“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” True – you do have the right to remain silent and anything you say can and will be used against you. But what about the things you don’t say? Can your silence be used against you in a family case?

The United States Supreme Court and Texas Supreme Court agree that your silence can be used against you in a civil, family law case. This means that if you assert your 5th Amendment privilege in a civil case, the judge has the ability to make a negative inference against you in regards to that topic. For example, if you are asked at trial whether you use illicit drugs, you have the right to assert your Fifth Amendment privilege. The judge, however, can take your refusal to answer to mean that you do, in fact, use illicit drugs. As Justice Brandeis declared in United States v. Bilokumsky, speaking for a unanimous Court, “Silence is often evidence of the most persuasive character.” 263 U.S. 149 (1923).

The implications of the Fifth Amendment extend beyond trial testimony to the rules of discovery. The purpose of discovery is to allow the parties to obtain full knowledge of the facts and issue prior to trial and to prevent trial by ambush. West v. Solito, 563 S.W.2d 240, 243 (Tex. 1978); Gutierrez v. Dallas ISD, 729 S.W.2d 691, 693 (Tex. 1987). This principle applies to all discovery, including items subject to the Fifth Amendment privilege. A party may not “use the Fifth Amendment as a shield in discovery and a sword at trial, which would result in “trial by ambush.”” Alief Independent School Dist. v. Perry, 440 S.W.3d 228, 242 (Tex. App—Houston [14th Dist.]). In the Alief case, a party asserted his Fifth Amendment privilege against self-incrimination twice during discovery. He later decided he wanted to testify regarding these issues. He withdrew his privilege only eight days prior to trial. By waiting to waive his privilege until the eleventh hour, the opposing party effectively lost their ability to do any type of discovery on the issue. For that reason, the Court of Appeals agreed with the trial court’s decision to preclude that party from putting on evidence about the issues he asserted his Fifth Amendment privilege to.

This is not to say that if you assert your Fifth Amendment privilege it can never be waived. If you assert your Fifth Amendment privilege in discovery, but decide you ultimately want to testify about these issues at trial, you must timely withdraw your privilege and amend or supplement your discovery. Case law has not defined “timely,” however, Texas Rule of Civil Procedure 193.4(c) states that: “a party may not use—at any hearing or trial—material or information withheld from discovery under a claim of privilege, … without timely amending or supplementing the party’s response to that discovery.” To be safe, you should waive your privilege in advance of trial enough so that the other side has time to conduct discovery on the matter.

The purpose of these rules is to prevent trial by ambush and provide a constitutionally meaningful trial to all parties. Because pleading the Fifth in a family law case can carry hefty implications, it is important to speak with an attorney, who can help you navigate and decide which route is best for your case.


The Texas Supreme Court recently laid out what evidence is needed to prove up attorneys fees at trial. This case has been lauded as one of the most important cases to come out of the Texas Supreme Court. In Rohrmoos Venture v. UTSW DVA Healthcare LLP (578 S.W.3d 469), the Court addressed two different methods of calculating fees – the 8-factor test from the Arthur Andersen case (945 S.W.2d 812) versus the lodestar method – concluding that the lodestar method is the right place to start in calculating fees.

The lodestar method means that the court determines the attorneys fees to be awarded by multiplying the number of necessary hours reasonably spent by the trial attorney by the reasonable hourly rate.

The Rohrmoos opinion suggested that detailed billing records are strongly encouraged to prove up the elements of attorneys fees. This ruling will likely affect lawyers with alternative billing (like flat fee) arrangements. Further, this opinion suggests that lawyers could be subjected to thorough cross-examination on the fees expended. Opposing counsel could use the billing records as an opportunity to prod over work performed. Many cases will bring in outside experts on fee issues to offer testimony as to the reasonableness or necessity of the fees.

The Court hinted that agreement between attorneys in advance of trial as to the amount of fees would avoid contentious fee fights. But, without such agreement, the litigation will be more complex and lengthy.

A few weeks after the Rohrmoos case came down, the Texas Supreme Court reiterated its decision in Nath v. Texas Children’s Hospital (446 S.W.3d 355) where it applied the same requirements to attorney’s fees when awarded as a sanction as opposed to damages.

Here are some practice pointers based on Rohrmoos:

  • Keep contemporaneous billing records in all cases, including hybrid and contingent fee cases;
  • Try to stipulate to the fee award prior to trial;
  • Enter your fee agreement and billing records into evidence at trial;
  • Be careful about redacting your entries in the fee agreement;
  • Introduce evidence to explain why all entries included were reasonable and necessary;
  • Consider getting an outside expert to support or challenge the fee request.

Certain questions appear to remain open even after the Rohrmoos opinion, including:

  • How to calculate appellate attorney fees, which must be estimated in advance?
  • Whether the lodestar approach applies in a contract dispute between client and attorney where the question involves enforcement of a contingent fee contract?
  • Under what circumstances the amount of attorney’s fees should be decided by the jury or the judge and whether live testimony is required or may the evidence be established by affidavit?
  • May a lay witness law the factual elements of the lodestar method, or is expert testimony required?
  • What is the proper remedy when reverse – remand or rendition?


We have seen this issue arise more than once lately: A party files a jury demand and pays the fee close to but before the 30-day deadline prior to trial; however, the e-filing system delays acceptance of the filing and payment until after the 30-day deadline, so the trial court denies the jury trial. We believe the trial court is wrong to deny the jury trial in this instance.

Texas is the only state in the nation that allows jury trials in family law cases, particularly on custody cases. We try a LOT of jury trials — an inordinate percentage compared to most family law firms. But, what do you do when you submit your jury demand before the 30th day before trial and tender the fee on the same day, but the e-filing system or clerk delays posting it until after the deadline? Can the judge correctly deny the jury trial?

Texas Rule of Civil Procedure 216 requires a party to file their demand for a jury trial a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance. See Tex. R. Civ. Pro. 216(a). In Texas, an electronically filed document “is deemed filed when transmitted to the filing party’s electronic filing service provider…”. Tex. R. Civ. Pro. 21(f)(5). A document is considered timely filed “it if is electronically filed at any time before midnight (in the court’s time zone) of the filing deadline.” Id. A jury demand filed in “advance of the thirty-day deadline is presumed to have been made a reasonable time before trial.” Halsell v. Dehoyos, 810 S.W.2d 371 (Tex. 1991).

The associated jury fee must be “deposited with the clerk of the court within the time for making a written request for a jury trial.” See Tex. R. Civ. Pro. 216 (b). The timing rules for the jury demand apply to the jury fee as well. Huddle v. Huddle, 696 S.W.2d 895 (Tex. 1985). Thus, a jury fee that is deposited with the clerk in advance of the thirty-day deadline is presumed to have been made a reasonable time before trial. Id.

Finally, the Texas Supreme Court has recognized that, even when a party does not timely pay the jury fee, a trial court should accord the right to a jury trial if possible. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997).

All of this to say that the minute you transmit the jury demand to e-filing it is considered timely. Likewise, depositing the payment of the jury fee with the e-filing system should be sufficient to comply with the deadline rules. But, even so, unless there is proof that some prejudice will come from allowing the jury trial, even if the filing is late, the trial court should in consideration of due process grant the jury trial. Always err on the side of a jury trial.


The 2nd Court of Appeals in Fort Worth issued a very important opinion today in a big win for O’Neil Wysocki’s appellate team on Michelle O’Neil and Karri Bertrand. The underlying order awarded Father the exclusive right to determine the children’s primary residence without regard to geographic restriction and gave each parent the independent right to make educational decisions. Mother filed to modify the orders and sought temporary orders in the modification suit. The trial court left the primary designation with Father but ordered the children to be enrolled in the Mother’s school district. In the intial hearing, the trial court made no finding of significant impairment, but later entered such finding.

Continue Reading Win: Clarification of standard for temporary orders in modification suit

I enjoyed this article in the Washington Post by Lisa Bonos. Is it possible to get divorced and not hate your ex? A divorce necessarily comes after a lot of emotion and turmoil in the relationship. Sorting through that emotion and processing to the other side of the hatred river takes emotional maturity and “adulting” (as the new millennial lingo goes).  The bottom line is that you have to love your kids more than you hate your ex. The article suggests six principles to keep in mind:

Continue Reading 6 steps to adulting and not hating your ex

What remedies are available to left-behind parents when a child is removed from the child’s primary country to another country?

There has been a recent uptick in the number of cases where a parent unilaterally removes a child from the child’s place of residence to another country in an attempt to be the child’s sole parent. The Hague Convention on the Civil Aspects of Child Abduction (read the text of the treaty here) is a multilateral treaty ratified by 98 countries as of May 2018 providing an expeditious protocol for the return of a child unilaterally removed from the home country. The treaty requires the country to return a child when wrongfully removed in breach of the custody rights of the left-behind parent. The law of the state/country where the child resided determines the “custody rights”, which provides some fluidity in the laws.

Continue Reading International child abduction remedies

Highly compensated individuals may have a laundry-list of deferred compensation awards going out over many years. Sometimes these compensation methods require negotiation transactions during a divorce that may or may not be legally permitted without full transparency. In most Texas courts, there are “standing orders” that automatically apply to every divorce that prohibit certain types of transactions. It is important to understand the marital assets in order to prevent the client from inadvertently violating one of these rules.

Continue Reading Non-cash compensation in a Texas divorce

Most business valuations in the divorce context are performed upon long-standing businesses. Valuing an early-stage start-up company poses some challenges. In 2013 the AICPA released a guide detailing a framework for assessing the six typical stages of a business’ lifecycle.

Continue Reading Start up company valuations in divorce

Often in divorces, a spouse or both spouses may own a closely-held business. While the business itself may not be divisible in the divorce, the value of the business entity as an asset of the marital estate can be an important component to the division. There are several considerations at play when valuing a business entity for divorce purposes.

Continue Reading Valuation of company for divorce