The courtroom is not a place where truth and innocence inevitably triumph; it is only an arena where contending lawyers fight, not for justice, but to win.
Clarence Darrow
Introduction
In this booklet we will try to set out only basic legal and procedural considerations in obtaining a divorce in Texas. Remember, this is only a basic outline. None of its contents contains anything specific to your individual case, although long experience indicates you will find most of it applicable. This booklet is not intended to take the place of consultation with the attorneys in this Firm. You should ask your attorney any questions which this memorandum does not answer for you. At the same time, we suggest you refer to this booklet frequently throughout your case, particularly when questions arise. Doing so will possibly save you money in legal fees and will generally keep you better advised on the progress of your case. As you read this, feel free to mark your questions on the margins or on the reverse sides.
How To Pick A Lawyer For Your Divorce Case
Laws concerning the family change rapidly, and the law is quite different from state to state within the United States. It has been said that the law follows changes in society by about ten years. If this is so, the upheaval seen in Family Law is simply a result of the upheaval in attitudes about family relationships prevalent in our nation.
It’s simply not possible for the large majority of people facing separation and divorce to go through it without competent legal counsel. But how does a person choose a lawyer? It isn’t easy.
First of all, both common good sense and the ethics of the legal profession prohibit any attorney from representing opposing parties to the same litigation.1 Sometimes there is only one lawyer hired in a divorce case, but that lawyer has only one client and can only be expected to protect the legal interests of that one client. Lots of what a lawyer does – and what most clients can’t do – is issue-spotting. Most of the remainder of what a lawyer does is issue-resolving. If there is only one lawyer, that lawyer is only going to mention the issues that are advantageous to his own client, and will only propose solutions that are advantageous to his own client. If that doesn’t sound fair, it’s because it’s not. In the long run of life, that has some interesting and unexpected results. It has been well-said, “In life, you don’t get what you want; in life, you get what you are.”
Having passed a state bar exam, lawyers are free to pick any area of law in which they want to practice, without further training in that area and without any experience in it. Despite this, some states recognize legal specialization; and some states do not.
Legal specialization, like medical specialization, is recognized in the State of Texas. The Texas Board of Legal Specialization certifies legal specialists in many fields of law. Certification, and re-certification, is based upon the following factors: 1) years of experience generally, 2) amount of experience in the particular field, 3) comments from peers and judges which the Board solicits anonymously, 4) certified hours of continuing legal education generally and in the particular field, 5) the record of the attorney with the State Bar of Texas Grievance Committee (ethics complaints and enforcement), and 6) written examination.
Family Law is one of the areas in which this Board certifies attorneys who have proven special competence.
Not long ago virtually all lawyers were general practitioners except in large cities. Recently more and more lawyers have restricted the number of areas in which they practice. The result is that fewer and fewer lawyers will handle a messy or complicated divorce. Those who will generally fall into four (4) categories.
The New Lawyer
The new lawyer who has to take everything to make ends meet. Watch out for this fellow. He means well but has little experience and may be wrong in his tactics, strategies, and predictions. This could cost you dearly. If he works for an experienced Family Law attorney, he has someone to fall back on if that someone makes himself available. However, if you go to a well-known attorney who refers you to his associate, be careful. The associate is probably pretty much on his own. His boss is too busy to keep an eye on him and doesn’t want to take the time to do so anyway. In the legal profession, the boss is sometimes referred to as a “lightning rod.” He attracts new clients by reason of his reputation, and then funnels them to associates who are relatively inexperienced. The lightning rod’s time is taken up attracting new business, and he does not keep up with your case as a regular matter of his routine. That is why lightning rods seldom give answers to you about your case without having to “call you back later” (after they have time to check with their associates to get brought up to date). You thus pay for two lawyers, one expensive and one less expensive, and generally get the benefit of only the less expensive.
The General Practitioner
The general practitioner. There are many left. Some are surprisingly good at handling divorce cases. Most are not.
The Semi-Specialist
The semi-specialist is the lawyer who does only a few things, and divorce is one of them. This lawyer will likely be up-to-date and highly competent. He may not know quite as much as the true specialist, but the difference will be minimal in all but a few cases. He may also be less expensive than the true specialist.
The True Specialist
The true specialist. This group is growing all the time. True specialists tend to be found in most urban and suburban areas. In Texas they are generally “Board Certified ‑ Family Law, Texas Board of Legal Specialization.” They also tend to be the most expensive.
What, then, are the qualities one should look for in an attorney to handle a divorce?
Experience.
There simply is no substitute for experience. Litigation, negotiation, and counseling are all skills learned by experience, not out of a book. Five years’ experience in Family Law is a minimum. Oliver Wendell Holmes is quoted as once writing, “The life of the law is not logic, but rather experience.” (Emphasis added.) Perhaps that is why the Texas Board of Legal Specialization will not even accept an application for certification in Family Law from an attorney with less than five (5) years experience.
Experience also breeds the right sort of reputation (i.e., how the lawyer is seen by other lawyers). It’s very important that opposing counsel respects your lawyer’s competence, both in and out of the courtroom. It is not important that opposing counsel personally likes or dislikes your lawyer’s personality. If opposing counsel does not respect your lawyer’s competence, your side of the case will not be negotiating with a full hand. Be wary of lawyers with big reputations among the public at large. That sort of reputation will generally cost you an arm and a leg and will probably not help you unless yours is among the very largest of cases. You will note the emphasis on respect for competence as opposed to popularity. It is not necessary that other lawyers think your lawyer is a nice guy or gal. In fact, that might do your case harm. A very eminent plaintiff’s personal injury lawyer in Dallas has been quoted as saying, “When I die, I don’t want the insurance defense bar to come to my funeral and say, ‘Poor old __________. He sure was a nice guy.’ Instead, I want them to say, ‘Thank God he’s finally dead. Now maybe I can win a case once in a while.’”
Actually, the so-called “barbarian” credited with ending the 1000 year supremacy of the Roman Empire perhaps said it best:
“Know that your most worthy efforts will be scorned by your peers, for it is they who suffer most when you excel. If your actions and ambitions do not threaten them, you are simply striving toward the insignificant.”2
Winning and losing are not easily defined in the context of divorce litigation, even in custody fights. In fact those two extremes might be impossible. Generally speaking, however, if your attorney can obtain a result reasonably close to what you say you want, he will consider it a “win.” So will you.
Efficiency.
Second, there is efficiency. The biggest source of malpractice in the field of Family Law is the inability of a lawyer to get his work done on time. Many lawyers have piles of work on their desks and may be even months behind. Their problem quickly becomes your problem. A good lawyer must have gained the ability to get a day’s work done in a day.
A corollary to this is communication. The client should receive a copy of every letter or document on the case that passes through the lawyer’s hands. It should be transmitted to the client generally within one (1) working day. The sooner, the better. It is now possible to send most documents to our clients via the Internet if the client has a secure personal computer with a modem, checks for e-mail at least daily, and is a subscriber to one of many Internet Service Providers. Under such circumstances, the client and the attorney can communicate in writing in virtually real time. The client should also be informed, probably in writing, of every telephone call or conversation in the hallway of the courthouse that relates to the case. Obviously, only an efficient lawyer can do this.
Commitment To Your Best Interest.
Third, the lawyer should be committed to finding the quickest, least-expensive, and most-fair resolution of your case, by negotiation if possible. So should you. Get rid of the idea that going to court will vindicate your sense of justice. It almost never does. The sooner a settlement can be reached, the sooner your own level of emotional trauma and uncertainty will be brought under control.
In the Spring of 1996 I represented one of the wealthiest men in Dallas in a divorce case. His wife was represented by a high profile attorney who is one of the pretty-boy darlings of the Dallas County Courthouse – socially prominent, very popular among the Judges and Associate Judges, and a “big hand man” and regular attendee at their fundraisers. My client sued his newly wedded wife for divorce because the wife had promised to sign a Premarital Agreement, then a Postmarital Agreement, but was dragging her feet with an obvious intent to commingle. Much more heat than light was generated by the wife’s legal counsel in response to the divorce suit filed by the husband. For several weeks the wife‘s attorney uttered empty but bellicose threats with a particularly flamboyant flair. After just about one month of my client standing firm, however, the wife announced that she would, after all, sign a Postmarital Agreement which secured my client’s separate property assets and income. My client was in my office and listening to the speaker phone as my worthy opponent yelled at me, “G^*+#it, Fanning, you f@#^*&d this case up unbelievably. We could have milked this case for a quarter of a million dollars apiece over two years if you hadn’t allowed this settlement.” That’s an exact quote.
I found it ironic, to say the least, that more people at the Dallas County Courthouse would describe that lawyer as a “nice guy” than they would me. Every person upon becoming an “Attorney And Counselor At Law” in the State of Texas swears a statutorily prescribed oath. It reads, “I do solemnly swear that I will support the Constitution of the United States and of the State of Texas; that I will honestly demean myself in the practice of law; and will discharge my duty to my client to the best of my ability.”
From this you can deduce the obvious: Some people take their oaths more seriously than do others. I think being honest and ethical as an attorney makes me a “nice guy.”
Confidentiality.
Fourth, the lawyer should be very careful about maintaining confidentiality regarding his clients. There is a simple way for you to find out about this. Simply pay close attention to his office and the things, if any, he says about his other clients. You should not be able to see the contents of papers pertaining to his other clients. There may be other papers on his desk, but you should not be able to see what they say. They should be covered or turned over. He should not mention the identities of his other clients and what they say to him. “War stories” are permissible, but not when accompanied by the identities of his clients. If he will talk about confidential information pertaining to other clients, he will surely talk about confidential information pertaining to you.
Lawyers are obligated by law to keep client’s confidences. This applies to people who just inquire about hiring the lawyer too. This is a professional obligation, enforced by the law and the Rules Of Professional Conduct. By the same token, however, the law specifies certain limitations upon this “attorney-client privilege.” A lawyer must not keep information confidential if withholding that information would lead to the perpetration or concealment of a crime or fraud or if the information is necessary to defend the lawyer against an accusation of professional wrongdoing or is relevant to the collection of a professional fee. A lawyer must disclose to a Tribunal, if the client will not, that a client has not told the truth under oath; and a lawyer is required to report to the Texas Department Of Protective And Regulatory Services any information by which the lawyer is informed of the existence of child abuse.
Also, frequently people are nervous about talking with an attorney. Sometimes they think they will feel more comfortable if they are accompanied by a trusted friend or relative to the law office. If you do this, nothing you tell your attorney in the presence of your friend or relative will be protected by the laws of confidentiality.3 In effect, you will be waiving the protection of those laws.
Objectivity.
Lastly, the lawyer you choose should be able to maintain his objectivity. Don’t misinterpret this as a lack of compassion for you or as a lack of loyalty to your case. In the same way that a surgeon would be of no use to the patient if he burst into tears upon entering the operating room because his patient is so sick, so a lawyer is of no use to his client if he assumes the same sense of moral crusade that many clients have. A good lawyer must be able to cut through the whole dramatic circumstance to the smaller percentage that has any legal relevance. The lawyer is not your pastoral or psychological counselor. Some lawyers have excellent “bedside manner.” Bedside manner does not win lawsuits any more than it cures sick people, and may be of doubtful assistance to the client in finding practical solutions to legal problems. Most clients have friends and relatives who will sympathize with them. In addition, friends and relatives usually do not charge for their time. Lawyers generally do charge for their time. Furthermore, most clients need one good attorney to help resolve legal problems more than they need one additional sympathetic shoulder on which to cry. Constructive resolution of legal disputes in the context of Family Law requires every client to look – squarely in the eye – at his own weaknesses, as well as his spouse’s. Sympathizers generally only agree with you and point out the other person’s faults. That is not what the Family Law client needs. “As iron sharpens iron, so one man sharpens another.” Proverbs 27:17. Look for a lawyer who has your legal interests at heart and who has a good bedside manner, but who maintains his objectivity and will tell you the truth about you ‑ both the good and the bad.
So how do you find such a person? People seek lawyers in many ways. Because Texas is among the states that certify specialists in different areas of the law, perhaps you should start in the Yellow Pages under “Certified Specialists – Family Law.” There you will find the true specialists who choose to advertise their specialty. Even if you don’t need one of them, you can still call them with your questions about the competence of an attorney you may be interested in checking out. Nobody can better judge a lawyer than other lawyers who have tried cases against him and negotiated with him, or referred clients to him in the past and received good reports. If you call three lawyers who advertise in the Yellow Pages that they handle Family Law and ask each one who “the most competent” divorce lawyers are in the locality, you will probably notice you’re hearing the same names repeatedly. Stick with “the most competent,” do not pay attention to any comment on personalities. Then ask if there is any personal or past professional or business relationship between him and any of the persons he recommends. That could indicate cronyism. If the lawyer tells you that he himself is the best, he might be right!
Another way is through professional counselors. Many psychologists, psychiatrists, and other licensed professional counselors deal with attorneys in divorce cases because the attorney has the same person as a client as the counselor has as a patient. Some of these counselors develop a great deal of experience over several years with divorce attorneys, both good and bad.
Other ways of selecting a lawyer include State Bar or local bar association referral systems and referrals by professional organizations. The American Bar Association and the State Bar of Texas have Family Law sections. Ask if the lawyer is a member of the Family Law Section.
Word-of-mouth referrals are generally not reliable. Word-of-mouth referrals may tell you a lot about an attorney’s manner, pleasant or unpleasant personality, and apparent competence (as it appears to a lay person), but they probably will tell you very little about true competence. After all, the only way you know your doctor is a good physician (as opposed to “a really nice guy”) is most likely because he hasn’t killed you yet. The same is true of lawyers. If the lawyer has a pleasant personality and projects an image of really caring, statistical studies indicate his clients will be pleased with him even though they lost their cases. Above all, don’t compare your case to somebody else’s. Most former divorce clients are left with inaccurate impressions and with many things they misunderstand. Their case is not your case and they are not you.
Inquire what the lawyer’s views are toward mediation. Has he used it? How often? What does he think of it? When should it be done?
Points you should look for in his answer are: Mediation bears serious consideration and should be attempted in any divorce case where there is a hot dispute over any issue. Most importantly, it works. Mediation only works fairly, however, when both parties are in possession of the relevant facts. For example, in a stereotypical case where the husband has managed all the financial assets and the wife has been the homemaker and mom, the beginning of the case when there has been no discovery of financial information is not the time for that particular wife to mediate. In an adversarial sense, it may be the perfect time for the husband to mediate.
If the attorney you interview does not respond with these points in some form or fashion without you suggesting them or dropping any hints, you had better look further for legal counsel.
Whomever you select, it is absolutely essential that you trust the individual and feel comfortable with him. It’s one thing to insist on explanations, it’s another to be constantly suspicious. The lawyer who knows his client trusts him will usually work harder and more efficiently than the lawyer who feels his client doubts him.
Judges and opposing counsel usually view this the same way. It is frequently disastrous to change lawyers in the middle of litigation. The successor counsel has to familiarize himself with all the facts – re-plowing the same ground, effectively doubling your hourly rate up to that point. Then successor counsel has to “catch up” tactically and strategically with both the case (Yes, it has a life of its own.) and his opposing counsel, as well as any active orders on file which the Court has signed. This is the reason that lawyers do not encourage clients to change lawyers. It has usually nothing to do with cronyism. By the same token, if you hear a lawyer say negative things about your lawyer, be suspicious of the possibility that he is just trying to steal your practice rather than truly help you. No competent lawyer would express an opinion about another lawyer’s work on a case without a personal examination of the documentation of that case. The old adage given by Abraham Lincoln (himself a lawyer) is usually correct in the context of this subject: “If you don’t trust a man, don’t hire him. If you hire a man, trust him.”
A word about fees. Virtually all attorneys handle contested divorce cases on an hourly fee basis and require a retainer paid in advance. Rates do vary, and you should not be afraid to shop around. But you should remember that most often a lower hourly fee means a less-experienced, less-competent lawyer; and a flat fee from a clinic usually means a secretary will know your case better than the lawyer does. Your objective should be to pick the lawyer you think you need for your particular circumstances. Unfortunately, that may be easier said than done. A person who wins his litigation usually never knows if he has done too much. A person who loses his litigation usually believes he has done too little.
There are two sayings in our culture that come to mind at this point. Even though they stand for almost directly opposite propositions, ironically both are popular. One is, “You don’t get something for nothing.” The other is, “You get what you pay for.” In fact, neither is true. You can get a dread disease for nothing; and, if people always got what they paid for, there would be no need for a Texas Deceptive Trade Practices ‑ Consumer Protection Act (and there is). What I believe is correct is, “You don’t get something you want without cost to you, unless it comes from God.”
The vast majority of lawyers are honest, reasonable individuals. However, there are also those who rarely try to really settle a case because they command the highest fees by projecting the image of a fighter. Too many people suffering the trauma of a divorce fall prey to the fighter image. The client potentially needs an attorney who can fight very effectively, has proven that he can, and therefore has the reputation for that ability. However, the route of actually fighting is very expensive and in most cases unnecessary. The vast majority of cases – approximately 98% – are ultimately settled by mutual agreement. Sometimes after spending many thousands of dollars, clients finally learn that divorce is not a battle to be won but a complex circumstance to be settled, fairly. As a general rule, the sooner both parties to a divorce case – and their lawyers – learn this and can accept it emotionally, the sooner they will both benefit. Later in these materials there will be more about the topic of reasonable and necessary attorneys’ fees.
Whomever you select should be able to provide you regularly (at least as often as monthly) with a detailed billing statement itemizing every action taken and the time and cost associated with it. The itemization should be in English (not computerese) and be explanatory. If all the itemization says is, “T/C .25 hrs.,” that, in my view, is not an explanatory itemized statement. I might be able to figure out that “T/C” means “telephone conference”; but I won’t know with whom it occurred or what was discussed. Find out if the attorney you are interviewing, and his Firm, give full and complete, explanatory itemized statements in English (not just symbols). It is wise to insist upon this and to review each statement carefully when it arrives. If you have questions about what a statement entry says, you should not be charged for inquiring about it. You may not understand why something was done because you’re not a lawyer and don’t need to become one; but you should be able to read the statement learn what was done without additional charge. If you want to know why and you inquire, it may be proper to charge you for advice and counsel.
The itemized statement should be so clear that it would be valuable to the opposing party if it should fall into his or her hands. Therefore, after careful review and if you are satisfied it is fair, the itemized statement should be destroyed or placed absolutely beyond even the imaginable grasp of your opponent.
Do not expect a cheap divorce, and be prepared to pay what it costs. It’s ironic that people who do not hesitate to pay a realtor 6% of the gross value of only their house for what usually amounts to a few hours of work will balk at paying a lawyer a comparable fee for performing tasks entailing much greater responsibility, tasks which are many times more complex and time consuming, and tasks which are performed under much more adverse conditions. Many people have to borrow the amount of the retainer. Good legal advice can be worth many times its cost in property settlement or support figures. What price can be put on non-economic factors concerning custody of children, retirement benefits earned over an entire career, or the possession or control of a family business or home? It’s far, far wiser, indeed, to pay what good counsel is worth than it is to seek a bargain and later – when it’s too late – question whether you made a big mistake.
Remember, however, that whatever the married partners resolve on their own, with or without mediation through a neutral party, will mean less time your lawyer has to spend on your case. This may or may not be a good thing, depending on variables that one side may not unilaterally be able to control. However, the deliberate escalation of hostilities will always bring with it more cost to all parties.
Remember also, however, sometimes the alternatives to litigation are unacceptable, no matter how much money can be saved. Be very sure you retain control over this decision on your side of the case.
Introduction To The Law Offices Of Paul T. Fanning, P.C.
The Law Offices Of Paul T. Fanning, P.C., is a professional, legal service corporation. The lawyers and staff operate as a team, each primarily doing those tasks which he or she can most efficiently and effectively perform. For example, our Legal Assistants and Legal Secretaries will handle much of the information gathering and status reports. A Legal Assistant will assist the attorney throughout the handling of your case, just as a nurse assists your doctor in handling important aspects of your medical care. Our Firm uses Legal Assistants for many tasks the way most other firms use associates (young lawyers). 
It has been our experience that Legal Assistants stay with the Firm longer, are more detail-oriented, are more efficient, are more effective, and are more reliable for most tasks related to Family Law than are young lawyers. There is a famous lawyer from Dallas who pioneered the effective use of Legal Assistants in Family Law. He frequently tried cases against other famous lawyers who used young lawyer associates instead of Legal Assistants. He used to sometimes tell his opposing counsel before trial, “My dog can hunt better than your dog.” Time and experience proved him right. He was Mr. Fanning’s principal teacher and mentor in the area of Family Law. Legal Assistants are employed at The Law Offices Of Paul T. Fanning, P.C. because they are efficient and because they are effective. Legal Assistants always provide their professional services under the supervision of a licensed attorney, but their proper utilization almost always results in savings for the client. You will likely be dealing with more than one staff member during the course of our professional relationship, including perhaps more than one attorney.
Not only do the lawyers and staff operate as a team, whenever possible we attempt to incorporate our clients as part of the team too. A perfect example is what you are doing right now. As you read this, you are doing something very worthwhile and valuable. You are becoming educated. This will serve you well in dealing with what you are going through right now and will go through later. It is also valuable because it will assist us in carrying out our responsibility to assist you. In addition, you will shortly be filling out a questionnaire. That might seem mundane, but would you really prefer to pay a lawyer, or even a trained staff person, up to several hundred dollars to gather information about personal identification data, personal values and choices, and financial information while that lawyer or staff person sits across a desk or conference table from you, essentially doing the same mundane work of filling out a form? If it’s got to be done and you can do it, why shouldn’t you be allowed – and even expected – to be of assistance to your own case?
Mr. Fanning was born in Chicago, Illinois, on July 12, 1945. He was educated at Loras College, Dubuque, Iowa; Purdue University, West Lafayette, Indiana; and The University Of Texas At Austin, Austin, Texas. He earned a Bachelor of Arts Degree in 1968 from The University Of Texas At Austin, where he maintained double majors in Government (Political Science) and Economics. He earned the Juris Doctor Degree in 1972 from The University Of Texas School Of Law.
Mr. Fanning is double Board Certified, which is very rare. He is Board Certified in the specialized field of Family Law by the Texas Board of Legal Specialization. Mr. Fanning is also Board Certified in the specialized field of Civil Trial Law by the Texas Board of Legal Specialization and is rated “av” by Martindale‑Hubbell. Martindale‑Hubbell has been authoritatively rating attorneys in the United States and around the world for more than 125 years. Its ratings are based primarily upon comments and recommendations solicited from the attorneys and judges who know the person being rated. Almost every attorney in the United States is listed. The ratings are for Legal Ability ‑ “a,” “b,” and “c” – and General Ethical Standards – “v” and “x.” The meanings are:
| LEGAL ABILITY RATING |
GENERAL ETHICAL STANDARDS RATING |
a - From Very High to Preeminent
b - From High to Very High
c - From Fair to High Ethical Criteria |
v - Very High
x - Does Not Meet |
The “av” rating is the highest rating possible, and is earned by only about 8% of all attorneys. Less than two-tenths of one percent (<.2%) of all Texas attorneys are double Board Certified.
Mr. Fanning is also a trained, experienced, and certified Attorney-Mediator, who is qualified under the Texas Alternate Dispute Resolution statute to mediate both general civil disputes and Family Law disputes. Mr. Fanning received the following formal mediation training: Basic Certified, Attorney-Mediators Institute, Houston, Texas; Family Law Certified, Attorney-Mediators Institute, Houston, Texas; Basic Courses, Dallas Bar Association Settlement Week; Texas Department Of Regulatory Services (TDPRS), Children’s Protective Services (CPS) and Children’s Justice Act (CJA) Certified, Dispute Resolution Center, Harris County, Texas, Houston, Texas. Mr. Fanning is also a Certified Advanced Practitioner in Neuro-Linguistic Programming (NLP).
Mr. Fanning has been a visiting guest lecturer at the Southern Methodist University School Of Law in 1994 and from 1976‑1979 was an Instructor at the Southern Methodist University School of Continuing Education, where he taught courses on the Texas Rules of Civil Procedure. The Texas Rules of Civil Procedure regulate how litigation is conducted, and in some cases “fought,” in all state court civil cases, including divorce cases. During academic year 1999- 2000 Mr. Fanning served as a High School Teacher at his high school alma mater, Marian Catholic High School, Chicago Heights, Illinois (one of the top 100 high schools in America, U.S. News & World Report, as is the other high school Mr. Fanning attended, Quigley Preparatory Seminary) where he taught Juniors and Seniors Advanced Placement Economics.
Mr. Fanning was invited to, appointed to, and served for eight (8) years on the Professional Efficiency and Economics Research (PEER) Committee of the State Bar of Texas, from 1974 through 1982. During that time he served as a member of a pool of speakers, sponsored by the State Bar of Texas, which was available to and did give lectures to local bar associations throughout Texas. Mr. Fanning was a frequent speaker in Texas and throughout the United States on the subject of law office efficiency and economics. Mr. Fanning’s invited lectures to lawyers have been as far East as Long Island, N.Y.; as far West as San Francisco, California; as far North as Minneapolis, Minnesota; and as far South as Cancun, Quintanna Roo, Mexico.
Mr. Fanning has authored and presented many professional papers. Among them are: “The New Word Processors: Floppies, Bubbles & Beads – Free At Last!(?),” presented at the State Bar of Texas Tenth Annual Legal Secretaries Seminar, 1978; “Salvation For The Solo Practitioner,” an annual seminar for attorneys and their staffs sponsored by the State Bar of Texas from 1976 through 1981; “Divorce: Division of Assets, Alimony, & Child Support,” National Business Institute Domestic Law In Texas Seminar (for attorneys), 1991. “Determining Marital Assets,” National Business Institute Domestic Law In Texas Seminar (for attorneys), 1991. “Retirement Plans: Valuation And Distribution Upon Divorce,” National Business Institute Domestic Law In Texas Seminar (for attorneys), 1991. “Avoiding Grievances And Malpractice In Family Law Litigation,” Smith County (Tyler), Texas, Bar Association, Tyler, Texas, January 13, 1992. “Preparing For The Grievance Committee Before The Client Even Walks In The Door,” Plano (Texas) Bar Association, December 2, 1994. “Negotiation And Mediation In Disciplinary Proceedings After Determination Of Discipline By Grievance Committee,” Seminar for Investigators and Prosecutors of the Grievance Committee for the Sixth Bar District of the State Bar of Texas, June 4, 1997. “Newly Enacted Legislation Affecting Texas Family Law Practice And Avoidance Of Selected Ethical Problems,” Smith County (Tyler), Texas Bar Association, June 13, 1997. “Preparing For The Grievance Committee In Family Law Cases Before The Client Even Walks In The Door,” Tyler Area Association Of Legal Professionals, Tyler, Texas, September 6, 2000. “Preparing For The Grievance Committee In Family Law Cases Before The Client Even Walks In The Door,” Brazos County Bar Association, Bryan/College Station, Texas, October 27, 2000. “Collaborative Law,” East Texas Psychological Association, September 19, 2001.
Mr. Fanning is currently writing a book, presently in manuscript form, which he has tentatively titled Love Or Illusion. This book consists of “Thoughts Directed Primarily To Divorced Persons Who ‘Do Not Want To Make The Same Mistake Again.’” If you are just beginning to go through a divorce right now, you’re probably not ready to read it.
Mr. Fanning is a member of the Texas, Illinois, and Smith County Bar Associations; and the Texas Academy of Family Law Specialists. Mr. Fanning is a former member of the Dallas, Plano, Collin Bar Associations; Texas Association of Matrimonial Lawyers; North Texas Association of Family Law Specialists; Texas Association of Civil Trial Law Specialists; Texas Trial Lawyers Association; American Trial Lawyers Association, and American Bar Association. Mr. Fanning was admitted to practice law by the Supreme Court of Texas in 1972; by the U.S. District Court, Northern District of Texas and U.S. Court of Appeals, Fifth Circuit, in 1973; by the United States Supreme Court in 1976, and by the Illinois Supreme Court in 2000. Mr. Fanning is a Member of the College of the State Bar of Texas. Approximately 8% of all attorneys in Texas are members of the College of the State Bar Of Texas. Mr. Fanning is a member of the Association of Attorney-Mediators and the Texas Association of Mediators. Mr. Fanning has completed the Basic Course of the Collaborative Law Institute of Texas.
Some of the reported cases in which Mr. Fanning has participated on the appellate court level are: Misium v. Misium, 902 S.W.2d 195 (Tex. App.—Eastland 1995, writ denied);Young v. Young, 854 S.W.2d 698 (Tex. App.—Dallas 1993, writ dism’d.) (incorrectly listed as counsel for Appellee); Ex Parte Craig Hall, 854 S.W.2d 656 (Tex. 1993) (orig. proceeding) (writ of habeas corpus granted); Naydan v. Naydan, 800 S.W.2d 637 (Tex. App.—Dallas 1991, no writ); Heissner v. Koons, 679 S.W.2d 112 (Tex. App.—Dallas 1984, orig. proceeding) (writ of mandamus conditionally granted); Ex Parte Jackman, 663 S.W.2d 520 (Tex. App.—Dallas 1983, orig. proceeding); Volpe v Schlobohm, 614 S.W.2d 615 (Tex. Civ. App.—Texarkana 1981, no writ); Cole v. Cole, (unreported, but victorious) (Tex. Civ. App.—Eastland 1980, writ ref’d w.o.j.); Volpe v. Stephens, 589 S.W.2d 809 (Tex. Civ. App.—Dallas 1979, orig. proceeding) (writ of mandamus granted); Cole v. Chapman, 584 S.W.2d (Tex. Civ. App.—Dallas 1979 orig. proceeding);and O’Brien v. Cole, 532 S.W.2d 151 (Tex. Civ. App.—Dallas 1975, no writ).
Mr. Fanning is himself divorced and was the parent sole Managing Conservator of his three (3) children: Kevin Paul Fanning, Timothy Paul Fanning, and Katherine Michelle Fanning. He is now the proud grandfather of Joseph Trinity Fanning, his only grandchild (so far).
Mr. Fanning is a life member of the Texas Exes (Alumni Association of The University Of Texas At Austin), the National Rifle Association, and the Army National Guard Association of Texas. Former member, Willowbend Church, Plano, Texas and Scofield Memorial Church, Dallas, Texas; founded and served as the Coordinator of Scofield Memorial Church’s Divorce Recovery Support Group. Other affiliations and memberships, past and present, include the Dallas Museum of Art; the Dallas Opera Society; the Dallas Zoological Society; the Chicago Zoological Society; the Metrocrest Republican Club; the Harley Owners Group (H.O.G. – Former Assistant Director [Board of Directors] Dallas Chapter; presently a member of the East Texas and Chicago Chapters. Formerly a member of North Texas, Dallas, and D/FW Texas USA Chapters); The Bros. Club; Tyler Kiwanis Club; Tyler Lions Club4; the National Geographic Society, and American MENSA. Mr. Fanning is a Keeton Fellow, The University Of Texas School Of Law Alumni Association; a Master Mason, St. John’s Lodge #53, Tyler, Texas (A.F.&A.M.)5; a 32° Mason, Scottish Rite of Free Masonry6; a Knight Templar of Commandry #25, Knights Templar7; Member, East Texas York Rite College; Noble of Sharon Temple, Ancient Arabic Order Nobles of the Mystic Shrine for North America (“Shriners”), Tyler, Texas (member, Directors Staff; Co-Chairman, Membership Committee; Traveler, Membership Committee)8; Royal Order Of Jesters; and The Tyler Centurions.
Our Views On Divorce And Counseling
Marriage can be a difficult proposition for any two people. It requires both spouses, working together, to make a happy marriage; but only requires one spouse to make a marriage unhappy for both. By the same token, it has been well said that success in marriage has less to do with finding the right person than being the right person.
Perhaps ironically, the members of this Firm have a definite prejudice in favor of holding a marriage together. We are also prejudiced in favor of our clients making the decisions that are right for their personal well-being, and in seeing to it that if they do seek a divorce, they receive fair or better-than-fair treatment at the hands of the legal system.
At the outset you should know we do ask you to be absolutely certain your marriage has passed the point of saving. This is not our decision; it is yours. Please do not ask us whether we think you should get a divorce. East Texas has a number of counseling resources available – psychologists, clinical social workers, clergy, etc. – who are skilled, licensed, and experienced in marriage counseling.
Counseling seldom works magic or provides immediate solutions. A good counselor seldom makes judgments as to who is at fault and seldom dictates to either spouse whether he or she should seek divorce. On the contrary, counseling at its best helps the parties to understand better what they are doing to and for each other in their marriage relationship and why, what each person’s individual needs are, and whether the other can comfortably meet those needs. Counseling often gives new perspectives on peoples’ lives and often causes them to make changes in their lifestyles which make the marriage more mutually satisfying. At times after counseling some people decide they are better off divorced; but counseling usually still helps them to accept divorce in as positive a light as possible and to view themselves and their spouse with more understanding. This in turn should assist the formerly married person to more easily cope with his or her new single status and to develop coping mechanisms for unresolved feelings of bitterness, anxiety and/or lack of self-esteem.
If you would like, we can make recommendations concerning several counselors, including certain background information on each. If you feel there might be some stones left unturned before giving up on your marriage, we strongly encourage you to make contact with one of these counselors. If, after counseling, you are still of the opinion that divorce is the best course of action for you, we are here and ready to professionally serve you.
Emotional Problems While Case Is Pending
Divorce is never easy. It is never pleasant. It is the death of an important relationship. If you are normal, you are undergoing the human grieving process as you are reading this. When humans grieve they experience five (5) distinct emotional “stages” which proceed generally in chronological order but with spillovers back and forth. If you drew the five (5) stages on a horizontal line, left to right, the spillovers would be superimposed over the line like a vertically compressed, spiraled helix. This means that a grieving person will be experiencing more than one emotion at one time, but as he or she moves from left to right down the horizontal line, the grieving person will experience an emphasis of each individual stage. From first to last, the stages are: 1) Denial/Disbelief; 2) Anger; 3) Bargaining (sometimes with God‑“I’ll do anything to get the relationship back.”); 4) Sadness/Depression (when bargaining inevitably fails [because, for example, God does not work like that]); and, finally, 5) Acceptance/Resolution.
The human grieving process impacts significantly on the attorney-client relationship in Family Law cases. As a client passes from one stage of the grieving process to the next during a time of personal pain and tragedy, frequently (actually “almost invariably”) what the client wants to attempt to accomplish through the legal process will change. This is confusing both to the client and to the attorney. The Texas Rules of Professional Conduct applicable to attorneys in the practice of their profession are written with the incorrect presumption in Family Law cases that the client’s aims are constant and that the attorney knows what they are. Experience shows this is not true of divorce clients or divorce cases. For example, compare stage 2 (anger) with stage 4 (sadness/depression) or stage 5 (acceptance/resolution). Attorneys must zealously seek to accomplish the lawful and ethical goals of their clients; but taking steps to ventilate a client’s anger (stage 2) is inimical to taking steps to accomplish resolution through negotiation (stage 5). Yet it is a client’s absolute right to “go for blood” now – only perhaps to regret it later. It is an attorney’s ethical responsibility to advise and counsel you concerning what the law allows and what his experience indicates will be the possible and/or probable consequences of the choices you make. It is not an attorney’s responsibility to make your choices for you. You are an adult. It is your responsibility to choose among the choices which are available to you, and then to live with the consequences – win, lose, or something in between.
If you do find you are experiencing difficult emotional problems while the divorce is pending (which would be normal), we strongly encourage you to employ a professional counselor for your personal benefit. While we have had a lot of experience in these matters and may express our personal opinions, we are licensed specialists in law and trying cases; we are not licensed in psychology or related counseling. A professional counselor may help you with emotional problems much more effectively and much less expensively than we. If you do decide to employ a counselor to offer assistance to you while a suit for divorce is pending, please let us know beforehand. There are important legal considerations relating to privileged communications involved and the possible waiver of those privileges. You should obtain legal advice about these from your own lawyer.
In addition, several books may be helpful to you during this period of time, depending on your needs. We suggest you consider:
Baldwin, Eleanor, 300 New Ways To Get A Better Job, Bob Adams, Inc., 260 Center Street, Holbrook, Massachusetts 02343. The title says it. Among the 300 ways are: Accept radical change as the only constant. (New way #1.) Forget traditional job seeking techniques (including newspapers, employment agencies, etc. ‑ New way #85). Make personal contacts instead of mailing resumes. (New way #149.)
Burns, Bob & Tom Whiteman, The Fresh Start Divorce Recovery Workbook, Oliver‑Nelson Books, Nashville, Tennessee. A step‑by‑step program of divorce recovery for those who are divorced or separated.
Burns, David D., M.D., Feeling Good, The New Mood Therapy, Signet Books, 1633 Broadway, New York, New York 10019. Cognitive therapy approach to treating major depression. Also useful to gain insights into depression in others, how to recognize it, and how to react (or not react) to it.
Gardner, Richard A., M.D., The Boys And Girls Book About Divorce, Bantam Books, 666 Fifth Avenue, New York, New York 10103. See also The Parents Book About Divorce and The Boys And Girls Book About One‑Parent Families by the same author. How a young child perceives divorce, and practical suggestions on how to help the child cope.
Halpern, Howard M., Ph.D., How To Break Your Addiction To A Person, Bantam Books, 666 Fifth Avenue, New York, New York 10103. Are you in love ‑‑ or addicted? How and when to call it quits.
Smoke, Jim, Growing Through Divorce, Harvest House Publishers, Eugene, Oregon 97402. General practical issues regarding divorce and practical suggestions on how to cope.
Walker, Lenore E.,The Battered Woman, Harper & Rowe, Publishers, Inc., 10 East 53rd Street, New York, New York 10022. Describes the cyclical behavior syndrome that glues together a charming but violence‑prone man and a loving, guilt‑ridden woman. This is a common syndrome and knows no economic, racial, or other class boundaries.
All of these books are available from major bookstores in the area or, of course, from various web sites. If you are or soon will be separated, you will have more time to read. We suggest you use your time wisely and constructively.
Relationship Of Attorney And Client
You should know we will give our complete loyalty to you in your case for as long as we are your attorneys. Your spouse is not our client; and we will do nothing for or on behalf of your spouse unless you tell us otherwise.
However, don’t be misled or confused if you find us dealing with your spouse’s lawyer on a friendly basis. Professional and common courtesy (not to mention the tactics of settlement, negotiation, the Texas Lawyers Creed, and manipulation) usually dictate we maintain at least the appearance of good relations with other lawyers in our practice. You will find that good lawyers are perfectly capable of fighting most zealously in a courtroom or at a negotiating table, and then discussing on an amicable basis personal matters between themselves when the controversy between their respective clients is over. Be assured our loyalty to you comes first and your legal interests are always paramount, regardless of whether we are friendly with opposing counsel.
We will treat whatever you tell us in confidence. This is our professional obligation, enforced by the laws of Texas and the Texas Rules Of Professional Conduct. By the same token, be aware before you talk with any attorney that the law specifies limitations upon this “attorney‑client privilege.” These have been referred to previously.
We encourage you to be totally honest with us and the Court, and to give us full information on anything which you or we consider to be important in your case. If we have to go to trial on any part of your case, we will be in a poor position to help if we don’t know all the relevant facts well beforehand, including facts which you may find embarrassing to disclose.
Don’t allow embarrassment to prevent you from being candid. Often a client will believe something in his or her background to be harmful, whereas, in fact, it is not. We can probably do something about facts which actually are harmful if we have sufficient advance knowledge about them. They may not be as harmful as you think. But if you leave us in the dark, you will usually end up worse off by having an attorney who is unprepared and subject to being taken by surprise by his opponent.9 This can also waste your investment in attorneys’ fees.
For example, on the Questionnaire you will be asked at least one question concerning sexually transmitted disease (“S.T.D.”). This is not a popular topic in polite society. However, this question is not asked out of idle or perverse curiosity. It is legally significant and has potential legal relevance in at least three (3) areas of this Firm’s possible services to you in a divorce case:
Likewise, there are questions about other, potentially inflammatory or questionable matters, i.e., employment history, breast augmentation, penile enlargement, and abortions. There are ways of handling just about anything satisfactorily, but only if your attorney knows the subject matter is pertinent in your case.
So please be completely candid in your answers to the Questionnaire even if you do not understand the reason for the question or if you think the question is unimportant. As stated previously, the information you share on your answers to the Questionnaire is kept confidential.
Sometimes we are asked to represent both spouses together. The Texas Rules Of Professional Conduct prohibit this, just as they prohibit an attorney from representing any client in any matter whose interest may be in conflict with the interest of another client.11 Even in the most amicable divorce situations, rarely do both spouses’ legal interests exactly coincide throughout the case. In addition, divorces can be complicated affairs; and the consequences of a divorce settlement will be felt far into the future. For these and other reasons, it is always preferable for each spouse to have independent legal counsel of his or her own choice.
Regulation Of The Attorney-Client Relationship
The relationship between a lawyer and client is private and confidential. It is, however, regulated to protect the public.
Notice To Clients
The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar Office of General Counsel will provide any client with information about how to file a complaint. For more information, any client may call, toll‑free, 1/800/932-1900.
The Grievance Committee of the State Bar of Texas is the arm of government which investigates complaints about professional misconduct involving attorneys. Its powers are limited to imposing a range of punishments upon attorneys which adversely affects the attorney’s ability to support him/herself in the practice law, from private reprimand to disbarment.
The Grievance Committee does not involve itself with fee disputes or obtaining refunds for clients of attorney’s fees. Usually the client and the attorney can satisfactorily negotiate such matters between themselves. If they can’t, however, either may resort to the Courts or arbitration. Mr. Fanning served on the Fee Disputes Committee of the Dallas Bar Association for several years.
Although clients have the absolute right to hire and fire their legal counsel subject to the payment of their fees, in litigation matters an attorney may only withdraw from a client’s representation with the written permission of the court in which the litigation is pending. Courts do this by signing “orders.” Courts usually sign orders only if someone asks the court to do so. A person asks a court to do so by filing a motion with the court, with notice to his opponent. This costs time and money in reasonable and necessary attorneys’ fees.
Informal Marriage (Common Law Marriage)
Texas recognizes so-called “common law marriage.” The Texas Family Code refers to these as “Informal Marriages.”12 An informal marriage is just as good in Texas as if the marriage was performed by the pope in St. Peter’s Basilica in Rome. Contrary to much popular belief, there is no minimum period of time to live together in order to establish an informal marriage in Texas. The only requirements are that the parties: 1) agreed to be married; 2) after the agreement, they lived together in Texas as husband and wife; and 3) there represented to others that they were married.13
Grounds For Divorce
Texas is a “no-fault” divorce state. It is not necessary, therefore, to say bad things about each other to get a divorce. The party who wishes the divorce must present evidence in court (usually through testimony) to prove that grounds do in fact exist.14
Most commonly, “no-fault” grounds are used. If one party to a marriage feels that the marriage has become “insupportable,” because of personality conflict or discord, to the point where “the legitimate ends of the marriage relationship” have been destroyed and there is no reasonable expectation of a reconciliation,15 this is sufficient grounds for a divorce, regardless of the presence or absence of opposition.
Other grounds for divorce exist which relate to fault. These grounds can be used also. Their use requires the making of value decisions by you and tactical decisions best left to the professional judgment of competent legal counsel. Their use frequently creates hard feelings that persist long after the ink is dry on the final judgment of divorce. The fault grounds include cruelty,16 adultery,17 abandonment,18 living apart for a long period,19 confinement of the other spouse in a mental hospital under certain circumstances,20 and incarceration on a felony conviction of the other spouse under certain circumstances.21 Fault grounds can also be considered by the Court in making a disproportionate division of property in divorce cases.22
Timetables Of Divorce
The Family Code requires a person to have been “domiciled” in the State of Texas for at least six continuous months, and to have “resided” in the county of his or her residence for at least 90 continuous days, preceding the filing of his or her Petition for Divorce in order to “maintain” the suit.23 The terms “residence,” “domicile,” and “maintain” have special meanings in law; and even if you have not been physically living in Texas or in your county during the periods required, you may still have satisfied the requirements in the legal sense. If you think there might be a problem with this, take a pen or pencil and mark the outline here right now so you will remember to discuss this with your attorney during your first conference. There in fact may be no problem, but any questions about this matter need to be discussed with your attorney at the outset. Also, even if the person filing the suit has not satisfied the residency requirements but the other spouse has, the law provides the suit may be “maintained.”24 These are divorce suits filed by nonresident spouses.
The most significant date in divorce proceedings is the date the divorce petition is filed. The petition is the initial statement to the Court of the basic facts of the marriage and family situation, and a request for a divorce and other court orders. The date of filing is the measuring stick for calculating the “domicile” and “residence” requirements. It also begins the minimum waiting period before either party is entitled to seek a final judgment of divorce, which is 60 days from date of filing.25 Please clearly understand, however, that the 60-day period is a minimum waiting period. The average divorce takes longer than 60 days to complete, even in amicable situations, simply because there are usually too many things you and your attorney must investigate and work out before the case can be put in a proper posture to be concluded. In addition, in contested matters where significant problems are encountered with respect to property or children, and also with respect to crowded court dockets, sometimes it takes longer than one year. In contested cases, it is impossible to give accurate estimates of the time that will be required, regardless of what your case involves. Our Firm will not attempt to do so.
Phases Of A Traditional Divorce Case
Preparation
If you have the opportunity, it is usually wise to plan for any anticipated divorce ahead of time. This can be complicated in some technical cases. But in technical cases it usually proves very worthwhile. Divorce preparation depends upon numerous factors and must be specifically tailored to each client’s situation.
Information Gathering
It is generally wise to have the clearest picture possible of what you can prove before filing pleadings alleging what you are going to prove. This makes sense but is not always possible in reality. However, unless tactical considerations dictate otherwise, we will suggest that you embark on a procedure of information and document gathering before filing formal pleadings.
Who Should File
In the eyes of the law, divorces are civil suits, like suits for personal injury or for breach of contract. In other civil suits, the person who files the suit (usually called the “Plaintiff”) has the burden of proof. The Plaintiff must usually prove his/her/its case against the party being sued (usually called the “Defendant”) by a preponderance of the evidence. If there is a tie, the Defendant is supposed to win.
To compensate the Plaintiff for the greater “burden of proof,” the law over centuries has developed civil procedures to help ease the greater “burden.” The person who files the suit has a greater “burden of evidence,” but has procedural advantages over the person who is sued. The procedural advantages are related to creating both the first and the last impressions in the mind of the trier of fact, be that judge or jury. These are important advantages in a contest that is mostly one of persuasion.
The person who first files suit has the following procedural advantages: 1) in jury cases, opening voir dire (jury panel examination); 2) in all two‑party cases, opening argument; 3) in all two‑party cases, the right to put on evidence (proof) first; 4) in all two‑party cases, the right to put on evidence in rebuttal last; 5) in all two‑party cases, the right to give summary arguments first; and 6) in all two‑party cases, the right to give summary argument in rebuttal last. These can usually be used effectively with proper, prior preparation.
Divorce cases have all these same rules but with one significant difference: usually in divorce cases both parties have equal “burdens of proof”; yet the person who files a divorce suit first still has all the procedural advantages applicable in civil suits in the contest of persuasion. You see the obvious advantages to filing first, as a general rule.
In addition, there are two (2) more advantages. Usually there is a human presumption that a person does not file suit unless he or she thinks he has been wronged. That may or may not be true, but if true it creates a suspicion, and certainly a curiosity, about whether the person sued has done something wrong. The second advantage is psychological and is related to the human grieving process. Usually the person who files a divorce suit (“Petitioner”) is past emphasizing Denial and is into emphasizing Anger. Frequently the person sued (“Respondent”) is still in Denial, and much less psychologically willing to take reasonable steps initially to protect him/herself. If the Petitioner presses the advantage right away, or if the Respondent waits too long to recognize and deal positively with the reality of the situation and circumstance, it may very well be too late for the Respondent to overcome advantages initially wrested by the Petitioner and/or conceded by the Respondent without incurring extra expense, if at all.
Therefore, as a general rule, if divorce is inevitable, it is advantageous to be the person who files suit. However, this is just the general rule. There are also exceptions which might apply to your case.
Notice To Your Spouse
The person who brings the lawsuit must give notice to the other spouse. This of course is necessary to satisfy “due process of law” requirements of both the Texas and United States Constitutions. This can be done in several ways. Where the parties are on reasonably friendly terms and have negotiated an agreement beforehand, it is usually the best practice for the Petitioner’s attorneys simply to file the suit and mail a file‑marked copy of the petition to the other spouse. We would also send a letter requesting your spouse promptly to either get in touch with an attorney or sign a Waiver of Citation and return it to us. A Waiver of Citation is a document which acknowledges notice of the proceeding and dispenses with the necessity of being personally served with the same pleadings by a Deputy Sheriff, Deputy Constable, or private process server. Such Waivers can also contain other things which are potentially dangerous. We do not recommend a Waiver be signed in the absence of legal counsel under any circumstances.
If, in our opinion, the protection of your legal interests requires a different approach, e.g., your spouse has demonstrated an intention not to cooperate in the divorce proceedings, your spouse has threatened to leave the jurisdiction of the Court, or an emergency situation exists requiring immediate action, it is normal to place a copy of the petition in the hands of a Deputy Constable, Deputy Sheriff, or private process server, and ask for personal delivery to the other spouse without prior notice. This is what is ordinarily called “service of citation” or “service of process.”
If your spouse has already left the jurisdiction, or was never present in the jurisdiction in the first place, it is still possible to proceed with the divorce action by having citation served upon your spouse in a foreign jurisdiction or by being published in a newspaper or by being posted at the courthouse. There are, however, certain special problems and exceptional expenses involved in this procedure, and your attorney will discuss this further with you, if appropriate to your case.
Temporary Orders
The Court has the power to make virtually any kind of order which may be required to govern the relations of the parties while the divorce suit is pending.26 These include orders for temporary support, injunctions aimed at maintaining the status quo (or at least orderly handling) of property and debts, injunctions concerning personal behavior, and many other controls. The Court can even make certain kinds of orders of limited duration without a hearing and without prior notice to either you or your spouse. However, in all cases except where temporary orders are agreed to, a hearing must be held to obtain court orders to regulate and govern the conduct of both parties during the course of the litigation.
Disobedience of temporary orders (just as disobedience of permanent orders) can subject a person to fine or jail or both for contempt of court.
After consultation with you, we will advise whether you should seek temporary orders; but the final decision must be yours alone, if not insisted upon by your spouse.
Discovery
Gathering accurate information concerning your income and expenses, property and indebtedness, is of vital importance to your case. This is commonly referred to as the “pre-trial discovery phase” of a divorce proceeding. You will be asked to furnish your attorneys with as much information as you have in your possession, and we will supply you with certain forms to aid you in this task. In some cases, you will not have access to all of the information which is needed. If your spouse is unwilling to cooperate in providing information, your attorneys can attempt to compel disclosure of virtually anything that is needed. Usually, both spouses will be required to prepare and furnish a document called an “inventory and appraisal,” which lists property and debts and gives a value or amount for each item. Ordinarily, such information is required to be sworn to (verified under oath).
There is usually some type of legal discovery as well. The rules that govern lawsuits provide for a number of different discovery techniques. The most common are depositions, written interrogatories, requests for production, requests for disclosure, and requests for admission. We will explain these in greater detail should you decide to retain our services.
Preparation Of Position
Once we have all the necessary information, we will usually have a conference with you to work out your initial settlement proposal, covering all issues which must be resolved. We will, of course, be bound by your own desires, but we will also advise you as to what, in our professional judgment, you can realistically expect to obtain.
Negotiations And Hearings27
Ordinarily it is possible to negotiate a voluntary agreement settling all issues, and then go to court at the end of the negotiation process simply to ask for dissolution of the marriage and for approval of the settlement agreement. We attempt to handle our cases in this way whenever possible.
However, keep in mind that what you can get in a negotiated settlement depends in large part on what you would probably get from the Court if the issues were presented to the Court to decide. This means two things: First, your attorney will base his advice in large part on what he believes would be the settlement ordered by the Court, based on his experience, his knowledge of the law, and how the facts of your case appear to be developing. Second, you must be prepared to go to Court if your spouse is unwilling to agree to what you and your attorney believe is the proper settlement and you are unwilling or unable to settle for less. Being prepared involves both our legal preparation of necessary pleadings and fact gathering, and also your personal, psychological and factual preparation. You must actually be prepared to stand up and fight for your rights. Remember, your spouse has known you much longer than we; and your spouse is likely to be sensitive to any communication (verbal or non‑verbal) you send out indicating a lack of resolve or an unwillingness to “stick it out.” Your only other choice is to give up, if that is even possible.
Keep in mind, also, that compromise lies at the core of negotiation. All good negotiators usually begin the process by asking for more than that for which they would actually settle; and a good negotiator seldom reveals his “bottom line” or minimum position. Accordingly, unless we specify to the contrary, you must not discuss settlement of any issues with your spouse, or tell your spouse what the minimum is that you are willing to settle for. (One exception to this rule concerns visitation arrangements with children, when custody or terms of access are not in issue. Here we recommend free and open communication between the parents, with the primary concern being what is best for the children.)
Mediation
Sometimes mediation is a useful, less-expensive means of dispute resolution. Mediation is sometimes called “Alternate Dispute Resolution” or (“ADR”). Some Courts routinely require this; some do not. Basically this is a process which brings all parties together with an independent mediator who identifies the concerns of each and attempts to facilitate a settlement of the issues. The actual settlement is arrived at by the parties with or without the advice and counsel of attorneys. The settlement is not imposed by the mediator. If this is appropriate in your case, we will talk about this and help prepare you for your mediation sessions. Parties are usually assisted by their own legal counsel during mediation, as is their legal right. Most Courts require mediation prior to trial.
Arbitration
Another form of ADR is Arbitration. The law provides that where both parties agree, the Court may refer the trial of their case to an independent arbitrator for arbitration. This roughly means that the trial is conducted in front of an arbitrator instead of a judge in accordance with certain rules. The arbitrator makes an “award” much like a judge makes a judgment. The award is in writing and presented to both sides, who in turn type it up and present it to the judge for signature in the form of final court judgment. Arbitration is advantageous where the parties and their attorneys have confidence is the knowledge and fairness of the arbitrator and when long court dockets would otherwise prevent them from getting to trial in a speedy fashion.
Preparation Of Settlement Agreement
If an agreement is reached through negotiations and/or mediation, it will thereafter be reduced to writing, either in the form of an Agreed Judgment Of Divorce alone, or in the form of an Agreement Incident To Divorce drawn in conjunction with an Agreed Judgment Of Divorce. The specifics of the language used in such documents is very important; and ordinarily a fair amount of time is required in working out the specific language of such an agreement. If no agreement is reached through negotiations, this phase of the proceedings may be omitted.
Trial
If negotiations and mediation do not produce a settlement, your only recourse is to present the facts and your proposals to the Court, and let the Court decide the issues. Ordinarily a judge, sitting alone without a jury, will make the decisions. However, in some cases, including child custody cases, you have a right to require a jury of twelve citizens to decide certain questions. We will advise you whether we think you should ask for a jury trial and whether the other side has asked for a jury.
We hope we can save you the time and expense of contested hearings. However, if one or more issues are taken to Court for a hearing, don’t be afraid of the experience.
The preceding sentence may sound ‘easy enough for ..[you].. to say,’ but not really true. Let me explain. First of all, sometimes you simply don’t have a realistic alternative. So if you have to do it anyway, why be afraid? Second, contested hearings usually don’t have the tension and spectacle of the trial portrayals one sees on TV and in the movies. Third, and moreover, we will prepare you for whatever role you will play. The best preparation for any contested hearing is to familiarize yourself with the legal issues, understand the facts, and then relax and tell the truth when called to testify.
Division Of Property
One of the major considerations of any divorce is “who gets what property?” In the absence of a valid Premarital Agreement, in which case special rules apply,28 the Texas Family Code generally provides that anything you and your spouse have acquired since marriage is “community property,” except for property which you have inherited or which has been given to you. Property which was “owned or claimed” before you married and property which was acquired during marriage by gift or inheritance is generally “separate property.” In a normal case, the community property will be divided, but any separate property will remain the separate property of the original owner. It is the law of the State of Texas that title to separa,te property, whether realty or personalty, cannot be forcibly divested by a Court.29 As in most legal matters, however, there are sometimes practical exceptions to this general rule.
Keep in mind these are only the basic rules. There are other rules which sometimes come into play and we will advise you of any special laws which may affect your case.
During a marriage, as a general, basic rule of thumb, each spouse owns one‑half of all community property and Courts divide community property fifty-fifty, but fifty‑fifty is not necessarily the way community property is divided when divorce occurs. Our law provides that “the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”30 The “just and right” standard vests considerable discretion in the trial judge. There is, therefore, no automatic formula for division of community property; but certain principles do exist to guide us.
Sections 7.001 and 7.002 of the Texas Family Code are the most important sections in Title 1 of the Texas Family Code. The origins of the statute date from 1841; the mandate consistently has been for the courts to divide the property in a manner that the judge deems “just and right,” not “50-50” or “equally” as many people seem to think. The Supreme Court of Texas has held that this section applies only to community property and that this section does not authorize the divesting or division of a spouse’s separate property.31
While the statutory mandate quoted above to the divide the property in a “just and right” manner may sound simple, its application is fraught with complexity. The valuation of marital assets, factors to be considered in making a just and right division of the property, and the technique for dividing the marital assets can become complicated. Issues regarding disposition of the homestead, division of retirement benefits, as well as payment of reasonable and necessary attorneys’ fees, compound the problems. Decrees of divorce often exceeding 50 to 75 pages are necessary in order to properly divide and dispose of property.
Always looming in the background in the specter that a spouse may abscond with property, waste assets, fail to disclose important assets, or even in the event of an undesired ruling, seek the protection of a United States Bankruptcy Court. Finally, an aggrieved spouse may appeal the case, seeking a reversal of the division of property and a new trial for a re-division of the assets.
Factors which a Court may consider in making a disproportionate (unequal) division of property include:
