The Law Offices Of
Paul T. Fanning, P.C.

Mailing Address:
PO Box 1460
Tyler TX 75710-1460

Physical Address:
422 S Spring Ave
Tyler TX 75702-8138

Phone: (903) 597-7878
Fax: (903) 526-1688
Email: ptf@ptfpc.com

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 post-divorce relief of various kinds in Texas.  Remember, this is only a basic outline.  It is not intended to take the place of consultation with the attorneys in this Firm.  You should feel free to ask the attorneys 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 Post-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 post-divorce litigation to go through it without competent legal counsel.  But how does a person choose a lawyer?  It isn’t easy.

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 post-divorce case.  Those who will generally fall into four (4) categories.

New Lawyer

1.            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 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.

General Practitioner

2.            The general practitioner.  There are many left.  Some are surprisingly good at handling Family Law cases.  Most are not.

Semi-Specialist

3.            The semi-specialist is the lawyer who does only a few things, and post-divorce litigation 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.

True Specialist

4.            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 post-divorce case?

Experience

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 andout of the courtroom.  It is not important that opposing counsel personally likes or dislikes the personality of your lawyer.  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.  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.’”

If it comes right down to it, and you think the person you’re asking may be emotionally involved in the answer s/he is giving you, ask a simple question:  “Name all the lawyers you know who have beaten him?”

Actually, the so-called “barbarian”credited with ending the 1000 year supremacyof 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.”

                                                Leadership Secrets of Attila the Hun
                                                by Wes Roberts .

Winning and losing are not easily defined in the context of post-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

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 an on-line service such as America Online, CompuServe, or other Internet provider if the client has a secure personal computer with a modem, checks for e-mail at least daily, and is a subscriber to oneof these services.  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 courthousethat relates to the case.  Obviously, only an efficient lawyer can do this.

Commitment To Your Best Interest

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 community property with his very large separate property estate.  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 told me, “Goddammit, 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.”

Ironically, at the Dallas County Courthouse my opposing counsel on that case is almost universally liked whereas I am almost universally despised.  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 .”

Some people take their oaths more seriously than do others.

Confidentiality

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.¹  In effect, you will be waiving the protection of those laws.

Objectivity

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 wouldbe of no use to the patient if he burst into tears upon entering the operating room, 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 small 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” Family Law 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 Family Law 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 Family Law 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, the State Bar of Texas, and the Dallas Bar Association have Family Law sections.

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 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 he lost their cases.  Above all, don’t compare your case to somebody else’s.  Most former Family Law clients are left withinaccurate impressions and with many things they misunderstand.

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 post-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 divorce 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 than the lawyer who feels his client doubts him.

Judges and opposing counsel usually view this the same way.  For this and other reasons, 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 business rather than truly help you.  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 Family Law 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 any 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 loseshis litigation usually believes that 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 post-divorce litigation 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 post-divorce litigation 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 post-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 this topic.

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 post-divorce case, and be prepared to pay what it costs.  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.  And what price can be put on non-economic factors concerning custody and visitation of minor children?  It’s far, far wiser, indeed, to pay what good counsel is worth than it is to seek a bargain and later question whether you made a big mistake.

Remember, however, that whatever the formerly 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; and 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 Club²; the National Geographic Society, and American MENSA.  Mr. Fanning is a Keeton Fellow, The University Of Texas School Of Law AlumniAssociation; a Master Mason, St. John’s Lodge #53, Tyler, Texas (A.F.&A.M.)³; a 32°Mason, Scottish Rite of Free Masonry⁴; a Knight Templar of Commandry #25, Knights Templar⁵; 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)⁶; Royal Order Of Jesters; and The Tyler Centurions.

Emotional Problems While Case Is Pending

Divorce is never easy.  It is never pleasant.  It is the death of an important relationship.  Its aftermath is generally similarly ugly and distasteful.  If you are normal, you have undergone, at least in part, the human grieving process.  When humans grieve they experience five (5) distinct emotional “stages”which proceed generally in chronological order but with spillovers back and forth like a spiraled helix.  From first to last, they are:  1) Denial/Disbelief; 2) Anger; 3) Bargaining (with God -- “I’ll do anything to get the relationship back.”); 4) Sadness/Depression (when bargaining inevitably fails [because God does not work like that]); and, finally, 5) Acceptance/Resolution.

The human grieving process impacts significantly on the attorney-client relationship.   As a client passes from one stage of the grieving process to the next, 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 Rules of Professional Discipline applicable to attorneys in the practice of their profession are written with the presumption that the client’s aims are constant and that the attorney knows what they are.  Experience shows this is not true of post-divorce clients or post-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 responsibility to advise and counsel you concerning what the law allows and what his experience indicates will be the possible 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 case 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 the suit is pending, please let us know beforehand.  There are important legal considerations involved concerning which you should obtain legal advice.

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.  If you are or soon will be separated, you will have more time to read.  We suggest you use your time wisely and constructively .

You should know that 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.

Don’t, however, 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, 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 ful 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 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.⁷  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 relevancein at least two (2) areas of this Firm’s possible services to you in a post-divorce case:

1.         If an adversary intends to trap his opponent, it helps if he can keep his opponent unwary until after the trap is sprung.⁸  Frequently a suit for post-divorce divorce relief will be filed on innocuous grounds.  Then pre-trial discovery will commence; and, after a person’s opponent has made declarations and admissions against interest because he was not properly prepared for the question by his attorney because his attorney did not know there was a possible issue in the case, the petition is amended and different relief is later.  It makes no difference that you may not wish to make an issue out of this subject.  The other side may at some point make an issue out of this subject.  Then you are going to beforced to engage the issue whether you like it or not.  Litigation can be very cruel to those who don’t prepare for it.

2.         Whole and completely independent lawsuits for significant money damages can be and are filed based upon exactly this type of inquiry.  Sometimes these damage lawsuits are combined and made a part of the post-divorce suit.  Sometimes they are filed independently as separate, additional lawsuits.

Likewise, there are questions about otherpotentially inflammatory or questionable matters, i.e., employment history, operations for 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 relevant 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 former spouses together.  The Texas Rules Of Professional Conduct prohibits this, just as it prohibits an attorney from representing any client in any matter whose interest may be in conflict with the interest of another client.⁹  Even in the most amicable post-divorce situations, rarely do both former spouses”legal interests exactly coincide throughout the case.  In addition, post-divorce cases can be complicated affairs; and the consequences of a post-divorce settlement will be felt far into the future.  For these and other reasons, it is always preferable for each former spouse to have independent legal counsel of his or her own choice.

Regulation Of The Attorney‑Client Relationship

The relationship between a lawyer and his 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 prov ide 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 their ability to support themselves in the practice law, from private reprimand to disbarment.

The Grievance Committee does not involve itself with 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.  There is an arm of the Dallas Bar Association which provides arbitration services.  It is called the Fee Disputes Committee of the Dallas Bar Association.  Mr. Fanning served on the Fee DisputesCommittee for several years.

Continuing Jurisdiction

Once a child is the subject of a final judgment in a “suit affecting the parent-child relationship”in Texas, generally that Court will remain the “court of continuing jurisdiction”for as long as the managing conservator and the child remain living in Texas.  The law provides this so that, subject to judicial retirements, deaths, and elections, the judge will hopefully be able to keep the necessity for memory refreshment at a minimum.

Similar rules apply if the child has ever been the subject of a similar suit in another state or jurisdiction.

This does not necessarily mean that all litigation must occur in the same place (because transfers of jurisdiction are routinely requested and in some cases must be granted); but this matter should be discussed with your attorney at the time of your first office conference.

Timetables Of Post-Divorce Actions

Modification

The Family Code and the Texas Rules of Civil Procedure require a person to have the same prior notice of any trial in which modification of a prior order is sought as a general civil lawsuit.  Examples of modification cases are: modification of managing conservatorship, modification of possessory conservatorship, modification of child support, and termination of the parent-child relationship.  The threshold question in almost all modification cases is whether or not there has occurred a material and substantial change in circumstances since the date of the order sought to be modified and the filing of the new suit.  Unless there has been a change both material and substantial and that change reasonably relates to the substantive modification sought, no modification will be granted regardless of how improper or unfair the prior order is.  There are some statutory exceptions to this general rule which relate to the passage of new laws and adjustments to unworkable access (visitation) provisions.

Enforcement

The Family Code requires a person charged with only contempt of court to have advance notice fair and reasonable in the circumstances.  “Fair and reasonable in the circumstances”is usually interpreted as at least ten (10) days for child support contempt actions.  Where remedies are sought in addition to only contempt such as actions for involuntary assignment of income, actions to require posting of bond to insure against failure to pay child, and/or actions to enforce prior orders respecting property, the timetables pertaining to civil suits generally apply.

Phases Of The Post-Divorce Action:

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.  Unless tactical considerations dictate otherwise, we will probably suggest that you and our office embark on a process of information and document gathering before filing formal pleadings.

Notice To Your Former Spouse

If your former spouse has not initiated the action, your former spouse will be given formal notice once the suit is filed.  This can be done in several ways.  We may send a letter requesting your former 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 or Deputy Constable.

If in our opinion the protection of your legal interests require it, e.g., your former spouse has demonstrated an intention not to cooperate in the post-divorce proceedings, your former spouse has threatened to leave the jurisdiction of the Court, or an emergency situation exists requiring immediate action, we will then place a copy of your petition in the hands of a Deputy Constable or Deputy Sheriff, and ask for delivery personally to your former spouse without prior notice.  This is what is ordinarily called “service of citation”or “service of process.”

If your former spouse has already left the jurisdiction, or was never present in the jurisdiction in the first place, it may still be possible to proceed with the post-divorce action by having citation served in a foreign jurisdiction or by being published in a newspaper or by being posted at the courthouse.  Thereare, 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 Modification Cases

The Court has the power to make virtuallyany kind of order which may be required to govern the relations of the parties and the child(ren) while the post-divorce suit is pending.  The Court can even make certain kinds of orders of limited duration without a hearing and without prior notice to either you or your former spouse.  However, in all cases except where temporary orders are agreed to, a hearing must be held to obtain orders which will last usually until the case is concluded.  In post-divorce actions the Court may make any temporary orders that are necessary to prevent harm to the child(ren), the parents, and other persons. 

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 a hearing for Temporary Orders.

Discovery

Gathering accurate information concerning your income and expenses, property and indebtedness, is of vital importance to your case.  This is commonly referred toas the “discovery phase”of proceedings.  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 former spouse is unwilling to cooperate in providing information, your attorneys can attempt to compel disclosure of virtually anything that is needed.

Preparation Of Position

Once we have all the necessary information, we may have a conference with you to work out your initial settlement proposal, covering all issues which must be resolved.  We will, of course, be guided by your own desires, but we will also advise you as to what you can realistically expect to obtain in our professional judgment.

Negotiations And Hearings¹⁰

Sometimes 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 Court approval of the settlement agreement.  We attempt to handle our cases in this way whenever possible.

But 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 bedeveloping.  Second, you must be prepared to go to Court if your former 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 former spouse has known you much longer than we and is likely to be sensitive to any communication (verbal or nonverbal) you send out indicating a lack of resolve or an unwillingness to “stick it out.”  Your only other choice is to give up.

Keep in mind, also, that compromise lies at the core of negotiations.  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 former spouse, or tell your former spouse what the minimum is that you are willing to settle for.  (One exception to this rule concerns visitation arrangements with [the] child[ren], when custody or terms of access are not in issue .  Here we recommend, if consistent with the child[ren]’s safety and welfare, free and open communication between the parents, with the primary concern being what is best for the child[ren].)

Preparation Of Settlement Agreement Modification Cases

In a modification case, if an agreement is reached through negotiations, it will thereafter be reduced to writing, either in the form of a Judgment alone, or in the form of an Agreement Incident To Suit Affecting The Parent-Child Relationship drawn in conjunction with a Judgment.  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.

Mediation

Sometimes mediation is a useful, less expensive means of dispute resolution.  Mediation is sometimes called “Alternate Dispute Resolution”or (“A.D.R.”).  Some Courts routinely require mediation as a condition precedent to allowing parties to go to trial; 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 yourmediation sessions.  Parties are usually assisted by their own legal counsel during mediation, as is their legal right.  In the context of Family Law cases, Courts generally favor mediation because statistically, people who get to personally contribute toward a solution in a way they feel is meaningful are usually more satisfied with the result - whatever it is - than people who do not.  This potentially has long-lasting impact upon their children.

Preparation Of Settlement Agreement

If an agreement is reached through negotiations and/or mediation, it will thereafter be reduced to writing, probably in the form of an Agreed Judgment.  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 do not produce a settlement, your only recourse, other than to give up (assuming that is even possible), 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, either party has 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.

We hope we can save you the time and expense of contested hearings.  But if you make the decision to take one or more issues to Court for hearing, don’t be afraid of the experience.

The preceding sentence may sound “easy enough for me to say,”but it’s not.  First of all, sometimes you simply don’t have a realistic alternative.  So if you have to do it anyway, why be afraid?  Secondly, contested hearings usually don’t have the tension and spectacle of the trial portrayals one sees on TV.  Thirdly, and moreover, we will prepare you fully for whatever role you will play.  Your best preparation for any contested hearing is to relax and tell the truth when called to testify.

Alimony

As you may know, “alimony”is the term used to describe payments made for the support of a spouse or a former spouse (usually, but not necessarily, the wife) as distinguished from payments made for the support of children.  Under Texas law, the Courts presently have no power to order the payment of alimony after the Judgment Of Divorce has been signed, although the Court does have the power to award alimony while a divorce suit is pending.  However, if alimony has been previously ordered by another state with proper jurisdiction, Texas will enforce its sister state’s alimony orders under the full faith a credit clause of the United States and Texas Constitutions.  In short, fleeing to Texas will not serve as an escape device to avoid paying alimony.

Custody Modification

Conservatorship battles (“custody fights”) should occur only after exhaustive soul‑searching and when sincerely believed to be absolutely necessary.  Custody fights inevitably cause anxiety and bitterness to everyone involved, and they are especially damaging to the children.  They are time consuming and expensive.  Typically, a custody contest will take at least six months, and more likely one year, to resolve and will cost each parent at least $50,000.00 in attorneys’fees, child expert fees, and related costs of litigation.  Furthermore, it has been our experience after these many years that any person who has and is willing to spend enough money can win custody of any child in any court.  This does not vindicate a person who is right.  It merely recognizes the reality that “might makes right,”in this case financial might.  No amount of money, however, can put the children back together again after they have undergone the trauma of their parents warring over them, regardless of the altruism of their parents’motivations.

Obviously then, every effort should be used to avoid a custody fight.  We strongly recommend that parents who cannot agree on custody seek professional counseling from a licensed professional who is knowledgeable in the area of child psychology or psychiatry.  We can and will recommend professionals in this area if requested.  Generally, mediation or arbitration of this issue is far less expensive and far less damaging to the parents and the child(ren) than litigation.  Mediation or arbitration is also considered by many more likely to lead to the best possible result for the children.

The law requires a material change in circumstances and the satisfaction of the“best interest”when there is a request to change managing conservatorship after divorce.  Initially, in divorce, the standard is merely the “best interest of the child.”  The standard for a post-divorce change is somewhat higher. 

The Legislature has decided that a wide disparity of rights, duties, powers, and privileges between parents who are former spouses only leads to more bitterness and controversy, with innocent children unfortunately caught in the middle.  Therefore, through recent legislation the legal difference between being a Managing Conservator and being a Possessory Conservator has been minimized.  All children, whether their parents are divorced or not, need regular, consistent, and healthy nurturing from both their parents.  If they are going to get it, their parents are going to have to get along with each other.  If their parents don’t get along with each other, the children just flat are not going to get what they need.

A parent sole Managing Conservator alone has certain rights, duties, powers, and privileges with respect to each child.  These are listed below in statutory language,¹¹ 1 through 8, with Mr. Fanning’s comments about each footnoted:

Usually the key right of a Managing Conservator is found in number 1, i.e., the right to establish the primary residence of the child, and number 3, i.e., the right to receive and give receipt for child support.  The rest of the unique rights of a Managing Conservator are of varying importance for practical reasons.  (See footnotes.)  For example, as any parent of a working teenager (other than a Hollywood child movie star) knows, if the child earns the money, the child is going to keep it as a practical matter.  This statement is only general, however, and your particular circumstances may make other rights important.

Since both parents usually have rights to have access to the child(ren), what the law is really talking about in number 1 is primary possession and the right to establish the child(ren)’s domicile.  This means that when the Managing Conservator moves to New Hampshire, the child(ren) go(es) too.  For this reason, and because it is the Public Policy of the State of Texas that children have frequent, positive contact with both parents, that Courts routinely limit the geographic area where either conservator may establish the child(ren)’s residence.  The most narrow, but frequently employed limitation, is within the county where the conservatorship order is rendered or within animmediately contiguous county.  This Public Policy is strong and heavily favored by the Courts.  Some real life examples of situations where the Conservator with the right This Public Policy is strong and heavily favored by the Courts.  Some real life examples of situations where the Conservator with the right right to establish the child’s residence has not been permitted to remove the child(ren) from the same geographic area as the other parent are:  to establish the child’s residence has not been permitted to remove the child(ren) from the same geographic area as the other parentare:  a) a job promotion contingent upon relocation, the Court believing that the child’s need for both parents is more important than the parent’s need for a promotion; and b) remarriage to a person who gets a job promotion contingent upon relocation, the Court believing that the child’s need for both parents is more important than the parent’s spouse’s need for a promotion.  Another real life example is that of a woman who was awarded primary custody of a child.  Her former husband was a lawyer living in Dallas who did not contest primary conservatorship in their divorce.  After divorce, the woman fell in love, married, and became pregnant by a man she met online and who lived on a island off the coast of the State of Washington.  She gave the sixty-day notice of her intent to move.  The husband filed suit to prevent it.  The 254^th Judicial District Court in and for Dallas County, Texas, ruled that the woman could go to the State of Washington if she chose, but the child’s residence would remain in Dallas County, Texas.  When this decision was delivered in 1994, it was met at the time with shock and disbelief.  Now, however, it would be expected.  This is the rationale:  No one required the woman to date someone so distant from the child’s father.  That was her choice .  No one required the woman to marry someone who lived so distant.  That was her choice .  Finally, no one required thewoman to become pregnant by her new husband.  That, likewise, was her choice .  Why should the father’s relationship with his daughter suffer, and the daughter’s relationship with her father suffer, simply because the woman made a series of selfish choices heedless of them both.

Not being able to differentiate between what is in the parent’s best interests from what is in the child(ren)’s best interests is potentially disastrous in today’s legal climate.

Furthermore, Courts generally favor maintaining the status quo when deciding custody issues post-divorce.  The idea is that, all other things being equal, the child(ren) should have a stable environment. 

The first bitter pill of truth for you to swallow is to understand that the law is not truth-oriented .  Rather, the law is solution-oriented .  Philosophy is truth-oriented.  For example, two people of differing views could argue the issue of whether God exists for two years, at the end of which both may separate neither having changed his mind.  In litigation, however, two people of differing views could argue a case for two years, at the end of which the legal system would impose a solution; and we would call that solution “justice.”  “Justice,” therefore, is a rhetorical word that is broad enough to accommodate anyone’s notion of what it might mean.

The second bitter pill for you to swallow is what Mr. Fanning calls the priorities of the legal system.  What we learned in Civics Class is not very realistic.  If we asked average citizens to rank the following considerations in importance in the legal system – administrative, economic, prophylactic, social, and justice – the priorities we would get are:

Justice
Social
Prophylactic
Economic
Administrative

Extensive studies of the considerations which judges factor into their decisions prove that judges have the exact opposite priorities in making the decisions they make.  In other words, the person who decides your case in litigation has a view of important considerations exactly the opposite of your viewof important considerations.  Judges universally rank the factors in the following order of importance:

Administrative
Economic
Prophylactic
Social
Justice

Why does it work this way?  Simple.  Two reasons.

First, Judges are politicians.  The most important thing for any politician is to be re-elected.  The most effective way to un-elect an incumbent judge is to show the “backlog” of cases has grown during his/her term of office.  Therefore, the most important thing for a judge is to reduce, or certainly not increase, the backlog of cases.  If a judge divides the community property of all or almost all divorce cases 50-50, then the lawyers who practice before that judge quickly learn that it won’t do their clients any good to fight and squabble.  It makespredicting the outcome of litigation easier; it reduces the likelihood that the judge will make enemies of the lawyers (by making “winners” and “losers”); and it reduces the likelihood that the judge will make enemies among the constituency that is ultimately responsible for elections.  Bottom line:  in all but the most outrageous and egregious cases, it makes sense to settle and to settle early.  Another way of saying this is that in all but the most outrageous and egregious cases extensive litigation benefits only the lawyer.

Second, in addition to being politicians, Judges are human beings – and usually normal human beings of above average intelligence.  That means, among other things, they don’t like working any more or any harder than is necessary.  This doesn’t necessarily mean Judges are lazy.  It does necessarily mean that Judges don’t like to work when work is unnecessary or, phrased differently, to make work for themselves when that work isn’t going to do anyone any good.  Almost all divorce cases that go to appellate courts are appealed because of disproportionate division of community property.  Solution?  Make the division of community property 50-50 and eliminate the appeal.

A wise, old, experienced litigator from San Antonio sometimes tells his divorce clients, “I’ll protect your legal interests right down to your last nickel.”  So it is better to learn sooner, rather than later, about the realities of the legal system.  Unfortunately, it is precisely now, at the beginning of the divorce process, that both clients are least likely emotionally to be able to heed this advice.  Be in the minority.  Heed the advice early.  If your attorney advises you that your case is not among the most outrageous and egregious, believe him and aim for a realisticoutcome, not one of emotional vindication (which the legal system will not ever yield).

If you learn nothing else from this General Information Concerning Post-Divorce Matters, if you just learn the above your investment in buying and reading this material will be magnificently worthwhile.  Most lawyers don’t tell their clients this until their clients begin to fall behind in paying their monthly statements, and then rationalize that their clients should have known these things all along.  If one is a lawyer, such logic is very convenient.

Both the Managing Conservator and the Possessory Conservator are equal when it comes to all the other enumerated rights, powers, privileges and duties.  For example, Texas law provides that each parent retains the right to receive information from the other parent concerning the health, education, and welfare of the child(ren) and, to the extent possible, the right to confer with the other parent before making a decision concerning the health, education, and welfare of the child(ren).

Texas law additionally provides that each parent has, during his/her respective possessions of the child(ren),²⁰the following rights, privileges, duties and powers with respect to each child:

The former disparity of rights, duties, powers, and privileges between a “Managing”Conservator and a “Possessory”Conservator, combined with politics, as well as a philosophy that has been chosen by the Texas Legislature in preference to competing philosophies, has led the Texas Legislature (like the legislatures of many other states) to pass laws which permit courts to appoint more than one parent a “Managing”Conservator.  This is referred to as “Joint Managing Conservatorship”; and, when the heat and anxiety of battle cools, can usually work out to the child(ren)’sbest interest (provided it is not used as a tool to constantly embroil the former spouse in post‑divorce custody fights).  The statute is found at TEX. FAM. CODE ANN. §153.131. 

TEX. FAM. CODE ANN. §153.001 sets forth the public policy of the State of Texas as follows:

(a)            The public policy of this state is to:

TEX. FAM. CODE ANN. §153.131(b)creates in law a rebuttable presumption that the appointment of the parents of a child as Joint Managing Conservators is in the best interest of the child.  A rebuttable presumption means that this is the starting place of legal analysis.  Interestingly, the presumption seems to obtain in the statutory scheme only if both parents agree that it obtains in their particular case.²² 

TEX. FAM. CODE ANN. §153.134 reads:

(a)            If a written agreement of the parents is not filed with the court, the court may render an order appointing the parents joint managing conservators of the child only if the appointment is in the best interest of the child considering the following factors:

(b)  In rendering an order appointing Joint Managing Conservators, the court shall:

As a practical matter, other factors can play an important part in the mind of the trier of fact, such as: the daily society (that would have to be given up) of half siblings from other marriages; the fact that a certain person who in the past functioned quite well as a married parent might not be able to function very well at all as a single parent, etc.   The judges of some courts have a personal bias against Joint Managing Conservatorship.  The judges of some courts have a personal bias in favor of Joint Managing Conservatorship.  If there is an issue in your case about conservatorship, you need to discuss it with your attorney.

In contests over managing conservatorship, the Court almost always orders a Social Study or Psychological Evaluations conducted by impartial persons.  In Dallas County these are generally social workers employed by “Dallas County Family Court Services,”i.e., government social workers, but can also be clinical psychologists or social workers in private practice.  In Smith County the Courts usually appoint clinical psychologists who charge between $2,000 and $2,500 per person to evaluate them.  For a family of four (4), this totals between $8,000 and $10,000.  These people then write reports which can be introduced into evidence and/or they come to court at trial and testify as “experts”as to whom they think is qualified for the various possibilities.

In contests over managing conservatorship, many courts require the parents to undergo court ordered mediation.  The mediator may not come to court as testify.

One of the factors which obviously must be considered is the possibility of a later modification of the divorce custody order.  It is easier, because of easier legal criteria, to modify a Joint Managing Conservatorship order later than to modify a divorce order providing that one parent is the sole parent Managing Conservator and the other is a Possessory Conservator.  It is usually wise to plan for the future.

As stated previously, conservatorship contests are complicated and expensive, both monetarily and emotionally, for theparents and the child(ren).  They should be avoided if at all possible.

Child Support Modifications

There is at present a legally established scale for the proper amount of child support. Its application is more or less automatic, although reading the statute would lead to an opposite conclusion.  The scale is published by the Legislature and is embodied in TEX. FAM. CODE ANN. §154.001, et seq .  Some think it is fair; others think it is not.  Regardless, it is presently the law, will almost always be automatically followed, and is found as Exhibit A to this publication.

As the children become older, and as the number of children eligible for support decreases, the amount of support is to decrease in accordance with the published guidelines, not per capita .  The reason is that, for example, it is generally not twice as expensive to raise two children as it is to raise one, etc.

Enforcement Of Child Support Contempt

If a person is under court order to pay child support, and if the court order is clear and unambiguous, and if it was possible for the person to comply, the court order may be enforced by contempt.  This means that the Court may order the person incarcerated for up to six (6) months per failure to punish him/her for past disobedience.

In addition, if the person cannot convince the Court that compliance by payment of the total arrearage is impossible at the time of the hearing, the Court may order him/her further confined until he/she pays the entire arrearage.

Contempt actions for child support must be brought within six (6) months of the child no longer being eligible for child support or they are barred by limitations.²³

There is no quid pro quo .  Failure of one former spouse to pay child support does not legally justify the other formerspouse in withholding the child from visitation.  Child support is not “paid”to “buy”time with a child.  It is paid for the support and general welfare of the child while that child is dependent on its parents.

Enforcement Of Child Support Involuntary Income Assignment

In all final judgments in which child support is ordered, the Court must order involuntary income assignment if the possessory conservator is employed in Texas.  If the possessory conservator is self-employed or employed by an employer outside of Texas, it is possible for the Court to require the possessory conservator to post a bond as security for the possessory conservator’s payment of child support.

Access Modifications (Visitation)

It is an ideal situation for the children, whenboth parents are employed outside the home, to assure the children that divorce will not affect either parent’s love and devotion to them.  When both the parents, after divorce, continue to work together constructively on matters involving the children, both the children and the parents benefit (in the sense of minimizing the inevitable damage of divorce) in both the short and long runs.  This is not always possible.  But where it is possible, the parents should try to arrange their lives so that each can have a fair share of time with the children, and especially a fair share of time to play with and enjoy the children.

Once again the Texas Legislature has promulgated a law.  TEX. FAM. CODE ANN. §153.311, et seq., sets forth the parameters of the Texas Standard Possession Order.  Lawyers sometimes call this “S.P.O.”  A copy of this law is attached to this publication as Exhibit B.  This law generally provides for generous visitation ‑ sometimes more than the Possessory Conservator even wants.  In the absence of almost compelling circumstances (such as when access by a parent would endanger the physical and/or emotional welfare of a child), the application of the Standard Possession Order is also automatic.

The Texas Family Code requires the Court to insist upon specific times for visitation (rather than “reasonable times and places”alone), so that visitation is enforceable by contempt just like the payment of child support.

Enforcement Of Visitation Contempt

If a parent is under court order to delivera child to the other or to someone else, and if the court order is clear and unambiguous, and if it was possible to comply and that parent did not comply, the court order may be enforced by contempt.  This means the Court may order the contemnor (non-complying party) incarcerated for up to six (6) months per failure to punish him/her for past disobedience.

Contempt actions for obstruction of access must be brought within six (6) months of the final time a person is entitled to access by court order or they are barred by limitations.²⁴

There is no quid pro quo .  Failure of one former spouse to pay child support does not legally justify the other former spouse in withholding the child from visitation, and vice versa .  Child support payments are not the purchase price for visitation, nor is visitation with a child for sale.  The remedy of contempt for failure to deliver access is equally available to both the Managing Conservator and the Possessory Conservator.

Enforcement Of Access Damages

Monetary damages are recoverable for interference with possessory rights to children.  If either mother or father (regardless of which one is the managing conservator and which one is the possessory conservator) takes or retains possession of a child or conceals the whereabouts of a child in violation of a court order which provides for possessory interests in that child, he or she may be and probably will be liable for both actual and punitive damages to the other.  This basically means that when your former spouse is entitled by court order to the child, you are not.  It also means the reverse.

These actions (sounding in tort) are covered by Chapter 42 of the Texas Family Code.  The law provides for recovery of the actual costs and expenses for locating the child, recovering the possession of the child, reasonable and necessary attorneys’fees for enforcing the court orders violated (contempt), reasonable and necessary attorneys’fees for bringing the tort action, and the value of mental suffering and anguish incurred by the moving party as a result of the violation of the court order by the responding party.  In addition, if the Court finds that the person liable acted with malice or an intent to cause harm to the person who is denied a possessory interest, exemplary damages may also be awarded.

Criminal Penalties For Nonpayment Of Child Support And For Not Turning The Child(ren) Over For Access (Visitation) Or Return

Texas law provides criminal, as well as civil, penalties for both failure to pay child support and for violation of the other parent’s access (visitation) rights.  These penalties are serious, and create a criminal record for any parent who is convicted of a violation regardless of male or female.

Termination Of The Parent-Child Relationship

Termination cases arise generally when the adoption of a child is sought.  This is because termination of the existing parent-child relationship is a necessary prerequisite to the establishment of the new parent-child relationship by adoption.

The other major area where termination cases arise is child abuse, which can be either physical, mental, or emotional.

In order for termination to be granted, the evidence favoring termination must not merely be established by a preponderance.  Rather, because the remedy is so drastic, the law requires the evidence to be “clear and convincing.”²⁵

A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the Court finds:

(1)            that the parent has:

(A)            voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; or

(B)            voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or

(C)            voluntarily left the child alone or in the possession of another without providing adequate support of (sic) the child and remained away for a period of at least six months; or

(D)            knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child; or

(E)            engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child; or

(F)            failed to support the child in accordance with his ability during a period of one year ending within six months of the date of the filing of the petition; or

(G)            abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by exercise of reasonable diligence; or

(H)            voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth; or

(I)            contumaciously refused to submit to a reasonable and lawful order of a Court under Chapter 264 (of the Texas Family Code [cooperation with the Texas Department of Human Resources in an investigation of child abuse concerning the child]); or

(J)            been the major cause of:

            (i)            the failure of the child to be enrolled in school as required by the Texas Education Code; or

            (ii)            the child’s absence from his home without the consent of his parents or guardian for a substantial length of time or without the intent to return; or

(K)            executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by Chapter 161 of the Texas Family Code; of

(L)            been adjudicated to be criminally responsible for the death or serious injury of a child;

(M)            had his or her parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of paragraph (D) or (E);

(N)            constructively abandoned the (sic ) child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than one year, and:

            (i)            the Department or authorized agency has been reasonable efforts to return the child to the parent;

            (ii)            the parent has not visited or maintained contact with the child; and

            (iii)            the parent has demonstrated an inability to provide the child with a safe environment; and

and in addition, the Court further finds that

(2)            termination is in the best interest of the child.

In all involuntary termination cases, the Court must appoint an attorney to serve the independent legal interests of the child.  If the parent whose parent relationship with the child is sought terminated cannot afford to hire an attorney, the Court must appoint an attorney ad litem to represent him/her as well.

Adoption

Adoption establishes the legal relationship of parent and child just as does natural birth.  In fact, there have been custody battles waged and won between the adopting parent and the natural parent when they subsequently underwent divorce.

As stated above, termination of the parent-child relationship, by either death or court action, is a necessary prerequisite to adoption.  In addition, the Texas Department of Protective and Regulatory Services will be appointed to conduct a pre-adoption social study and must report favorably to the Court in which the adoption action is pending.

Strict timetables pertain to adoption actions.  You will be advised further if that is the subject of your visit with us.

Legitimation

Legitimation is a legal proceeding whereby a child who is illegitimate as to a man becomes legitimate as to him.   More popular names for this proceeding are“paternity suit”and “suit to establish parentage,” and it may be brought on behalf of a child at any time until the child is an adult.  Then the child may bring the action in his own behalf for a statutory period of time thereafter.

Enforcement Of Property Division

If a divorce court has by order awarded you property which your former spouse has not delivered to you, you may bring an action pursuant to TEX. FAM. CODE. ANN. §3.70, et seq . to enforce the court order.  In addition, the Court may award reasonable attorneys’fees to either party.

Enforcement Of Property Rights Not Divided By Divorce

If you and your former spouse owned community property which the divorce court failed to partition between you (whether by mistake or by reason of the fact that your former spouse concealed the property from both you and the Court), you may continue to own the property as an equal co-tenant in common with your former spouse and may bring an action for partition or partition and sale of the property.  This area of the law is currently ambiguous, so if you think it may have application to you be sure to notify your attorney.

Collaborative Law

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