Author: redheadedlaw

Preparing for the End of your Marriage!

Written by redheadedlaw on September 24, 2022. Posted in Child Custody, Death, Divorce, Finances, Probate, Wills.

Are you contemplating a divorce, or do you think your spouse is? Here at The Essex Law Firm, I tell my clients, even if you are in the happiest of marriages, all marriages, sadly, end, and they end in one of two ways: death or divorce. Most people realize they need to have Wills. Even if you do not see divorce or imminent death of your spouse in your immediate future, you should approach preparation for the end of your marriage in the same way. You will encounter much less stress and financial hardship if you PREPARE AHEAD OF TIME by assembling the documents below and keeping them in a safe place. You should also remember to update them at least once a year.

After practicing law for over 35 years, we know what needs to occur to minimize your stress and to get the most successful outcome for you. The following is a comprehensive list of what you will need to have on hand in either divorce or probate (and you can download a simplified checklist to help you keep track):

Financial Statements
Provided when obtaining a mortgage, loan, or other credit. These will establish a client’s income, net worth, and profit/cash flow from one or more businesses.
Tax Returns
Try to provide at least two years of returns if possible, including all schedules like W-2s, 1099s, K-1s, along with any corporate returns. Other years may be required later.
Paycheck Stubs
Provide the last 6 months. These will show bonuses, retirement, and pension contributions along with year-to-date totals.
Bank Account Information
Provide at least the last 2 years of statements. Bank statements are essential to establishing a financial picture of the client, and also should correspond to deposits reflected on paycheck stubs.
Brokerage Statements
Provide at least the last 2 years of statements. You will need copies of all brokerage statements showing accounts held individually, jointly, in trust, or through a corporation. Statements for other years may be required later.
Loan Applications
All mortgages, second mortgages, HELOCs, credit cards, etc., along with any pending loans must be disclosed. These should line up with the financial statements and it can also complete the cash flow picture of a client.
Business Ownership Records
Ownership and operating agreements, trusts, and the like must be disclosed for the court to render an accurate judgment.
Computer Records
Hacking your spouse’s computer (or installing spyware) is a crime, but if you have electronic evidence that may help your case, AND YOU DID NOT OBTAIN IT ILLEGALLY, please be sure to bring it. If you have a question about legality, please discuss it with us first before providing it.
Stock Options
These can be extremely valuable but are often not exercisable until some point in the future, so bring everything you have and this information can be requested from opposing counsel early in the process.
Pension, Profit Sharing, and Deferred Compensation Plans (401k)
Provide the last 2 years of statements. More may be required if you acquired the plan prior to your marriage.
Credit Card Statements
Provide the last 2 years of statements. Purchases can be hidden in credit card history that might be for someone outside of the marriage.
Other Debts
To divide assets accurately all debts need to be considered.
Insurance
There are many different kinds of insurance, some with cash value (whole life insurance) and others (like homeowners) which can include appraisals of property or valuables.
Real Estate
We will need all real estate deeds, tax bills, lease information, and any additional (passive or active) interests in property.
Personal Property
A list of items (preferably listed by room) that you currently own and whether the item was acquired before or after the marriage. For autos and boats, provide a copy of your insurance card showing VIN numbers, etc.
Wills and Other Legal Agreements
These includes powers of attorney, which can be problematic and must be disclosed.
Memberships
Country club memberships (for example) are assets that need to be included.
Lawsuits or Judgments
These include any bankruptcies or prior divorces.
Charitable Contributions
It’s likely the tax returns will also contain this information.
Medical Records
If either spouse has a disability, these are useful in justifying reduced income or lengthy unemployment.
Phone Records
It’s often important to establish a timeline and these records can help.
Safe Deposit Boxes or In-Home Safes
An inventory of the contents can prevent problems later.
Tapes, Photos or Other Typed/Written Communication
If you have any questions on this topic please ask us prior to or during your first consultation.
Calendars
These can also help jog memories and establish timelines.
Intellectual Property
Not as common, but some people receive periodic royalties for intellectual property.
Fault
If you have documentation that helps determine fault in the divorce, this is obviously important to provide.

For Determining Child Custody

Proof of Primary Caregiver
You will need to provide proof as to who is the primary caregiver.
Proof of Stability and Continuity
Courts usually are receptive to the idea of continuity in a child’s life so anything establishing involvement in community activities is helpful.
Parental Preference
Provide any evidence reflecting where the children want to live.
Character of Other Adults
The character of any other adults in the children’s lives should be documented.
Report Cards
These often include teacher’s notes which can be useful.
Drawings
Children often express issues through their drawings and writings.
Abuse
Any evidence of abuse between any family members should be provided.
Homemaker
It is also important to gather any documents showing who (often the primary caregiver) has been “staying at home” to care for the children.

Be Prepared

To make this process as smooth as possible and reduce the inevitable stress and financial hardship, assembling these documents ahead of time is essential. If you have any questions or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

Summarized Checklist

We created for you a summarized checklist that you can download to print and use, to help you gather your documents together.

Download Checklist

The Surprising Truth about Same Sex Marriage in Texas

Written by redheadedlaw on June 25, 2022. Posted in Marriage, Pride.

Given the ongoing national debate over same-sex marriage, one might assume it is a complex legal topic that is still evolving. Believe it or not, it is not only a done deal – it has been settled for seven years. Same-sex marriage has been legal in Texas (and the other 49 states) since the Obergefell v. Hodges decision by the Supreme Court in 2015. You can imagine the reaction – huge pent-up demand for this privilege was immediately unleashed. In the three months following the decision, 2,500 same-sex couples were married in Texas, with many more since. As there is not a great deal of summary information on this topic (outside of dry legal journals), we will do our best today to answer a few of the most common questions.

The Logistics of Same-Sex Marriage are Identical

There are no shortcuts for same-sex couples to wed in Texas (sorry!), but neither are there extra hurdles to jump through. Here are the three steps to follow for a legal (same-sex or heterosexual) Texas marriage:

Apply for a license at a county clerk’s office
Complete a sworn application establishing each is legally eligible to enter into a marital relationship
After a 72-hour waiting period, any couple can be married by a judge or authorized religious official

Of course, there’s always some fine print – these caveats apply to all marriages in Texas:

Neither party can be currently married
Anyone younger than 18 needs an authorizing court order
Marriage between relatives is limited (no marriage between first cousins or closer by blood, nor can family members marry a current or former step-parent or step-child)

And as a result of the Supreme Court decision, it is unlawful for any authorized official to refuse to perform the marriage ceremony between two eligible parties due to race, religion, national origin, or sexual orientation. In addition, any lawful marriage performed in another state (or country) is also valid in Texas.

Surprise #2 – There are Tax Benefits to Legal Same-Sex Marriage

We know that marriage is all about the lovey-dovey stuff, but after the rice is swept up and the gifts are opened/returned, there are also positive financial ramifications! Many of these federally sponsored benefits are now available to same-sex married couples, including:

Filing joint income tax returns
Estate and gift tax exemptions
Creating family partnerships (to divide business income)
Veteran’s benefits (health, death pensions, loan guarantees, etc.)
Social Security benefits

Legal marriage also establishes the presumption of joint ownership of mutually acquired property, and strengthens the rights of both parties with regard to their children.

Surprise #3 – Same-Sex Couples are Now Eligible for Group Benefits

Prior to the 2015 Supreme Court decision, some states denied same-sex couples the right to marry, and as a result, employers were able to withhold group spousal benefits, such as health insurance. Now, employers must extend any group benefits to any legally married spouse, regardless of sex. This includes the post-employment continuation of health coverage commonly known as COBRA.

Grinch Alert – Employers can decide not to offer group health to any spouse (booo!), but they cannot pick a particular group of spouses (like those of the same sex) to exclude.

And there is far more to group benefits than just health insurance. Any ERISA-covered pension plan must provide qualified joint and survivor annuities when an employee is legally married. Other retirement accounts (like 401(k)s) must provide similar options or facilitate the transfer of the account balance to the surviving spouse upon the death of the other. Same-sex married couples are also covered by the Family and Medical Leave Act. The rules covering workers’ compensation now also apply to same-sex married couples.

A Few (Cautionary) Knowledge Bombs

As you can see, there has been tremendous change in Texas (and across the nation) with regard to same-sex marriage since 2015. The net result is to place same-sex couples on (nearly) equal footing with their heterosexual counterparts. While not quite a Grinch Alert, we do have several words of caution. In my experience, issues regarding same-sex marriage are much more likely to be litigated in Texas. I believe this is because opinions on this topic are more polarized here, and also because not all Texas courts are as experienced with same-sex marriage as others.

One more recommendation – as soon as a same-sex couple decides to become parents, please strongly consider seeking legal advice (particularly if you are not the parent giving birth). Resolving custody disagreements between same-sex parents is a rapidly growing area of the law in Texas and elsewhere. Unfortunately, we have seen many parents lose all rights to a child during court proceedings without the correct legal safeguards in place. And of course, in the unhappy event your union is suffering and divorce is being contemplated, it is also advisable to have legal representation.

Equal Protection Under the Law

With same-sex marriage officially the law of the land, individuals of all sexes are now protected if they choose to follow their hearts. The leveling of the marriage playing field will undoubtedly result in more same-sex unions, and (hopefully) more happy families. If you have any questions or would like more information, please feel free to contact the Essex Firm for an in-person or virtual consultation.

Avoid The Minefield and Save The Village

Avoid the Minefields and Save the Village

Written by redheadedlaw on May 6, 2022. Posted in Divorce, Weaponized Incompetence.

If you walk into a bookstore and find the section about repairing marital relationships, most of the titles will be directed at the female partner. Why is this? After decades of experience practicing family law, my belief is either partner is fully capable of taking constructive action during turbulent times. Today, I will present some observations into the male thought process – behaviors that I have witnessed many times during my career. No one gets married expecting the happiness to end, but as we know, all too frequently, that’s precisely what happens. With any luck, sharing my experiences as an interested third party will help some couples get back on a healthy marriage track.

The Anchor of Divorce

The weeks and months preceding and following a divorce can be a terrible time for many reasons, some more obvious than others. But consider this – if your partner threw an anchor at you and you caught it, what happens? Everything in your life changes because you are struggling to handle this enormous weight that wasn’t there previously. Your marriage may be ending, but that’s not the only impact. Males suddenly find themselves living in a strange social limbo, not able to seek out many former friends and acquaintances because (in their words) they were “our” friends. For those considered “safe,” there is the problem of how to answer questions. Often (because they are men), honest communication is extremely painful, so they close up and avoid nearly everyone. Work suffers, too – someone this unhappy and introverted can’t possibly perform their professional responsibilities at the same level. Even areas where there might be instinctual expertise (like being a father) can become problematic, as formerly natural manners and activities are re-analyzed and second-guessed. And no, the vast majority of men in this position don’t even consider dating, given how overwhelming and foreign everything else in their world has become.

Losing Your Best Friend

For a married man, his spouse is always his best friend and vice versa. If a marriage is to be (and remain) successful, it has to be this way. As couples separate and begin the slow descent into divorce proceedings, the man loses his best friend and generally has no adequate replacement. Women seem to rebound faster in this situation and often have one or more people who can assume the best friend role. Men don’t, possibly due in large part to being men and therefore lacking skill in the ability to communicate personal feelings. One of the most valuable acts a man can do before and after a divorce is seek out a men’s group. All churches have them, and these groups meet in the evening after work hours. For many, these groups become the man’s new best friend and can shed light not only on poor behaviors contributing to current problems but how to self-correct.

It’s What Happened that Matters

One statement that I’ve heard husbands say over and over again is, “that’s not what I meant to have happen.” Maybe so, but the problem is it did happen, and now one must be accountable. What someone tries to do does have some value, but how it turns out is what matters. If it turns out badly with hurt feelings and worse, the damage must be acknowledged. For example, we talked about social interactions earlier. Most husbands will freely admit that their wives are totally in control of all aspects of their joint social lives. They will also admit that they follow the wife’s lead in running the house, planning activities, arranging vacations, etc. For the men reading today, please believe that while women might assume these responsibilities willingly, it is a burden. As time goes on, this burden can become weaponized. Wives can begin seeing this lack of engagement as disinterest and feel neglected and unvalued. Men, there is more to marriage than just showing up. Sometimes you have to grab the baton and lead the parade. An equal 50/50 split is not necessarily the answer, but appreciation and some participation will go a long way toward reestablishing the feel of “we’re in this together.”

When Is It Too Late?

In the words of the famous philosopher and performer Lenny Kravitz, it ain’t over ‘till it’s over. Husbands are often hindered by their inability to communicate in a timely, effective, and empathetic manner, but recognizing these issues can help them demonstrate the sincerity they feel in their hearts. Many times, in my experience, this can be a breakthrough for couples in crisis. If you have any questions or want more information, please feel free to contact The Essex Firm for an in-person or virtual consultation.

Don’t Fight over Fluffy – Pets and Divorce

Written by redheadedlaw on March 28, 2022. Posted in Divorce, Pets.

Divorce is tough on everyone. Disruption to routines and lifestyles is inevitable even in the best of circumstances, and this is not limited to adults and kids. Even the family pet feels the change. Considering all of the life-changing decisions that have to be made or negotiated, it’s not surprising that couples in the midst of these proceedings can lose track of Fluffy. For some background, you may wish to review our 2014 blog post on pets and divorce titled, “Who Gets Fido?” The COVID pandemic has resulted in more people isolating and purchasing pets, which increases the number of divorce proceedings involving animals. As such, we wanted to provide a current review of the situation.

Pets = Property

It doesn’t matter if you dress your cat in the finest fashions like those fabulous felines we see on TV, pets are still considered property by the vast majority of U.S. courts (including Texas). And according to a 2021 survey by the American Pet Products Association, 70% of U.S. households own pets. Based on these numbers, who keeps the pet can’t help but become a common discussion among divorcing couples. If there is no agreement between the spouses on who will keep Fluffy, the courts will be forced to decide what is just and right. To do this, they will first seek answers to a series of questions, including:

Was the pet brought into the marriage by one spouse, or was it acquired during the marriage?
Was the pet a gift to one of the spouses prior to or during the marriage?
Was the pet a gift to one (or more) of the children, and where will the children be residing post-divorce?

If the pet was acquired during the marriage and the answer to the other two questions above is no, the pet will likely be considered community property, similar to that new bedroom set purchased a few years back. As such, Fluffy would be lumped in with the other property determined by a court to be owned equally. In this scenario, one can see the potential for emotions to run hot.

Other Determining Factors

If there is no agreement among the spouses and the court will likely deem the pet community property, what other factors will be reviewed? Here are some additional common considerations:

Has one of the spouses left the family home without taking or claiming the pet?
Has one of the spouses ever harmed or mistreated the pet?
Has one or more of the children developed a special attachment to the pet? (This often occurs with special needs children.)
Has one of the spouses stated that they will be selling or giving the pet away?

Behavior also can play a part in any court proceeding. If you are claiming sole ownership of the pet just to hurt or punish your spouse, it is very likely this information will eventually come to light. Judges will not take kindly to such antics. Also, while “stealing” the pet will not technically constitute theft (you can’t steal something you own), it will also paint the spouse in a very poor light and negatively impact the determinations of any court. Please resist the urge to behave badly – in the end it will likely backfire.

What to Do if You Want the Pet

Simply put, you’ll have to fight for Fluffy. Be prepared to show the judge that your children need the pet to cushion the pain of divorce (if you will have custody). If you won’t have custody of the kids but want Fluffy, maybe show the court how the kids are afraid of the animal, are allergic to it, or have been bitten by it previously. Maybe you have been the pet’s primary caregiver during its life, is healthier, or you are better equipped financially to handle the associated expenses. In the case of a larger pet, you might have more space for it to play. As you can see, in the absence of an agreement with your spouse, determining who gets Fluffy can become very contentious (and expensive).

While it is better to work out some mutually beneficial arrangement, you might be surprised to learn that pets can have court-enforced visitation schedules for both spouses, or even shared custody.

Better to Negotiate

Please keep in mind that Texas courts don’t want to determine where a pet should reside. They are far better equipped to divide other traditional property and income than consider all of the emotional impacts of who should be sole pet owner. For this reason, you take a chance in court on this matter. It is much better to negotiate than litigate. If you have any questions or would like more information, please feel free to contact The Essex Firm for an in-person or virtual consultation.

Tracking your Spouse – A Very Slippery Legal Slope

Written by redheadedlaw on February 3, 2022. Posted in Divorce, GPS Tracking, Technology.

Technology can be a wonderful thing, until it’s not. And in the legal profession, I believe most practitioners would agree that technological advances occur far faster than the law’s ability to keep up. The Apple AirTag is one of the more recent examples of how an extremely clever and useful device can be misused. Sure, an AirTag can help find your keys or your wallet, but is it legal to use to track your spouse?

The AirTag Explained

This relatively tiny (1.25 inches across and weighing less than half an ounce) token is basically a transmitter that sends a secure Bluetooth signal. With billions of iPhones and other Apple products in every corner of the world, the signal will be detected and ultimately beamed back (with its location) to its owner. Starting at $29, would-be spies no longer need to shell out hundreds of dollars (and a recurring subscription fee) for a bulky GPS unit that needs to be mounted somewhere in a car and hard-wired to its battery. There are now much more surreptitious options, and the AirTag battery is advertised to last an entire year. The other problem with competing devices (like Tile) – phones must be running the Tile (or other) app to communicate – a much smaller pool that limits its usefulness as a people tracker.

But Won’t the AirTag Announce Its Presence?

If an AirTag is tracking you without your consent or knowledge, it is designed to send an alert to your iPhone under certain conditions (like when you return home or go to work). For non-iPhone users, the AirTag itself is designed to chirp after it has been separated from its owner for three days. There are a few caveats to the anti-tracking security measures built into the AirTag. iPhone users being tracked will not be alerted until they return home (an obvious problem if you don’t want someone to know where you live). Non-iPhone users will not receive an AirTag alert on their phones, and the speaker in these devices can be disabled. Last, and perhaps most alarming, if you are cohabitating with your tracker, the AirTag will probably not give itself away because it will resume communication with the owner when the person being tracked returns home. And someone with physical access to your iPhone can disable the AirTag alert.

The Current AirTag Legal Quandary

In Texas, the short answer to “is it legal to electronically track your spouse” is yes, but in reality, these devices inhabit a gray area of the law. It is definitely legal for the owner of a vehicle to track the whereabouts of his/her property, but consider that some vehicles are jointly owned. In this case, either owner has tracking rights in theory, but during a divorce, this may not matter. If the primary driver is being tracked by the other, a judge may not agree with the “joint ownership” defense and the offender could face a state and/or federal criminal complaint. Also, keep in mind that law enforcement needs to obtain a search warrant prior to tracking someone. If a judge does not agree with the tracking, it is likely that any evidence so gathered will be thrown out. Attorneys also face the possibility of being sanctioned or charged with a state or federal crime if they use material deemed to be illegally obtained.

My Advice – Don’t Do It

In Texas, the use of trackers like AirTags during divorce is currently one of the most discussed and debated topics in family law. The general consensus in the legal community is avoid this practice, and I agree. If you were my client, I would advise you not to track your spouse. If you have any questions or would like more information, please feel free to contact The Essex Firm for an in-person or virtual consultation.

Gifts for CPS Children

Written by redheadedlaw on December 22, 2021. Posted in Christmas.

The Essex Law Firm participated in purchasing gifts for CPS children through the Montgomery County Bar Association for Margaret’s Mission. The amount of gifts collected totaled over $1,000. We are so grateful to be able to help these children during this Christmas holiday. The list of donors who participated in this wonderful event were:

Justin Trapolino of Clearstone Realty
Mike of Champion Liquor
Iris Hammontree
Jack Essex
Shannon Essex
Essex Law Firm

Christmas Is For Kids

Written by redheadedlaw on December 13, 2021. Posted in Child Custody, Christmas, Parental Rights.

Helping Families Plan Stress-Free Holiday Gift Giving

In previous years I have written about holiday strategies for families. It is important to get through this period without problems and divisiveness, and to keep the kids feeling jolly in spite of any parental turmoil. Today I will be a little more specific. There are times when two parents cannot agree on much of anything, let alone gifts for their children. Here are some strategies to help ensure this annual event goes smoothly, along with several traps to avoid at all costs.

Don’t Make it a Competition

Kids are truthful when you ask about their needs and wants, but sometimes this can pit one parent against the other. If your son wants a hoverboard, he may tell one or both parents, but without coordination this innocent wish can go bad quickly. What happens if the dad wants to look like the hero and buys the most expensive hoverboard? Then the mom is hurt because she will look like a Scrooge if her gifts are not equally grand. Or, possibly she bought a hoverboard too, but a less-expensive one. No matter which board is opened first, tempers are guaranteed to flare. Children are already in a delicate position during marital difficulties because many internalize at least part of the blame. Don’t turn gift-giving into a game of one-upmanship.

Gifts Should not Become Punishments

Let’s say dad did buy a hoverboard and it was enthusiastically received. It would not be fair to insist that this toy only be used at the dad’s house. Or, if it was used with great joy at both homes, it wouldn’t be right to take the opportunity to deride the dad for his gift, or express sadness to the child over his/her obvious enjoyment. In addition, never hold a gift over your child like a bludgeon (example – since you love that hoverboard so much, I guess we don’t need to go to Disney World this year). And depending on their ages, children will usually ask one parent for help in buying something for the other. You know where I’m going with this – don’t take this innocent request as an opportunity for sabotage. If you know your wife hates orange, don’t help your daughter buy a gaudy orange headband. Children are pure of heart and will take your gift-giving advice as gospel. If your spouse sends a check, be sure the child knows about it – even better, why not put it into a small box and wrap it up?

How to Successfully Coordinate Holiday Logistics

When two parents are apart, there are logistical as well as communication challenges to be overcome. Even Christmas Day can be a point to negotiate – where do the children open gifts, and who is present? Sometimes it’s not possible for both parents to host their children. In this scenario, maybe two Christmases or similar celebrations can be held on successive evenings. The kids may very well be thrilled at the idea of having two of something they already love. By focusing on the needs of the kids, the issues surrounding the logistics of holidays can be more easily discussed and resolved.

Coordinate Your Gift-Giving

As mentioned earlier, this can be a very sensitive area. One way to ease the competition (spoken or unspoken) between parents is to agree on a specific framework. Diplomats do this for heads of state, and why not apply the concept to parent heads of state? You can decide that each parent will purchase one gift from each of the following categories:

Clothing
Toys
Electronics
Sports Equipment
Food or Dining Cards
Cash or Gift Cards

In this evenly matched scenario, each child will get 12 total gifts – a number that is guaranteed to put a smile on their little elf faces! Of course, the possibility of one-upmanship still exists, so communication is still necessary, and all the other warnings must still be heeded. But this allows more precise requests from the youngsters, and gives them two chances at their favorite things. Swapping one category for another is easy and recommended (for example, trade sports equipment for music equipment), depending on their interests. This is also a teachable moment for the parents, as they must engage with their kids to assess their current interests (which may have changed).

Even if the diplomatic solution is too complicated, there are other ways to handle the annual Amazon shuffle. Parents can agree on a dollar limit each, which can reflect the likelihood that one earns considerably more than the other. Or each can contribute towards a larger purchase, like a teenager’s first car (demonstrating how big-ticket items don’t just appear – they have to be saved for and earned). Communication will also prevent “undesirable” gifts from being opened (or at least provide early warning that a snake is moving in).

Focus on Common Interests

Believe me, I’ve seen it all in my 30+ years of practicing law. The children are often the first casualties in a divorce battle, but it doesn’t have to be that way. No true parent wants their children hurt by a divorce, and it is wrong to draw them into the fray. By focusing on them and how they currently view their world, parents can preserve their innocence while molding and managing their expectations for the future. If you have any questions or would like more information, please feel free to schedule an in-person or online appointment with The Essex Firm.

The Truth About Mediation in Divorce Cases

Written by redheadedlaw on October 1, 2021. Posted in Divorce, Mediation.

Mediation is one of those topics that everyone has heard of, but most do not fully understand. In many industries, agreeing in advance to resolve disputes via mediation is mandatory. Although the mediation requirement depends on the court and local county rules where the case is pending, mediation has become required in most family law cases in recent years. The requirement has resulted from the increase in divorce and related family law cases. In promoting mediation, the Texas legislature is seeking to relieve family law courts of the tremendous burden of increased cases, especially in the larger metropolitan areas. It is not unusual for a family court in one of these counties to have 50 cases on the docket any given day. Depending on the court, there may be only one judge available. It has become overwhelming for the judges and their staffs, and this has led to litigants waiting an unnecessarily long time for their cases to conclude.

Mediation does have a number of advantages over litigation, but also a number of pitfalls you must understand. Today, let’s review the advantages and disadvantages of mediation in divorce situations and why getting legal advice is still essential.

First – Mediation is not Arbitration

While both are alternative dispute resolution processes, arbitration is closer to a legal proceeding. The arbitrator hears testimony, reviews evidence, and makes a decision. An arbitrator is typically a retired judge, an attorney, or some other professional. The primary difference in arbitration is the idea that the arbitrator will hand down a legally binding decision at the conclusion of the proceeding. This differs from mediation, where the point is to reach a negotiated settlement. There generally isn’t much negotiation in arbitration.

So What is Mediation?

By definition, mediation is a process utilizing a neutral professional (the mediator) to help the parties identify issues and resolve disputes. In a divorce setting, the involved parties are the estranged spouses. Below are some of the benefits to mediation (compared to court):

Usually Saves Time and Money – Reaching a divorce agreement via mediation is much less expensive than the traditional route of trying a case to a judge or jury. It can also be much faster (with no court dates to secure) and may make it possible to avoid some of the legally prescribed waiting periods in divorce proceedings (but not the 60-day waiting period for a divorce to be finalized in Texas).

No Dictated Settlement – Mediation is all about negotiating an agreement. If the parties have been unable to resolve (for example) issues like the division of assets or child visitation, mediation allows the parties to craft their agreement. Nobody knows better than the parties the details of their situation, especially when children are involved. A judge or jury will be bound by the Texas Rules of Civil Procedure, which often limits what facts a judge or jury can present. Since mediation is not a court proceeding, almost any facts can be put on the table, often leading to a much more workable solution for the parties than they would get in a courtroom.

Caution: Mediation is a process undertaken at a very emotional time and should be approached with legal representation and guidance, even in what seems like a “simple” case. Because mediation is binding (as discussed below), the decisions reached in mediation may drastically affect the outcome of the case. Most of the decisions made there usually cannot be undone, even by a judge.

What to Watch Out For

Attending mediation without legal advice – A mediator is a neutral party whose duty is to facilitate an agreement. Mediators do not find fault, issue orders, or make decisions. Unless you have professional counsel present, the only person looking after your best interests at mediation is you. Mediation can quickly descend into chaos because even though it is an informal process, it is still highly emotional. Any manipulative, domineering or abusive behaviors present during the marriage can resurface during mediation, with the same results. An attorney representing you will not allow this to happen.

Illegal Actions May Not Be Discovered – A mediator is not expected to ask the right questions or do the proper research to uncover (for example) hidden assets, only to try to facilitate an agreement. A skilled attorney would be qualified to investigate and use the discovery process to ensure all parties have a complete and accurate picture.

Mediation is Binding

Consider this – wouldn’t you want some expert advice when making decisions that will impact the rest of your life? You definitely would, and it’s the smart approach. Mediation is legally binding, and once such an agreement is signed, if the proper legislative requirements are followed, there isn’t anything anyone (even your lawyer) can do to change it. However, if you consult a lawyer before mediation, you will receive guidance that will likely pay for itself a hundred times over. You will also gain insight into the mediation proceedings, what to expect, the difference between legitimate requests and non-starters, and a professional assessment of what will be fair to expect or pay in support given your unique circumstances. Even after you have an agreement, an experienced family attorney should review it to be sure it accurately reflects what was discussed.

You Get What You Pay For …

A mediator does not have to be an attorney. Some financial planners and other professionals take mediation training and become mediators. They promote their services as being less expensive than hiring an attorney, especially if both parties attend the mediation without counsel. The problem with this is while the financial planner can do a spreadsheet of the assets and liabilities, and the non-attorney mediator can tell you how good they are at negotiation, they are NOT lawyers. They cannot give you legal advice. They have not tried cases in the court where your case is pending. They cannot tell you if the agreement you are considering would meet the “smell” test of the judge in your court. Why does that matter if that judge cannot overturn the agreement? It matters because to make a rational decision about the offer on the table, you have to know what your risks are. Your risks are determined by the judge in the court where your case is pending. You must weigh the offer on the table in mediation with what the judge in your court is likely to do, or else how do you know if you are making a good decision? You must weigh what is on the table against the costs to try to case in front of that judge. And that is why if you have legal representation, your attorney will ensure that the mediator helping you resolve your case will also be an attorney, once well versed in family law AND in the court where your case is pending. And that means when you make these life-changing decisions in mediation, you will make the best decision possible for you.

If you have any questions on this or any other family law issue, feel free to contact us and schedule a virtual or in-person consultation.

Vaccinating the Kids

Written by redheadedlaw on August 23, 2021. Posted in COVID-19, Divorce, Vaccination.

Divorce and Vaccinations – How to Agree if There’s No Agreement

Believe it or not, August is here and kids are heading back to school. Unfortunately, so is COVID. Everywhere we turn there are new debates and mandates about the various COVID-19 vaccines. What began as a blessing and a choice is fast becoming a requirement. Industries including healthcare, government employment, hospitality and professional sports are requiring proof of vaccination for continued employment or participation. The rules of vaccination are changing faster than the law, and divorced parents can’t keep up. This can cause serious family problems.

Is a Public School Mandate Coming?

To date, the COVID vaccine has not been mandated for attending public school in Texas. However, in the past, school attendance has been conditional on being vaccinated for other diseases. After decades of MMR and TB vaccines (among others), this practice has become accepted as part of our culture. With this in mind, a new, nationwide COVID vaccine mandate would simplify the lives of parents – the choice would be public school or home school?

Are Vaccinations Considered Invasive Procedures?

This is becoming an important question. The State of Texas has not defined “invasive procedure” in the Texas Family Code, nor has it been defined by the courts. Within a Texas custody order, a parent may have been granted the right to consent to medical, dental and surgical treatment including “invasive procedures” for his/her children. Or a parent may have the right to make educational decisions. But even if a parent has both of these rights, forcing a child to get vaccinated (over the objection of the other) is still without precedent.

Mom vs. Dad – Differences of Opinion

As with other types of vaccinations, parents often have differing opinions as to their necessity. Add this to the uncertainty over the definition of invasive procedure, and you can see how a legal morass could develop. However, if vaccinations are ultimately defined as invasive procedures, any Texas parent with the right to make medical decisions for their children would have the final say. Until that time, the situation is ripe for conflict. It is also possible that state (or even school district) mandates may be at odds with existing Federal law. States might prohibit mandates and schools might endorse them, putting parents right back where we started – unable to agree on a course of action.

Mom and Dad – Communication

With so much up in the air, the sooner the vaccination conversation begins between divorced couples, the better. Although often difficult, it is important to remain open, honest and calm in having this discussion. It’s not a war, but an exchange of ideas. Everything needs to be on the table, right down to which vaccine (if any) should be considered. Never assume it is okay to vaccinate without consulting the other. This is a conflict that should be avoided. In some cases, events might force one’s hand. If a parent wants to take a child overseas, a vaccination might be unavoidable.

Litigation – Not Your Best Option

For all the reasons discussed, you can see how avoiding legal conflict may be your best option when considering whether or not to vaccinate a child. The law is still evolving on this matter, and even if there is passionate, irrevocable disagreement among parents, courts are backlogged because of (you guessed it) COVID-19.

This is a complicated topic for a number of reasons. If you have any questions on this or any other family law issue, feel free to contact Essex Law and schedule a virtual consultation.

The Truth About Legal Fees

Written by redheadedlaw on July 19, 2021. Posted in Consultation, Legal Fees.

One of the first bits of wisdom I ever received from my grandfather was “you get what you pay for.” He grew up during the depression and probably learned the hard way that you won’t get something for nothing – there’s always a cost built in somewhere. While we have all become skeptical of grandiose claims, it’s still tempting to grab at those freebies. In my experience, obtaining the best outcome in a divorce case requires an up-front investment. Allow me to tell you why as I provide the benefits of hiring the Essex Firm for your family law needs.

Managing Stress

If you research the list of life’s most stressful events, divorce comes in second (right behind the death of a spouse). No one takes the death of a marriage lightly either. It involves a cascading series of critical decisions, such as how assets should be divided, what kind of support is warranted, and how to provide for children. Each of these questions has life-long implications and could tie you up in knots for weeks – taken together, it could seem like an impossible task. I have 30+ years of experience in family law, and you definitely want experience in your corner during this trying time. I know what works, I know Texas law, and I’ll get the job done with the fewest surprises while keeping stress levels low.

Managing Emotions

It is certainly easy to get lost in emotion during a divorce, and when you do, responses are “in the moment” rather than forward-looking. Arguing about how you feel may seem satisfying at the time but it doesn’t get you any closer to resolving the matter at hand. I will help you ask yourself the tough questions, like is the marriage really over? Are there religious aspects to consider? What will be needed for children of all ages (and sometimes for elderly family members)? I will also help you identify actions and language intended to wound rather than move the parties toward resolution in accordance with the law.

Knowing the Law

Texas law states that property in a divorce case should be done in a way that is “just and right.” The courts will ultimately decide this question, but I will represent your best interests during the division process. First, we will classify property as marital and non-marital. Then, we will assign values – this can be pretty easy (a 401k balance) or more complicated (a family pet). Last, we will come up with a division plan. We will also review documents like prenuptial agreements and consider questions like the length of the marriage and if alimony is applicable. The industry in which one or both spouses work can also be extremely pertinent. Here in the Houston area, there are industry-specific questions for medical practices, for interests in working oil wells or leases, and for the military. You will get the entire benefit of my 30+ years in this practice.

All-Inclusive Cost

Yes, we charge a $350 consultation fee and recognize some practices don’t. But here’s why we do it, and why it is in your best interest to pay it. We know the information we need to accurately assess your unique situation, and we start our consult with these questions. By the time the consult is over, you have real legal advice that is yours to keep. If you choose to hire us, the consult fee is applied as a credit to your total cost. But because we ask the right questions, at the end of the consult we also know enough about your case that we can offer you a flat fee for our services. No hidden fees, no nitpicky charges for emails or extra questions or returning calls or copying. Our fixed price equals one less thing you need to worry about during a very stressful period. We value your time and we value ours too. This is why it is more expensive to settle some divorces – the more income, the more assets and the more possessions a family has, the more there is to discuss and the longer it will take. This is always reviewed during the initial consultation.

You Do Get What You Pay For

At the Essex Firm, I bring my 30+ years of experience to every client meeting. We review all the facts, all the concerns and scenarios, and then I can provide a fixed cost quote for the entire process. No watching the clock and consolidating emails needed – we are just here to represent you and obtain the best possible result. If you don’t want to pay a consultation fee, I’m sure there are practices that will oblige you. But if want to get this done in the least time with the least stress and no surprises, please feel free to schedule an in-person or online appointment.