Houston Divorce & Family Law Attorney Blog : Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

The issues of same-sex marriage and termination of such marriages may be dealt with in Texas sooner that this commentator expected. Thursday, October 1, 2009, Dallas Judge Tena Callahan ruled that the state’s ban on same-sex marriage violates the equal protection clause of the Constitution. Texas Attorney General Greg Abbott filed a petition in intervention, which was denied by the judge. Abbott’s office indicated the State would seek an appeal of Judge Callahan’s decision. For more information, see today’s Houston Chronicle and The Dallas Morning News.

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In many states, a new and quickly growing area of family mediation is marital mediation.   Marital mediation is a process of assisted negotiation designed to preserve a marriage in ways not attempted by family therapy. The process uses family mediation skills to help couples negotiate new terms for their marriage. Marital mediation is not couples therapy or marriage counseling. There is no diagnosis, assessment or treatment of an illness or disability in the hopes of solving marital problems or achieving a better relationship. Through a dispute resolution approach, marital mediation provides the building blocks and a firm path to a happier and more satisfying relationship and marriage. 

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My colleague, Dick Price, wrote a fantastic piece about "mean" lawyers.  I find Dick's insights helpful and valid whether one is in the midst of family law case or general civil litigation. 

Dick's words of wisdom follow:

Over the years, a number of prospective clients have asked about how mean a lawyer I can be. I used to tell them that I could be as mean as I needed to be. Now, I prefer to discuss some other, related issues.

1. What is the client's overall objective in getting (or getting through) the divorce? Is it punishment for perceived wrongs? Is it to end up with adequate resources to be comfortable after divorce? Is it to have primary custody of the kids or to have a way to share time and responsibility for raising the kids? Is it to end up with certain valuable assets? Is it to come out debt free? Or something else? There's no right or wrong answer. It just helps the lawyer to know what the target is.

2. What kind of relationship does the client want to have with his/her ex-spouse? No relationship, a good one, best friends, neutral relationship or a bad relationship? Again, there's no right or wrong approach. The attorney just needs to know in order to work out the appropriate strategy.

3. What "mean" actions would the client want to take? Some actions are not permissible because they are illegal or unethical for a lawyer to do, and the client needs to understand that. Some actions are legal and ethical, but could be considered "mean" in some circumstances. Within that limited category, what would the client want?

4. How does the client think "meanness" will advance his/her cause? Some clients don't realize that being mean to the other side leads to more hostility and less cooperation. Will that help the client meet his/her needs or achieve his/her objectives?

5. Is the client willing to spend the extra money required to be mean? Unfortunately, for the client, "mean" isn't cheap. The attorney's fees increase dramatically when the attorney sends out numerous letters complaining or demanding action, files numerous pleadings complaining or requesting actions, sets hearings, conducts numerous depositions, demands voluminous discovery and so on. Also, the "tit for tat" strategy comes into play, meaning that whatever one side does to the other is returned again to the first party. The result: more letters, pleadings, hearings, depositions, discovery, etc. Being mean keeps the attorney busy, but it also increases the cost of divorce for both parties.

Often, the desire to hire a mean lawyer is just the natural reaction to pain,anger or fear the client is experiencing. There are certainly times when an attorney must act aggressively and firmly, but most clients just don't need or want a really mean lawyer when they learn how that will affect the case and their lives. And many or most clients can't afford or won't want to pay for a mean lawyer. Having the discussion about taking the mean approach can really be surprising to the client, but it can lead to planning for a better divorce.

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All of the courts of Montgomery County have approved a Standing Order regarding children, pets, property and conduct of the parties that will apply in all divorce cases and in most SAPCRs. The order became effective March 15, 2009, and will likely eliminate the need for attorneys to request temporary restraining orders in Montgomery County in the future.

To obtain a copy of the Standing Order, please utilize the following link to the Montgomery County website: http://www.co.montgomery.tx.us/dcourts/standingorder.pdf

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In September 2008, Harris County anno unced a new monthly Family Law Evening Court. The first session was held on September 9, 2008. The new Evening Court is a great way to get a fast disposition of uncontested cases. Eligible cases include uncontested matters handled by volunteer attorneys through pro bono agencies certified by the Interest on Lawyers Trust Accounts (IOLTA) Program and uncontested pro se cases with a poverty affidavit.  Members of the Harris County judiciary preside on a volunteer basis. The program is presented through the cooperation of the Harris County family law courts, the Harris County judiciary, the Harris County District Clerk's Office, the Harris County Sheriff's Office and the Houston Bar Association.

Family Law Evening Court is held on the second Tuesday of each month from 5:30 p.m. to 7:30 p.m. on the second (2^nd) floor of the Family Law Center. To find out if your case is eligible, contact the clerk of the court in which the case is assigned. Public users can go to www.hcdistrictclerk.com, select the Civil/Family Courts menu and follow the Family Services link to the Evening Court’s docket search link. Users can then select a date and view the docket listings for the Family Law Evening Court.

Thanks to the court's evening hours, litigants will not have to miss work. Evening court also will help relieve the crowded family court dockets.

Sources: Houston Bar Bulletin, May 2009; Houston Chronicle, September 5, 2008.

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On Friday, April 3, 2009, the Iowa Supreme Court declared unconstitutional a 1998 state law limiting marriage to one man and one woman. Iowa is now the 3^rd state in the U.S. to legalize same-sex marriage. The other two states are Massachusetts and Connecticut. 

The Iowa Supreme Court Opinion cited a constitutional duty to ensure equal protection under the law – “If gay and lesbian people must submit to different treatment without an exceedingly persuasive justification, they are deprived of the benefits of the principle of equal protection upon which the rule of law is founded.”

Though this is a victory for advocates of same-sex marriage, there are many unanswered legal questions that remain, such as what happens when same-sex couples relocate to another state that does not recognize their marriage, or what happens when and if the couple wants to divorce. 

For more information on same-sex marriage and domestic partnerships across the country, see the story in The Houston Chronicle. 

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Today’s post in Lipman’s State Your Case column highlights an important consideration for spouses who decide to separate and part ways without first seeking divorce or a post-marital property agreement. 

Just because a married couple separates does not mean that their finances are also separate. As long as the parties remain married, they accumulate community assets and liabilities. 

The lady in today’s column had been separated from her spouse for 22 years. During that period of separation, she purchased a home. Even though her husband’s name is not on the deed, the husband can claim a community property interest in the home. This was probably a huge shock and unintended consequence. 

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When courts order that a parent(s) have supervised visits with a child, it is usually for good reason. Depending on the circumstances, the court may permit (or the parties may agree with the court’s approval) that visits be supervised by another family member, one of the parents, or a third party agency. 

A recent story from The Houston Chronicle discusses the abduction of a child during a supervised visit arranged by the child’s conservators. The child’s conservators likely presumed that a restaurant like Chuck E. Cheese was a safe place to allow the child interaction with her parents. However, the child’s biological parents took the five year old child during the supervised visit. Thereafter an Amber Alert was issued. 

While the SAFE Program through the Harris County Victim’s Assistance Center is not the most ideal setting to visit with one’s child, it is designed to prevent tragic situations like this one. Whether you are a custodial parent or managing conservator seeking to have visits with a child’s parent(s) supervised, the SAFE Program can assist.   

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It’s that time of year again – the seemingly long stretch between the New Year and April 15^th. If you’re like me, you keep putting off until tomorrow what you should be doing today – that is organizing your documentation to prepare the income tax return. Then you find yourself strung out on Red Bull and fretting with the latest version Turbo Tax asking why you wasted all that time. The only two certainties in life are death and taxes, so let’s get it in gear!  The tax preparation that is. 

As a family law practitioner I do not offer tax advice, and recommend that my clients seek counsel from a CPA or tax attorney, especially if they have complex issues. 

Another useful resource is IRS Publication 504 - Divorced or Separated Individuals. Though the current version on the IRS’ web site is for preparation of one’s 2007 return, the information is still helpful and though provoking. 

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In my family law practice, an increasing number of people ask me about Collaborative Law. While some clients are delighted about having a mental health professional (MHP) on the team, other clients express apprehension over the role of the MHP. 

The MHP’s role is NOT to analyze the parties or children, provide therapy, give legal advice, diagnose, or solve mental health issues of the parties or the parties’ children.  

The MHP is a 3^rd party neutral on the collaborative team. His/her job includes:

1.      keeping the parties (and counsel) focused on the defined objectives and goals;

2.      facilitating communication;

3.      managing the emotions of the parties; and

4.      working preventatively.

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