2008 Conference of the Int'l Alliance of Holistic Lawyers

The 2008 conference of IAHL (International Alliance of Holistic Lawyers) is going to be May 15 - 18, 2008 at the Retreat Center at St. John's in Plymouth, Michigan.

To join AIHL go to our website at www.iahl.org and join.

We are currently looking for Requests for Proposals for the conference for workshops, presentaitons and discussions. The RFPs are due by December 1, 2007. Presenters receive a discounted conference fee of approx. $200.

Students cost approx. $150

Attendees cost approx. $250 if you belong to IAHL or $350 if you don't.

Rooms are approximately $40 per night.

I attended the 2006 and 2007 conferences and they were both wonderful. I returned from the conference energized and refreshed.

Our keynote speaker is going to be WARD POWERS - the Director of the movie "ONE".

Travis County's Standing Order regarding Children, Property and Conduct of the Parties

The Travis County District Courts have issued a "Standing Order" that applies automatically in all cases involving Divorce, Child Custody or Child Support, without the need for hearing, as soon as the case is filed. (See our "Links" section.) Among other items, the Standing Order prevents the parties from doing any of the following without seeking leave of Court:

• removing any children involved in the case from the State of Texas (directly or in concert with other persons);


• hiding the child from the other parent;


• changing the child's residence;


• withdrawing the child from school or day-care;


• threatening or harassing the other party;


• harassing the other party;


• incurring indebtedness;


• destroying, removing, concealing, selling, transferring, mortgaging, encumbering, or otherwise taking any action which would harm or reduce the value of either party's separate property or the parties' community property;


• making withdrawals from any checking or savings accounts for ANY purpose other than payment of reasonable living expenses for food, clothing, shelter, transportation, medical care and reasonable attorneys' fees;


• concealing or destroying personal and business records; and


• canceling or altering insurance policies.

Similar standing orders have been entered by several district courts throughout the State of Texas. As a result, it is always a good idea to check with your lawyer, or to consult the court's local rules, to see what orders may be in place before taking any action related to your children, assets, ar debts while your divorce, custody or support case is pending.

Major Changes to Texas Family Code related to Child Custody and Paternity!!

Effective September 1, 2007, approximately 375 changes were made to the Texas Family Code. Although too numerous to mention at length here, the vast majority relate to the parent-child relationship, including extended visitation schedules, amended child support guidelines, and enforcement/collection procedures related to child support.

Some changes regarding Visitation – the Leg acknowledges the global electronic revolution!

• Conservators can request reasonable periods of “electronic communication” with their child as a supplement to their Possession Schedule. In other words, parents who have difficulty communicating with or visiting their child may want to consider an order allowing them access via Web Camera, Internet Chat, email, or similar methods for a reasonable period of time to facilitate the parent-child relationship.
• The Standard Possession Order now provides for weekend possession throughout the entire year, rather than only during the school year.
• The date to exchange possession during the Christmas or Winter school holiday has changed from Dec. 26th to Dec. 28th.
• Conservators in the military who are deployed for a period of more than six months to a location where access to their child is not reasonably possible (such as Iraq or Afghanistan) can now designate a “proxy” who may exercise that conservator’s possession of a child.

Some changes regarding Paternity/Parentage:

• Sperm or egg donors are legally presumed to be a child’s “parent” unless the donation is made through a licensed physician for use in assisted reproduction.
• Effective January 1, 2008, a man who fails to register with the State’s Paternity Registry may have his alleged parental rights terminated without notice where the child is over one year of age.

The foregoing items are only some of the important changes made under Texas law affecting parents and their children. If you have not reviewed your orders or decrees in the recent past, we recommend that you consult with a family practitioner or seek other legal guidance regarding the possible effect of these statutory changes on your respective rights and duties.

Major Changes to Texas Family Code related to Child Support

Effective September 1, 2007, approximately 375 changes were made to the Texas Family Code. Although too numerous to mention at length here, the vast majority relate to the parent-child relationship, including extended visitation schedules, amended child support guidelines, and enforcement/collection procedures related to child support.

Essentially, all orders (including modifications) or decrees entered after September 1st will incorporate the following regarding Child Support:

• Income withholding for payment of child support is mandatory – no exceptions.
• Severance pay and “lump sum” payments (which arguably include commissions or regularly-scheduled bonuses) are now included in income withholding orders.
• Severance pay and “lump sum” payments (which arguably include commissions or regularly-scheduled bonuses) are now included in income withholding orders.
• The “cap” on the amount of child support awarded under the Statutory Guidelines has been raised, with an automatic adjustment to take place every six years. For example, the “maximum” monthly support (in the absence of extraordinary circumstances) for one child has increased from $1,200 to $1,500.
• In addition to child support under the Statutory Guidelines, “cash medical support” must be paid by the obligor if the obligee provides health insurance coverage for the child.
• Income withholding also governs any award of “cash medical support.”
• Child support for a high school student who is more than 18 years old will terminate if a court finds that the child has failed to meet school attendance requirements. The obligation of support will also end on the date that the child begins active military service.
• Any unpaid child support obligations become due on the date the obligor dies, and the obligation is payable by the obligor’s probate estate (although it can be secured by appropriate life insurance). Actions to enforce payment by the obligor’s estate can be brought in an appropriate family court.
• The deadline to bring an enforcement proceeding for any arrearage is extended to two years after the child support obligation ended.
• All state-issued licenses, as well as motor vehicle registrations, may be suspended and renewal may be denied if the applicant has failed to pay child support for several months. An unpaid arrearage may also prevent an obligor from receiving state grants, state loans or payments on state contracts.

The foregoing items are only some of the important changes made under Texas law affecting parents and their children. If you have not reviewed your orders or decrees in the recent past, we recommend that you consult with a family practitioner or seek other legal guidance regarding the possible effect of these statutory changes on your respective rights and duties.

PLEASE vote for a NEW Family Law Courthouse

Please vote on November 5, 2007 FOR Proposition 5. .

Proposition 5 is about building a new family law courthouse in Harris County.

Please vote FOR this proposition.

Harris County desperately needs a modern and larger family law courthouse.

To learn more about the proposed Comprehensive Family Services Center please visit www.hcfamiliesfirst.org

Thank you!

Adress to mail in child support payments

Make ALL payments through:

Texas Child Support Disbursement Unit
P O Box 659791
San Antonio, TX 78265-9791

Be sure to include your unique case number, the payee's name (the person who should receive the check) and the payor's name (you!).

Be sure to keep proof that you made the payment. Keep the paperwork until your youngest child turns 23 years old.

If the payment is misapplied, it is YOUR responsibility to have proof that you made the payment.

If your employer withholds the money, be sure to keep all payroll stubs to prove that the money was taken out of your paycheck.

FAQ regarding Divorce # 17: How do we divide any retirement accounts?

Retirement accounts, not unlike mutual funds and some stock accounts, are assets acquired over the course of many years. In dividing these assets during a Divorce, you must first determine the character of the retirement account – in other words, whether it is Community Property or Separate Property (or, perhaps, both – as explained below).

First, purchases or contributions that occurred prior to the marriage would be Separate Property. Next, purchases or contributions that occurred after marriage would be considered Community Property. (Actually, it is a little more complicated than this, when you add in the earnings, losses, dividends and stock splits that occur in most retirement accounts, but the essential point is that such assets have a dual character.) Often, lawyers will hire financial experts to provide an opinion as to how much is owned by one spouse as separate property versus how much is jointly owned as community property, and therefore subject to division with the other spouse.

Also, retirement accounts (like 401k’s) are not usually divided under the Divorce Decree like other assets. This is true because there is often an administrator that is responsible for managing the retirement account. Under federal law, which Texas judges must follow, the Court will not be able to simply order the administrator to liquidate the account and pay it in cash to the respective spouses. Instead, federal law allows the state Court to issue a Qualified Domestic Relations Order (also simply known as a “QDRO” – pronounced for short “Quad Row”). The QDRO will set out how the account is to be divided. Ordinarily, the retirement account administrator will create another account in the amount (usually designated in either a total dollar amount or a percentage of the account as of a date certain) to be paid to the other spouse as specified in the QDRO. When the QDRO divides the account into two accounts, both spouses will be subject to the rules governing the retirement account (sometimes called the retirement “Plan”). Depending upon the Plan, disbursements for particular reasons may be allowed or loans may be allowed. You will need to check with the retirement account administrator to find out the rules relating to the Plan.

FAQ regarding Divorce # 16: Is there a way for me to continue living in the house with the children?

This question commonly arises for the simple fact that parents often believe that it is best for their children to have continuity by living in the same house. The equity in your home is like any other asset that is subject to division by the Divorce Court. The home can be sold and reduced to cash, but oftentimes this is not necessary. Sometimes, another asset can go to the other spouse, including retirement accounts of either spouse, to offset the large amount of equity received by the spouse who keeps the house.

Also, like any other commercial transaction, one spouse can essentially “loan” money to the other by taking back a Note and Deed of Trust (usually “junior,” or of a lesser stature, to the financing or mortgage used to purchase the house). This relationship is sometime referred to as an Owelty Deed or Owelty Lien, or sometimes as a Second Deed of Trust. This is nothing more than one spouse promising to pay the equity in the home over time (with a Promissory Note or simply a Note) and the other spouse receiving a Deed of Trust or other form of security so that if the Note is not paid, that party has recourse to ensure payment (which may include the ability to foreclose upon the house).

FAQ regarding Divorce # 15: What is the difference between "Community Property" and "Separate Property" in Texas?

Texas is a Community Property state. This generally means that income that is earned during the marriage and property that is obtained during the marriage is presumed to belong to both spouses (regardless of whose name may appear on the paycheck or title documents) and is subject to division by the Divorce Court in a manner that the Court deems to be “just and right.”

The best way to define Community Property is to determine what is not community property – then everything else is “presumed” to be that of the community. Generally speaking, either spouse will have a “separate property estate” in the event they acquire property (a) prior to marriage or (b) during marriage by some type of inheritance or by way of a gift. Again, the rest of the property is presumed to be community property.

Spouses can also agree to alter the “community property” presumption through certain types of written agreements. The most common type of such agreement is generally referred to as a “prenuptial agreement,” because it usually occurs prior to the marriage, but spouses can also enter into similar agreements after the marriage.

FAQ regarding Divorce # 14: How much will I have to pay in Child Support?

This usually depends upon three things: (1) the number of children involved in the Divorce, (2) whether there are any children “outside of the marriage,” and (3) how much you (as the “Non-custodial Parent,” or NCP) earns. The general percentages applied to your “Net Resources” (but not your current spouse’s Net Resources) are as follows:

One Child 20%
Two Children 25%
Three Children 30%
Four Children 35%
Five Children 40%
Six + Children Not less than Amount for Five Children

The percentages are slightly less if you have other children that are “outside of the marriage,” in other words you pay a little less (but not much) if you have children from a prior relationship for whom you also have a “legal duty of support.” If you are paying child support regarding other children, or if you support other children who reside with you, then you would pay a slightly lower percentage of your Net Resources than under the preceding guidelines.

“Net Resources” does not mean “net income,” however. It is not calculated based upon what you actually receive in your paycheck, because you can change this yourself (i.e. – take out more for a 401k contribution, etc.). The Court will calculate this fictional “Net Resources” by subtracting out what a single person taking the standard deduction and one personal exemption would pay in taxes (Social Security and FICA). You can find these amounts in the Attorney General’s Child Support Tax Tables, which is located on their website. The Court will also subtract any amounts actually paid by you for health insurance for the benefit of the Child, but not the portion of your health insurance deduction that applies to your own coverage. The Court will also deduct any union dues that you must pay.

Also, you need to be aware that the Court will consider any other sources of income that you are entitled to receive, including commissions, overtime pay, bonuses, interest on savings, dividends, capital gains, royalty income, net rental income, annuities, pensions, severance pay, retirement benefits, disability or workers’ compensation benefits, social security benefits, and similar sources of revenue. Persons who are self-employed should be aware that the Court will not merely look to your “salary,” if any, but may consider any benefits allocated to you from your business or undertaking, after taking into consideration the ordinary and necessary expenses required to produce such income.

There is a “cap” on the amount of Net Resources to which the foregoing percentage guidelines can be applied. That amount, for cases filed after September 1, 2007 (but before the next cost of living adjustment in 2013) is $7,500 per month. This is the maximum amount of Net Resources that the Court will usually consider for purposes of calculating your child support obligation, even if your actual Net Resources are greater. For example, a person with Net Resources of more than $9,000 per month with one child would generally pay child support in the amount of $1,500 each month, calculated as follows: $7,500 times 20% = $1,500.

Sometimes, the Court will award more or less than the amount calculated under the statutory guidelines, but only in compelling circumstances (this is referred to as a “Variance”). As the name “Guideline” implies, this is the amount that will guide the Court – and the amount you usually will pay.

FAQ regarding Divorce # 14: How much will I have to pay in Child Support?

This usually depends upon three things: (1) the number of children involved in the Divorce, (2) whether there are any children “outside of the marriage,” and (3) how much you (as the “Non-custodial Parent,” or NCP) earns. The general percentages applied to your “Net Resources” (but not your current spouse’s Net Resources) are as follows:

One Child 20%
Two Children 25%
Three Children 30%
Four Children 35%
Five Children 40%
Six + Children Not less than Amount for Five Children

The percentages are slightly less if you have other children that are “outside of the marriage,” in other words you pay a little less (but not much) if you have children from a prior relationship for whom you also have a “legal duty of support.” If you are paying child support regarding other children, or if you support other children who reside with you, then you would pay a slightly lower percentage of your Net Resources than under the preceding guidelines.

“Net Resources” does not mean “net income,” however. It is not calculated based upon what you actually receive in your paycheck, because you can change this yourself (i.e. – take out more for a 401k contribution, etc.). The Court will calculate this fictional “Net Resources” by subtracting out what a single person taking the standard deduction and one personal exemption would pay in taxes (Social Security and FICA). You can find these amounts in the Attorney General’s Child Support Tax Tables, which is located on their website. The Court will also subtract any amounts actually paid by you for health insurance for the benefit of the Child, but not the portion of your health insurance deduction that applies to your own coverage. The Court will also deduct any union dues that you must pay.

Also, you need to be aware that the Court will consider any other sources of income that you are entitled to receive, including commissions, overtime pay, bonuses, interest on savings, dividends, capital gains, royalty income, net rental income, annuities, pensions, severance pay, retirement benefits, disability or workers’ compensation benefits, social security benefits, and similar sources of revenue. Persons who are self-employed should be aware that the Court will not merely look to your “salary,” if any, but may consider any benefits allocated to you from your business or undertaking, after taking into consideration the ordinary and necessary expenses required to produce such income.

There is a “cap” on the amount of Net Resources to which the foregoing percentage guidelines can be applied. That amount, for cases filed after September 1, 2007 (but before the next cost of living adjustment in 2013) is $7,500 per month. This is the maximum amount of Net Resources that the Court will usually consider for purposes of calculating your child support obligation, even if your actual Net Resources are greater. For example, a person with Net Resources of more than $9,000 per month with one child would generally pay child support in the amount of $1,500 each month, calculated as follows: $7,500 times 20% = $1,500.
Sometimes, the Court will award more or less than the amount calculated under the statutory guidelines, but only in compelling circumstances (this is referred to as a “Variance”). As the name “Guideline” implies, this is the amount that will guide the Court – and the amount you usually will pay.

FAQ regarding Divorce # 13: Can we vary from the Standard Possession Schedule?

Yes. The Standard Possession Schedule only applies when the conservators/parents cannot agree about visitation. Therefore, for conservators that discuss their child’s schedule and plan out what is best for them, the visitation schedule is whatever you agree it should be – on a day by day and (perhaps) minute by minute basis. Thus, the Visitation Schedule, in whatever form, is usually what happens when there is no “mutual agreement.”

FAQ regarding Divorce # 12: How does the "Standard Possession Schedule" work?

Over the years, the Texas Legislature has looked at and repeatedly refined what we now refer to as the "Standard Possession Schedule." The reason we have a very detailed schedule is simple -- many parents cannot agree as to the best schedule for their children. Therefore, the Texas Legislature has stepped in to set out its own schedule.

The so-called “Standard" Schedule usually gives the conservator/parent that does not have the right to designate the primary residence of the child (in a Joint Conservatorship) or the Possessory Conservator in all other situations, the right of possession and access to the child on the first, third and fifth weekends (when there is one) of every month. The Standard Schedule attempts to make an even distribution (or as close to even that it can) of each and every minute of the child’s life between the respective parents; this includes all major holidays, the child’s birthday, Father’s Day, Mother’s Day, spring break, extended summer visits, and many, many other situations. The Standard Schedule also sets out who will pick up and who will drop off the child, and where and how this exchange of possession will occur. Although this is a daunting task, under most situations, the Standard Schedule does an excellent job of allocating the child’s time with each parent in a fair and equitable manner.

The danger in departing from the Standard Schedule (under most situations) is that lawyers cannot always contemplate all of the situations that can arise in the future, which may lead to future confusion or disagreements between the conservators. This is not to say that the Standard Schedule is what is best for your child; we recognize that there are situations where the Standard Schedule is partially or completely inappropriate. However, you should understand that the “split” schedules that many conservators attempt can be difficult on a child who must repeatedly pack up and go to another house, and can lead to the child essentially living out of a suitcase. Such situations are usually difficult – even for adults – and can be particularly disruptive for a child.

FAQ regarding Divorce # 11: How does Custody work in Texas?

In Texas, there are many forms of “custody” and “custodians.” We refer to these persons or entities (in the case of foster care, etc.) as “conservators.” In most situations, the parents will be named so-called “Joint Managing Conservators” (JMC); this is presumed to be best for most of Texas’ children. JMC is most similar to situations where the parents are still married and make decisions “jointly” for the best interests of their child.

Unfortunately, many times parents cannot get along and sometimes do not make decisions that are in the best interests of the children. Sometimes they make decisions based upon what is best for them, or don’t make decisions at all. In certain circumstances, if there is evidence to support a different approach or an agreement between the parents, other forms of conservatorship may come into play. A “Sole Managing Conservator” (sometimes referred to as only a “managing conservator”) generally has all of the powers of conservatorship (i.e. – the authority to consent to medical treatment involving invasive procedures, the power to designate the primary residence of the child, the power to make educational decisions) without any input from the other parent. In contrast, a “Possessory Conservator” generally has visitation rights and will usually have limited authority to make certain parental decisions while the child is in the custody of that conservator.

The rules governing conservatorship are complicated and an attorney should be consulted for specific questions as to what form of conservatorship is best suited to your particular situation.

FAQ regarding Divorce # 10: What exactly is a Divorce Decree?

We usually ask you to consider the Divorce Decree in terms of being a “Rule Book” for all of the various things that could or might happen after the Divorce is granted. The actual granting of the Divorce is nothing more than the Judge declaring that the marriage is dissolved for either “grounds” or on the “no fault” ground of insupportablility. Insupportability just means that there are so-called “irreconcilable differences” -- referred to in Texas as a “discord or conflict of personalities that destroys the legitimate ends of the marriage relationship,” provided further that “there is no reasonable expectation of reconciliation.”

The rest of the Decree (as well as other pleadings referred to as Temporary Orders or Final Orders) provides guidelines and rules for dealing with any children (such as custody or “conservatorship,” the powers of conservatorship, visitation, child support, medical support, and health insurance coverage), property (such as assets and debts), and various other issues such as any change of name, taxes, and similar matters.

FAQ regarding Divorce # 9: When does my Divorce become final?

Although this might seem like a simple question, the answer is more complex. Ordinarily, the Divorce case becomes final when the “plenary power” of the Texas court has expired. This ordinarily occurs thirty days from the date that the Divorce Decree (sometimes called the “Judgment”) is signed by the Judge. If, however, some type of Motion is filed after the Decree is signed, such as a Motion for New Trial or similar pleading, then the time periods are extended to allow for the possibility of an appeal from the Decree.

Although there are other situations where the Decree can be changed, clarified, or appealed, these situations are not normal and can be very difficult to bring about a substantive (or meaningful) change in the Decree. Also, when a “material and substantial” change in circumstances occurs, a party may ask that the Court modify the Divorce Decree or a prior order in the case.

FAQ regarding Divorce # 8: How does the Texas waiting period work?

The Court does not have the power to grant a Divorce for at least sixty days after the Divorce petition has been filed. The Texas Legislature’s reason for requiring this waiting period is to ensure that something as serious as a Divorce is not rushed into without a period of reflection and thought. This waiting period cannot be waived by agreement or shortened by the Court.

FAQ regarding Divorce # 7: Can I move after the Divorce case is filed?

Ordinarily, yes. As long as you were a resident of Texas for at least six months and of the County where you filed for ninety days before filing the Divorce petition, then you can move after the petition is filed. However, you should be aware that many Courts have “local rules” requiring notice and possibly agreement from the other spouse (or an order from the Court) before you can move out of the County where the Divorce petition was filed, particularly when children are involved. You should also check to see if a Temporary Restraining Order, Temporary Injunction, or some geographical restriction is in place before you leave.

It is generally a good idea to wait to move until after the case is finalized, and we strongly suggest at least waiting until service of process is obtained to be sure that the case does not have to be dismissed. However, if relocation is absolutely necessary prior to the time the Divorce becomes “final,” there are procedures that allow you to legally do so.

FAQ regarding Divorce # 6: I just moved here, can I still get a Divorce?

Maybe. It depends on where you moved from and how long you have lived here. Texas has a residency requirement. At least one spouse must have resided in this State for the preceding six month period prior to the filing of the Divorce case, and one spouse must have resided in the County where the Divorce will be filed at least ninety days preceding the date of filing. This is “jurisdictional,” meaning that the Court has no power to act, including granting the Divorce, unless the residency requirement is met.

FAQ regarding Divorce # 5: Can I get a legal separation?

Although some states recognize a “legal separation,” Texas does not. The only procedure for a recognition that persons are going to cease living together as husband and wife in Texas is Divorce. With that said, after you file for a Divorce there is nothing that requires you to carry through with it (unless, of course, the other spouse decides to file a Counter-Petition for Divorce of their own). Usually the Divorce case can be dismissed if the spouses “reconcile.”

FAQ regarding Divorce # 4: I just got served with Divorce papers, what should I do?

After being served with a Divorce Petition, you become the “Respondent” in the Divorce case. Most lawyers will advise you to immediately obtain an attorney and to not agree to anything and certainly don’t sign anything. If you do not respond in writing, with particular language and within approximately twenty days (actually, by the “Monday next following the expiration of twenty days”), then a Default can be taken against you. At the Default hearing, your spouse will oftentimes receive anything and everything they request in Court.

You should also be aware that many “Waivers of Service” also contain language instructing that the case can be taken up and considered by the Judge without further notice to you. A form containing this language, if signed, could also result in a Default being taken against you with everything going to your spouse. You should review all proposed waivers with caution, since you definitely don’t want this result!

FAQ regarding Divorce # 3: How do I file for a Divorce?

A divorce case is initiated like any other lawsuit with the filing of a legal “pleading.” In the Divorce context, this pleading is the Original Petition for Divorce filed in either a District Court or a County Court with domestic relations jurisdiction. Once filed, this Pleading must be served upon the other spouse, unless the other spouse has voluntarily waived service. The spouse who filed the petition is referred to as the “Petitioner.”

FAQ regarding Divorce # 2: Should I get divorced?

Sometimes people want a lawyer to tell them whether they should get a divorce or not. This is usually not the function of a lawyer and any guidance in this area is personal opinion, rather than legal advice, so please treat it as such and proceed carefully. However, most attorneys will use their experience to explain the circumstances under which someone may want to proceed with a Divorce and the possible outcomes from such proceedings. Each lawyer will explain it differently, but here are some common situations when we agree that a spouse would be justified in filing for Divorce:

a) Physical Abuse – No one should be required to live with the fear of being physically battered when there is a disagreement among spouses;

b) Adultery or Cheating on you by your Spouse – Marriage implies an element of exclusivity. Although no one is perfect, if your spouse insists on maintaining relationships outside of marriage, then Divorce would seem appropriate;

c) Alcohol or Drugs – Again, no one is perfect, but if the substances control your life (such as interfering with a normal relationship with you, your children, or with work obligations, or results in repeated criminal incidents) then Divorce is understandable.

Oftentimes, people cite to financial problems, mental cruelty, mental or physical problems, or irreconcilable differences, as grounds justifying divorce. Every relationship probably has an element of each of these issues. The question is whether such problems and/or differences destroy the legitimate ends of the marriage relationship. If you have unsuccessfully tried counseling and/or medical intervention, or your spouse is unwilling to obtain help or change, then it is understandable that you want to end the marriage.

FAQ regarding Divorce # 1: Should I hire a lawyer or try to do it myself?

We get asked this question all the time. We usually respond with a rhetorical, “Would you do surgery on yourself?” We do not think you should represent yourself in any Court proceeding. However, if there is basically no property other than personal possessions, no children, and all you’re really doing is getting the Court to bless a separation that has already occurred, it may very well be that the downside of a mistake is substantially outweighed by the certainty of attorney’s fees. You should understand that representing yourself will not be easy unless you already have some legal training. Also, you should proceed very cautiously.

You should also be aware that most attorneys will not step in to correct any problems created when you represent yourself (called “pro se” representation). We have seen many situations when a pro se litigant gets to the Court date only to have the Judge deny the divorce because he or she failed to meet all of the procedural requirements. You must also understand that, other than telling you what the defect is, the Judge is unlikely to help because of they are prohibited (as are Court staff generally) from giving legal advice to the parties. If you decide to represent yourself, you must get the most current “do it yourself” package (one set is available at http://www.tyla.org/family_law.html) and make sure that you understand all of the procedures before taking action.

I want to modify my current court order

The very first thing you need to do is order a certified copy of the current court order. Any attorney that you talk to will need to read this document to understand what is currently ordered by the judge in your case. Even if you no longer live in that state or county, you need to have the document reviewed because it controls until it is modified.

In Harris County you order a certified copy at the Harris County Civil Courthouse downtown. The cost is $1 per page. They do not accept checks.

Most court records are open documents and anyone can order a copy.

Usually only certain cases are not available to the public -- for example usually only adoption records are sealed.

What can happen if you don't pay your child support

If you are behind on your child support obligations many bad things can happen to you. Here are some of them:.

1. You can go to jail.
2. Your credit will reflect the debt & your credit rating will be ruined
3. Your bank account(s) can be "hit" by the Texas Attorney General.
4. Your tax refund will be "taken"
5. You will lose your driver's license
6. You will lose any professional license you have (attorney, doctor, electrician, etc.)
7. You will lose your passport
8. Your Social Security payments will be reduced when you begin receiving Social Security benefits.

You cannot include child support in bankruptcy.

It is a debt that never goes away. When you die your estate is liable for the debt.

Please pay your child support on time!

A parent wants to terminate their parental rights

Even if a parent wants to terminate their parental rights in Texas, many courts won't do it.

Why? Because if the other parent dies then the child will be an orphan.

Also, it is the policy of the State of Texas via our legislature (that meets every 2 years) that ALL parents should support their children.

It is the policy of the State of Texas that every parent supports their children and the children do not have to be supported by the state or federal government programs.

Being supported by the state or federal government programs includes any sort of financial assistance including food stamps, WIC, housing, and health insurance coverage.

Many judges feel that the taxpayers of the State of Texas should be providing health care, food, and housing to children. The judges feel that their parents should be doing so.

This policy varies from judge to judge.

No matter how much people stress price, they really want quality

Amen!

Some people want everything dirt cheap -- but they expect "cadillac" quality.

Unfortunately, some people have unrealistic expectations of what "cheap" legal services truly mean.

I warn people that if you hire do it cheap and it does not work, it might cost you more for me to fix it.

I, of course, recommend doing it right from the beginning.

There is another old saying - penny wise and dollar foolish -- people try to save a few cents but end up spending many more dollars in time wasted and in shoddy workmanship.

When I take my car to my mechanic, I expect the best from him. My clients expect the same from me.

I just spent over $1,200 on my car having its 90,000 check-up and then a week later the radiator overheated while I was out of town. I was upset, but every mechanic I talked to assured me that sometimes radiators break without warning. My regular mechanic had fixed a bunch of stuff under the hood so the new radiator was only the cost of the radiator -- instead of $900 -- it ran me around $300.

2 excellent "old time" sayings about quality of service

No matter how much people stress price, they really want quality.


The bitterness of workmanship remains long after the sweetness of a low price is forgotten.

Cyber Crime

The Internet Crime Complaint Center (IC3) is a partnership of the Federal Bureau of Investigaiton (FBI)_ and the National Whtie Collar Crime Cneter (NW3C).

The IC3's mission is to serve as a vehicle to receive, dlevelop and refer criminal complaints regarding the rapidly expanind arena of cyber crime.

Unfortunately, this is a rapidly growing problem all over the world.

You must be very careful and be suspicious at all times.

Don't give out your social security number to anyone (or a machine) that calls and asks for the last 4 digits of your SS#.

I received a call once from a computer claiming to be my bank and they needed my last 4 digits of my SS#. I was suspicious since they were calling me at work on a back line. I hung up and called my bank. I went through at least 3 people and eventually they informed me that no one had called me asking for my SS#. Obviously, this was a computer just calling random numbers hoping that idiots would give out their social security number.

If you have elderly parents, please warn them. They are the most trusting and are often taken advantage of by evil people.

I've been paying my father's bills for over 5 years and occasionally I get some bogus mastercard or visa for an amount under $400. Since I pay all his bills, I know it's totally bogus. When I write the company on my legal stationery, I never hear from them again. Unfortunately, my father fell for this scam and I think he got on a "sucker" list. I worry about how much money he lost before I took over paying his bills.

Read your bills very carefully. I have found several unauthorized charges on my credit cards. I have also received papers that look like bills but when I read the fine print they are just soliciting my business. There is one company that does a great job looking like the AT&T yellow pages but if you read to the bottom of the page in very small print it admits they are not AT&T.
Same goes for "Who's Who" groups. I get "chosen" on a regular basis to be included in ....'s Who's Who. They are rip offs and a total waste of time and money.

Summary, be suspicious and don't be afraid to ask for proof that you authorized this charge.

Anti-Phishing information

Go online to the Anti-Phishing Working Group at www.antiphishing.org for information about phishing attacks. In 2006, the FTC (Federal Trade Commission) launced a campaign to advise consumers on techniques to avoid identity theft.

Their free kit is at http://www.consumer.gove/theft/

If you are a victim of phishing, and you would like to warn others, please email
info@antiphishing.org.

The National Do Not Call Registry

Go online to www.fcc.gov/cgb/donotcall

or call 1-888-382-1222 to register your phone number.

The do not call list does not cover companies that you have given prior written permission to call you, tax exempt non-profit organizations, non commercial calls, calls that do not solicit advertisements, and comapneis that you already have an established relationship with.

The Federal Communications Commission (FCC) and the Federal Trade Commission (FTC) are authorized by the Telephone Consumer Prottection Act (TCPA) .

Paperwork is the non-custodian parent's best friend

I strongly beg you to keep all receipts for anything you purchase for your child. If you take the child and buy a coat, keep the receipt until they reach 22. If you take the kid(s) to BurgerKing, keep the receipt.

Everything you buy -- prescriptions, school supplies, sporting goods, movies, food, cell phone, cash to kid -- you need to have proof.

If you don't have physical proof, it is not work zip.

It's also nice to have eye-witnesses to purchases. However, memories can be "fuzzy" over time so I also encourage keeping paperwork.

If in doubt, keep it!

Why should i spend money on wage withholding?

If you have minor children, I strongly urge both parents to do the paperwork right. It protects both parties. If the child support is paid through the Texas Disbursement unit, their payment schedule is automatically accepted by the courts.



If you had your spouse cash, your spouse might develop "amnesia" at a later date and not recall ever receiving any child support payments. If that happens, the burden shifts to you to prove that you paid every month.



The interest rate on past due child support is 6%. It adds up quickly.



If the Texas Attorney General's office gets involved, I strongly, strongly urge you to retain an attorney. If you miss one appearance before the judge, the State can get a default judgment against you. Again, the burden then shifts to you as to why you missed the hearing. If the court finds that you owe retroactive child support you have a very limited time frame to ask for a new hearing.



If you are found to be behind in child support payments the following could happen to you:

1. jail

2. all IRS tax refunds get directed to parent with custody of the child(ren)

3. your bank accounts will get drafted against and your outstanding checks will bounce

4. you could lose your driver's license

5. you could lose your U S passport

6. if you hold any sort of license to work (doctor, dentist, chiropractor, electrician, plumber, hairdresser, lawyer, etc.) you can lose your license

7. your credit reflect the past due amount

8. bad credit will mean that you will never be able to buy a home

9. child support is NOT dischargable through bankruptcy

10. child support obligation never goes away -- you could be paying it when you retire

11. the child support obligation continues even after you die -- your estate will need to deal with it.



Texas just passed some new laws on death and child support that just went into effect. I will address the new law at a later time.



If I have not scared you yet, then I have not done my job.

Why I suggest you do the legal paperwork right the first time!

I receive calls on a daily basis from people that don't want to pay to have their divorce papers done right. They don't want to spend under $1,000 for a divorce with children since the spouses are getting along.

I refuse to do the paperwork and suggest that they hire someone else. I warn them that if the other attorney messes up the papers, it is going to cost them more for me to fix them!

As I like to say, my plumber agrees not to practice law if I agree not to try to fix my own plumbing. In fact, my plumber loves do it yourselfers since he makes more money fixing the messes they create. Likewise, if I have to fix a "mess" it is going to be more costly than doing it right the first time.

I went to law school for over 3 years and had to take a 2-1/2 day exam in order to practice law in the State of Texas. It just is not as easy as some people think.

Houston Bar Association's website

For free information on Texas laws, go to the Houston Bar Association's website (www.hba.org) and look under "information for the public". Under that tab look for handbooks.

The have free "handbooks" on FAMILY LAW, CONSUMER LAW AND ELDER LAW.

The Family Law handbook is the best booklet that I've found.

If you type into Google "Texas free divorce information" or something like that and thousands of website will pop up. Many are good. The national ones tend to be the worst since they try to cover all 50 states.

What should you do when you have a power of attorney and the judge ignores it and appoints a guardian instead?

I received this question from an anonymous person and I wanted to respond.

I handle family law cases. Many people call me and want guardianship over a child. I almsot always recommend custody rather than guardianship because it does not require the court's oversight like guardianship does in Texas.

I do not do much probate (aka guardianship) law these days. Therefore, I'm not comfortable in answering the question.

I recommend that you find a board certified attorney in family law to discuss this matter with in person.

Also, such a quick question is not appropriately answered via an email. I would need to meet with this person and learn all the details involved as well as review the court's file and/or read a certified copy of the court's order.

I personally use Mr. W. Kevin Alter of Hebinck and Alter located at 5009 Caroline Street, Houston, Texas 77004. Kevin's phone number is 713-526-2333. I've sent several friends and relatives to him. I have used him personally! Everyone likes Kevin because he is patient, thorough, and kind. (They also feel his prices are very reasonable!) He also "speaks English" and not "lawyerese" to people. He is able to take complex legal concepts and describe them to a person without a high school education. To be able to simplify legal concepts so that the average person can understand them takes someone that really understand their stuff!

There are many fine probate and estate planning lawyers in the Houston area. If you want a referral to someone, please call and I will be glad to give you some names in your neighborhood and price range.

If you have a small estate (total value under $250,000) you don't need a $500/hour lawyer!

2 teen-agers create a baby

In Texas, both parents are supposed to support their child.

Texas law is not written to address minor children having babies!

However, if a 16 year old girl gets pregnant, her 16 year old boyfriend will be required to pay child support based on his income. He will need to get a job and earn money.

The courts will order that the father have visitation periods with the baby.

How often does this happen? Frequently.

My spouse has a criminal record

A person's past is NOT always relevant in a custody case involving minor children.

If a person was convicted many years ago, it might not even be allowed to be mentioned to the judge.

If your spouse (say wife) was convicted of selling drugs 15 years ago, you married her 10 years ago (and knew of the conviction) and all of your children are under the age of 5, her former criminal record might be irrelevant. If her record has been clean for 15 years, it shows that she has probably cleaned up her act. If she was such a bad person, then why did you marry her?

If a person was convicted of writing hot checks, how does that show he is a bad parent?
That person might not be crummy at math or is irresponsible, but hot checks are a lot less important to a judge than driving while intoxicated, beating up people, threatening people with a weapon, threatening to kill their spouse, injury to a child, etc.

If a person has been convicted of DUI or DWI within the past 2 years, it might be VERY important. Has the person finished their probation successfully? Is the person attending AA meetings? Does the person admit to a drinking problem? Do they still drink? Do you have evidence that the person is still consuming alcohol? If so, what evidence do you have? The burden is on you to prove that he is still an alcoholic, still actively drinking, still drinking while drunk, not admitting to having a problem, falls asleep when they are supposed to be watching the child(ren).

People can and do change. If the judge feels the person accepts responsibility, has worked hard to not repeat the same mistake twice and has taken steps to never repeat the same mistake, the judge might decide that the past is behind the person and they have learned their lesson.

Parents are living apart but not divorced

If 2 married people have a child and decide to quit living together, if there are no court orders, then either parent can have custody of the child. However, please understand that there might be a court order that you are unaware of. Being unaware of a court order, is NOT a reason to violate a court order. Judges do NOT like it when people do NOT follow their orders!

If you are served divorce papers, if you do nothing you are held to be responsible to know what happened in the case. Even if your spouse swears that the divorce has been dismissed, it is your responsibility to do the research and make sure the case has been dismissed.

Ignorance of the law is not an excuse! If you violate a court order, you can be held in contempt of court and be fined and/or jailed. Judges usually punish people that don't follow their court orders.

I encourage people to work out their problems and consider what is best of the minor child(ren).

However, a parent cannot kidnap a child(ren) if there is no court order in effect.

That said, the courts don't like a parent that takes a child and hides the child from the other parent. The courts hear complaints about this sort of problem on a daily basis and the judges get tired of parents trying to hurt each other and not considering what is best for the minor child.

The judges will begin each case as considering both parents equally qualified to raise the child.
The burden is on YOU to show why you are the better parent. We have all done things as parents that we regret - however, hopefully we have all learned through our mistakes to be better people and parents.

I try to use common sense when explaing "best interests" to a potential client. To my knowledge, there is no exact definition for best interests of a child. It's kind of like that old joke about pornography - you know it when you see it.

The judges recognize that you selected each other, got married, then voluntarily produced a child or numerous children. The judges don't like it that now that you decide to divorce the other parent, the other parent is now a bad, irresponsible parent. If you are going to allege wrongdoings on behalf of the other parent, you need witnesses and evidence.

A written and notarized statement is not enough. Every person has the right in court to cross-examine a witness. Therefore, you need anyone with person knowledge to appear in court, be sworn in, testify and be cross-examined. The Judge will determine each witnesses credibility. Again, credibility is a difficult term to define. Basically the Judge will try to decide who is telling the truth.

A witness can only testify to something they have personal knowledge of -- they heard it, saw it, smelt it, or even tasted it for themselves.

The judges think -- if YOU married the other person, lived with the other person for years and then reproduced (for most people they reproduced several times) -- then NOW why is the other parent so bad. If the other parent is so bad, why did you stay with him/her? Doesn't that show poor judgment on your part? If you married and repeatedly reproduced, doesn't your spouses poor judgment reflect badly on you too?

Example: 2 drug dealers separated both wanted custody of the child. The father said that Mom left cocaine out on the coffee table in a crystal bowl. He did not move the crystal bowl so the 2 year old could not reach it. How was he any better than the mother?

Custody instead of a guardianship for a minor (under 18) child

Custody is handled in the family courts in Texas. Guardianship is handled by the probate courts in Texas.

I don't like guardianships for minor children. Why? They are paper intensive and sometimes more expensive than custody.

I encourage people to consider legal custody for minor children.

You would need to talk to an attorney to determine if you need legal guardianship if a minor child or if legal custody of a minor child would be better.

I can't answer that question for you unless I talk to you about your individual facts.

Some Texas alternatives to guardianships

There are some alternatives to a court ordered guardianship in the State of Texas.

I strongly urge you to talk to an attorney that handles a lot of probate issues to discuss the needs of your case!

Some possible alternatives MIGHT be:

DURABLE POWER OF ATTORNEY - a document a person does to designate another person to act as his agent for financial matters. There are pros and cons to this document.

DURABLE HEALTH CARE POWER OF ATTORNEY - a person designates another person to make medical decisions for them if the person is unable to do so. For example, you are in an automobile accident and in a coma. The doctor cannot talk to you about possible medical treatments available to you. You need another person to talk to the doctor and decide how to proceed. When you regain consciousness, then you would make your own medical decisions.

DIRECTIVE TO PHYSICAN -- ALSO KNOWN AS A "LIVING WILL". You can designate that under certain incurrable or irreversible medical conditions what you want done.

SURROGATE DECISION MAKING - created by the Texas Legislature in 1993. Read the Texas Health and Safety Code Section 313 for details.

Very Brief explanation of Guardianship in the State of Texas

Guardianship is a court order that puts property, fiances and the wellbeing of a person into the hands of another entity. This incoudes humans, associations and corporations.

Who needs a guardianship? People that are judged to be menatally incompetent or are physically unable to care for themselves. This incudes minor children (under the age of 18).

There are several types of guardianships. The person appointed to take care of the person MUST to the court. The guardian appointed by the court is held to a high level of responsibility as dictated by the court.

Guardianships are controlled byt he Texas Probate Code. All Texas codes are available on-line for free. Just go to any major search engine and type in either "Texas Probate Code" or "Texas Codes" and they should pop up.

You need to read Texas Probate Code Section 601 for definitions.

Read Section 602 for a description of the policy and purpose of a guardianship.

A guardian is the person appointed by the Judge to serve as the legal representative for an incapacitated person.

A Judge must find the person is "incapacitated" in order to appoint a guardianship.

There are temporary guardianships and permanent guardianships.

What do I do if I was married outside of Texas?

If you have lived in Texas for at least 6 months and in the same county for 90 days, then you can file for divorce in Texas.

The only problem that might arise if you moved here after you separated and your spouse never has set foot inside the State of Texas. If your spouse has never been to Texas, you need to hire an attorney and discuss the options available to you. It's too complicated here to go into detail.

So: If you are from Louisiana, New York, Brazil, England or Russia, if you have lived in the State of Texas for 6 months and in the same county for 90 days, Texas has jurisdiction to grant you a divorce.

However, if you move every 60 days to a new county but they are all inside the State of Texas, stay put for 90 days in the SAME county and then file for divorce.

Family Law in Texas

Family law is a state specific type of law.

Each state is authorized to make their own laws regarding divorce, paternity, etc.

The State of Texas does NOT care what the State of California does! Don't waste your time researching other states laws if you are involved in a family law case in Texas.

Only the U.S. Supreme Court can interfere with Texas law. The most important case that comes to mind regarding the U S Supreme Court and state courts is the grandparent case that is commonly referred to as Troxel. It limited grandparents rights for most grandparents.

Office of the Texas Attorney General

I would not set foot in the Office of the Texas Attorney General without an attorney.

It's cheaper to do it right the first time instead of trying to fix "the mess" later.

You can visit the TX A G website at http://www.oag.state.tx.us/ Their website has lots of information about child support.

Remember, if you want DNA testing on any child, you need to ask for it at the very first appointment. The TX A G has great pricing on DNA testing since they are the biggest user in Texas.

Once you have been declared the "father" of a child, you are the father -- even if you later do your own DNA testing and determine that the child is not your biological child.

If in doubt, demand DNA (genetic) testing. It's very easy and painless -- a mouth swab is all it takes.

Child Support for College.

In Texas, there is no court ordered child support after the child turns 18 and/or graduates from high school, whichever is later.

No Texas Judge can order a person to pay college expenses for the "child"!

Technically the moment the child turns 18 they are now an adult. Of course, I suspect that 99% of the parents will disagree that their child is an adult, but that's the law in the State of Texas.

If you need help paying for college, I highly recommend SANDRA NEWTON of the College Resource Center located close to Loop 610 and San Felipe.

The College Resource Center -- 1001 W. Loop S., Ste 660, Houston, TX 77027713-783-7575; fax 713-621-0034.

Be sure to tell her that Fran Brochstein sent you!

Sandra worked with my daughter before beginning her freshman year in high school. Sandra was a great motivator for my child. We talked to approx. 3 other people but my daughter preferred Sandra. Since she and Sandra were going to work together, I let her choose the person she felt that she related to the best. Also, hiring Sandra avoided lots of arguments at home. Sandra met with my kid on a regular basis and they discussed her future plans. Her senior year of high school they met a lot - especially when college applications were due. I did not have to monitor deadlines since that was part of Sandra's job!!! My child got 100% of her undergrade program paid for with scholarships and grants. She even received money for books and even housing expenses her senior year of college. Sandra Newton is top notch and I highly recommend her.

When can a child decide not to visit the other parent?

The child can decide the moment he/she turns 18.

If the current visitation plan does not work, then it needs to be modified.

If one parent is harming the child (physically abusing, not feeding, calling bad names, etc.) you will need proof.

You need witnesses with personal knowledge. What is personal knowledge? Briefly, the person can only testify to what they personally experienced - heard it, saw it, tasted it, smelled it, etc.

So if the child came home with bruises, the neighbor can testify to the bruising but not what the child said about how the bruises got on his/her body.

School teachers make excellent witnesses because they are impartial and only want what is best for the child.

School records are presumed accurate. So if there are many tardies on the days the other parent has the child or many unexcused absences when the parent has the child, that is powerful evidence. If the child comes to school dirty, tired, stressed, unprepared only on the week-ends when they visit the other parent, you have some powerful information for the Judge to hear.

A professional mental health expert that is willing to testify in court is also powerful.

If things are bad and you need some more evidence, then asking the Court to appoint an amicus attorney to meet with the parents, child, people with personal knowledge and review doctor and school records might be the way to go.

Elder Abuse

To report suspected elder abuse call 1-800-252-5400 and speak to a Texas Dept. of Family and Protective Services (aka DFPS) employee.

This is the statewide intake for all complaints regarding the elderly. Reports may be made anonymously. However, be aware that an intentionally or maliciously false report is a crime. Mistaken reports are NOT a crime unless they are made in bad faith.

Of course, if it's an emergency dial 911.

The National Center for Elder Abuse is 1-800-677-1116 or www.elderabusecenter.org

Elder abuse may be neglect, abuse or financial exploitation of anyone elderly or disabled. It is illegal.

My advice -- if in doubt -- make the call. The best news is that you might be wrong! It might be a "wake up call" for the family and/or friends of the person.

People that take advantage of the disabled and elderly will hopefully be repaid in-kind 10 fold!

My New Holistic Websites

I now have my 2 holistic webnames linking to my main website.

www.TexasHolisticLaw.com

and

www.TXHolisticLaw.com

I eventually hope to develop or expand my websites to include much more on Texas holistic law.

Craig's List advertising

My daughter turned me onto Craig's list. I did not believe how many Houston attorneys are advertising on that site.

I also found an ad by an individual that proudly advertises that he/she is not an attorney but will sell you forms based on their "experience".

I emailed the person to make them aware that this is a felony according to Texas law. One Harris County family judge takes great pleasure in turning in all such people to the District Attorney's office. The District Attorney will prosecute such people. They are truly doing a disservice to people that they proport to help.

Of course, I don't do my own dental work! If I have a dental problem, I hire a trained dentist.

As an attorney, whenever I have a legal issue in my life I hire an attorney to help me. Why?
Because I'm personally invested in my life and I need an objective and a person who is not emotionally involved to help me and guide me.

Advertising my Holistic Law Practice

I now advertise in the Indigo Sun, Centerpoint and Natural Awakenings monthly publications.

Centerpoint finally convinced me to change the ad that I've run with them for the past year. I added a photo.

According to the advertising rules of the State Bar of Texas (as I "think" that I understand them), if I basically have an ad similar to my business card, I am not violating any rules.

I've seen numerous attorney ads in Houston publications that I KNOW violate numerous State Bar of Texas ads.

Believe it or not, I have to include "Houston" in my ad according to the State Bar, even though Centerpoint is only geared for a Houston audience.

Why? I have no idea.

If you see my ads, please send me your comments - good and bad. I am truly interested in your opinion!

Greensheet Ad

My ad advertising DO IT YOURSELF FAMILY LAW KITS is now running in the inner loop edition of the Greensheet.

I hope this ad will reach people with limited income means that would like an inexpensive alternative to hiring an attorney.

Again, I meet with each potential purchaser and make sure that they understand what they are purchasing. I also will NOT sell the kit to anyone if I do not think it will work for them or if I think it is inappropriate for their situation.

Houston Press

Check out my ad advertising DO IT YOURSELF DIVORCE KIT beginning on the "back page" of the Houston Press this week.

I've been a Houston Press reader for years but never advertised with them.

I think their readership - inner loop folks that enjoy an alternative news source might find my ad interesting.

Visit my old Blog for more information

http://www.directlex.com/fran/

This was a great blog until it decided not to allow me to post anymore.

Please visit it for many other posts that contain lots of interesting family law information.

I found the divorce forms -- now what?

After locating forms, you need to fill them out.

The clerks at the courthouse and the Judge do NOT do this.

Why should you hire an attorney?

Because we know what paragraphs to select.

The clerks cannot fill out the forms because they are NOT attorneys and it is illegal for them to give legal advice.

Basic divorce paperwork

There are some documents that EVERY divorce needs in the State of Texas:

1. Original Petition for Divorce (usually just called the Petition).

2. Either a WAIVER OF SERVICE or proof of service on the other spouse.

3. A Final Decree of Divorce.

YOU (or your attorney) need to prepare these documents. They do NOT pass them out at the courthouse. They do not "magically" appear.

Am I divorced after 60 days?

Many people coming to the Houston Volunteer Lawyers booth have heard that if they file a divorce that they are "magically" divorced after 60 days.

WRONG! WRONG! WRONG!

After a divorce has been on file at the courthouse for 60 days, one of the parties needs to come to court and stand in front of the Judge. Under oath, the person reads a statement to verify everything in their petition and decree. Then the Judge reviews the paperwork and either approves or disapproves the divorce.

The divorce is NOT final for 30 days. Therefore, you should not marry for 30 days AFTER the Judge signs the final decree of divorce.

Am I divorced after 60 days?

Many people coming to the Houston Volunteer Lawyers booth have heard that if they file a divorce that they are "magically" divorced after 60 days.



WRONG! WRONG! WRONG!



After a divorce has been on file at the courthouse for 60 days, one of the parties needs to come to court and stand in front of the Judge. Under oath, the person reads a statement to verify everything in their petition and decree. Then the Judge reviews the paperwork and either approves or disapproves the divorce.



The divorce is NOT final for 30 days. Therefore, you should not marry for 30 days AFTER the Judge signs the final decree of divorce.

Do It Yourself Kits on-line

I have been filling in at the Houston Volunteer Lawyer booth in the basement of the Family Law Center for the past two weeks while their normal attorney is on vacation.

I've seen horrible kits purchased on-line from $30 - over $400.

DON'T WASTE YOUR MONEY!

These kits are from New York, California and Washington. Even the legal site entitled something like "Texas divorce law" is from New York!

I strongly urge you to hire a professional to help you.

PLEASE DON'T USE A NOTARY OR PARALEGAL.

There are apparently several notaries doing legal forms for people. I don't know who these people are but what they are doing is illegal in the State of Texas. It is called barrarity and it is a criminal offense. When caught, they are actively prosecuted. Why? Because they are doing things wrong and basically stealing people's hard earned money.

A notary can be a high school drop-out. There is NO training of any kind for a notary.

I've had so many people crying at the booth when they learn they have wasted time and money.

When my plumbing breaks, I hire a plumber. It's funny that everyone can find the money when their toilet backs up! However, many people say they don't have money for an attorney.

2007 Pro Bono and Legal Services Award -- Frank J. Scurlock Award

Lan T. Nguyen received the 2007 Frank J. Scurlock Award.

She was recommended for the award by the Houston Bar Assocation's Executive Director, Kay Sim.

I've known Lan for many years and I can't say enough good things about her. She is an outstanding attorney. She is an extremely hard worker. She does many pro bono cases through Houston Volunteer Lawyers and other Houston area charities.

In one case, I represented a Vietnamese grandmother though Houston Volunteer Lawyers Progam, when I asked for an interpreter -- I was referred to Lan. Unfortunately, she was already one of the attorneys on the case! It was a very complex and difficult case, but even though Lan was a strong advocate for her client, she was a person that was pleasant to deal with and to easily respect. Her word is like gold! When the situation gets stressful, she is able to maintain her cool and her sense of humor.

Congratulations to Lan T. Nguyen for her work in the Houston community and the Houston Vietnamese community!

She is inspiring! She is an outstanding person!

Texas Bar Jounal - July, 2007


On page 589 I'm listed under TEXAS MEDIATOR CREDENTIALY ASSOCIATION -- Announces Credential Holders for 2007 --under CANDIDATES FOR CREDENTIALED MEDIATOR.

I'm excited because I don't recognize any other Harris County attorney that does exclusively family law on the page.

I went to South Texas Law School with M. S. Frost Haenchen and Fred A. Simpson. I don't think that either of these guys do any family law.

There might be some other family law attorneys but none from Harris County.

I joined www.txmca.org in 2006 because I wanted to commit to doing family law mediations seriously and I wanted to be part of an outstanding mediation group.

ADR is celebrating its 20th anniversary of the Texas ADR Act -- Alternative Dispute Resolution.

WHY YOU SHOULD CALL ME --

If you have a legal question -- email or call me. I offer a free 10 minute consultation.

Why? Because most people are scared because they do not understand or know Texas law.

Why? Because I believe that knowledge is power.

Why do I contineu to do this after so many years? I do a huge referral business -- I'm up to 3 generations in some families!

Why? Because if I help you now, you will refer everyone you know to me in the future!

Why? Because I receive referrals from opposing parties because I was fair and reasonable. I always attempt to treat everyone I talk to with respect and in a civil tone.

Why? Because my clients come back to me when they need to modify their legal documents.

Why? Because I'm a strong advocate for all children!

Why? Because I try to talk to plain English and I don't sugar-coat reality.

Why? Because I tell you the pros and cons of your case.

Why? Because I treat you like I expect to be treated by any attorney I'd consider hiring.

Why? Because if I don't think I'm the right attorney for you, I will send you to an attorney that I know and trust that is reasonably priced.

ESTATE PLANNING DOCUMENTS I HAVE & YOU SHOULD TOO


Here are the estate planning documents that I have and I think every Texan should have:

1. Medical Power of Attorney for Health Care with the required disclosure statement.

2. Statutory Advance Medical Directive -- common known as a "LIVING WILL"
I named mine -- Directive to Physician and to My Family and Friends

3. Declaration of Guardian in the Event of Later Incapacity or Need of Guardian -- no one thinks they will ever need this document -- but it can save you and your family much heartache if you do it!

4. Delcaration for Mental Health Treatment -- this document is fairly new in the State of Texas and since I have a limited medical knowledge I'm not real comfortable with it -- but I think it is a good document and one that execute after talking to an attorney that understands all the ins and outs of this document.

5. Appointment of Agent to Control Dispositon of Remains -- you absolutely need this if you are not married -- I strongly urge everyone to designate someone to be responsible for the funeral and/or memorial service.

6. Texas Dept. of Health Standard Out-of-Hospital Do-Not-Resusitate Order

7,. A Texas Will

8. Maybe -- Statutory Durable Power of Attorney -- a very powerful document in Texas -- BEWARE! There are many choices in this document and it MUST be done properly after talking to a knowledgeable attorney.

I strongly urge everyone to review their estate planning documents every 5 years!

I'm obsessive and I do it annually.

I like the following estate planning attorneys because they are reasonable and they are all able to speak in plain English:
1. Kevin Alter
2. Keith Lynch
3. Patricia Bushman

If you want to hire me to be your advocate, I charge $150 per hour to meet with you and then meet with any attorney you hire to make sure they do everything right!

If you need a care manager, I personally recommend, BARBARA BOWER of Caremanagers, Inc. in Houston, Texas. She has been acting as an advocate for many, many years and my family uses her. I strongly urge you to hire an advocate when dealing with your elderly family members. She has saved me from pulling out all of my hair! She is appointed by many courts to represent people that have no family. She has been a life-saver for me!

Why do I discount my rates? Because I've represented many of my parents friends in their legal problems and I think it's important for older folks not to be taken advantage of!

My own father got "scammed" by a "nice young man from Florida" who was day-trading and lost over $250,000 of money within 90 days! Thank God, I was keeping track of his bank accounts and I happened to be eating lunch with my Dad one day when the "nice young man" called to see who my Dad was feeling that day! PS -- I hope this "nice young man" roasts in hell and suffers 10 times the losses he incurred for my Dad!

LIVING TRUST SCAMS IN THE STATE OF TEXAS:

Living Trust Scams versus the truth in the State of Texas --

I often talk to people that say "I have a living trust so I'm not worried." When I try to determine what they have done, they have no idea. They think a "LIVING TRUST" solves all of their problems. WRONG!!!!!

I'm no expert on estate planning. However, the July, 2007 Texas Bar Journal had an interesting article designed for clients.

I'm summarizing the article:

1. Sales people target people over 50 and try to selling them living trusts. So you need to ask yourself -- Do you understand what a living trust means in the State of Texas?

2. You need to carefully consider if this is the best idea for you.

3. Do not fall victim to "act now" or high pressure sales pitches.

4. Talk to your children, your best friend, your minister, your doctor, your accountant, CPA, estate planning attorney, banker or financial advisor (in other words -- people you know and trust!!) before setting up a living trust.

5. Many salesman make false, incomplete or incompetent statements regarding the laws of the State of Texas.

6. Consider going to an estate planning attorney or elder care attorney and paying for an hour of their time before making your final decision. Most charge under $300 for an hour consultation.

I personally highly recommend Kevin Alter, Patricia Bushman or Keith Lynch all of Houston, Texas. They will be honest with you and they are all able to speak to you in plain English!
If you are still scared, I charge $150 per hour to go with you to any probate or estate planning attorney, and be your advocate on YOUR behalf.

7. Many salesman claim that you will save money on taxes. This is misleading. Most Texans will not have a death tax! If your estate is taxable, a will can accomplishy the exact same tax savings as a trust for less money.

8. If anyone tells you that a living trust will help you qualify for public assistance benefits they are not telling the truth.

9. If anyone tells you that a living trust will help you avoid a contested will again they are not telling the truth. (Hint: a trust and a will are separate legal concepts in Texas and do 2 completely different things!!)

10. A living trust will NOT help you avoid your creditors!

11. A living trust may or may not avoid the expense of a guardianship. The State of Texas also offers a power of attorney that might work. However, you need to talk to a competent attorney to know what document is right for your particular situation.

12. Many salesman claim that attorneys will take 3-10% to probate your estate. This is a false claim.

If you doubt my last comment, then you need to talk to 2 or 3 attorneys and see what they charge. (For 3 competent attorneys that I personally trust - call Kevin Alter, Patricia Bushman or Keith Lynch).

13. If a salesman claim that probate in the State of Texas takes years -- they don't know what they are talking about.

If your will is written according to Texas laws, probate in Texas is cheap and easily -- unlike many other states.

14. If a salesman claims that probate is time intensive and costs a lot of money -- they don't understand Texas laws!

15. If a salesman claims that everyone should have a living trust -- they don't know Texas law!

16. If a salesman claims the only way to avoid probate is to have a living trust --they don't understand or know Texas law!

In summary, it is your money so be slow in spending it. Don't rush! If you must take the decision immediately, then don't! Be suspicious! Recognize that many "smooth talking, sincere salesmen" are hoping to retire off the money they make from you!

Con-artists make a good living on people's fears.

Don't waste your hard earned money! This is YOUR money -- you need to take your time and think about what you want to do! If you want to meet with me, I charge $150 per hour to be your advocate and argue with you about all the possible implications of this "great opportunity".

If you think you've been a victim of a con artist, a livng trust salesperson or an unethical attorney, please call the State Bar of Texas and report them.

I will give you 3 personal examples:

1. My looked at my mother's will and it had typos in it -- it was horribly drafted by a very expensive "Galleria" attorney (it cost her over $5,000). I took her to Kevin Alter who wrote a very short will for her for under $500. When I asked Kevin why it was so "basic" he said that her estate was under the State of Texas non-taxable estate and there was no need for her to have a "fancy" will. I thought about it & realized he was right! (As an attorney, I admit that I like things to be long, detailed and drawn out!)

2. If I die tomorrow, my children do not have to probate my estate. Even though I have a will, I've purposely left all of my assets in accounts with "rights of survivorship". Therefore, my utilities and credit cards will not be paid and my kids inherit directly from me. However, I review my documents on an annual basis to make sure that my personal situation has not changed. I have purposely designed my estate to be "broke" when I die so that no creditor can collect. If I win the lottery tomorrow, I will definately talk to an estate attorney before collecting my lottery winnings and I will revise my will to include trusts to go where I want the money to go.

3. My father has advanced Alzheimer's disease. I never had him declared imcompetent. As he was getting ill, we moved everything into a family trust. Even though he has a will, his children and grand-children will receive whatever is left in his estate at his death, as HE WANTED IT! The probate of his estate, at his death, will be easy and inexpensive. Now that he is mentally incompetent (and 5 years later) I would have made some changes to what we did; however, overall the documents we did will ultimately accomplish what he wanted. After he was mentally incompetent, he apologized to me for some of the decisions(he wanted me to be sole executor of the estate) he made -- but it was too late to revise the documents. Looking back, he could have accomplished what he ultimately wanted easier and cheaper. Unfortunately, we cannot change the documents now. Of course, he never thought he'd live this long and end up incompetent. He thought he'd just die quickly and easily.

Grandparent rights in Texas

Here is brief summary of grandparent rights in Texas:

1. Automaticlaly being a grandparents does NOT give you the right to file a lawsuit for possession, access or custody of your grandchild.

2. If your grandchild used to live with you, you MUST file a lawsuit asking for custody after the child has lived for with you for over six (6) months. Neither parent can live in the house during this six (6) month period. If the child has left your home, less than 90 days must have passed since the child left your home.

So -- if the child lived with you for several years and the parents lived on the streets during that time. Then the mother came to get the child and they moved to another city -- you have less than 90 days to go to file in Texas and ask for custody of the child. After 90 days, you lose your rights to file a lawsuit in Texas. (It does not matter if the child lived with you for 15 years!)

3. If you just want to visit your grandchild, it will be impossible if the parents of the child are married to each other and there is not pending lawsuit regarding this family. The courts do not want to interfer with an intact family unit.

So -- be nice to your children if you want to see your grandchildren.

4. If the parents are divorcing, you MIGHT have the grounds to intervene and ask to get some visitation with the child. However, you will NOT get 1st, 3rd and 5th Fridays of each month.
You must show the court that you have had substanial past contact with your grandchild and that failure to appoint the grandparents as a possessory conservator would significantly impair the child's physical health or emotional development. If both parents do not want you to have visitation with your grandchild, it will be difficult (not impossible -- but difficult) for you to get some visitation with your grandchild.

5. If you want to get primary custody of a grandchild, you must prove that the parents should not be appoointed because it would impair the child's physical health or emotion development and THE PARENTS ARE UNFIT! THIS IS VERY DIFFICULT TO PROVE. THE BURDEN IS ON THE GRANDPARENTS. YOU WILL NEED OVERWHELMING EVIDENCED TO PROVE THE PARENTS UNFIT.

6. If your grown child is dead or in jail and the other parent won't let you see your grandchild, then you have the right to be granted some access to your grandchild. Again, it probably won't be 1st, 3rd and 5th Fridays of each month.

HERE IS THE LEGAL PRESUMPTION THAT YOU MUST PROVE ORDER TO HAVE ACCESS TO YOUR GRANDCHILD -- it is a fundamental legal presumption that a parent should raise his or her own child. It is presumed that a fit parent makes decisions in the best interest of his or her child.

So if you want to see your grandchild, be nice to the parents. Bite your tongue! Smile! If you piss of one of the parents, then you won't be seeing your grandchild.

If your grown child is a bum and does not visit, you need to convince your grown child to take advantage of his or her visitation and let you see the child during his/her visitation time.

New laws in Texas

The Texas Legislature met in the spring of 2007. Their session is now over. There will be some modifications and/or changes of Texas Family Law going into effect soon.

The proposed law for a "covenent marriage" in Texas was defeated. It was a very poorly written bill that should NOT have been made into law based on the many issues it did NOT address.

However, there are going to be many changes.

Please check back on this blog to learn more about them as I learn of the changes.

Let me know your questions

If you want me to answer a question via this blog, please send me an email to fran@familylaw4u.com and request that I put the question and answer on my blog.

In the subject line put "question for TX Holistic Family Law Attorney blog".

I no longer have an assistant

My assistant, Bari, got a full time job with benefits. It was fun working with her and I wish her only the best.

I'm back answering my own phones. Please leave a message & repeat your phone number twice! Please!

I will NOT identify myself. I just say something like "this is Fran returning your call". If you pretend to be someone else, then you lose your free phone consultation!

If I can call you at night, please let me know if it's ok, the phone number to use and how late I can call you. I often return calls until 10 p.m.

If you claim it is an emergency, I will return your call as soon as I retrieve it. If it's 2 a.m., I will call you back! So be careful when you claim it's an emergency!

Emancipation in Texas

Summer is here and the emails and phone calls have started! This question seems to be very popular with 15& 16 year olds.

See my post dated March 17, 2007 regarding removal of disabilities. That is the term The State of Texas uses for emancipation.

Texas Attorney General & Senior Citizens

Many senior citizens are taken advantage of by con artists.

Office of the Texas Attorney General

www.oag.state.tx.us

Main switchboard

512-463-2100

Consumer Protection Hotline
800-621-0508

Houston Lawyer Referral Service

713-237-9429

or

1-800-289-HLRS

www.hlrs.org

In English & Spanish

8:30 - 4:30 Monday through Friday

Many fine attorneys are not listed with the Houston Lawyer Referral Service but of their policies. I believe the initial consultation is $20 for the first 30 minutes. Be sure to have your questions ready to make best use of your 30 minute consultation.

The Work Source in Texas

www.theworksource.org

Some interesting websites

www.publicdata.com
A website for public record searches. If you mention my name (FRAN BROCHSTEIN) I will receive some free searches, so PLEASE put my name in the referral space! The cost is approximately $25 for one year.

www.howardnations.com
A well-known website by Howard Nations, an attorney that was on the web when most of us did not know what the web was! He has hundred of links. Covers federal and state laws as well as general resources.

www.mdconsult.com
A fee-based site desigened to provide instant and thorough medical research to health care professionals.

www.nlm.nih.gov
Has many of the same databases as the one listed above but it's FREE
National Library of Medicine

www.law.cornell.edu
Cornell University Law School maintaines a comprehensive legal resources on the web with many links sites all over the world.

www.texaslawhelp.org
One-stop resource for free and low-cost civil legal assistance in Texas.

www.snopes.com
urban legends

www.searchsystem.net
Worldwide free public records directory

www.familylaw4u.com
Fran Brochstein's website that lists many websites of interest to people in Texas with family law concerns

Order a Free Annual Credit Report

Please be sure to order a free credit report each year.

www.annualcreditreport.com

Federal Trade Commission
www.ftc.gov

Don't be surprised how different your 3 credit reports may appear.
There are 3 major companies - Equifax, Experian and TransUnion.

If you see any errors, you need to contest them.

I personally had a negative entry on my report and I could not determine who the creditor was and I suspected it was an error. It took several attempts, but I was able to finally get it removed from my report. There were also duplicate entries of my law school loan so it appeared that I owed much more money than I actually owed. Again, I was able to get the duplicates off after writing the credit bureaus several times. I did not take "no" as an answer. I had my paperwork to show that I only had one student loan.

A relative ran her report and found many errors since she has a very common name. I helped her fill out the forms and all of the incorrect information was removed on our first attempt. She thought I was a miracle worker. It enabled her to get a car loan at a very low interest rate with a higher credit rating.

You do not need to hire a company to help you. You can do it yourself for free. Now most of it can be done via the internet. I highly recommend that you make a copy of each page if you do the forms on the internet.

Bill Ferguson & Divorcing as Friends

Bill Ferguson is a former divorce lawyer that has been lecturing, writing books and appearing on television and radio programs for over 20 years.

He offers classes on STOP THE CONFLICT and DIVORCING AS FRIENDS.

Bill lives in the Houston area.

www.divorceasfriends.com

He has developed a set of GROUND RULES FOR DIVORCE:
(here is an except of his rules)

1. Accept the person -- the person is the way he or she is whether you like it or not. Accept the truth.

2. Be willing to feel your hurt - Let go of the hurt.

3. See your role in the problem - you cannot have a cycle of conflict with only one person -- it takes two! See how your actions fuel the conflict.

4. Don't hang on. Let the person go.

5. Let go of resentments and forgive -- Forgiveness will benefit you.

6. Be willing for anything to happen -- if you are fighting what is happening, you cannot see clearly and make clear decisions.

7. Don't Argue - Listen! Let the other person express their opinions openly and fully. Listen to what they are saying. You don't have to agree with them but you need to listen to their side of the story.

8. Find solutions that work for both of you. Fighting is unproductive. When you are committed to finding solutions that work for everyone, things will go much smoother for everyone.

9. Take every opportunity to heal your relationship. Be a friend and wish the other person well.

I have Bill's tapes and books in my office for my clients that are interested in borrowing them and listening to them.

I took Bill's classes when I divorced many years ago and I found them to be very helpful. But, his ideas will only work if you are willing to let go of the fighting and finger pointing. If a person decides that the pain is too great, then most people are willing to try something different.

What is neglectful supervision of a child?

What is neglectful supervision?

Adults who are attentive and aware of children's behaviors are in the best position to safeguard their well-being.

When children are not adequately supervised, it may be considered “neglectful supervision”, which means: Placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition or mental abilities and that results in bodily injury or substantial risk of immediate harm to the child.

Neglectful supervision is also defined as: Placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child.

Neglectful supervision is definately one way to lose custody or have your visitation modified -- specially if your children are small.

How old must a child be to be left home alone?

How old must a child be to be left home alone?

Answer: To my knowledge there is not one specific law that clearly and definately addresses that issue.

Supervision of children is basic to the prevention of harm.

Adequate supervision means an adult caregiver is accountable for the child's care.

There are several factors that should be taken into consideration when deciding how closely to supervise a child, including:

the age, emotional maturity and capability of the child;
layout and safety of the home, play area, or other setting;
neighborhood circumstances, hazards, and risks;
the child's ability to respond to illness, fire, weather, or other types of emergencies; and
whether the child has a mental, physical, or medical disability.
The number of children left unsupervised, the accessibility to other responsible adults, the length of time or frequency with which the child is left alone, and the child's knowledge of the parent's whereabouts are additional relevant factors.

Leaving a child in a car alone

Never leave a child in a motor vehicle for any length of time.

If children are trapped inside cars, especially during seriously hot weather, it can result in heat exhaustion or heat stroke, leading to permanent disability or death in a matter of minutes. Heat stroke, also known as hyperthermia, can cause shock, seizures, irregular heartbeat, heart attack, and damage to the brain, liver, and kidneys.

There is a law for leaving a child in a vehicle -- Texas Penal Code, Title 5, Chapter 22, Section 10 LEAVING A CHILD IN A VEHICLE.

A person commits an offense if he intentionally or knowingly leaves a child in a motor vehicle for longer than five minutes, knowing that the child is:
younger than seven years of age;
and not attended by an individual in the vehicle who is 14 years of age or older.

An offense under this section is a Class C misdemeanor. I
f the child is injured, the charge is then elevated to child endangerment, which is a felony.
The penalties are six months to two years in jail and a fine up to $10,000.
Leaving a child unattended in a car is also a form of neglectful supervision.

What is neglectful supervision?

Answer: Adults who are attentive and aware of children's behaviors are in the best position to safeguard their well-being.

When children are not adequately supervised, it may be considered “neglectful supervision”, which means:
Placing a child in or failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition or mental abilities and that results in bodily injury or substantial risk of immediate harm to the child.

Neglectful supervision is also defined as: Placing a child in or failing to remove the child from a situation in which the child would be exposed to a substantial risk of sexual conduct harmful to the child.