New Guideline Child Support Increase

 The Texas Family Code provides that maximum net resources shall be increased every 6 years to account for inflation.  This is such a year, and so the cap has been increased as required by statute.  It is important to know this if you are involved in divorce or considering modifying child support.  Net resources, for purposes of calculating maximum guideline child support, used to be capped at $7,500.  Effective 9/1/2013, that cap has increased to $8,550.  What does that mean?  For child support orders rendered on and after 9/1/2013 (including divorce, modification, etc.), maximum guideline support has increased.  So, for example, maximum guideline support for one child was $1,500 per month and it is now $1,710.  For two children, it was $1,875 and is now $2,137.50.  These are only examples, and are not child support calculations applicable to every case.  They are intended only to demonstrate the possible changes to child support calculations with the statutory increase in the maximum guideline net resources calculations.  To determine how this change may be applicable to you, contact me or other family attorney counsel of your choosing. 

Statutory Damages for Filing a Fraudulent Contractor's Lien

As a contractor, you should be wary of the damages for filing a fraudulent lien found in Chapter 12.002 of the Texas Civil Practices and Remedies Code.  This provision provides that if a lien is found to have been filed fraudulently (as that term is defined in the statute and by Texas law), damages awarded can include the GREATER of $10,000 or actual damages to the property owner.  This means that even if the lien doesn't create any actual damages for the property owner (such as loss of credit, costs and issues with any mortgage holder, etc.), the property owner may still recover a minimum of $10,000.  Lien filing history and knowledge of the requirements and deadlines in the Texas Property Code play into whether a contractor knew or should have known the lien was invalid when it was filed.  Also, releasing the lien after being sued for filing an invalid or fraudulent lien may not resolve the issue with the property owner or absolve the contractor of liability under this statute.  If you are going to consider filing a lien, speak with a lawyer knowledgeable in construction litigation and collection first.  If you are sued by a property owner for filing a fraudulent or invalid lien, immediately seek out counsel knowledgeable in these matters. 

Child Support and Losing Your Job

What should you do if you lose your job and can no longer afford your child support?  Child support orders are based upon the amount of income you have at the time the order is entered.  They do not take into account any future circumstances, good or bad.  If you lose your job, or suffer a significant decrease in pay (such as changing jobs, losing your job, suffer a demotion or pay cut, or other such circumstances), you need to file a motion with the court to modify your child support obligation to take your changed circumstances into account and reduce the obligation.  The reason is that whether you can afford the obligation or not, it is a court order enforceable by the Texas Attorney General's Office.  The AG keeps records of all child support paid.  If a delinquency occurs, the AG's office can file a motion to enforce, regardless of your ability to pay or the wishes of the child's other parent.  Complaints about loss of income/employment at that point will be met with a statement that you should have filed a modification.  It is vastly easier and less expensive to modify in advance of an enforcement action, than it is to defend the enforcement action and modify at that point.  If you have lost your job or suffered a material change in income, seek out the advice of an attorney as to whether you may modify your child support obligation. 

Aggressive versus Effective - Which Trial Attorney is Right for You

If you are looking for a family attorney, or any trial attorney, that is aggressive in the courtroom, there are a myriad of attorneys out there that will say that they are.  This does not mean they are effective in the courtroom.  If your circumstances need an aggressive trial attorney, what should you look for?  There are a myriad of attorneys that say they are "aggressive."  But what does that mean?  It is not difficult to be aggressive just for the sake of being aggressive.  And "aggressive" can be an effective strategy.  An "aggressive" strategy is just that, a strategy.  You should look at the trial process as a marathon, not a sprint.  And, the ultimate goal of any strategy is to win the Court's judgment because each and every case always has the chance of winding up at trial.  In order to win the Court's judgment, you have to win credibility from the Court.  To do so, an "aggressive" strategy must be utilized with planning and precision.  For example, race car drivers do not simply keep the vehicle at maximum speed the entire race.  Running backs do not simply run at full speed the entire game.  There must be strategy.  There are times when it is best to delay, times it is best to slow down, times to look for holes, times to decide when it's good to pass, etc..  An "aggressive" strategy is no different.  Simply being disagreeable, filing motions for the sake of wearing the other side down, and incurring costs for the sake of incurring costs amounts ultimately to what I call "chainsaw surgery."  It's ugly, if it goes on for too long it is not only ineffective but harmful, and it can quickly irreparably injure or kill anyone employing it.  Why?  Because repeatedly being in front of a family court judge and losing motion after motion loses the court's credibility.  Judges have very good memories and as cases develop and get to trial, they remember if a party has been before them and whether that party has been reasonable, has "cried wolf", or has been on a mission to win the war by attrition.  Everything in the case plays into the credibility the court assigns to each party at the end of the case.  "Aggressive" can be an effective strategy, and it can be a very good strategy, but it like any other strategy must be applied with precision.  The party that wins the court's credibility is far more likely to win the court's judgment.  To do so, an attorney must be effective, not just aggressive. 

How Many Applications for Receivership can a Creditor Make?

Applications to appoint a receiver are one method collections lawyers have to secure payment of judgments and other relief.  So, what happens if an application is successfully defended and the application is denied?  The law in Texas does not appear to be settled on what precisely the denial of an application means, and whether the applying party can re-apply for a receiver and when that application may be made is not clear.  If the application was technically defective in some way, is it possible that the applying party can simply remedy the defect and apply again?  What if the legal requirements for appointment of a receiver were not met.  For example, what if the applying party did not meet a substantive statutory requirement, such as the applying party failed to identify any specific non-exempt asset which the creditor cannot secure by ordinary process.  If the application is denied on such a basis, can the applying party simply re-apply and if so when?  Does the applying party have to then attempt to execute the judgment and fail, does the applying party have to do more investigative work or discovery?  The answers to these questions have not yet been answered by the higher courts in Texas, and they are ripe for presentation to the higher courts in Texas.  It is critical to anyone seeking or defending appointment of a receiver to seek out counsel familiar with receivership and well versed in receivership law. 

Arbitration in Divorce, Business Litigation, and Disputes

Arbitration, like collaborative or litigation, is a procedural mechanism for resolving divorces, business litigation, and disputes.  It is in essence a process by which the parties agree upon an arbitrator or panel of arbitrators to hear and decide their divorce or dispute.  It is sometimes referred to as "rent a judge" because that is basically what the parties do.  They pay a person or persons they desire to be the judge, hear their case, and render a final decision.  Some of the benefits to the parties is they decide who will resolve the dispute if they cannot do so themselves, they have more control over the process than if it were in a court system, and they may by agreement limit any right to appeal or post-hearing process so that there may be more finality to a decision rendered by the arbitrator.  It may also be more private since it is not a public proceeding.

Arbitration is a contractual process - both parties must sign an agreement to arbitrate.  The arbitration agreement will set out who the arbitrator or arbitrators will be, or will set out the method for selecting the arbitrator(s).  It will set out the powers and authority the arbitrator will have and the rules for the arbitration process itself, such as the ability to schedule conferences and hearings, the ability of the arbitrator to hear and decide motions, set out rules and deadlines governing discovery and evidence, set the final hearing date and place, set out whether there will be a record made by a court reporter of any testimony presented at the final hearing, set out what rights to appeal the parties may agree upon, set out whether the arbitrator will issue a simple ruling or a reasoned ruling that states the reasons for the arbitrator's findings, and other important matters.  The arbitration agreement should be well drafted by attorneys experienced with arbitration procedure, trial, and agreements.  It should set out all of the agreements and desires of the parties, since it will be the governing document throughout this process.  Arbitration agreements are governed by the Texas Arbitration Act and the Federal Arbitration Act, and attorneys handling arbitration should be familiar with the laws governing arbitration.

Arbitration may be administered privately or as specifically desired and directed by the parties in their arbitration agreement.  It may also be handled by an arbitration or dispute resolution organization, such as JAMS Arbitration, Mediation and ADR Services, the American Arbitration Association, and other such organizations.  Each such organization has its own costs which can be substantial.  These can include substantial initial filing fees, case administration fees, as well as the fees for the arbitrator(s) themselves.  Many parties find these fees exorbitant and prohibitive.  It is not necessary to utilize these arbitration organizations in order to arbitrate matters, as the parties can agree on many procedures and their arbitrator(s) themselves and conduct this process privately. 

The authority of arbitrators is limited, both by the agreement itself but also the law.  Arbitrators act as judges, but they do not have the authority of judges granted by the State.  For example, they cannot hold parties in contempt, they cannot enforce subpoenas, and they cannot compel witnesses to testify.  It is therefore recommended that a parallel legal action remain pending so that the parties can seek a judge's assistance if needed for issues the arbitrator(s) are not able to decide or handle. 

Arbitration can be a very effective and cost efficient process.  Seek out the advice of counsel familiar with arbitration to see if it may be worthwhile for your divorce or dispute.

The Changing Role of Fathers and Mothers in Divorce and Family Law

More and more, fathers are taking a more active role in their children and parenting.  They are seeking broader conservatorship rights and duties.  Visitation pursuant to a Standard Possession Order is become more inadequate.  And, more fathers are seeking to be the primary custodian of their children.  Similarly, mothers are spending more time outside the home.  Women are more frequently pursuing career and income opportunities, and fewer moms are staying home with kids on a full time basis.  There are a myriad of reasons for these departures from past norms.  For the family going through divorce today, it is important to recognize not only the roles the parents play in their family now, but the roles they see themselves playing in the coming months and years. 

It is important that the parents not only understand who they are when working to divorce, but who they want to be.  Many parents find themselves a year after the divorce with a new life, new goals, and new perspective.  As parents, it is important to not put on blinders during divorce and focus only on the here and now.  Divorce decrees are living, breathing documents.  They will be with the family for years, and it is important to consider future possibilities when drafting and negotiating today.   

The Importance of Deadlines in Divorce Cases

Many clients ask me why the divorce process can sometimes take a year or longer.  The reason is, most of the time, that divorce moves as fast as the slowest person.  What that means is that if one of the spouses wants the divorce over with quickly, the other spouse may not want the divorce at all or may just not be in a place psychologically to move through the divorce process at a rapid pace.  So, one spouse will get a decree drafted and deliver it to the other, and it will just sit there and sit there and sit there with no substantive response from the other spouse at all.  How do you keep this process moving under these circumstances?  The answer is deadlines.  Specifically either Court deadlines or collaborative deadlines by which certain benchmarks must be met.  In the litigation model, it means that the lawyer must timely and appropriately prepare the case for trial on its current setting.  This means that discovery requests must be sent, expert witnesses must be timely secured and designated, a sworn inventory must be timely prepared, depositions and trial subpoenas must be timely sent out, and all of this must be done on the schedule set by the Court.  Courts typically allow some amount of time early in the case with no deadlines so the parties can work the divorce out themselves.  If not, the Court expects parties to prepare for trial.  Either the case will settle or it will be tried.  A party that follows the Court's deadlines, but on a parallel track, works to resolve the case amicably has the best chances of successfully resolving the case amicably and by settlement.  The corollary to this in collaborative is to set deadlines to disclose/exchange all information and subsequent deadlines appropriate to the case to allow the case to develop timely and appropriately.  Consequences for missing deadlines should be built into the process, so that a party that needlessly drags his/her feet is motivated to move the process forward.  No process works so that it is amicable and inexpensive if only one person participates.  That's not to say that this should be a prompt or hastily moved process.  A longer process may be appropriate, especially in complex cases, cases with special needs children, or high asset cases.  But, the key to any process working for both parties requires they both participate.  Motivation must be part of any divorce process.

Divorce Decrees and Payments or Money Judgments - Now What Do I Do?

Many spouses in divorce are awarded either lump sum amounts or payments from the other spouse in as part of the division of property, either to pay debts, or to effectuate a just and right division of the community estate, or a myriad of other reasons.  What can be done if payments aren't made?  Or, what can be done if you were ordered to make payments and you're not able to do so?

If you were awarded money in a decree and your spouse won't pay, there are collection tools available.  One option is to file a motion with the Court to enforce the award.  The Court can order the award be made into a judgment, as well as order other relief to make the spouse pay the obligation.  An experienced family law attorney can assist you with evaluating your specific situation, and determine what possible collection methods may be available. 

What if you're supposed to make payments and you cannot do so?  For example, what if your financial situation changes and you don't have the money or can't afford the payments?  One option is to file a motion with the Court to modify the decree/award.  There are deadlines for such motions, and they should be brought as soon as possible if you are not able to afford your payments.  You don't want the motion to appear to be a litigation tactic if not brought for months or brought only after a motion to enforce is filed against you.

You need the guidance of experienced counsel, because every situation is different.  Also, there are tools and options for spouses in both of these situations.  These are just examples of some options available, and you should contact a lawyer to discuss options for your specific case and circumstances.    

"Collaborative" Divorce is a Mindset, Not Just a Process

I get many calls from potential clients asking me about collaborative divorce.  Typically, the parties do not have many or significant disputes, they want to work the divorce out themselves at their own pace and with good business judgment, and they do not want to fight or engage in a contentious process.  What they are surprised to learn is that you do not have to be in a formal "collaborative" divorce process to accomplish these goals.  Other divorce processes, including litigation, can also be utilized with this same mindset. The parties are in charge of the divorce mindset, not the attorneys.  Collaborative divorce is one process to get information exchanged, engage in discussions and negotiations, and ultimately reach a final decree to present to the Court.  Litigation, arbitration, and other processes can also be utilized with this same mindset, they are just different processes.  The process, whatever it may be, can be effectively used by parties not wishing to fight or suffer drama so long as the parties have a mindset and goal to remain amicable.  The important distinction to understand is that "collaborative" is not just a process, but an attitude.  Divorce is only as dramatic as the parties want it to be or let it be.  There are a myriad of processes available to get through the divorce process, including litigation, collaborative divorce, cooperative divorce (a hybrid of litigation and collaborative divorce), uncontested divorce, and private arbitration.  Which process is best for a particular divorce varies since every divorce is different.  Remember that whatever the process, any divorce can be collaborative if the parties want it to be.     

The Importance of the "Business Decision" Mindset in Litigation

Litigation, in its purest most big-picture form, is nothing more than a dispute.  Parties have a disagreement they can't resolve themselves.  So, one party seeks out someone, whether that is a court or an arbitrator or some other decision-making body, to decide it.  The other party participates, willingly or not.  Once that process begins, more often than not, for a myriad of reasons and justifications, the parties resolve the dispute themselves and settle it before it reaches trial or final hearing.  One important aspect of litigation, whether it's a divorce, a contract dispute, or whatever it may be, is why a case settles when it does.  Lawyers often describe litigation as a process, which it is.  It has a certain procedure, with certain benchmarks and deadlines, ultimately reaching conclusion by trial or final hearing.  It plays out over time, and is infrequently promptly resolved.  But, to the practitioner that pays attention to the psychology of the case, it also has an emotional or mental process that must also play out over the course of the dispute.  And, if this process is part of the overall strategy in developing the case, can lead to settlements faster and on more favorable terms than if this process is ignored. 

Litigation involves a certain amount of drama and negative feelings, including anger, outrage, and disappointment.  These feelings, coupled with every person's desire to be "right" and for external vindication by "winning" the case, impair a party's ability to examine and analyze the dispute from a more detached business perspective.  So long as a party is more focused on the emotional aspects of a case, it is difficult if not impossible to reach a business resolution of the case.  An attorney cannot force a case to resolution before the parties are themselves prepared to resolve it.  I often say that litigation moves as fast as the slowest person.  By this I mean that you can't force someone into a resolution mindset - that process has to play out in its own way, on its own timeline.  It can be very frustrating to the party that has reached a place where he or she is ready to simply make a "business decision" about the dispute and resolve it on business terms. 

So, it is important that the attorney take this aspect of the litigation process into account in developing strategies.  Strategies should not only be developed for preparing the case for trial or final hearing, but also for working to get the parties past the emotional aspects of the case and to a "business decision" mindset.  This is important not only to get the case into a place as promptly as possible to resolve, but also because the judge, arbiter, or arbitrators of the case will make his/her/their decisions on the case based on just such a mindset.  Understanding this aspect of the litigation process and incorporating it into case development and strategies serves the needs of the parties, puts the case and parties in a position to resolve it more promptly, and also prepares the case for a prompt and well presented "business decision" adjudication if it does not settle.