The family lawyer in Texas has always faced unique challenges. For example, Texas is home to a large number of immigrants, some here illegally, potentially implicating federal custody and visitation laws. Texas is also home to several military bases, and military divorces often involve issues like waiting periods, jurisdiction, and property division that would not be relevant if both partners were civilians. Finally, Texas is one large state – What are the visitation rights of grandparents who live within our borders but are still eight hours away? But even these traditional challenges to the Texas family lawyer can seem small against the changing landscape of family practice. In this chapter, I will detail some of these pressing challenges and suggest appropriate strategies to respond to change and effectively represent your clients. One of the most important trends in family law, particularly concerning divorce settlements, is the growth of collaborative law. Instead of two individuals who have decided to end their marriage going to war with each, parties are increasingly sitting down with neutral legal experts to reach agreement on child custody, property, and other matters of separation. This shift emphasizes mutual respect and amicability, rather than embattled attorneys strategizing ways to take from their opponent. Several years ago, the Texas legislature passed a measure that encouraged this method of legal resolution, Tex. Fam. Code Ann. § 6.603 (2006), and the field has exploded ever since. Collaborative law recognizes the relationship that exists and will continue to exist in a marriage, particularly when there are children involved. Where relationships between litigants are expected to continue, collaborative law solutions flourish. I believe that the trend toward collaborative law also speaks to a more general call for legal reform. Lawmakers understand the public's push for a more cooperative approach and have sought to codify it. The popularity of this process is also a matter of simple economics – few clients can manage the cost of lengthy divorce battles. Collaborative divorces help clients control costs by maintaining civility. Family attorneys should explore ways to build a profitable practice through collaborative techniques or risk being left behind by this important trend. Technology is also having an impact on the family practice. New forms of evidence, from personal emails to threatening text messages, give the savvy family attorney ammunition for litigation and negotiation. Texas lawmakers and courts are rushing to catch up with the role that technology is playing in our personal relationships and, by extension, our family law disputes. With respect to technology trends in divorce cases, the key drivers are simply the greater roles that communication gadgets, online record keeping, and social networking are playing in our lives. We feel as if we can be anonymous and act in a way that is not consistent with family life, but the reality is that we are being watched more closely than ever before. The trend concerning technology and how laws will address what information can be introduced in a divorce case is crucial, as courts try to determine the point at which the right to privacy has been compromised. We are only going to see more websites, emails, text messages, and Facebook updates in courtrooms in the future, and their proper place must be determined. In addition to the macro trends of collaboration and technology, the law itself has undergone significant changes. Every legislative session brings about renewed debate concerning child support and visitation, including the rights of extended family members such as grandparents and adult siblings. Regulations concerning the rights of non-custodial parents and the efforts that must be made to encourage frequent and quality visitation time are in constant flux. Texas legislators and courts are also looking at issues surrounding spousal maintenance, abuse in teen dating situations, and hearsay evidence of very young children. The family law practitioner in Texas must stay abreast of these changes in the law or risk disciplinary action and the loss of clients. One particularly contentious battlefield in family law legislation involves domestic partnerships and the grant of marriage rights to non-traditional families. Several years ago Texas became one of the last states to grant marriage licenses to couples that include a postoperative transsexual, but efforts are being made to rescind that right. Jim Vertuno, Texas may Strip away Transgender Marriage Rights, Austin American Statesman, http://www.statesman.com/news/texas-politics/texas-may-strip-away-transgender-marriage-rights-1432706.html. Last year, a Texas appeals court determined that the state's ban on same-sex marriage meant that a homosexual couple could not obtain a divorce in Texas, even though they had been married in another state. In re Marriage of J.B. and H.B., 326 S.W.3d 654 (Tex. App. 2010). The court applied the "rational basis" test and determined that a primary reason for marriage is procreation, a ruling that is certain to have ramifications in future legal efforts involving homosexual couples. Id. At 674. Texas lawyers have a difficult time reacting to these developments in family law, as our representation depends on a constantly changing legal landscape. Generally, family lawyers in Texas see a legislature passionate about social policies and willing to exercise its influence through property disbursement legislation, rules concerning who can be married, and limitation of reproductive rights. Attorneys hope that these changes will clarify existing statutes, as courts have issued conflicting opinions regarding, among other things, marriage documentation and funding for family planning clinics. Texas family law has seen numerous changes, particularly in matters of child custody and support. After significant legislation in 2008 and 2009, Texas now requires that divorcing parents be joint conservators, and that this designation be made a part of a written parenting plan. Tex. Fam. Code Ann. § 153.133(c) (2008). There also were modifications made to the standard visitation plan that consider scheduling issues such as spring break and teacher in-service days. More weight is also given to the parents in deciding if and when children are allowed to spend time with grandparents. Tex. Fam. Code Ann. § 153.317 (2008). Technology also has impacted child custody in Texas. The state legislature passed a statute four years ago encouraging parents to employ web chats and similar online communication outlets to increase interaction between a non-custodial parent and child. The new legislation urges virtual face-to-face time when in-person visits prove difficult due to distance or animosity between the former spouses. Tex. Fam. Code Ann. § 153.015 (2008). These changes in custody law will have far-reaching consequences that family law attorneys must monitor. Two family law decisions of the past decade stand out as significant in Texas. First, Troxel v. Granville, 530 U.S. 57 (2000), dealt with the right of extended family members to have visitation rights. Second, Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002), addressed the happiness of the custodial parent in allowing for relocation that creates significant distance from the other parent, and was settled in the Texas Supreme Court. Each case exerts enormous influence on how Texas family lawyers should instruct their clients. In Troxel, the primary issue was the fundamental right of parents to exert "care, custody, and control" with their own children. The Supreme Court balanced this right with an appropriate encouragement for relationships with other family members. Troxel, 530 U.S. 57 at 65. The Court determined that parents have the right, assuming they are fit to care for their children, to make decisions concerning visitation with other family members. Stated more directly, state courts must give "special weight" to the opinions of parents who wish to deny third-party visitation appeals. Troxel, 530 U.S. 57 at 70. The family practitioner in Texas must consider this opinion when advising parents, grandparents, and other family members who seek legal counsel. In Lenz, the Texas Supreme Court asked whether a joint managing conservatorship could be modified to allow for the relocation of one parent, and what factors should be included as part of the decision. Lenz, 79 S.W.3d 10 at 11. The Texas Supreme Court developed a "fluid balancing test" that considers factors like educational opportunities, special needs, employment options, emotional health of the custodial parent, and the ability of the non-custodial parent to maintain a flexible work schedule and achieve visitation. Lenz, 79 S.W.3d 10 at 15. Lenz marked an early consideration by Texas courts of how the happiness of the custodial parent impacts the happiness of the children involved. These considerations will not escape the scrutiny of a quality family law attorney. Lawyers and clients should see from these cases that, once a mother or father has been awarded primary custody of a child in a divorce case, that person is going to have considerable leverage in determining the nature of other relationships in that child's life. Courts take quite seriously parental instincts and personal knowledge of effected children. Recent tumult in the Texas economy has brought unforeseen and unfortunate consequences. Domestic violence has increased and the number of women needing protective orders against their boyfriends or husbands has risen steadily. Texas Council on Family Violence, available at http://www.tcfv.org/resources/abuse-in-texas/ (Last visited May 2011). Women who live in abusive situations may feel unable to come forward with abuse claims because they have no means of supporting themselves if living alone. As a result, attorneys may see instances of other family members coming forward to report the abuse, but victims hesitating to corroborate the story. These attorneys must balance respect for their confidentiality obligations to potential clients with the need to report violence. Always consult current ethics rules for direction in this delicate area. There is also an increase in the number of grandparents who are seeking custody of their grandchildren. It is estimated that between two and three million children are now being raised by their grandparents. United States Census Bureau, available at http://www.census.gov/prod/2003pubs/c2kbr-31.pdf (last visited May 2011). While this happens for many reasons, a parent's inability to support his or her own children financially is certainly a factor. The number of my clients who tell me they want a divorce but simply cannot live without the other spouse's income has recently increased. On the other hand, I have seen more women who are seeking overdue child support from men who have been out of the picture for years but whose money is more urgently needed during these challenging economic times. The economy has created both areas of struggle and opportunity for Texas family lawyers. ]]> I advocate several important strategies in the eight key areas of family law, as listed below: The family law attorney probably spends most of his or her time on divorces. In many instances, clients look to alternative dispute resolution (ADR) procedures to increase civility and decrease time-consuming conflict. My practice has been most significantly impacted in the area of military divorce, with men and women leaving the country for extended and multiple deployments. This presents difficulties in moving forward with proceedings. I manage divorce cases by helping clients see the long-term picture and look past the intense emotion of the moment. A hurt spouse's desire to get back at his or her partner by fighting over every dime and every piece of property may bring momentary satisfaction, but it will not lead to peace and security in the years to come. It may also hurt my client to drag on conflict that will incur significant legal fees without significant gains. The wise family practitioner must clearly inform clients about the potential costs and benefits of pursuing certain disagreements, rather than taking advantage of that client's emotional state for the sake of the bottom line. Heightened emotions may lead to increased billable hours, but those same strong emotions usually do not react well to a bill which includes unforeseen or unjustified legal expenses. In Texas, divorcing spouses who want to file and uncontested divorce must first negotiate the need for spousal support (or maintenance) and the amount to be paid. Tex. Fam. Code Ann. § 7.006 (2006). If going to court, the judge will look at a variety of issues, and attorneys must be prepared with information concerning the salaries of both partners, any contributions as homemaker, potential job skills, and employment history. Tex. Fam. Code Ann. § 8.052 (2006). When I represent a woman who has been out of the workforce for years in order to raise children, I advocate strongly for a level of support that fully compensates her for the time and energy put into that effort. As with divorce, however, I am clear that spousal support is restorative in nature and not meant to serve as punitive damages for an angry spouse. Fortunately, legislators and courts have over the last decade become much more understanding of the reality of domestic violence. The provisions now in place, which do not judge or blame the victim, have made it easier (not easy, but easier) for women to come forward and get the protection they desperately need. Attorneys must delicately balance their roles as "advocates" and "counselors" in this context, affording special care and sensitivity to clients in abusive situations. I make sure to listen first and then approach the possible solutions by sharing how they will make the client and her family safer. I never force decisions on my client, but am resolute in the fact that she should seek legal protection as soon as possible. The State of Texas does not recognize domestic partnerships, though Travis County (which includes the state capital of Austin) does. The Travis County Clerk's Office, available at http://www.co.travis.tx.us/county_clerk/recording_schedule2.asp (Last visited May 2011). This area of law is under great flux, from the tenuous standing of the Defense of Marriage Act (DOMA) at the federal level to pressure within the state to expand rights to same-sex couples. With not much legal room to assist Texans wanting a domestic partnership, I focus on other ways that same-sex couples can obtain some analogous legal rights, using products such as wills and trusts to address medical needs and manage employee health benefits. Under Texas law, a child does not have a legal father if the parents are not married at the time of birth, even if the biological father is known. Tex. Fam. Code Ann. § 160.201 (2008). An Acknowledgment of Paternity is crucial to securing legal rights and obtaining child support, and family law attorneys must work to facilitate the necessary tests and documentation and to advocate both for a father's rights to visitation and the child's right to money, insurance, and other benefits. Where parties dispute paternity, they likely suffer through severe contention. Consequently, the family practitioner should take great care to calm the situation and explain the process to clients. Unlike most other states, Texas requires that child support payments be garnished from the non-custodial parent's paycheck, in order to ensure the best chance for the child to receive the money. Tex. Fam. Code Ann. § 154.004 (2008). This issue may require ongoing legal representation, as circumstances change and support levels will be modified to reflect new income figures and responsibilities. In these cases I collect evidence and create the best possible portfolio, so to speak, for my client. I always ask for all possible documentation concerning salary, medical expenses, daycare, education, travel, etc., and help with the completion of the support worksheet in a way that is fair to both parties and ensures that the children will be well-supported. Guardianship generally involves minor children, but can also be granted due to mental incompetency or physical issues. Recent changes to Texas law encourage relatives to take children out of the foster system and assume legal guardianship, offering them the foster system compensation and providing stability to the family. Tex. Fam. Code Ann. § 264.760 (Vernon Supp. 2010-2011). Proper representation in this area depends on who requires a guardian: where children are concerned, their well-being is my primary concern; where adults are concerned, I ensure that the guardianship is altruistic and determine the extent to which this guardian will retain rights to make decisions. Texas extensively restricts abortions, and the current Texas legislature is seeking to implement further restrictions. A bill currently considered by the state legislature would require an ultrasound prior to an abortion being performed. Ana Campoy, Texas Legislation Adds Conditions on Abortion, Wall St. J., May 11, 2011, http://online.wsj.com/article/SB10001424052748704681904576315350526209130.html?mod=googlenews_wsj. Texas attorneys should expect further measures from the state legislature that work to indirectly reduce the number of abortions. One instance in which a family law attorney may be needed regarding abortion is concerning parental notification. Texas requires such permission for all girls under the age of eighteen unless they can receive a Judicial Bypass or claim legal emancipation. Tex. Fam. Code Ann. § 33.002 (2008). The following section deals less with specific practice areas and more with how I manage my law practice. Screening potential clients involves every level of my law practice. Before a potential clients walks into my office, I make sure he or she has access to important information through my website. A robust website allows me to communicate general knowledge to prospects rather than only using a consultation to educate. I also elicit some information from the client through standard questionnaires. These tools allow me to streamline the initial consultation, saving both time and money. The following are some key questions asked on my Family Law Client Questionnaire: What is your and spouses (or ex-spouses) full legal name, home address and business address? Do you have children? If so, what are their names, date of births and social security numbers? How long have you lived in Texas? How long have you lived in your county of residence? What is the date and place of your marriage? Are you now separated from your spouse? If so, what is the date of separation? Have you seen a marriage counselor? What do you believe contributed to the breakdown of your marriage? Will there be a dispute over the children? Do you have any children from a previous marriage? List your combined marital property List each spouses Separate property Have you or your spouse or ex-spouse ever: –Committed a felony? –Been arrested? –Been in jail or prison? –Used Illegal drugs? –Abused alcohol or prescription drugs? –Been arrested for or convicted of DWI? –Engaged in gambling activities (legal or illegal)? –Engaged in other illegal activities? –Attempted suicide? –Been hospitalized for an emotional or psychiatric disorder? –Suffered from or received treatment for an emotional psychiatric condition? –Abused your spouse? –Abused your child(ren)? –Had a sexual relationship during the marriage with someone other than your spouse –Had a homosexual relationship? –Engaged in unusual sexual practices? –Had a venereal disease? –Drink socially? If so, what do you drink and how often? My Family Law Client Questionnaire makes for a more informed client when we first meet in my office, which promotes efficiency for all of us. The most important thing I can do during the first client meeting is to listen attentively and compassionately to my client. Clients often come into my office filled with emotion and simply need to share their story. Once I get an initial sense of their needs, I share my honest assessment of the best course of action moving forward. Clients may have concerns about their private lives being forever documented in the public record. Other clients may have questions about the speed of the process, as they are dealing with difficult issues that they want to be resolved as quickly as possible. Still others may express concern about the possible need for their children to testify in divorce or domestic abuse proceedings. The family law practitioner should try to predict which questions will come up in a consultation and formulate clear answers and resource references. At every client consultation, I provide the client with a free edition of "The Family Law Client's Essential Handbook," which is published by the Family Law Section of the State Bar of Texas. This handbook serves the client particularly well because it summarizes the divorce process in plain language terminology. Attorneys should know exactly what information they plan to gather during the initial client meeting. The attorney should develop intake forms through local bar association resources, CLE forms, and experience. I also develop a plan for efficient and frequent communication based on the client's preferences. I also help the client set goals by determining desired outcomes then work backwards to lay out specific steps of action. This kind of structure helps the initial client meeting go smoothly and create momentum for the representation. Military divorce cases, as noted, often pose some of the most complicated circumstances, both in terms of emotions and finances.These cases are often initiated when one member of the partnership is stationed halfway across the world and facing danger to his life on a daily basis. This can make communication close to impossible. Accordingly, mediation concerning children, property, and other details is much easier on clients-and usually more cordial for everyone involved-than long-distance emails. In these situations, I must act not only as knowledgeable legal representative, but also as a good listener. Often my client has been running a home alone for months and should be directed to counseling and financial planning services when appropriate. I am committed to providing thorough and diligent representation to my clients regardless of circumstance, but with complicated cases I often have to make the options simple. I lay out what I believe is the best possible approach to the issues moving forward, and explain to the client my reasoning for this recommendation. When overwhelmed by so many opinions from family and friends (who are also emotionally invested in the case), I try to offer one clear and considered course of action. I also ask my clients to prioritize the outcomes-i.e., what are the important results they would like to see in their homes when this is over? These steps help to improve our success moving forward. When handling a hostile or emotionally-charged family law case, an attorney must first acknowledge the existence of heightened emotions. If you try to work with a client without treating him or her like an individual dealing with a painful and life-changing event, you are never going to win his or her confidence and support in your strategies as the case progresses. Address these emotions directly, then advise your client that you must provide answers that ease hostility over the long-term in a just manner. Also, get everything in writing. Make sure someone takes diligent notes during every client meeting, and follow up each meeting with an email or letter to recap what you discussed and next steps. Engulfed in heavy emotions, your client may not process the details of your meeting or may even remember things incorrectly. This correspondence reinforces your position and defends you against malpractice claims. In the end, responding with a calm voice and the reassurance of experience will often make at least the client-attorney relationship a peaceful one. I have achieved the most success in this practice area by first listening well, then becoming a zealous advocate for the client once the issues and the options in the case are clear. When a client fueled by emotion, you must act as the voice of reason. You must not entertain every desire based in anger or sadness. Rational thinking prevails when the attorney consistently reinforces a solution which is in the best interest of your client. Clear documentation also allows your client to see the progress that has been made and reassures him that you are working for his good. Using these strategies, I have seen clients abandon demands for a trial in favor of mediation, saving a great deal of time and resources. The mediation gave my client an opportunity to express frustrations and expectations with a neutral third party-and perhaps get the chance to vent some feelings to their spouse or feuding family member. This ensures that the client leaves the mediation process feeling that needs were met and voices heard. This often leads to speedy settlement. People need to know that others hear their issues and take them seriously. Mediation also permits the parties to decide their own fate, and keeps the ultimate decisions away from a judge or a jury. As ADR has gained more recognition among lawmakers, attorneys increasingly recommend this method of resolution to their clients. Success rates for ADR in otherwise contentious cases has improved. Today, an overwhelming number of all cases brought up for ADR find resolution during the mediation itself or shortly thereafter. Contrast this with court trials which rarely end after one day with the court. Particularly in light of the difficult economic times many of our clients are facing, the success of ADR partnered with the potentially thousands of dollars saved make ADR the go-to option. Just a decade ago, many of these cases would have ended up in emotionally and financially draining trials. Also, ADR has its place in all areas of family law, not just divorce practice. It can be used to negotiate the terms of visitation for other family members, to lay out plans for an open adoption, or to address many possible modifications that come up years after a divorce is finalized. Above all else, ADR offers benefits to the innocent children wrapped up in these cases. With their parents not locked in a divisive legal battle that tears at injured emotions, the kids overhear fewer arguments and avoid becoming pawns or bargaining chips. Parties succeed with ADR when they both feel as if they retain some power and have their voices heard. The practitioner should not encourage ADR in instances of domestic violence or when a protective order is in place. These cases involve abuses of imbalanced power, conditions that must not prevail in an ADR setting If a criminal act has occurred, the perpetrator needs to face his or her day in a criminal court. Family lawyers should look at the success of ADR and recognize that most clients, regardless of the anger they first bring to the office, really do want to resolve issues peacefully for the long-term health of their family. Good mediators will acknowledge the heightened emotions in these cases and work past those feelings to reach a rational solution. The client must help direct the strategy for a particular case. While this person may not know the legal intricacies of the situation at hand, he or she will have to live with the consequences of these legal decisions in their home. For example, when assisting a client with a child custody case, you need to understand his or her feelings about being a parent and availability of financial resources, time, structure, and nurturing. Ask your non-custodial parent client what role do he or she hopes to play in the life of the child. When advising an adoption client, ensure that the client has the counseling resources and the support system needed to make this life-changing transition. If you are meeting with a woman seeking a protective order against a boyfriend or husband, you need to make sure that she is emotionally ready to share her story with a judge and stand firm in her desire to enforce this legal document. In a divorce case, determine whether the client is making rational requests or acting out of the intense emotion that comes in the wake of a separation. You really need to know your clients and encourage them to be advocates for their own families' long-term happiness. Family law attorneys must make sure that they operate with a broad view of what constitutes a "family," because the definition has changed. We must now consider homes led by grandparents, single-parent families, same-sex couples seeking counsel for domestic partnership or adoption, adoptive parents, and a variety of other ways in which a family unit can be created. Also, in light of the growth in collaborative and ADR practices, family lawyers should see their clients as members of the legal team, instead of someone who needs to be told what to do. The law increasingly encourages family members to actively participate in the legal decisions that shape their family, so do not exclude them from the process. Lawyers should look for new ways to reach individuals and communities who could use their help but are unfamiliar with the legal process. Just opening an office and hanging a shingle no longer suffices. Family law attorneys should have a presence on the Internet, look for opportunities for outreach at community centers, counseling offices, and doctor's offices, and determine to what extent services can be made available in languages other than English. You should get to know the area in which you serve, and make a plan according to the needs of the people who live there. For a Texas attorney, it is a good idea to always have an eye and ear focused on what is happening in Austin and Washington, DC in terms of changes to legislation. You should also make sure clients are accessible by phone, email, and the Internet. Family lawyers should maintain a regularly updated blog that showcases current news stories and legislation that will be of interest to potential clients. Facebook and other social networking outlets are also wonderful ways to reach out to young families. Attorneys also should be aware of the online services offered by child support offices and tax collection agencies so that clients feel that you are knowledgeable with respect to every step of the process you are recommending. I believe the next couple of years in family law will see more court cases that will test the traditional definition of "family," whether the case involves a gay or lesbian couple or the right of a sperm donor to have an active role in the life of his child after learning of her existence eighteen years later. I believe there also will be some pushback to this evolution of the definition of "family" in the state legislatures, with attempts to tighten restrictions on marriage and adoption. I also think that mediation will continue to expand, which is already causing many family law practices to redefine the mission of their work. I think that we will see efforts in the Texas state legislature to reinforce the idea of the traditional family-a concept that is more strongly pronounced here than in some other areas of the country. I also believe that the specific efforts to promote collaborative law point to the possibility for more successfully mediated disputes across the board in Texas. With respect to the trends I have mentioned, I do not see much of a change concerning the role of government agencies. The child support office will continue to track parents who owe money; child protective services will investigative those parents or guardians who are harming children; and Health and Human Services will provide assistance to guardians who are newly assuming responsibility for children. When you practice family law in Texas (or any kind of law for that matter), you must be cognizant of the fact that you are dealing with a diverse population, in terms of racial composition, ethnic background, religion, and socioeconomic standing. All of these factors come into play when discussing sensitive areas such as how children will be raised, the gender roles within a marriage, and who is going to be the voice of authority to represent a family. You need to take these important differences into account when offering advice for the next steps in a legal case. A lack of understanding when it comes to demographic characteristics will result in serious problems in practicing Texas family law. More than any other area of law in which you can practice, family law requires patience and sensitivity to the intense emotions that your clients will be experiencing. Whether amidst the joy of a long-awaited adoption or the fear felt by a woman who has been physically abused by her husband for years, you need to be the voice of reason who will guide your client to wise decisions that will serve her well long after the turbulent moments have passed. Tony R. Bertolino is the managing partner at Bertolino LLP with law offices located in Austin, Houston and San Antonio, Texas. A member of the Trial and Appellate Litigation Team, Mr. Bertolino's practice is devoted largely to complex transactions, commercial litigation, business law, entertainment law and family law matters. You can read more about Mr. Bertolino at www.belolaw.com
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