August 30, 2007 by hsdavis.

It’s common wisdom that you want to be the first to file for divorce.

For most divorces, that’s probably true, because you have a jump on getting the process going, and the other side is forced into trying to play catch-up ball. For instance, you hire an attorney, get your ducks lined up, file a Petition for Divorce, get a Temporary Restraining Order, set a Temporary Orders Hearing for next week, and then have your spouse served. Then, your spouse has only a few days to find an attorney, meet the attorney, hire the attorney, and begin planning what will happen at the hearing. Catching the other side off-balance and seizing the initiative are good strategic reasons to file first.

But in Civilized Divorce, we don’t do things that way, and I used to say that there’s no reason to be the first to file if you’re going to be Civilized.

But I’ve changed my mind. I now think that there is a good reason to be the first to file. The goal isn’t to get the other side off-balance. The goal is to set the tone. Generally, a lawsuit is “driven” by the attorney that starts it. The filing attorney doesn’t have complete control of what happens in the lawsuit, but he has great influence over the direction. By deciding whether or not to have the other side served with papers, whether to set a temporary orders hearing, whether to obtain a Temporary Restraining Order, and whether to begin formal discovery, the filing attorney’s first actions (or inactions) make a powerful statement on how he or she would like for the case to proceed.

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April 24, 2007 by hsdavis.

Many conservative groups, especially conservative Christian groups, believe that it’s too easy to get divorced, and that the answer is to start a new kind of marriage (new under the law) called a Covenant Marriage. The idea is that when you get your marriage license, you check a box, and say “we really mean for this to last for life.” And, maybe you have to go through some pre-marital counseling. But, if things do get rocky later and someone decides to pull the plug on the marriage, it’s much more difficult and time-consuming (also expensive, but that’s not part of the intended benefit). This doesn’t replace the current laws, but allows for a different option for the couple.

Several states in the south have adopted Covenant Marriage, and in April, 2007 House Bill 180 was introduced into the Texas Legislature to introduce Covenant Marriage to Texas. Here are a few highlights of what the differences would be between a “regular” marriage and a “covenant” marriage:

Getting married. Current law requires only that you wait a day or two between getting the marriage license and actually getting married. The new law may impose a 30-day waiting period, and probably will require some pre-marital counseling (I imagine the authors of the bill had in mind that it would be with a pastor).

Getting divorced – grounds. Current law allows a “no fault” divorce, essentially saying “we don’t get along and the marriage is over.” Under a covenant marriage, “no fault” divorce would not be allowed, and you’d have to allege that someone was at fault, such as through adultery, abandonment, conviction of a felony, or something like that.

Getting divorced – waiting period. Current law requires that the petition (the document used to start divorce proceedings) be on file for at least 60 days before the judge signs the final decree of divorce. Under a covenant marriage, Legal Separation would be introduced to Texas for the first time, with a required waiting period of at least 2 or 2½ years.

There are a number of other provisions, but these are the most important.

Individuals, including individuals who happen to be lawyers, are all over the map in terms of whether they think Covenant Marriage is a good thing or a bad thing. But, the Family Law Section of the State Bar of Texas is strongly recommending that this bill NOT be passed, at least in its current form. The Family Law Section is quite clear that their objections to the bill are not ideological, but practical and economic. There is so much of this bill that introduces new things to Texas with addressing all of the related concerns and details that it would take years and years to straighten things. Because of the uncertainty, I, as a divorce lawyer, predict a number of clients coming in to my office, telling me he or she has a Covenant Marriage, and that their spouse is not doing right. I’d have to look my client square in the face and say that the law is unclear what the spouse’s responsibilities are and what my client’s rights and remedies are. I can tell them we can spend a lot of time and money asking the judge to make a ruling, and then a lot more time and money appealing that to the Texas Supreme Court to try to figure out what the law really is.

Lawyers like to know what the law is, and what the judge is likely to do, so we can advise our clients how to proceed to a comparatively quick and comparatively inexpensive solution. For instance, if the spouse who wasn’t doing right had a clear understanding of what he was supposed to do and what would happen to him if he didn’t do it, he’d be more likely to correct his actions than dare us to go to court and see what the judge says.

Here are a few highlights of gaping holes in the current bill:

Legal Separation is completely undefined. It’s unclear what authority the divorce court would have over the parties during the separation period. It’s not clear that the divorce court could set temporary child support, temporary child possession provisions, or even order one party or the other to pay the mortgage payment.

Mandatory Maintenance is bound to lead to inequities. Maintenance is mandatory if a spouse moved out for a year, without regard to the issues and intent of the parties, or even how much each party makes. Example: A mother moves with her children into her parents’ home because her porn-addicted spouse will not leave and she does not want her children exposed to his addiction. Wife is the abandoning spouse, so she cannot file for legal separation, but the husband can and the court SHALL award him maintenance.

Mandatory Counseling. The bill requires that, under certain circumstances, the parties must attend marital counseling, and before the divorce can proceed, the counselor must say that the marriage is unsalvageable. Well, suppose one party insists on a counselor that he or she knows is NEVER going to find a marriage unsalvageable? Or, suppose one party never goes to counseling, because the counselor can’t find it unsalvageable if the parties don’t go to counseling.

Grounds. What is adultery? Oral sex? Homosexual acts? Addiction to pornography? If it’s not adultery, there may be no grounds for divorce, and the parties must remain married and the children continually exposed to the destructive behavior.

Inhibits reconciliation. Suppose a couple was married under a Covenant Marriage, and now Husband wants out. He moves out to start the 2½ year separation period so he can get divorced. After a few weeks or a few months, the couple would like to attempt reconciliation. Husband will be very reluctant to move back in, as he’d be resetting the clock on his waiting period.

Economic damage. Suppose the Husband develops a very destructive and expensive addiction. Under current law, my advice to Wife would be to get the divorce started and finished right away to protect her share (and the kids’ share) of the marital assets from the husband’s reckless spending, and from lawsuits that may come against him (car wrecks, huge debts, whatever). Under a covenant marriage, Wife would have to just watch the marital assets dissipate over 2½ years before the divorce could be wrapped up.

As a divorce lawyer, I see that Covenant Marriage would mean a huge change to the divorce laws of Texas. And, if it’s the will of the people of Texas to institute Covenant Marriage, that’s fine, but the bill instituting the change needs to be much, much more thorough and well-thought-out if we are to save our citizens from hugely expensive and uncertain divorces.

As an individual, I see Covenant Marriage as meddling. It’s not enough to say that one plans to stay married for the rest of his life, and to make a vow before God to do so. With Covenant Marriage we’re trying to keep THOSE PEOPLE (whoever they are) from doing what we don’t think they should be doing, and make it harder for THEM to get divorced. If it was just about US (whoever we are), then the same thing could be handled with a premarital agreement.

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April 16, 2007 by hsdavis.

Several humorists have said that if you like sausage or the law, you shouldn’t watch either one being made.

As I write this, the legislature is debating changes to the law regarding Trials by Special Judge, which is the law that allows me to bring a retired judge to my office and do prove-up hearings in my office instead of taking my clients to the courthouse.

The prove-up hearing is the last step in getting divorced if you have an agreement. If you didn’t have an agreement, you’d have a trial in front of the judge and the judge would tell you the terms of your divorce. But, if you’ve got an agreement, one of you goes before the judge and gives very brief testimony to allow the judge to sign the Decree. The questions are things like, “state your name” and “do you believe the division of the community property estate is a just and right division?” Aside from names, almost all of the questions are answered with “yes” or “no”, and the entire hearing takes about a minute and a half.

But, to get in front of the judge for a minute and a half, you have to fight rush-hour traffic to get to the courthouse, find the right courthouse building, find a parking place, go through security, find your lawyer, go find a courtroom where a judge will be hearing proveups, get your case in line, wait for the judge to take the bench (you hope he didn’t have a dentist appointment and will be an hour late), and then wait for your case to be called. Because of the traffic and hassles when I have to prove up a divorce in downtown Dallas, I leave my home at 6:30 a.m. and will usually be back in my office by 10:00.

Decades ago, when mediation was a new thing in Texas, the legislature passed the Trial by Special Judge legislation at the same time as the mediation legislation. People in California call it “Rent a Judge”, and they use it extensively for celebrity divorces and corporate litigation involving trade secrets, because they appreciate the privacy of doing the trial away from the public eye.

The procedure is that all parties to a lawsuit agree to use a retired judge, then they submit an agreed order to the elected judge, and ask the elected judge to refer the case to the retired judge they’ve agreed on.

The problem is that some judges won’t sign the order of referral, and most don’t give a reason why. So, it doesn’t save my clients much money if I can do some proveups in my office, but I still have to go to the courthouse for other proveups (and I could have done all my Dallas proveups when I went to Dallas for the one that wasn’t approved for an office proveup).

This was frustrating, as I knew I was on to something that my clients absolutely love, but we can’t get the judge to allow it, and we don’t even get a reason why.

State Representative Will Hartnett from Dallas introduced a bill into the legislature this last session that would require the elected judge to refer the case to a special judge if that’s what all the parties agreed to.

I went down and testified before the House Judiciary Committee in Austin, and told them the Special Judge Statute was the greatest thing since sliced bread, that my clients love it, it takes a burden off of the elected judge, and doesn’t cost the public a dime. Nobody testified against the bill, and the committee unanimously voted to send the bill to the house floor for the “local and consent calendar”, which means they didn’t think anybody would vote against it.
When the bill hit the house floor however, there was loud debate against the bill, and it simply shocked me.

A little background on the dispute. As you may know, for most of the last couple of decades, most (almost all) of the Dallas judges were Republicans. This last November, however, Dallas suddenly became Democratic, and every Dallas Republican judge who had an opponent was replaced with a Democratic judge. Still not seeing the connection? Well, neither was I. So read on.

Well, it turns out that the new Democratic judges were having their share of problems, mostly stemming from the fact that they were new. There’s a learning curve to any job. And, they were catching their share of flack from Republicans for not doing the smooth job that their experienced predecessors were doing.

Because Rep. Hartnett, the sponsor of the bill, was from Dallas and was a Republican, many of the new Dallas Democratic judges assumed that the bill was an attack on them, to call them incompetent, and to say that folks would rather pay money to use a retired judge than use the Democratic judge the people of Dallas County had elected.

Wow. I was shocked. I suppose you can find a conspiracy wherever you want to look for it. But, I’ve used the Special Judge statute more than any attorney in the State of Texas, and I can honestly say that I don’t care whether the judge is Republican, Democratic, Libertarian, Independent, or Mugwump. And, for the purposes of the Special Judge statute, I don’t care whether the judge has been in office 30 days or 30 years. And, frankly, I had about the same percentage of Dallas County Republican judges turning me down for office proveups as I now have of Dallas County Democratic judges turning me down.

Rep. Hartnett offered a floor amendment to his own bill, to overcome the objections, which said that the referral to a special judge was only mandatory if it was for a proveup, and not for an actual trial. Nonetheless, there was acrimonious floor debate accusing Rep. Hartnett of trying to circumvent the judges elected by the citizenry.

At any rate, the bill passed the House of Representatives by a good margin (over 90%), and it’s on to the Senate. I just hope some of my past clients who have used office proveups (or who wish they could have) will take the time to tell their Senator that this is really good for the people of the State of Texas, and is not about avoiding judges of any particular experience or political stripe.

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January 11, 2007 by hsdavis.

Yesterday I had three appointments with prospective clients. The first just plain no-showed after making the appointment the previous afternoon. The second actually called yesterday morning, spoke with me, and confirmed our appointment, then no-showed to his 1:30 appointment. Neither has responded to a voice message and an email each.

I don’t have a lot of no-shows. Last year I had 234 consultations scheduled. 63 canceled, 19 no-showed, and 152 showed up. But, still, it’s aggravating to have someone simply not show up to an appointment without so much as a call.

Years ago I offered free initial consultations, and if someone had a work conflict, I’d make an appointment to meet them in the evening, or on Saturday. I found that the more I went out of my way to accommodate someone, the more likely they were to no-show to the appointment. I discovered that I didn’t charge for my time, the prospective client didn’t value my time.

Recently I began to offer an incentive to have folks prepay for their consultations to help reduce my no-show rate. I made a recording on 2 compact disks of everything I always wanted to say in a divorce consultation but never had the time. The deal is that if you prepay for your consultation (using a PayPal link on my web site), I’ll give you the CDs for free, and if you hire me for the divorce at the end of the consultation, I’ll apply the consultation fee you prepaid to the fees for the divorce.

The prepaid consultation option has been only mildly successful. Folks who get the CDs ahead of time say it really helps them be prepared when they do come to see me. It also gives them information they can share with their spouse. But, most folks choose not to prepay for their consultation.
But when I have two folks stand me up on the same day, like yesterday, I begin to wonder whether I should do more to keep folks from wasting my time. I have considered requiring folks to prepay for their consultations. While it would nearly eliminate no-shows, it would probably reduce the number of people who would come see me. Some because they aren’t really sure whether they want to get divorced. Some because they aren’t ready to start the divorce, yet, and they don’t want the spouse seeing the credit card charge.

What do you think? Would it be unreasonable to require folks to prepay for the consultation? Or, how about requiring them to give me credit card information just to guarantee the appointment, and the card wouldn’t be charged unless they no-showed?

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December 13, 2006 by hsdavis.

This will be a theoretical ramble followed by a practical observation.

First, folks have debated for years whether it makes sense to elect judges. There are arguments pro and con, but if you don’t trust the the governor to appoint the best and brightest, then the only real alternative is to have elections. There are, of course downsides.

The skill set to be an effective (elected) polictician is by no means congruent with the skill set to be a fair, efficient judge. Indeed, running for political office and being a judge are just about opposite in terms of the personality types involved. Even more particularly, to be elected you have to be very staunchly allied with one political party or another, and much of being a fair judge is being rather ambivalent about such things.

In Collin County, arguably the most Republican county in the state, nearly all political contests are settled in the primary. The exception is that sometimes they’re settled in the runoff of the primary. This year we’ll have two new judges that handle divorces. Judge Betty Caton decided to retire, and John Roach, Jr. will be taking her place. Judge Nathan White also retired from the bench and Greg Brewer will be taking his place.

I don’t think Denton County had any changes in their district courts.

The big story is Dallas County. All (or almost all) Family District Judges in Dallas were Republicans. Dallas County has suddenly become predominately Democratic. I believe that every Family District Judge in Dallas that was up for election was defeated by a Democrat, except for one. And, only about half the judges were up for election (they serve 4-year terms, and about half of them are up for election every other year). So we have 3 new Family District Judges in Dallas County.

(In Denton and Collin Counties, the courts are all general jurisdiction: the judges handle criminal, family, and civil matters. In Dallas county, the courts are specialized: there are a lot more courts, but only 7 that handle divorces: Family District Courts).

It’s said that a good lawyer knows the law, but a great lawyer knows the judge. That doesn’t mean that you know them socially, but that you have a good feel for how a judge would likely react to a given fact situation. Being predictable is a good thing for a judge. Cases are more likely to settle out of court if the lawyers have a pretty good feel for how the judge would rule. But with so many new judges on the bench, it’s just a whole lot harder giving good advice to your clients about whether or not to make or take a settlement offer from the other side.

In my particular situation, about the only thing I frequently ask the judges to do is approve an office proveup. It just so happened that nearly every judge that had been telling me “no” is being replaced by a new judge. So, while we have yet to see what the new year brings, my best guess is that a higher percentage of my clients will be able to wrap up their divorces in the privacy of my office.

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November 7, 2006 by hsdavis.

Sometimes my clients and I experience frustration over non-standard possession orders in divorce decrees. For those of you who don’t live and breathe divorce law, a possession order is what governs who has the kid(s) when. If mom has the right to determine the legal residence of the child, then the possession order says when dad has the right to have the kids with him.

The problem is that people tend to think of this as a rather simple proposition, but simple possession provisions tend to be unenforceable. Then, people try to take something simple (but doesn’t work) and add stuff on to it to make it work. This can result in lots more attorney time trying to work through the drafting, and the client doesn’t understand why there are additional charges for attorney time.

Also, all I handle is agreed divorces, and the parties are rather amicable toward one another, and have confidence that they’ll be able to work things out, but it’s my duty to make sure my client’s rights are protected even if the parties are no longer interested in working things out.

If you agree, please stop reading
First, it’s important to remember that every standard possession order starts off with a sentence that says something like, “as long as y’all agree on who has the kids when, don’t pay any attention to the divorce decree; but if y’all stop agreeing, then the following provisions control…” So, the entire purpose of the possession order is to cover what happens when the parties STOP agreeing.

The Standard Possession Order is battle-proven
Texans have been fighting over post-divorce possession of children for decades. The Family Section of the State Bar of Texas eventually prepared a suggested standard possession order and the legislature passed it into law. The Standard Possession Order doesn’t push any particular agenda except clarity, consistency, and predictability. Over the years fighting parents have found new and innovative ways to find loopholes in the standard possession order, and over the years the Family Section of the State Bar of Texas has found ways to rephrase and rework the Standard Possession Order to eliminate loopholes and increase predictability. So, it’s fair to say that most of what’s in the Standard Possession Order is the way it is to eliminate confusion and promote tranquility.

The biggest problem my clients have with the Standard Possession Order isn’t the summer provisions, Christmas, other holidays, or anything like that. It’s the week in, week out provisions for exchanging the children in “normal” times. Most people would prefer one of the three provisions below over what the Standard Possession Order provides:

• The non-possessory parent has the children every other weekend. All the stuff in the standard possession order about “weekends beginning on the first, third, and fifth Friday of each month…” seems unduly complicated
• Alternating week possession: Mom has the kids one week and Dad has them the following week
• Split week possession: Mom gets the kids for about 3 1/2 days, then Dad gets them for about 3 1/2 days. Or, this week Mom gets the kids 4 days and Dad gets them 3 days, and next week Mom gets them 3 days and Dad gets them 4 days.

Clients assume that the standard possession order doesn’t do what they want to do because lawyers and the legislature just don’t understand what the clients want. Unfortunately, lawyers thoroughly understand what the client wants, but they’ve found that doing what the client wants is highly likely to result in post-divorce litigation and very unhappy clients (who want to know why the lawyer didn’t prepare the decree to eliminate the possibility of post-divorce wrangling).

There are two basic types of problems with doing a possession order the way the client wants to do them: (1) counting weekends; and (2) resetting the clock after holidays.

Counting Weekends

If you’re doing something that involves “every other week”, eventually you or your spouse are going to disagree on whether a given day is in the “A” week or the “B” week. The only way to solve the problem is to dig out the divorce decree, see when it was signed, pull out a calendar, and count weeks (or weekends, or Fridays, or whatever) up to the date in question. Cumbersome, but not rocket science.

Resetting the Clock After Holidays, etc.

This isn’t really a separate issue from counting weekends (above), but it’s a complicating factor. Suppose that Mom has Spring Break (a week off from school with the weekend on each end) with the kids in even-numbered years, and Dad has Spring Break in odd-numbered years. And, suppose we’re in 2007, an odd-numbered year. After Dad has possession of the kids for 9 or 10 days, is it automatically Mom’s turn, or do we count weekends and consider that it’s possibly still Dad’s turn? Similar issues occur after any holiday, but the situation is most pronounced after the longer holiday possession periods, such as Christmas, Spring Break, and extended summer possession.

The Family Section of the State Bar of Texas has found only one way of eliminating problems with the inherent conflicts of “every other week/weekend” and resetting the clock after holidays. That solution is to replace “every other week/weekend” with “weekends beginning on the first, third, and fifth Friday of each month.” It eliminates counting weekends since the date of divorce, and eliminates the inherent problem of whose weekend it is after an extended holiday possession. It may not be great, but it’s clear enough to eliminate a great deal of confusion, and post-divorce attorney’s fees.

Implications for Drafting (and Attorney’s Fees)

“Legal boilerplate” is standard language. It gets to be standard because it has been proven to work. If I prepare a divorce decree with the standard possession order (boilerplate), I know that language is going to cover 99% of all possible post-divorce disputes, and will provide a roadmap without the need to go back to court and pay additional attorney’s fees. And, if you do have to go back to court, the possession order will be pretty easy to enforce. There won’t be anguished cries wondering why your attorney didn’t tighten up the langugage to eliminate this sort of confusion.

If you choose to go with non-standard language, you’re going to open up a bunch of loopholes, and a bunch of opportunities for post-divorce problems. All I ask is a recognition that we’re “out of warranty” if you use non-standard possession language. If we start tweaking your language during the divorce, I’ll charge for my time above and beyond the flat fee agreement. And, if there are problems enforcing and following the non-standard possession order after the divorce is final, I won’t be guilted into trying to fix the language that I messed up.

Remember, the first paragraph in the possession order says that as long as you agree, you should ignore the Decree. So, the rest of the possession language in the Decree needs to be based on the assumption that you have stopped agreeing, and one of you needs to impose your will on the other (preferably without resorting to court action and attorney’s fees).

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November 6, 2006 by hsdavis.

I don’t know how interesting this may be to my readers, but recently I’ve looked into the seasonailty of my business.

My business is bound to be more seasonal than most divorce lawyers. Most divorce lawyers will have to go to hearings and such, and will do discovery, and they’ll earn their money over a much longer period of time. My fees are generally earned when I’m hired, in part so as to remove an incentive for me to drag the case out.

I’m surprised by how erratic my business is. I expected gentle seasonal variations in my business. For instance, I expected that November and December would be a little lower than January, because folks would postpone their divorce until the holidays are over. Then I expected that summer would generally be a little higher, or a little lower than the spring.

To find out, I took the last four years’ data for my revenue, broken out by half month. So, I had January 1-15 for 2003, 2004, 2005, and 2006. Then I had January 16-31 for those same years. And so forth. Then I plotted a typical year, with the average January 1-15, the average of January 16-31, and so forth for a year. I found the data jumped all over the graph.

I redid the data, this time throwing out the high and low figures for each period, and averaging the two in-between figures. But the data was still all over the map. So, the data says what the data says.

I found no gentle seasonal variations. I saw huge spikes and valleys from one 2-week period to the next. My worst half month (March 1-15) is 40% of average, and my best (January 16-31) is 160% of average. And I generally don’t see a trend from period to period. A really good fortnight may have a terrible one right before it, and an average one just after it.

A little of it makes sense to me. It’s not surprising that four of my worst periods are early November, late November, late December, and early January, as folks are delaying their divorces until after the holidays. And, it makes sense that late January would be among the busiest, for the same reason. But, some of it makes no sense whatsoever: someone explain to me why early March is the worst half month of all, but the half months on either side of it are 120% of normal.

If you have any explanation for the huge variations in when people file for divorce, I’d like to know about it.

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November 3, 2006 by hsdavis.

Judging from the number of emails I get, I figured I needed to start a blog. Now I just need to figure out what to write about. I’ll be doing some posts on what I think people are curious about, but if you have something to suggest or ask, please do. Please be patient with me, as it’s my first blog.

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