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POWER FAMILY LAW, PLLC
Power Family Law, Providing attorney services in Plano Texas with emphasis in Divorce Law, Custody, Child Support, Adoption, Alimony, Estate Planning, and Wills

The Texas Family Law Forum

09/25/07

Electronic Evidence

Filed under: Thoughts — jean @ 08:45:27 pm Edit This

The following was taken from an article that appeared in the New York Times on Sept 15, 2007. Over time I have seen an increased use of electronic evidence during family law proceedings. It is a fact of life, that as our lives become increasingly tied to computers that make day to day life more efficient, that their electronic trail left behind becomes a record of the way we live our lives.

Tell-All PCs and Phones Transforming Divorce
By BRAD STONE
New York Times
September 15, 2007

The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.

Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities.

Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.

“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”

Privacy advocates have grown increasingly worried that digital tools are giving governments and powerful corporations the ability to peek into peoples’ lives as never before. But the real snoops are often much closer to home.

“Google and Yahoo may know everything, but they don’t really care about you,” said Jacalyn F. Barnett, a Manhattan-based divorce lawyer. “No one cares more about the things you do than the person that used to be married to you.”

Lawyers must navigate a complex legal landscape governing the admissibility of this kind of electronic evidence. Different laws define when it is illegal to get access to information stored on a computer in the home, log into someone else’s e-mail account, or listen in on phone calls.

07/01/07

Jury Trials

Filed under: Thoughts — jean @ 02:47:21 pm Edit This

Do I have a right to a jury trial? When should I ask for one?

In the State of Texas, you may request a jury on final trial to determine certain family law issues. Among various issues that can be submitted to a jury are: which parent will determine the domicile of your child or children; the characterization property as community or separate; and the determination if a tort was committed during the marriage. Only a judge can rule on the visitation schedule of the non custodial parent, the amount of child support to be paid, and the manner in which the martial property is divided.

Jury trials are time consuming and costly. Many times jury trials are necessary. Some litigants request a trial by jury when preliminary hearings before the judge have not been determined in their favor. But all cases are different and you should discuss the specifics of this with your attorney to determine what is best for you.

06/09/07

Social Studies

Filed under: Thoughts — jean @ 12:23:08 pm Edit This

What is a Social Study? Will I need one in my case? I have heard of psychological evaluations being ordered in divorce cases, will I need to submit to one?

When conservatorship or access to children is not agreed to by the parties, a social study is a vehicle used by courts to investigate the circumstances of you, your spouse, and your children. Many courts will appoint a third party, usually a social worker, to investigate your and your spouse’s residence, place of employment, and your children educational, emotional, and physical circumstances. At the conclusion of this investigation, the social worker will prepare a report that will be submitted to the court and your attorney. The report can contain a recommendation for the conservatorship and access to your child or children

Courts can also require a psychological evaluation of you, your spouse, and your children if the circumstances dictate. Such an evaluation may be warranted when there are allegations of abuse and neglect of the parties or the children. Many times the court will order an evaluation when the mental health of the parties is made an issue. A court appointed psychologist will consult with and test the parties and children (if ordered by the court). A report will be prepared and submitted to the court and your and your spouse’s attorney.

If a social study or psychological evaluation is ordered in your case, your attorney will give you specific information on how to prepare for these evaluations, and the costs involved.

05/13/07

Child Support

Filed under: Thoughts — jean @ 09:46:08 am Edit This

Providing adequate food, clothing, shelter and medical care for the child is the duty of both parents. The parent with whom the parent resides (obligee) is required to provide these necessities for the child, and the parent with whom the child does not reside (obligor) fulfills this duty by paying Child Support to the obligee.

The Texas Family Code provides guidelines for the computation of child support payments. Simply put, the obligor pays a guideline percentage of his/her gross adjusted income as child support. The percentage is dependent on the number of children to be supported in this case and any other children the obligor has the duty to support. For example, guideline support for one child is 20% of the obligor’s monthly net resources.

Child support payments are typically made on a monthly basis to the State Disbursement Unit of Texas, which are processed and forwarded to the obligee. These payments are made until the child turns 18 or graduates from high school, whichever comes last.

Health insurance for the child is also to be provided, or paid for, by the obligor.

If an obligor falls behind on payments to the obligee, the Attorney General’s Office and/or the obligee may take legal action against the obligor. A number of different actions may be taken against the non-paying obligor, up to and including imprisonment.

Guideline child support is court ordered for most divorce and child support cases, but there are other factors which can affect the amount of child support and the length of time in which child support is paid. For instance, child support obligations for a disabled child may last for the life of the child. Any out-of-the-ordinary situations that you may have in your family will be considered when your attorney works toward a settlement in your case.

04/27/07

Children First

Filed under: Thoughts — jean @ 10:40:30 pm Edit This

The following appeared in the Dallas Morning News on April 24, 2007. I've seen parents accidently and intentionally draw their children in the middle of many a dispute. In the end, it is always the children that lose. The point to be made here is that children are not pawns to be used in a dispute; the parents need to rise above this level of behavior. It may seem unfair and at time it will be unjust but the welfare of the children always has to come first.

Jacquielynn Floyd; Dallas Morning News; April 24, 2007

It's no contest: Put kids first in divorce, or everybody loses

Father of the Year Alec Baldwin, who left a bullying rant on his daughter's voice mail last week, has come up with an apology, sort of – he's sorry he lost his temper. But you don't have to be Freud to realize that the real target of his rage was ex-wife Kim Basinger. I care nothing for these people, care nothing for divorcing celebrities who wish to behave like howling savages in public in order to score points off one another. I'm awfully fed up, though, with those who rushed to pick a side between these two rich, spoiled fools. "Nobody should talk to a child like that, but she shouldn't have leaked the tape," or "She shouldn't have leaked the tape, but this just proves how crazy he is."

But nothing.

If these people are too uncivilized to put the interests of the child they profess to love ahead of their own deathless spite, they're not qualified to be parents. Poor Ireland Baldwin, yanked back and forth like a slobbery bone, might be better off if they left her in the woods to be raised by wolves. Wolves, at least, usually take care of the kids before they tear each other to pieces.

Closer to home, a Richardson man named Gerald Reed took this revenge-over-everything philosophy to its terminal extreme the weekend before last: He shot his two daughters while they slept, then killed himself. The 13-year-old, who miraculously survived, is slowly recovering. Her 6-year-old sister is dead. But, boy, he sure showed the ex-wife who was in charge, didn't he? Nothing meant more to Gerald Reed than vengeance – and he got what he wanted. In an interview, this evil man's brother plaintively claimed that Mr. Reed was "not a monster," and that he must have been motivated by a fear of losing his children. Yet his last actions on this earth proved that his wounded sensibilities meant more to him than his own children's lives.

Most divorces don't lead to violence and murder, of course. But in too many cases, the adults, the ostensible protectors, put their own feelings ahead of the kids' well-being. They one-up each other in a hypercompetitive, never-ending arms race over who's "right," which benefits nobody and makes innocent children miserable. They turn their own kids into weapons.

Perhaps family court judges should mandate that all divorcing parents sit down and watch the movie Irreconcilable Differences. It's a dated (1984) tearjerker with has-been actors and a paper-thin plot, but it neatly encapsulates the unlovely spectacle of adults too self-absorbed to notice how their behavior is affecting their child. The way they treat each other makes the Sharks and the Jets look as chummy as lodge brothers.

It doesn't have to be that way. I have met people, mothers and fathers who probably don't have much more use for one another than do most divorced couples, who really have managed to put the kids first. A family I met in Plano, for instance, decided that the kids would keep the house. The two sons keep their own rooms, their own pets, their own school and friends; it's the parents who shuttle between homes, taking it in turns to live with the boys.

Other couples at least manage to maintain a surface friendship and a cooperative working relationship, recognizing that they share the experience of joint parenthood for life. I have a lot of admiration for people who endure the far-from-ennobling experience of divorce with a primary goal of minimizing its most painful aspects not for themselves, but for their offspring. Divorce is a rough ride, and it's a crying shame that, in so many cases, the children suffer more than they have to.

People who feel they have been wronged are anxious to air their feelings, to bicker endlessly over what's "fair." They don't set out to behave badly, but they can't stop trying to "win" an unwinnable contest, can't stop saying, "Yes, but..." It might be helpful if more of them could make the mutual decision to cede the advantage not to one or the other, but to their children. It might even help them, in the end, feel better about themselves and their own behavior.

I can't think of anything fairer than that.

03/31/07

Domestic Violence

Filed under: Thoughts — jean @ 02:08:52 pm Edit This

My spouse has hit me during our marriage. How does domestic violence effect divorce proceedings?

Being a victim of domestic violence is one of the most humiliating experiences a person can endure. The abuse can be emotional, physical and/or sexual and affects people from all social and economic backgrounds. However, the most important priority is to maintain safety for you and your children, as well as help for the abuser.

In general, abuse can be determined to be cruelty or “fault” in advance – which can lead to a disproportionate division of property. (See discussion in Adultery chapter.) If you or your children are in imminent danger of harm by our spouse, you may be able to obtain a Protective Order which prevents your spouse from being within 500 feet of your and your children. A violation of the Protective Order can result in your spouse’s arrest.

If you are an abuse victim, you must remain mindful that sometimes the threat of abuse exists after the protective order is issued. Therefore, you must be vigilant in maintaining your own safety. Organizations such as the Texas Council on Family Violence, Texas Association Against Sexual Assault and the National Domestic Violence Hotline provide helpful information on victim safety and tips for leaving your abuser.

You should be prepared for a change in lifestyle in order to maintain a safe environment for you and your children. For example, you may have to secure temporary housing and refrain from speaking with some family members or friends that might relay information to your spouse that will place you in danger. More often, if your spouse has been using technology to inflict abuse, you may have to close or change credit cards, bank accounts, cell or home phone numbers, e-mail accounts or install “anti-spy” software on home computers. You should be prepared to candidly discuss the circumstances of their situations with your attorney to obtain the best option for you.

03/12/07

Dating

Filed under: Thoughts — jean @ 10:55:16 pm Edit This

People often tell us they have been waiting for a long time to start a new life. When can one begin dating? Will it affect the outcome of their divorce?

It is common for people who are going through a divorce to want to resume a “normal” life and enter into new relationships. Many times, post separation relationships, while innocent enough, may give the appearance of impropriety. Specifically, when there are accusations of adultery and contested conservatorship matters, a post separation relationship may cause unnecessary hardship to your family and to the divorce case. The safest course of action is to refrain from any extra marital intimate relationships until the divorce is finalized.

But we are all human, and sometimes the pain of a failing marriage is so acute that some people must have a relationship in their lives. If this is the case for you and you insist on having an intimate relationship while your divorce is pending, please be mindful of the following:

1. Avoid exposing your child/children to your new partner.
2. Do not permit your partner to have overnight visits with you while the children are with you.
3. Avoid spending large amounts of money on or with your new partner. For example, don’t charge meals at expensive restaurants, purchase for extravagant gifts, take expensive trips or vacations with your new partner.
4. Avoid exposing your spouse to your new partner.

You never want to give your children or the court the impression that you are more interested in spending time with your new partner instead of your children. You also want to avoid wasting community funds on your new partner because this may negatively affect the amount of property awarded to you upon your final divorce. If you are dating someone or intend to date someone, please discuss this matter with your attorney so that you can be advised of your options and risks.

03/05/07

Adultery

Filed under: Thoughts — jean @ 02:07:50 am Edit This

I suspect my spouse may have been engaging in an extra-marital affair. How will this impact my divorce?

Infidelity in a marriage causes a great deal of pain for all parties involved. Aside from the obvious psychological impact, there can be monetary consequences as well. Ordinarily, the courts will divide all community property equally between the parties unless there is fault in the break up of the marriage or other extenuating circumstances. Adultery is one category of “fault” in the break up of a marriage.

Generally, the Texas Family code provides that the court may, in it’s discretion, order a “disproportionate” division of the community property if you or your spouse have committed adultery. The court may decide to order one spouse a larger percentage than 50% of the community property because of the adultery of the other spouse. But this is all in the discretion of the court and there can be no assurance that the court will order more or less property because of the bad acts of you or your spouse.

Courts view adultery in a variety of ways. Many times the court’s determination of how the property is divided will depend on the nature and timing of the infidelity. Many courts will take more seriously affairs which occur while the parties are still living together in a marital relationship than those which occur during an extended separation by the parties. Many courts take a dim view of exposing the children of the parties to an extra marital partner and this could impact which party gets primary conservatorship of a child. Some courts give adultery a great deal of weight – other courts give it very little weight. Therefore, the impact of adultery on your divorce is entirely dependent on the facts of your particular case and should be thoroughly discussed with your attorney.

02/17/07

Temporary Hearings

Filed under: Thoughts — jean @ 02:01:33 am Edit This

My case may take months or years to reach final completion, what can I do to protect myself while my case is pending?

You can obtain temporary orders. Since a family matter can take many months and sometimes years to complete, temporary orders are necessary. If you need to obtain temporary conservatorship, temporary child support, spousal support, and orders for temporary use and possession of residences, automobiles and other property, an agreement between the parties or a hearing is required.

Many times, a temporary hearing is requested at the time the divorce is filed. If there are some exigent circumstances concerning safety of the parties or the parties’ property, a temporary restraining order may be warranted to prevent your spouse from causing injury to you, your children, or your property.

If a hearing is required for your temporary orders, you and your attorney will meet to properly prepare for the hearing. You can testify, call witnesses, and admit exhibits of information to the court. Upon arriving at court, the judges ordinarily require the parties to attempt to negotiate and settle the temporary orders before being heard. The attorneys for both parties ordinarily talk to determine if there are areas the on which the parties can agree. If an agreement is reached, the agreement will be announced to the court on the record.

If an agreement cannot be reached, a hearing will be held. A very frustrating aspect of all court matters to clients is the amount of time spent waiting to be heard. Generally, the court will schedule 10-20 matters to be heard at the same time – anticipating that a large number will be settled. It may take the judge hours to reach your case. Once the case is reached, the judge can impose time limits on the amount of time you have to present your case. In Collin County, the courts limit each party to 20 minutes each to present their case in a temporary hearing. This is a very short amount of time and requires intensive preparation to make a succinct and persuasive presentation to the court. After the court rules on the temporary orders or the parties reach an agreement, one of the attorneys will then draft the temporary orders and will circulate the orders to you and the other attorney before submitting them to the court for final approval.

Additionally, the judge who hears your temporary hearing may not be the same judge who will dispose of your final case. The courts are permitted to do this. There are some circumstances where one of the parties can object to a given judge and you should discuss this with your attorney.

02/10/07

Discovery

Filed under: Thoughts — jean @ 08:44:37 am Edit This

How can I be sure that my spouse has disclosed all of our finances and assets?

It is impossible to guarantee that your spouse will completely disclose all community assets. But there are safeguards which can minimize the likelihood of your spouse concealing assets.

Through the Discovery process, we request from your spouse verbal or written information which will enable us to prepare for trial or to better facilitate the settlement offer process. We may use the deposition process to directly ask questions of your spouse, or may send written questions to the opposing party called requests for disclosure, interrogatories and/or requests for admission. To attain a better understanding of your finances, we can also issue a written request for production, which requires your spouse to provide requested financial documents for your attorney’s review and duplication. Typically, your spouse will also make the same requests of you.

The Discovery process is not necessarily used for all divorce cases. A very effective tool that we use for ascertaining your financial situation is the Sworn Inventory and Appraisement. In this case, both parties fill out a work sheet that lists all community and separate assets, and the value of each asset. The document is notarized and filed with the court. From this information, we can better assist you in working toward a fair and realistic financial settlement.

01/30/07

Managing the Cost

Filed under: Thoughts — jean @ 08:32:41 pm Edit This

Attorneys are expensive and many times clients will ask how they can minimize their costs?

First we like to point out that when hiring an attorney, you are paying for experience. An experienced attorney is generally more efficient than an inexperienced attorney and this can save money in the long run. The difference is most apparent in more complicated cases. No matter which attorney you hire, time is money and a client that helps organize the facts will spend less money. Keep the following two guidelines in mind when working with any lawyer.

1. Your involvement in the work required for your case will contribute to the success of the case and reduction of your total costs. For instance, if we ask you for financial documents and you provide the correct documents in a timely, organized manner, it will reduce our labor (or cost to you).

2. Charges for phone calls to our office add up quickly. For instance, organizing your thoughts and asking 5 questions during one phone call will cost you less than making 5 phone calls and asking one question each. OR, email your lawyer so they can work more efficiently.

3. Use the lawyer's paralegal staff. A trained paralegal is a valuable resource and the more you use the paralegal the more efficient the law firm can operate as a whole.

01/22/07

Questions to ask when interviewing a potential attorney

Filed under: Thoughts — jean @ 07:33:10 pm Edit This

When you first meet a lawyer you are considering to represent you in a family law matter, the following are some good questions you can put to the potential attorney. These questions will usually generate a good discussion that make it easier to decide if the lawyer in question is right for you.

1) What is your strategy to help me to get the best result in my case?
2) What percentage of your practice is devoted to family law?
3) How many contested trials or hearings have you had?
4) Can you provide the names and contact information of references clients who used you in the past?
5) If you are not available, what is the procedure for handling my calls or emergencies?

01/20/07

Negative characteristics of a potential attorney

Filed under: Thoughts — jean @ 06:18:47 am Edit This

Just like there are characteristics you should look for when considering an attorney, there are a number of warning flags that indiciate potential problems with a lawyer you are considering. Be on the lookout for the following characteristics:

1) Handles all areas of the law
2) Does not charge a consultation fee
3) Promises a specific result or outcome
4) Does not put fee arrangements in writing
5) Does not return telephone calls
5) Is disrespectful to staff and other clients
6) Does not have staff
7) Is patronizing or demeaning
8) Has bad relationships with other attorneys
9) Does not return telephone calls
10) Too inexpensive – if it’s too good to be true – it is

01/14/07

Positive characteristics of a potential attorney

Filed under: Thoughts — jean @ 10:08:11 pm Edit This

We have attempted to capture what we think the positive characteristics of a great lawyer include. When seeking an attorney to represent you in a family law matter, you should look for these character traits when seeking a lawyer.

1) The ability to communicate with you in a manner that is understandable to you.
2) Treats you with respect and appears to be genuinely interested in pursuing the best outcome for your case.
3) Answers questions and explains your options without being defensive.
4) The atmosphere of the office is professional
5) The attorney has helpful support staff
6) Provides a fee schedule or attorney contract in writing
7) Charges a consultation fee
8) Reputation in the community

12/30/06

A Step Forward

Filed under: Thoughts — jean @ 08:05:46 am Edit This

In my Plano law practice many of my clients who are contemplating divorce come to me feeling that they have failed. Nothing could be farther from the truth. In my experience, if a marriage is troubled and all possible measures have been taken to save the marriage, divorce is the first positive step toward healing.

Statistically, in the United States, approximately 50% of all marriages dissolve. Among the many factors that result in the dissolution of a marriage include the duration of the marriage, the age of the parties at the time of their marriage, and the number the number of previous marriages by either party. At some point, a marriage can advance beyond the point of repair.

Divorce is not a question of success or failure. Divorce is multifaceted. It is emotionally driven with issues of trust, honesty, and simple dignity. It is financial in nature as the assets of the marriage that were built, as a partnership, in anticipation of collective future, must be divided. My staff and I strive to help our clients through the divorce process without judgment or criticism. My promise to you is that you will be treated with dignity and respect to assist you in determining your future and that or your family.

11/01/06

JOINT CUSTODY

Filed under: Thoughts — Jean @ 10:06:00 pm Edit This

Most parents, upon divorce, want to have "joint custody" of their children. In Texas, the term for custody is "conservatorship" and it is presumed that both parents should be appointed Joint Managing Conservators of their children. The courts favor this designation unless there are issues of domestic violence, abuse, drugs, etc. in the marriage. Joint Managing Conservatorship allows both parents to be involved in the lives of their children. It is a common misunderstanding that joint conservatorship will result in neither party paying support. One parent is required to be designated as the parent who establishes where the child lives. And ordinarily, the other parent (who does not establish the child's residence)is ordered to pay child support to the parent designating the child's residence.

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