I read with interest an article written by a Dallas Divorce Lawyer (Jonathan Bates of Kinser & Bates), “Baker’s Dozen: 13 Unique Ingredients of Family Law Practice”
Texas Lawyer, March 12, 2012. He set out 13 ways that family law differs from other areas of law in the way a case is handled. I thought his 13 points would be instructive for potential divorce parties, particularly in thinking about what kind of lawyer to hire. I always recommend that a potential divorce litigant hire a lawyer who is experienced in family law in the particular geographic area where the divorce will be filed. Example, hire a divorce lawyer in Dallas, Texas if your divorce will be filed there. Further, it is important to find a lawyer who is board certified in Texas family law to ensure that the attorney has a minimum level of competence in divorce cases. Jonathan Bates’ 13 points justify why just any lawyer won’t do to handle a divorce case, but instead why a family law specialist is best.
His 13 points, in summary are:
- Children: Divorce cases involving children have nuances that a general litigation attorney may not appreciate. Although it sounds simple to say that the best interest of the children are the primary factor for the court to consider, this concept affects how the case is prepared and presented, from the beginning pleading to the end of the case.
- Pleadings: In civil cases, pleadings must have a lot of factual specifics. In family law, these facts are not required and are very much frowned upon. Texas family law pleadings are broadly interpreted and failing to following the commonly accepted format screams to the Judge and opposing attorney that the lawyer does not know what he/she is doing.
- Trial strategy: An overly aggressive style, although common in civil or criminal cases, may not play well in family court. Instead, a certain finesse is essential to show the court that you are sensitive to the issues at hand, while still presenting the right amount of assertiveness of the client’s position.
- Prioritizing: An experienced Texas family law attorney will be able to discern what information is probably not crucial to the case (example, one-time instance of adultery committed by a spouse five years prior to the divorce) and what information the Judge will really want to hear (example, taking the children for sleepovers at the boyfriend/girlfriend’s house before the parents are separated). In other words, in a custody case, the focus should be on actions that directly affect the parenting of the children.
- Discovery: Pretty much all information about either parent or the children or the money is discoverable in a divorce. All bank statements for any account owned by either party is usually discoverable for several years before the divorce was filed. In a custody case, medical and mental health treatment of either parent may be relevant. The contents of either parent’s computer may be obtained, including emails, text messages (for iPhones, stored in iTunes), and websites visited. Further, objections to the standard family law discovery requests result in disfavor with Judges.
- Privacy: Because of the sensitive nature of the information exchanged in family law cases, judges will liberally grant requests to seal a court file or enter confidentiality orders protecting the parties’ information.
- Evidence: Judges are sensitive to a party trying to block the entry of standard and customary information in a family law case. Such actions make a party appear to be hiding something, even when a lawyer may be making a technically correct objection. Bates suggests that the evidentiary victory of challenging the admission of relevant information may be more damaging than the admission of the evidence in the first place.
- Developmental tools (for evidence): There are many tools in the family lawyer’s toolkit for developing evidence – social studies, psychological evaluations, drug testing, and forensic accounting evaluations are examples.
- Characterization: Determining whether certain assets owned by either spouse are community property (obtained by either spouse during the marriage and divisible in the divorce) or separate property (owned by either spouse before the marriage or obtained through gift or inheritance and not divisible upon divorce) is a crucial part of the divorce. Expert witnesses, such as valuation experts or forensic accountants, can evaluate documents and evidence and provide useful testimony.
- Statutes: Texas family law statutes are revised every two years when the Texas Legislature meets. Having an attorney who is current on the latest law and the effect of any changes is essential to the effective presentation of a divorce case.
- Facts: Texas family law cases are very fact-specific. Judge because a friend or co-worker had a certain result in their divorce does not mean that result will be the same in another situation based on different facts. As Bates says, “Unfortunately, many divorce litigants receive inaccurate information from Hollywood, the Internet, or friends and family members. They often do not understand that an outcome implemented by agreement in another case may not be the likely result after a trial on the merits. What happened in another state or county may be inapplicable.” Even slight variations in the facts of two cases may result in significantly different outcomes.
- Counseling: People (spouses or children) going through a family law case are often seeing some of their worst times and may need someone to talk to (other than a very expensive attorney).
- Terminology: Using the right vocabulary is important. The term “custody” is used in lay terms but is not a common term in Texas Family Law. Know what the words “conservatorship” and “primary residence” mean. Understand that rarely does one parent get the children 100% of the time – instead, almost all cases are about how the parents are going to share the children.