’s appearance in court/ mediation/ deposition. For a myriad of reasons, some clients are better at participating in their own case and working collaboratively with the attorney, than others.

The client stands to gain or lose the most in terms of the outcome of the legal matter. Considering what is at stake, wouldn’t you as a client want to know if there was a way to positively affect the outcome of your case? This is what I call “the empowered client.” The empowered client knows that he/she can also affect the enthusiasm of the attorney. For a successful team approach, the following must be generally conveyed and understood by both attorney and client:

  1. The attorney and client are united with the sole purpose of resolving a legal issue.
  2. The legal issue is the equivalent of a project.
  3. The attorney is a project manager and manages the client’s expectations, the project and the project team.
  4. The attorney and client are equally responsible for the outcome of the project.
  5. The client stands to gain or lose the most in terms of the outcome of the project.
  6. The client can choose to be a supporter, ally, or an obstacle.
  7. Supporters or allies provide whatever is needed for the project to succeed.
  8. Obstacles delay, derail, antagonize the project team, and generally sabotage the project.
  9. Projects where the client is an obstacle will always be more extensive and more expensive.

For the best possible outcome, the client must choose the project manager (attorney) wisely, then get out of the way and be an ally or supporter of the project team. A lot more can be said on ways in which the attorney and the empowered client can support each other in positively influencing the outcome of the legal matter. The list above should help get the conversation started.

Is the Client Right Even When Fabricating the Truth?

October 21, 2012 § Leave a comment

Yes. The client is right in thinking the way he/she thinks; the client is right in having his/her own perspective. Although it can be extremely frustrating when it appears that a client is intentionally withholding information, fabricating the truth or even lying outright on the witness stand, there is no benefit to pointing out inconsistencies in a way that puts the client on the defensive. The best approach is to firmly but gently ask for clarification, ask for the client to tell you everything, explain the relevant consequences of lying to the lawyer/judge and try to understand the client’s underlying motive. In short, you must allow the client to save face. Since humans are primarily driven by pain and pleasure, it makes sense that a client who isn’t forthcoming with the facts probably believes he/she will experience a painful consequence otherwise. The motive then is to avoid pain at all cost. I, as the lawyer must identify and address this fear of a painful consequence in order to get past this block in communication.

It is my job as a counselor to emphasize that I am already on a client’s side and don’t need to be convinced of anything beyond just getting the facts exactly as they occurred. I have to explain confidentiality and the attorney-client privilege etc. If I can successfully communicate this to my client, then I have a chance at gaining the client’s trust and he then has permission to let his guard down. This isn’t an easy process and may sometimes need to be repeated while you firmly demand the truth, but it does work.

The other reason not make the client “wrong”, is that there are always two sides to a story. The client’s memory and account of events is always going to be different from what really happened. Once one can accept this premise, and get past moral judgments, communication is improved, the client is now a team-player and hopefully a pleasure to work with.

Whatever you do, blaming and shaming is a no-no. It doesn’t yield any result other than making the attorney-client relationship strained and creating a difficult client. I, as a lawyer am responsible for my client’s experience – good or bad. Once I came to this realization, I found it rather empowering that I have a part in creating a “difficult” client. My goal nowadays is creating cooperative clients. It is actually a lot of fun seeing the more guarded clients slowly let down their guard. Go ahead, give it a try!

 

US Suit Accuses Wells Fargo of ‘Reckless Trifecta’ in FHA-Insured Mortgages – News – ABA Journal

October 11, 2012 § Leave a comment

The mortgage industry has come under increased scrutiny in recent years. Private causes of action against banks-lenders do exist but are wrought with numerous obstacles. It is about time that the government aggressively went after the major banks.  Quite frankly, the homeowner-borrrower usually simply gets litigated out of court by the bank-lender. The model then reads something like this: the party with the deepest pocket wins! Justice shouldn’t be about who has the most money, can hire the biggest firms or bribe the most people. If this model holds up, the banks will almost always win and the justice system would have failed the banks (by not being held accountable) and the homeowners who had a good case.

Read below for the news article on Wells Fargo and its shenanigans….

The U.S. government has filed a civil suit claiming Wells Fargo engaged in reckless lending, leaving the Federal Housing Administration on the hook when buyers couldn’t pay government-insured mortgages.

The suit filed by U.S. Attorney Preet Bharara claims the bank recklessly issued the mortgages and then falsely certified them as FHA worthy. The Wall Street Journal (sub. req.), the New York Times DealBook blog, the Washington Post and the Los Angeles Times have stories.

“As the complaint alleges,” Bharara said, “yet another major bank has engaged in a longstanding and reckless trifecta of deficient training, deficient underwriting and deficient disclosure, all while relying on the convenient backstop of government insurance.”

Wells Fargo paid bonuses to employees based on the number of loans approved, Bharara said.

Wells Fargo issued a statement saying it complied with federal rules and acted in good faith. “Wells Fargo is the leading FHA lender and has acted as a prudent and responsible lender with FHA delinquency rates that have been as low as half the industry average,” the bank said.

In June, Wells Fargo agreed to pay $175 million to resolve a government lawsuit claiming the bank charged minority borrowers higher fees or steered them to more expensive subprime loans. The Justice Department had alleged the bank created financial incentives by sharing increased revenues from the loans with employees and mortgage brokers.

via US Suit Accuses Wells Fargo of ‘Reckless Trifecta’ in FHA-Insured Mortgages – News – ABA Journal.

  • Perspectives

    Life!
  • Categories

  • Recent Posts

  • Like this at Facebook!
  • The Author

    Sade is a friend, wife, foodie, culture and music lover and an attorney. This blog is the product of her attempts to straddle two worlds - good ol' everyday life and the complex legal abyss. See the ABOUT link to the left for more...

  • Enter your email address to subscribe to this blog and receive notifications of new posts by email.

    Join 125 other followers

  • RSS Say What?

    • November 1990 - Don't Tell Anyone About This
      From Steven C. Copenhaver of Austin (Davis v. Davis), this deposition excerpt from a probate case "in which my client, a private charitable organization, was alleging that a sizeable sum of money was supposed to be bequeathed" to it "instead of another organization with a similar name." Steve was deposing a friend of the deceased (the wit […]
    • October 2006 - The Notice of Appeal
      This marvelous contribution is from Owen M. Goudelocke of Lafayette, La., who received it from Jerry Perlman, an office chief in the litigation division of the Louisiana Department of Justice in Shreveport, La.Notice of AppealI hereby am informing you that I am appealing the asshole Ronald B. Leighton's decision in this matter.You have been hereby serve […]
    • May 1985 - Tell Me About Your Family
      Q. Has your son ever received a prior injury? A. Well, when he was three he fell and broke his arm, that's all. Oh, yes, when he was two he got plowed under by a tractor and we didn't find him for twenty minutes.
    • June 1990 - I'm Glad We Cleared That Up - Trials
      Rodney M. Phelps of Richardson sent me the following from the husband's testimony in the trial of a divorce case in Harris County. Q. Now, as you understand it, your children's intentions are to attend school in Texas; is that correct? A. I think it's my daughter's intention to attend school in Texas if my wife does move to Texas. Q. You […]
Follow

Get every new post delivered to your Inbox.

Join 125 other followers

%d bloggers like this: