Strategies for contested family law and divorce hearings on a time budget

time runningHave you ever wondered about counties that have time limits on the presentation of evidence at contested hearings. The Dallas Bar Association featured an article by O’Neil Wysocki Senior Shareholder Michelle O’Neil in its September 2016 issue on Dallas Texas family law and divorce cases. The article is reprinted below. Dallas Bar Association Headnotes September 2016

Our court system is busy and dockets are crowded. Some judges manage this issue by placing time limits, sometimes severe restrictions, on litigants’ presentation of evidence. Handling these time restrictions can make the difference between effective presentation of a case or losing. This is one instance where it is imperative to be familiar with the judge’s preferences and local rules before venturing into unknown territory.

How does an effective attorney handle getting all of the evidence forward in the face of a time crunch in a hearing or trial? Here are the Top 5 Strategies:

Request for Relief

A one-page summary of the rulings that you are requesting from the court at the end of the hearing is essential. This is where you tell the Judge what you want in a fashion that is easy to understand. The request for relief also serves as an outline for all of the presentation of evidence in your case. This is especially true when your client testifies, as you can simply follow the request line by line to efficiently expand on the points you want to make.

Summary of Voluminous Documents

One of my favorite tricks for keeping the presentation efficient is to provide a summary of the point you are making on top of the voluminous exhibit. So, for example, if you are offering bank records to show certain transactions for purchase of jewelry for a paramour, prepare a summary page to go on top of the exhibit with date and page references and quotes from the exhibit. Assuming the summary is accurate, this can speed up presenting the information.

Stipulate as to the admissibility of evidence

When dealing with a professional and courteous opposing counsel, often you can reach an agreement regarding the admissibility of certain exhibits. Financial statements of the parties, medical records, bank statements, photographs, and other common types of evidence can be admitted by prior agreement without having to take the time to cover admissibility predicates.

Be prepared and organized

Preparation in advance is a key to effectively presenting a hearing or trial on a time limit. You should meet with your client and other witnesses in advance to review the time limits and how that may affect the way they answer questions. Also, provide an outline or roadmap to highlight the essential points of the client or witness’ testimony. In my experience, some witnesses tend to be long-winded, maybe because of inexperience testifying or being nervous. This can really hurt a time limited presentation. So, helping the witness understand how to efficiently answer the questions will give back essential minutes. I have even been known to object to “nonresponsive” as to my client’s own testimony if the client goes too far afield. If the witness’ testimony is something that cannot be presented quickly, consider taking the witness’ deposition. This will allow you to present the deposition as an exhibit in evidence and a summary on top (see point #2) without spending time out of your budget to make the point. Another organization tip involves preparing a notebook of exhibits to provide in advance to the Judge, court reporter, and opposing counsel to save time in walking exhibits around the room.

Keep it simple and focused

Staying focused on what is really important to achieving the goal of the hearing or trial is a key to effective presentation. Know how much time you want to budget for each witness, including direct and cross, leaving some extra time in case the other side calls an unexpected witness. If an opposing witness isn’t important or has only a minor contribution to the case, don’t be afraid to ask zero questions and pass the witness. Don’t waste time on non-essential witnesses or issues. Don’t go down rabbit trails that aren’t essential to the goal.

In summary, when presenting a case on a time budget, using every way to get to the point efficiently will increase the effectiveness of your presentation. Judge Doug Robison in Denton County uses the acronym B.L.U.F. for “Bottom Line Up Front”, to illustrate the need to tell the judge from the beginning what the hearing is about. In other words, get to the point quickly.

Tips for fathers in Dallas Texas custody disputes

fatherWhat does a father do when a custody battle looms? The answer is NOT “nothing”. Divorce changes the roles for everyone, especially in traditional families. So fathers who may have relied on the children’s mother to take on certain roles must learn to be involved in those activities as well. Where once the father may have relied on the mother to fill him in on the children’s orthodontist appointment and the size of the child’s shoes, now the father must learn to do those things for himself. Some divorced parents refuse to exchange this kind of information post-divorce, forcing each parent to fend for him or herself even more.

If a custody case is looming, where the parents cannot reach an agreement about co-parenting their children after they are no longer together, the father in a traditional relationship must quickly get up to speed on the details of the children that the mother used to address.

Here are some tips for fathers in custody disputes from Tips for Fathers from :

Get familiar with your children’s school. This can be done at anytime. Start tomorrow if you can.

  • Know the name of your child’s teachers.
  • Visit your child’s school.
  • Meet with their teacher.
  • Arrange to meet the teacher monthly if your child needs additional attention and you want to stay abreast of progress.
  • Know how they are doing in school…are they turning in homework, are they doing well, how are they getting along with the other kids, Do they seem happy or sad or quiet now that things are changing at home?
  • Let the teacher know that they can call you at anytime at that you are 100 percent interested in how your child is doing.
  • Sign up to be a chaperone on a field trip… just one if it’s not really your time or you don’t have time. It gives the teachers a chance to know you in a more child centered social setting and gives you an opportunity to shine as a parent to both the teachers and your child.
  • Make sure the school has your address and contact info if it has changed.
  • Make sure you are on the emergency contact list.
  • Make sure you are set up in their system to get report cards, notices etc.

Medical Providers

  • Know the name and location of your child’s doctor’s, dentists, therapists etc.
  • Try to attend routine checkups if you can. If Mom is still the primary scheduler, ask her to schedule the annual checks ups at a time when you can both attend.
  • For appointments that occur during your parenting time, plan to take them to the visits yourself as often as you can.
  • Purpose to introduce yourself to all of their providers even if they do not have check ups in the near future.
  • Let their providers know they can contact you anytime and that you are 100 percent interested in how your child is doing.
  • If your child has ongoing scheduled treatments, ask questions and get up to date on the treatment plan and follow your child’s progress.
  • Make sure the medical provider has your address and contact info if it has changed.
  • Make sure you are on the emergency contact list.
  • Make sure you are set up in their system to get appointment notices etc.
  • Some medical providers do not like to be involved in bitter custody battles so keep them out of the fighting. You just want to be an informed, involved Dad. You don’t need to bad mouth Mom to do this. Just be your best you!

Agreed Upon Extracurricular Activities

  • Know what activities they are signed up for.
  • Meet the coaches and the ballet teachers and the tutors.
  • Take them to practices that occur during your parenting time.
  • Attend their activities, games and performances whether they occur during your parenting time or not. This is an an awesome opportunity to see your kid outside of your regular parenting time and enjoy their football games or their recitals. To avoid the tension between you and Mom, introduce yourself to other lone Dad’s at the games and still cheer your child on. By doing this you communicate that your child STILL has his or her two biggest fans and that you are both still on their team!

Shared Custody – Superpowers of Shared Kids

superhero kidsMore and more children are being raised in split homes. For some children, having different rules in the two homes causes anxiety and difficulty adapting. The two homes may be different with new lives and new families of their own. Where one home may emphasize academic achievement with quiet intellectual conversations; the other home may prioritize family time and bonding.

In Texas, and especially in Dallas County, divorce court judges prioritize keeping the parents in close geographic proximity to encourage frequent contact between the child and both parents. This geographic restriction is placed on virtually all families who seek court intervention in their reliationship, whether married and divorcing, or not married and seeking definitive court orders. These geographic restrictions permit both parents to attend ball games and dance recitals and remain involved in their child’s activities even when it is not that parent’s period of possession.

But as these children grow into adults, going between the two parents’ homes helps develop important skills for adults. One of those qualities instilled as a byproduct of shared custody may be the desire for stability. The instability of their childhood creates adults that value and want stability. Also the grown-up children have a knack for agility – adapting, switching gears, blending in. Families need to be strong but flexible to accommodate the changes in lives.

Some people may view shared custody arrangements as a negative, providing that the child never has a sense of “home” in any one spot. But, viewing the positive side, children can benefit from experiencing different environments, adapting to new rules, shifting from one set of priorities to another. These experiences can build skills that help adults adjust to life experiences that others who had different upbringing might not be prepared to deal with.

Hat tip to Rachelle Bergstein’s The Secret Superpower of a Shared-Custody Kid from the New York Times Well Blog.

What to expect in Texas family law court

tyla pamphletThere are a lot of good resources out there to help prepare you for divorce court. In our Dallas family law firm, one of the resources we recommend to client is the Texas Young Lawyers Association pamphlet What to expect in Texas Family Court. It covers topics such as:

  • What to wear in court: nice pants and shirt with collar for men, or dress or skirt or pants with conservative blouse for women.

  • Alternatives to court resolution such as mediation, collaborative law, and arbitration.

  • The steps to take before the court grants an adoption.

  • Does Texas have legal separation? (Answer, no.)

  • Common law marriage elements and time frame.

  • Two different types of conservatorship for Texas parents.

  • Standard for setting guideline child support in Texas and the role of the Office of the Attorney General in assisting with child support establishment, collection, and enforcement.

  • How and when can an order regarding children be modified.

The pamphlet also has a list of common terms used in divorce and family law cases in Texas and Dallas, with definitions. This is a very useful resource to help people new to the family law arena understand the lingo.

At the end of the pamphlet it lists all of the district courts in Texas with telephone numbers.

The only downside to this publication is that it was prepared in 2005, so some of the information could be outdated. As with anything you read on the internet, be cautious about relying on it as current information. Even so, this is a good basis for information for people to start their research and understanding about what happens in Texas and Dallas divorce and family law court.

Do the 12 divorce myths apply in Texas? (part 2)

Wooden Blocks with the text: MythsThis post is a continuation of the discussion about the 12 Top Divorce Myths. Here’s the link to part one: Do the 12 divorce myths apply in Texas?

Myth 7: You can avoid paying child support.

Child support is a mandatory order in Texas and must be ordered absent extreme circumstances. If you are ordered to pay child support and fail to comply with the order, you can be held in contempt and jailed for up to 6 months. The Office of the Attorney General in Texas undertakes enforcement of child support orders.

Myth 8: Children get to pick who they live with.

This is my favorite myth of all. Children never get to pick who they live with in Texas. Ever. Ever. Period. When they turn 18 and are addults, they get to decide where to live. Not before. While they are minors, those decisions are made by adults. At the age of 12 nad older, a parent may request that the child be interviewed by the judge and the judge can give whatever weight he or she deems appropriate to the child’s statements. However, judges are not required to follow the child’s preference and may still make a decision in the est interest of the child, even if it is different than the child’s preference. Read my blog post Myth: 12-year old children get to pick where they live.

Myth 9: Divorce always leads to battles.

Divorces do not have to be full of hostility. Many people are able to set aside their emotions and reach agreements regarding issues without having to have contested proceedings. Even if things start out difficult, many spouses settle their matters after the divorce gets underway either directly or through mediation. Only about 5% of all divorces filed in Texas end with a contested trial where a judge decides the issues for them.

Myth 10: Division of property means equal division.

The standard for granting a division of property in a Texas divorce is “just and right”. In a contested trial, what a judge thinks is just or right may vary from situation to situation and depends on many factors. Texas law starts at a 50/50 division and then allows he judge to deviate from 50/50 based on factors such as the needs of the spouses, the amount of separate property each spouse has, whether the spouse has children at home, whether either spouse was at fault in the break-up of the marriage, and various other equitable factors. Read Practical Guide to Asset Division in Texas.

Myth 11: Women always get maintenance and men never do.

In Texas, post-divorce court-ordered maintenance, can only be awarded in four limited situations. First, regardless of the length of the marriage or quantity of property available to divide, if a spouse has been convicted of a crime constituting family violence, then maintenance can be awarded. The other three factors require at least a 10-year duration of marriage and insufficient assets in the division of the estate to meet the minimum reasonable needs of the spouse seeking maintenance. Only then is the court authorized to award maintenance if either the spouse lacks job skills to get a job to meet the minimum reasonable needs; or, the spouse himself or herself has a disability that prevents working or has a child with a disability that prevents working. The court-ordered maintenance statute is gender neutral and does not favor men over women. Read: Maintenance in Texas — Part 2 Eligibility.

Myth 12: Most divorces go to court.

Actually 95% of divorces settle without going to court. Only a few divorces end up having a contested trial where a judge makes decisions about divorce, property division, or children.



Do the 12 divorce myths apply in Texas? (part 1)

Do the 12 divorce myths apply in Texas?

Wooden Blocks with the text: MythsThe Huffington Post ran an article recently about the 12 Top Divorce Myths. The article was written by Daniel Clement, renowned divorce lawyer in New York, and they all hold true in Texas divorces as well. My favorite myth is #8. Read on to learn why.

Myth 1: Visitation can be denied if my ex doesn’t pay child support.

Like in the author’s come state, Texas does not tie possession of children with payment of child support. Enforcing a cchild support oblgation is a separate and distinct process from possession of a child. Denial of possession can result in punishment by jail time, jjust as can failure to pay child support. The two issues are not related and trying to make them related could result in a big problem.

Myth 2: Commit adultery, lose everything.

Adultery is not the big-ticket issue that it used to be. Many, if not most, divorces have issues related to adultery. Keep in mind, adultery is not necessarily the same thing as infidelity. A person can be unfaithful to a marriage without committing adultery. Under Texas case law, adultery requires absolute proof of intercourse outside the marriage. Proof of adultery can be a factor in granting a fault-based divorce and can be used in considering what split of assets would be jjust and right under the circumstances. If a spouse spends money on a paramour, that can definitely be considered in the division of the estate. If a paramour is around the children, adultery can be a factor in determining each parent’s relationship with the children after the divorce. But, just because someone commits adultery does not equate to a huge windfall to the innocent spouse.

Myth 3: Divorce can be denied.

Texas is a no-fault divorce state. This mean that a person can get a divorce without having to prove a reason for the divorce. A judge cannot deny a divorce if one spouse requests it.

Myth 4: Mothers are always given custody of the children.

This is sometimes called the “tender years doctrine” – which presumes that mothers must have custody until the children are a certain age. This law was abolished in Texas in the 1970’s. Now parents are presumed to start on equal footing regardless of gender. Parents now are given joint custody of their children, with equal decision-making authority, unless a parent has a problem that really affects his or her parenting ability. Factors that can affect the judge’s decision can include each parent’s ability to coparent, the best interest of the child, and the circumstances of each family. See my previous blog post No Mommy Presumption in Texas.

Myth 5: You must have a lawyer.

You do not have to have a lawyer in Texas to get a divorce. I strongly advise it. But it isn’t mandatory.

Myth 6: You must get divorced in the state where you married.

Nope. You can get divorced in Texas, regardless of where you got married, if you have lived in Texas for at least 6 months.


For discussion of the remaining 6 of 12 divorce myths, read our post next week.

Can I pay my child support in pizza? Creative payment methods of child support not in cash money.

child eating pizzaChild support is ordered to be paid by Texas judges in terms of monetary support. In my 25 years of practicing family law, I have never seen a judge approve a court order for payment of child support in some manner other than cash money.

But, then I saw this article (Italian court rules divorced chef can pay child support in pizza) that made me think outside-the-box about creative alternatives for payment of child support that will still support the child, yet not involve an exchange of cash.

A chef in Italy was ordered to pay about $335 in monthly child support to his ex-wife. But, his business suffered a major financial set back, making cash payments difficult for him. So, he offered the same form of compensation in food from his business. Pizza, calzones, and other menu items were included in the deal. The ex-wife at first refused to accept the food as tender for child support, so the parties went in front of a judge in a contested hearing. The Judge ordered that, in light of Italy’s financial crises in 2008, he could remit payment of child support in the form of food. Unfortunately, the chef had to close his business in 2010 and could no longer pay in food. But the story ends happily because in 2011, the daughter moved in with the father full-time.

The reality is that supporting a child requires cash. Electric companies, mortgages, car payments, and retail clothing businesses all require cash money in exchange for their goods and services. They won’t accept pizza as currency. But, this gives food (pun intended!) for thought about creative solutions in the right set of circumstances for providing child support when cash isn’t available.

5 things you will wish you knew after your divorce

Motivational-Winston-Churchill-QuotesMaking the decision to divorce is one of the hardest, most emotional decisions in a person’s life. Dealing with the heartbreak and disappointment that comes along with divorce can be enough to overwhelm the strongest person. Then, dealing with the legal issues of the breakup can push a person beyond where they thought their limit is. One author posted about the 5 things she wished she had known before filing for divorce in HuffPost.

  1. The divorce will take twice as long as you think it will.

There are many factors that affect the length of time a divorce will take. First, in Texas, a divorce must stay on file for a minimum of 60 days. Usually, only the most agreeable divorces finish in that short time period. Divorces involving contested issues will inevitably take much longer. Plan for it.

  1. It is going to cost twice as much as you think it will.

Abraham Lincoln is credited with saying, “A lawyer’s time and advice are his stock in trade.” Thus, the more time or advice you need from lawyer, the more your divorce will cost. The easiest and least expensive divorces are those where the spouses can agree on all of their issues. In this event, the attorney becomes the draftsman of the legal documents. If the two spouses cannot agree, lawyers will have to advocate through the process to either reach an agreement or ultimately have a contested trial where a judge decides the issue(s).

  1. There will be bad feelings between you and your ex.

The reality is that you will probably have bad feelings between you and your soon-to-be ex during the divorce process. This is normal. However, especially if you have children, it is best to try to suppress those feelings for the most part. After the divorce is over, you can both move on and forgive the hurt. During the divorce is probably too soon for that.

  1. The ex’s family will probably hate you too.

Blood is thicker than water, they say. During a divorce, this proves true. No matter how close you were to his mother during your marriage, getting a divorce now makes you Enemy-Number-1 and there will be hard feelings with his family. Hopefully you will all be able to keep some modicum of peace for the sake of the children. But, still, just accept that you are the common enemy.

  1. You will feel awful during your divorce.

Feel lost? Sad? Like you can’t get out of bed? That’s pretty normal. Many people going through a hard time find that they benefit from a short round of anti-depressants. If meds aren’t your thing, try yoga, or running, or counseling. Take up a new hobby. Try something new that will occupy your mind so you aren’t hyper-focused on your sadness. Make your new thing healthy – you don’t want to wake up from your divorce fog one day with 100-pound weight gain or a new smoking habit or worse. But know that the feeling-like-poo phase will end. You will get through this.

How to act in Texas family court

tell the truthIt is important to remember that a hearing or trial is a very important snapshot of your life and you will be judged either by the judge or jury based on your every move and action or reaction. Smiling at the wrong time or laughing at an inappropriate joke will crush your credibility. Being too stiff can make you seem like you are hiding something. Being too confident can come across as callous. So what are the rules?

Tell the truth.

Above all, tell the truth. Tell the absolute truth. Lying rarely works. Family court judges and lawyers see people lie in family court often and can tell when someone isn’t truthful. Even a “fudge” or “white lie” can make you look bad and damage your credibility.

Appropriate and inappropriate communications

Don’t communicate with the other lawyer. The ethics code prohibits lawyers from talking to parties who are represented by counsel. Further, avoid outbursts in the courtroom. Even if the other side tells the worst lie about you that you can imagine, shouting out “that’s a lie” will only make you look worse and do nothing to help your case. Don’t extend your anger into the hallway. You can’t know when a member of the court staff is in the hallway to observe bad behavior and report back to the judge. Take the proceedings seriously. Funny things happen in court, but you don’t have to laugh at the joke when you are dealing with a serious issue.

Control your emotions.

Family court involves emotional issues. But, even so, it is important for you to keep your emotions under control. Failing to control yourself in court will cause a question as to your ability to control yourself in stressful parenting situations in front of your child. This will cause a judge to question your ability to parent and make your case very difficult.

Know details about your case.

It is important to remember details about important events involved in your life, and your case. Making an allegation that the other party did something wrong but failing to remember the details of the situation will make the judge question your credibility about the entire event. Dates and times are especially important. If you allege that your spouse threw a bowl at you during an argument, you should remember the date and time and details surrounding the event. Otherwise, it will hurt your believability about the importance of the event. If it was that important, you would remember more – that’s how the judge will see it.

Credibility is the most important factor in how you present in court during a hearing or trial. Being believable and likeable is a very important key to getting a good result in court. Having appropriate interactions and reactions is a key to this.