Gary Warren has nearly 20 years of legal experience in the North Texas area. He has dedicated much of his career working specifically with divorce and child support cases in communities across Texas. We brought in an interviewer to shine light on that experience and answer some of the important Family Law questions.
Divorce Questions
Will You Be Required To Pay Spousal Support?
Interviewer: Regarding spousal support, is it called spousal maintenance or alimony in Texas?
Gary: We have two types. We have pre-decree, like pre-trial spousal maintenance; and then we have post-decree spousal maintenance. We do not really use the term alimony.
Texas has very limited post-decree spousal maintenance. During the context of your litigation, there is a lot of opportunity to get some maintenance payments or support. There is temporary support to the spouse because of the context of just getting this divorce.
Everything is unstable. The court recognizes that while you the parties are separating, the estate is not separating at that time. That is going to be divided later. Still, people forget that they have to contribute to that estate even if they are not living there.
Interviewer: Why do they award spousal maintenance during the divorce process?
Gary: A lot of times, one of the parties does not even have a job. Their job is to be a homemaker. What are they going to do? They do not have any way to make money.
Yes, there are some acrimonious situations which should never be. There are acrimonious situations compounded with very poor legal advice, where one party will try to starve the other party out. That is a mistake. If you have a client who wants to do that, you should tell them not to do that.
This is because it always comes back to haunt the person. That is never a good strategy. So the law allows for the person- who is earning the income and contributing to the house payment, the utilities, the electrical bills, the car payments and everything that maintains the family estate- to continue making these payments.
They may not get the benefits of living in the house necessarily or of driving one of the cars. However, these things are still part of the community estate. They still have to keep this property together.
They can’t let it just go to foreclosure or to repossession. That is bad for everybody, and legal presumptions go against all of that. The idea is for the estate to make it intact from the beginning of the divorce process to the end of the divorce process. At the end, the estate will be divided by the court if the parties cannot agree on how to divide it.
Interviewer: Surely, a lot of people think, “Well, he or she kicked me out of the house. So why should I pay for it?” They may say, “I can’t use the car. Why should I pay?”
Gary: It is very hard for people to understand. You may look at it like, “She is some kind of bad actor” or “He is a bad actor” for any conduct. However, the court is not going to look at it that way.
They are going to look at it from a very utilitarian point of view. They are going to look at it like, “Okay, we have all these bills that have to be paid. Where is the income coming from?”
They do not care if the income is coming from one spouse or the other. If the income before the divorce came from the husband, it is going to come from the husband after the divorce is filed.
So the court needs an interregnum, a time period in which this situation can be sorted out. That is what the divorce process is about. We do the best we can as attorneys to educate our clients on this concept.
But you go home one day and someone has gotten a temporary restraining order. You can’t go into your house. You are not really happy about that. It can become even more difficult for you to swallow when you go to court and the judge says, “Oh, you have to make the house payment now.” Meanwhile, you need to go get an apartment.
That really sucks. But if you really put your mind to it, you will understand that the house not going into foreclosure is in your best interest. This is because you have a financial interest in the house.
Just because your wife is living there, you can’t let that house just go to foreclosure. It does not make any sense because you are going to lose equity. You are going to lose control of that asset.
So some people do not want to make the payment because they think it just benefits the spouse. However, you should make the payment because that asset is important and the court recognizes it is important. You have the means to keep that asset intact while the process continues.
Interviewer: Under emotional stress is the exact opposite of what the court wants.
Gary: It is and that is one of the factors you have to deal with in this business; time and time again. A lot of times, it appears that the “bad actor” in this case is getting rewarded for their bad actions.
One party might get to live in the house because of factors that have nothing to do with what they did to get the divorce started. They might have done some pretty catty, difficult things to the other client.
But the court is looking at it from a completely utilitarian, economic analysis. They are not looking at who did who wrong here. It is very difficult sometimes when the husband has an affair with somebody. People want to make this whole thing about an affair.
Well, if he had this affair with a person who is a sex offender, then yes that is an issue. But if this person is not around during visitation and not entering the mix, the courts are not really going to get involved in that.
They are going to say, “Okay, everybody is an adult in this situation. As long as he keeps that compartmentalized, we are not going to get in there and punish him for having a girlfriend. We are going to get in there and make sure the house does not foreclose, the cars do not get repossessed, and the bank accounts do not get overdrawn.”
That is in the best interest of the kid. That is what will be in the best interest of the family. It is completely economic. That is all they care about. They try to get to the lowest common denominator.
How Common is Divorce among Couples Where one Spouse is Not from the US?
Interviewer: How often do you have cases where one spouse is not from the US? What are the top countries they tend to come from?
Divorce among Couples Where One Spouse Is Not a Native of This Country Occurs in about a Third of the Divorce Cases in Attorney Warren’s Practice
Gary Warren: I would say 25% to 30% of the time, I have a case where one of the parties or both parties, either originated from or have some ties to a foreign country. Here in Texas, many times they have ties to a Latin American country, primarily Mexico.
Due to International Jurisdiction, the Divorce Process Can Differ
When one or both spouses are not from this country, there are certain factors we have to pay particular attention to.This is because you do have interplay of having to deal with international jurisdictions in these circumstances.
Interviewer: What are the primary issues in these types of divorce cases?
The Divorce Issues Vary in Each Country; Some Countries Will Accept the Rulings of American Divorce Courts While Others Will Not
Gary Warren: I would say that it really depends on what country we’re dealing with. If you’re dealing with Middle Eastern countries, and I have a lot of Middle Eastern clients, those countries are signatures to The Hague Convention. That means that they’ll respect the court rulings of other countries.
Child Custody Is a Concern in These Types of Divorce Cases
You’re dealing with some very culturally diverse situations. Quite often, if the children are ever allowed to go to those countries, you don’t ever see them again. So when you’re getting a decree, there are provisions that you can put into the decree that prevent one party from applying for a passport. This helps to prevent one party from just taking the children and leaving the country with them.
If One Parent Absconds with a Child to another Country, There May Be Little the Other Parent Can Do
There’s nothing to stop anybody from leaving the country. If you have a child with a passport and you’re one parent, and you go down to the airport and buy a ticket, they’ll put you on a plane. Once you’re gone, you’re gone. With Mexico, or many Latin American, you’re talking about just going down to the border. We are about 6 or 7 hours from there right now. If that occurs, we are fairly certain that we know where they are, but there’s nothing we can do about it.
Length of Marriage and Having a Child Factor in Divorce?
Interviewer: I just didn’t know if in your practice you tend to see older or younger couples more frequently or couples with or without children. And aside from age, do couples who have been married a certain amount of years tend to get divorced more so than couples married just a few years? Or, is it the other way around?
Chris: Sometimes you see a trend where you see a higher occurrence of younger couples who have younger children getting divorced. Then you may encounter a higher percentage of long-time married couples with older children, who waited for their children to grow up before seeking a divorce.
Many Couples with Children Wait Until Their Children Have Finished School before Seeking a Divorce
If I had to say from my experience what type of couple we see the most frequently, I would say it is the parents of teenagers. All types of couples still get divorced, but I would say that a lot of times that when divorce occurs in couples with children it is typically after those children have moved out of the household.
Is There One Common Reason for Divorce?
Interviewer: What are the most common reasons you hear from people as to why they want a divorce?
Financial Stress Can Cause Problems between Couples
Chris: The two of the more common reasons are infidelity and then also quite frequently, especially these days, people are getting divorced because financial stress. You’re partners when you get married and so you face the good times together or you enjoy the good times together.
Then you face bad times and many times that brings out a lot of differences in people. You’ll have a husband who doesn’t want to face the financial issues of the household and the wife has to work outside of the home and still maintain the household while the husband doesn’t do anything or vice versa.
Emotional Aspects Of Divorce
Interviewer: A lot of people probably want to avoid family law. It seems like an ugly or potentially ugly area. Why do you want to be in the area of family law?
Gary: Yes, it is a potentially ugly area. That is why there is a need for people who are highly professional and who have the acquired skills to assist people in this area. That is just what I am.
It is not a hobby of mine. It is not an innate love of mine. It is my job. It is what I do. I am a professional. I have learned the art of doing this, and I practice it every day of my life. Everybody has a job and this is what my job is.
Interviewer: People come to you with emotions, or overdrives. Talking to you, already it seems like you are very stable and professional. It sounds like you bring a sense of order to the whole process. You calm down the screaming and yelling, essentially. It is a sense I get of how you practice.
Gary: That is right. Emotion is not just my enemy. It is everybody’s enemy in this. It is always there. It never leaves. It basically distorts everything you see. It is like a mirage in the desert. It is the emotion that makes you think there is water over the next hill; when, in reality, there is no water there.
If you were cool and level-headed you would realize that, and you would prepare yourself for that eventuality. It is the same way with divorce. If you can stay, I can lower that emotional level as best as I can. I do not know that you can never take it completely out.
My clients are going to make better and more informed, logical decisions; and not emotional decisions. This is going to serve them better in the future.
Interviewer: When people come to you, do they have preconceived notions or misconceptions that cause them to be very hesitant about working with you? What is commonly on people’s minds when they consider hiring a divorce or family law attorney?
Gary: The people I talk to generally are looking for somebody they can trust. They are looking for somebody they can basically rely on to give them the type of information they will need to make decisions.
Everybody knows this process involves a lot of decision-making. So they want to hire somebody who will give them the type of information they can rely on and who will help them have complete confidence in making decisions.
There are a lot of misconceptions because a lot of people enter this process with a win-lose kind of mentality. “I want to win. I want my wife to lose.” That mentality is always an enemy. If anything, in family law everybody loses. It is just, how do you make losing work best for you?
How is this going to work out for you? Essentially, you win by not looking at things in terms of winners take everything. In reality, the winner takes nothing in this. What you really want to do in this situation is take that concept out and look at what we are really trying to do.
It is just like having a business partnership, and you are dissolving that partnership. However, it is different from a business partnership where you go your way and your ex-partner goes the other way.
If you have kids, that is an in-dissolvable element of your business partnership. You are still going to be dealing with this person for 18 years.
How is the Amount of Spousal Maintenance Determined?
Interviewer: How does spousal maintenance work? How much is it?
Gary: In order for you to get pre-divorce spousal maintenance, temporal spousal support as we call it, you have to have money leftover when you do a budget. You sit down and look at how much the house payment is, how much the car payment is, how much the insurance payments are, and how much utilities are.
After all that money has been paid, it is determined whether the party with the income paying for all of these items then has money left over. That party also shows what he or she paid for an apartment and utilities.
There may be money left over, but there is also a financial need on the part of the spouse to survive. There is a need to have general money to buy groceries and to do some basic things. They can show a need for it, and then there is no real hard, fast percentage like they have in child support.
Post-divorce maintenance turns clearly upon three factors. One factor is whether there is a disability of the spouse. If there is a disability of the spouse, they are going to look at the cost to maintain the spouse; almost like child support.
If there was domestic violence, there is going to be a sanction placed upon the party that perpetrated the domestic violence. They have to pay post-divorce spousal maintenance based upon that. That is going to be calculated similar to a percentage of your income, like child support is.
Then, the third part is if you have been married more than 10 years and there is a need for the spouse to re-educate themselves. This is due to the fact they gave up their career to take care of the children.
That person has to show, “I need to go to college. I need to take these classes. I need this amount of money to do it.” So you have to pay that.
Interviewer: What are the percentage limits?
Gary: With regards to the first two- disability and domestic violence, you are talking about percentages that are similar to child support percentages. It is like 20%. When you are dealing with the other one, there is no percentage at all.
All you look at is the cost of the spouse getting the training they need to re-enter the workplace. How long is it going to take them to get this training? Typically, you are looking at something capping out at like $3,500. There is a limit to it, such as $3,500 a month; something along those lines.
Interviewer: How long is maintenance awarded post-divorce? If you have been married for 12 years, is it 12 more years? Is it for the rest of their lives?
Gary: No, marriage is not a factor at all. With regards to the re-education of the spouse, you look at how long they will actually need the money to get re-educated. They have to show in a court hearing that they need this money and that they basically need it for so long.
So if they can come in and show that it is three years, then they get it for three years. If they show it is going to take five years- which is highly unlikely, they are going to get it for five years.
On the other side, if there is disability involved, it is going to be perpetual with regards to that. With regards to domestic violence issues, then it is going to be discretionary for the judge. It depends a lot on how bad and what the circumstances were that brought about the domestic violence.
Interviewer:If you pay spousal maintenance and child support, at some point you may run out of money. What happens to the levels then?
Gary: Child support is calculated off the top. Spousal maintenance is on the very other end of the progression. Money has to exist to even have spousal maintenance.
So if you show at the end of the divorce that the spouse who would pay does not have funds available to pay spousal maintenance, then it is not going to happen. It will not happen, no matter what the need is on the other side. So it is not like child support at all.
In a lot of states, it is like child support. But there is an obligation in some states that does not exist in Texas. There is no legal obligation of the one spouse to take care of another spouse, post-divorce in Texas. The alimony statutes in Texas are only designed for specific reasons. They are designed for the three specific reasons; and no others.
Now people can come up with a contract. You hear that people get these big numbers for alimony. But that is contractual alimony. That is something they negotiated in their divorce settlement.
What to Avoid Doing During a Divorce Proceeding
Interviewer: Continuing in that vein, are there other misconceptions people have or things they do unintentionally, that hurts their ability to have a divorce resolve the way they want?
Do NOT Force Your Children to Choose Sides in a Divorce
Chris: Yes, there are all sorts of things, specifically with the children. A lot of times the parents will try to get on the good side of the child. They will try to get the child to choose them over the other parent.
When they’re doing that, when they’re prepping the child to try to make the child say “I want to stay with Daddy”, or “I want to say with Mommy” they end up saying things that are inappropriate about their spouse.
Your Spouse’s Attorney Will Use Any Display of Poor Judgment against You
The judges and other attorneys in court are very aware of this. They know that this behavior is very relevant because it shows bad judgment. I’d say one of the big mistakes people make is exhibiting a behavior that shows a lack of judgment.
The Courts Will Not Look Favorably on a Parent That Is Involving Their Children in a Dispute with the Other Parent
The children are not supposed to be involved in these cases. They’re not supposed to really know anything that’s going on as far as what the fighting’s about and when they do, it is called “children in the middle.”
That’s a very common mistake that folks that are getting divorced or having child custody disputes tend to make a lot.
The Courts Will Be Scrutinizing Which Parent creates a Healthy Environment for the Children
Interviewer: I imagine some people think it’s going to help them get custody but it backfires on them almost all of the time.
Chris: Yes, it does. It absolutely does. As a parent you’re supposed to set a good example. Talking about the mother of the child in a bad way or the father of the child in a negative manner is not fostering a healthy environment for the child.
It’s not responsible and it’s inappropriate and that is definitely something that people lose sight of when they’re going through these emotional situations.
Misconceptions about the Divorce Process
Interviewer: So are there any misconceptions people have about the process? You talked about high expectations or unreasonable expectations. So, what things have you seen people expect that does not usually work out for them?
Despite the Strong Emotion Elicited by Infidelity, It Is Not a Factor in a Divorce Outcome
Chris: One of the highest expectations, we’ll talk from a mother’s standpoint, is if you’re a married woman and you have had children with your husband and your husband cheats on you. He has an affair and you want to get a divorce.
Obviously, you have strong emotions. Obviously, this was a terrible thing that he did, but he’s still the father of the children. The mother will come in and say that the father should absolutely no custody of his children.
In many cases, losing custody will not occur even though there is a character issue there. There’s definitely a character issue with the father in that he had the affair but he’s still the father of the children.
It’s not completely relevant to his ability to be a father. As long as it doesn’t get in the way of his ability to be the father, no judge is going to prevent him from seeing his kids.
That’s where it can be hard for the innocent spouse in this case to not have expectations that he doesn’t deserve to see the kids, because their emotions are running a little high. A lot of times we have to separate what they did to each other from what are the responsibilities of each parent.
Are Divorce Attorneys’ Services Too Expensive?
Another misconception is that everybody talks about lawyers and divorce lawyers. How they charge an arm and a leg for divorces unnecessarily and that’s true in some cases.
You Do Have Control over the Cost of Your Divorce
In our practice, we think we charge exactly what is appropriate for each case but one of the things that clients misunderstand is there’s very often times when they can control how much money their divorce costs.
Establishing Good Lines of Communication with Your Spouse Can Help to Minimize Attorney Fees
The more they can get on the same page with their spouse, the less each spouse will have to pay. Unfortunately, all it takes is one party to be unreasonable and that can make the whole case expensive for everybody. Clients have a lot of input in how we bill and to how expensive it can get.
Can the Opposing Party Involved in a Divorce Proceeding Deliberately Drive up the Attorney Fees?
Interviewer: Let’s discuss this in more detail. For an example, let’s say the wife didn’t work, the husband worked and she has expectations she’s going to get a large amount of alimony. Does that cause someone to fan the flames of the case because they assume they will be receiving the alimony anyway and this is just another avenue to make their spouse “pay through the nose?”
Chris: Occasions when the other party has tried to drive up the fees has happened before. It’s something that even opposing counsels do, they’ll send discovery in what we think is maybe a peaceful, a potentially peaceful divorce and it turns into discovery which it’s going to cost money to answer.
Yes, absolutely that does occur. Sometimes, it’s out of your hands as a client and out of your lawyer’s hands as your lawyer to keep the fees as low as you want because you’ve got the other party driving up the fees.
Interviewer: A marriage was one household and now it will become two. Expenses are going to go up dramatically regardless of the outcome. Don’t you think it’s foolish to do that to drive the cost of the divorce? It wouldn’t benefit either party.
Is Trying to Make a Divorce More Expensive a Successful Tactic?
Chris: It depends on what you’re fighting for. If you’re fighting for your children and the other spouse is being unreasonable, then I’d say you have to do what you have to do. You have to spend the money and go for it and you just have to do that.
On the other hand, we have cases sometimes where clients will want to fight over property that isn’t worth the amount of money they’re investing into it in the dispute. Yes, it goes both ways.
You have to think about the financial implications. We try to counsel our clients if we see a situation or an issue in a case that we believe is not worth it in the long run to the client to pursue, we’ll advise them of that.
Ultimately, they make the decision but we’ll guide them and let them know if we sense that their objective is becoming counterproductive from a cost standpoint. Yes, as you said, we’re going to be having two households at this time and they need to be prepared for that.
Will a Divorce Affect a Foreign National’s Immigration Status?
Interviewer: Does divorce affect someone’s immigration status?
In Order to Fulfill a Conditional Residency Requirement, You Must Marry within a Specified Period of Time
Gary Warren: Technically, it could. If you’re on a fiancé visa and you come to the United States to get married, then you have a conditional residency, which means you have a certain amount of time to get married.
Once Married, You Must Apply for an Adjustment to Permanent Resident
As soon as you are married, you have to apply for adjustment to a permanent resident. If you stay married for 2 years, then they remove the condition. Legally, you have a time period or a probation period where you must stay married. This is to prevent fraud, such as people marrying just to have a certain application of immigration benefits bestowed upon them.
Fraudulent Marriages Are a Fairly Common Occurrence
There is a lot of fraud. There are many unsuspected individuals who are hoodwinked by unscrupulous people. I see this all the time with men that marryvery attractive women from another country. The women come to the United States and they spend many hours with these men and they marry them. As soon as they can, they try to get divorced. The first question the men ask me all the time is, “Can I send them back.” And I reply, “No, you can’t.” They’re not a chattel that you can send back if it doesn’t work right. These are people.
Having a Child Lessens the Chances of Immigration Officials Investigating a Fraudulent Marriage
They might have deceived you, but if you really look at the situation, there is no easy fix. You just pray there are no children involved. And quite often, there are children involved because everybody knows that if you have a child then immigration isn’t going to ask you any questions about fraud. It’s a pretty coldblooded situation. Immigration really doesn’t go after these people except in cases where they think it is fraud because it is very apparent. Then they will prosecute.
Mail-Order Brides: Fact or Fiction?
Interviewer: Have you ever encountered a situation with mail-order brides or does that just occur in Hollywood?
Gary Warren: Yes, I guess that’s what you could call them. It is actually pretty common. It’s usually perpetrated on people that should know better. It usually involves a very attractive woman and a man who isn’t really in her class. At that point, you need to be thinking, why is she liking me all of the sudden?
Every time I encounter that situation, I say, “You should have known better. There’s no way you should be dating a girl like this.”
Divorce Occurs Among All Demographics of the Population
Interviewer: What is the demographic of your clients who are seeking divorces? Do you encounter more women or men? Is there a common age group or income level?
Chris: There is one commonality in divorce. Divorce does not discriminate. Every type of person, every type of couple can get divorced. My clients are comprised of men, women, people that have a higher income, and people that don’t have as much income.
The Divorce Rate Is Consistent
Divorce is not affected by the recession, it’s like death and taxes. It’s consistent and everybody’s involved. Everybody that gets married can get divorced.
There’s really not a specific group of the population that tends to get divorced more than others.
Mistakes to Avoid During the Divorce Process
Interviewer: Do people tend to make mistakes during the divorce process that jeopardize their ability to get what they want in terms of child custody?
Gary: Yes, they do. I think most people who do not get what they want in a case usually have nowhere else to look but themselves. It may be due to some conduct before they started the process. That conduct is limiting them and what their expectations should be or can be.
For example, they did something that caused the entire divorce to take place, and that something involved some type of harm or neglect of the children. You cannot expect certain outcomes when that is the situation. You need to be realistic about what your expectations are.
Now, the other problem is people in this process do not recognize when they are having a positive outcome. A lot of people, just in their minds, are looking to accomplish things that the litigation process or the court process is not designed to accomplish.
The court process is designed to find what is in the best interest of the children; not what is in the best interest of the litigators or the parents. Sometimes their goals and expectations are designed by thoughts of, “I want my wife punished” or “I want my husband punished for doing this or that.”
The court is not designed to do that. The court is designed to reach some sort of equilibrium with regards to visitation and possession of children, and support of the children. It is not there to punish people. It is only there to punish them when they violate what the court thinks that equilibrium is.
What Type Of Person Gets A Divorce?
Interviewer: With that much experience, have you seen commonalities on the typical type of people who end up in family court or have divorce issues?
Gary: Yes, there are a lot of similarities. These similarities cut across all demographics and all socio-economic levels. You have to realize pretty much what the divorce process is.
It is something nobody wants to be in. People do not want to divorce. So one of the commonalities is everybody comes to it highly stressed. Their life is coming apart.
That is one of the main commonalities. The other one is that most people want to get it done and over with.
Yes, basically everybody who comes to family law is coming into something that they do not want to be a part of. Nobody wants to be divorced, even though you want to maybe initiate the divorce process. We dream of going on vacation but we do not dream about having a divorce.
It is common to everybody. Nobody goes into this and enjoys it. That is the main commonality. There are some other commonalities that cut across all socio-economic levels. This is because no matter how much property you own or how many kids you have, these things are all very precious to you.
When you get in these situations, it creates a lot of stress because you are making decisions that do not just affect you. They affect a lot of other people. They affect people who do not have any say in the matter, like little children.
So that creates an element of paternalistic responsibility that does not exist in other areas of the law. If you are handling some corporate matter, you are basically dealing with your own company. You may have employees, but they all have a say. Your little six year-old does not have a say. He or she does not even know what is going on.
International Property and Divorce Issues
Interviewer: Is it always about children with these international couples? Or is it also about property? What if a couple is divorcing and, as you mentioned earlier, they have a property in another country. Can that become part of a divorce decree, or is that left out? How does that work with a divorce decree from the United States?
In Personam and In Rem
Gary Warren: It’s confusing because the court can, through its plenary power, enforce its orders on an individual. There are two different concepts of law. There’s in personam and in rem. In rem is property. It’s a case of jurisdiction over the property.
If the property is outside the United States, they have no in rem jurisdiction, but they do still retain a jurisdiction in rem over the individual and they can punish that person through contempt powers to do what they want done with that other property overseas.
Enforcing Decrees Concerning Foreign Property Becomes an Issue in the United States and in the Country Where the Property is Located
That being said, at the end of the day, I think this issue becomes very problematic. The way I deal with it, if you’ve got property in another country, I always look to that jurisdiction. No matter what we do here, we’re going to go do that there. You’re going to have work on legal issues twice, once here and once there, to make it work.
If you’ve got property in Egypt, you’re going to have to expect to fight a battle in Egypt. You have to tell your client that because, in my experience, that’s what normally happens. Even if you get it done if, let’s say one of the parties goes to Egypt, they don’t care anymore that a court in Collin County, Texas, issued a contempt order on them, because they’re never coming back. They don’t care anymore. They’ll go to Egypt and file whatever they have to file over there.
The laws are very different, especially in Muslim countries. You have a very diverse concept of what actually constitutes property and who owns the property between a man and a wife. How is the property actually owned between them? You have to understand that, because they do have remedies and you have to know that you can apply those remedies, but they’re not like they are here. The application of it’s very different.
Alimony Awards in the State of Texas
Interviewer: That makes a lot of sense. Are there any other common misconceptions that people have?
In Texas, Alimony Is Referred to As Maintenance and It Lasts for Only a Finite Time
Chris: I guess coming from a national standpoint, Texas is a little different when it comes to alimony. We don’t have a traditional alimony. We have alimony in some cases and we call it maintenance. There are several factors that have to exist in order for one of the spouses to get alimony and it’s capped off over a certain period of time. Alimony doesn’t continue indefinitely.
To Receive Alimony in Texas, You Typically Have to Be Married for Ten or More Years
Typically, you have to married 10 years or more and you have to have been in a situation where one spouse just stayed home and took care of the children. The stay at home spouse didn’t participate in furthering a career during the marriage. Now, they are suddenly getting a divorce and have to start over.
Texas Does Not Award Alimony As Frequently As Other States
You don’t get alimony in Texas nearly as much as you would in other states, compared to California or other states. What Texas does to more or less make up for that is they have what’s called the community property laws. Basically that law stipulates a division of the assets as well as the division of the liabilities.
Texas Has Instituted Community Property Laws
When you get divorced in Texas, there’s a line you’re on and anything that you acquire during that marriage, both assets and liabilities, is split. You know, that’s standard. And while there are always exceptions, the standard rule is that you split everything 50/50.
Both Assets and Liabilities Are Equally Divided in a Divorce
That’s one of the laws that Texas has that is different than other states, but it more or less splits everything when couple is divorced. In a way, that’s how they make up for not having as generous alimony laws as other states do.
Does Your Employment Count Against You in a Divorce Proceeding?
Interviewer: I suppose this is a different kind of question. Do you have clients that have jobs where it hurts their position when they divorce? Let’s say, a long distance truck driver and they’re rarely home anyway. Then they get to a divorce situation and now because they’re rarely around, are they likely to get custody, or likely to get any kind of visitation with the children?
It Is Unlikely You Will Be Awarded Primary Custody of Your Children if You Travel Frequently for Work
Gary Warren: Yes and I see that as an issue in practice quite often. It’s a really unfortunate because sometimes those are really good people. They are really good parents, but the court just can’t entertain a situation for a person to have sole management or the right to domicile the child, and that person is on the road 90 days a year or 200 days a year. Let’s say you are traveling for work a third of the time. That’s a lot for a child.
That means you’re going to have additional issues with finding appropriate and responsible care for the child. The attorney for the other parent is basically going to claim, “If your parents are really going to be the ones taking care of the child a third of the time, are you really going to be the primary parent?” The answer is really, “no.”
Your Job or Your Family: The Courts Will Always Examine Which Parent Can Provide the Most Stable Environment for the Children
Almost all of the time, these people have to decide between their family and their job. That’s a tough decision, because it actually creates a hardship.
The ideal situation would be for the child to stay with the parent that’s not traveling around all the time. The one traveling for work might be providing a greater amount of money for support; thus, the child’s life would be better because they are financially secure and not lacking for anything.
If they want custody of the child that strongly, they need to quit whatever that job is and procure employment with a company that does not require travel.
I realize what I have just advised is easier said than done, but it’s the truth. I’ve had female clients who have really demanding professional jobs lose custody of their children, where if their job was less demanding, they would never lose custody of their children. This is not always a gender-specific problem. They say, “I’m not going to give up my job and my career. I worked really hard for it.” And it is true; they probably have struggled a great deal to get where they are. However, the courts look, first and foremost, at who can provide a stable environment when awarding primary custody.
Mediation
Match the Mediator’s Ability and Personality with the Facts of the Case
Interviewer: Also, do you have the ability to match up maybe personalities with a particular case?
Gary: Yes. Sometimes there are mediators that do have a better understanding. There are some financial mediators out there that weren’t lawyers that really understand complicated property issues. If you’re not fighting over your kids and you’re dealing with, let’s say, somebody’s oil investments that can get really technical and complicated, there’s some mediators out there that come from the financial side that might be a better choice than a family law attorney.
You don’t want to have a mediator in there that’s a child custody specialist. I’ve had mediators just come in and say, “Look, I don’t know why they assigned me to this, because you are trying to resolve complicated property issues and you’re not talking about the children.”
Interviewer: You have to match the case to their expert level.
Gary: Yes. That’s only happened to me a few times. It hasn’t happened to me anytime recently. There are mediators that can handle all of these issues or most of these issues. Typically, they’re not all available when you need them.
It Can Create a Conflict of Interest If the Mediator Has a Close Relationship with One of the Attorneys
Sometimes the mediators are familiar with one side or the other, and sometimes that’s good and sometimes that’s bad. Sometimes having a mediator you know is really close to the opposing lawyer, most people would say that is a conflict of interest.
When Attorney Warren Observes That a Mediator Has Earned Respect from Both Parties and the Attorneys, He Feels That a Resolution Is Likely to Occur
I know if I can convince that mediator of the validity of my case, and that other side trusts that mediator, that mediator has a better chance of talking them into something they were initially opposed to than somebody that they don’t trust. I’ll take the chance.
I’ll take the chance of dealing with somebody I may not know as well if I know that person has the respect of the opposing lawyer and if I can make them see my side.
Facebook and Divorce: Higher Infidelity Due to Social Media?
People are getting divorced nowadays because of financial reasons. People have always gotten divorced because of infidelity. Especially now, with everybody using Facebook and the other social media outlets. It’s a lot easier to access, to reach out to another person and get yourself in trouble by talking to the wrong person.
I don’t have any statistics on this, but I would say that you have more and more people getting back in touch with ex-boyfriends and girlfriends from the past because it is so easy to locate people through Social Media.
You graduated high school 10 years ago, 15 or 20 years ago and you may never talk to the people you went to high school with because you don’t live in the same town. You have lost touch with many people you used to know.
Now, Facebook makes people so easy to find and communicate with. I think that we get a lot of cases where that’s an issue, where someone’s talking to someone from the past and the communication is not entirely innocent.
Social Media Can Figure in Today’s Divorce Cases
Interviewer: That is interesting; I imagine that Facebook helps people to rekindle old flames.
That is actually an interesting point. There are a growing number of social media outlets, such as Facebook and Twitter. Do the social media outlets have a place in divorce cases nowadays?
Posting Conversations Online May be a Solitary Pursuit but It Is Not an Activity Conducted in Private
Chris: Yes, it does and it’s only going to continue. People generally are under the impression that when they’re on their computer, by themselves and posting something on one of these social media websites, they are operating in complete privacy and they get a false sense of security.
They will write things that they wouldn’t say in front of a group of people or wouldn’t say even to another person but they’re putting it on the computer.
The thing that they don’t realize is that everything they put on those social media sites can be viewed by others. In today’s divorce cases, more and more Facebook posts and Twitter posts, or Tweets, are being used now in court as evidence.
Pictures on these websites are being used. People let their guard down. Obviously you say things and do things in the comfort of your own home that you wouldn’t necessarily do in public.
Anything You Post on the Internet Can Be Used As Evidence against You in a Divorce Proceeding
If you do it on social media, you’re pretty much doing it in public. If you are in the middle of a disagreement with someone, such as your wife, and you both are arguing over who should have primary custody, well guess what, what do you think will occur if you’ve been acting inappropriately on the Internet?
They’re going to bring that to the judge’s attention. There’s no denying it. It’s right there in black and white for everyone to see.
Interviewer: I would imagine that people coming to you are unaware they could unintentionally hurt their ability to get the divorce they want?
Chris: Yes, that’s true.
Divorce Process For International Couples
Interviewer: What are the top issues facing the couples?
Gary Warren: I think the top issue is that you’ve really got to ask yourself if you can go through with this. Normally, you’ve got international couples that are basically from the same place. In that circumstance, these people know what can and can’t be done.
We run into the problem where you have a person who’s ethnically from, let’s say, India, and they marry a person who’s an Indian national, who has much deeper ties in India than, the person who is from the United States and was raised in the United States, but culturally is Indian.
Basically, that person tends to be the person who we represent and who tends to wind up having more problems, because the other person there may not really have their feet firmly planted in the United States.
Problems Can Occur When Couples Disagree in What Country to Reside and in Which Country assets Are Being Used to Purchase Property
They might have this attitude of, once I attain my citizenship, I’m going to go back to India. Then this person has to decide, “Do I follow them there or not?” Then, there’s also what kind of property implications may exist. This other person might be taking money generated here and buying up property in India to basically set him or herself up when they get back. You can’t even get to that and touch that property, so when you get a divorce and you’re supposed to get 50% of everything, this person has estates all over India, so what are you entitled to?
Attorney Warren Understands the Complexities of Establishing Property Ownership in Foreign Countries
You have to know what you’re doing so that your client gets fair compensation of the estate. You must ensure that you can thoroughly document the property and prove that this property in India is being held by the other party.
Most of the time, establishing ownership is extremely hard to do. They don’t buy the property in their name. They purchase it in their father’s name or their uncle’s name so it is being held by somebody else. It’s very complicated, but you’ve got to be painstakingly thorough, because otherwise, you’re going to end up getting maybe a third of an estate or 25% of an estate, which is going to be really a hardship for your client. You’ve got to get everything your client is entitled to.
Interviewer: It seems as if your firm is specialists in dealing with this.
Gary Warren: I have accrued a great deal of international exposure. I think that’s why I end up with these cases. I worked on immigration cases in the past and I’ve always had a large number of clients who were basically in the process of immigrating, so I probably wind up with it more than other attorneys. It really has become a large part of my practice.
What Can you Expect During the Divorce Mediation Process?
Interviewer: The full process of mediation, what does your client expect is going to happen, basically, from beginning to end?
The Traditional Format of a Mediation Joint Session is Used Less and Less Due to Contentious Relations Between Parties
Gary: Typically, there is a format to mediation. Mediations are set up to take place in what they call an initial joint session, which is becoming almost extinct. They used to always have a joint session where all the parties met in one room, and the mediator sat at the head of the table, and the parties basically stayed in that room together as long as there was a good give-and-take; and as long as they were making progress.
When that broke down, the mediator would basically have people go into a caucus, is what they call it. The parties would separate. They go to different rooms at that point, and the mediator would shuffle back and forth between the two of them.
Today, It Is More Typical to Place the Parties into Caucuses – Separate Rooms
Nowadays, there’s so much family violence and it’s so contentious, and the level of contentiousness and tension has risen so much that they don’t do the joint sessions anymore. They just put everybody in caucuses.
In those circumstances the mediator will go meet with one side initially, and they’ll spend a long time with that side, and they’ll get all the issues pinned down and that side’s version of it. Then they’ll come back to the other side and talk to them. So, they just skip the first stage and move straight to the second.
The Mediator May Schedule a Joint Sessions Just for the Parties’ Attorneys
Theoretically, you can come back together in a joint session, but typically that’s only done if the mediator thinks the attorneys could benefit from talking to each other face to face; they’ll typically have a joint session between just the attorneys.
The joint session between the two attorneys is because an issue of contention that involves some kind of a legal issue or fact, which the mediator doesn’t really want to bring up in front of the other side’s client, or one party may really have a bad legal position that needs to be explained, and the attorney may not recognize that.
So, the mediator has the two attorneys sit there, and they’ll talk over case law and positions. That may force one side or the other to have a different opinion on whether or not they need to settle the case.
The Divorce Case Will Not Proceed Until the Mediator Orders a Release
Typically, mediations will go on, and there’s no limit to their length of time. As long as it’s constructive, as long as something is getting done, the mediators have the authority to keep everybody there. Until the release from the mediator, the case doesn’t move on.
Mediation Has a 90% Success Rate
The mediators will typically declare an impasse at some point if they can’t get a settlement, but I would say 90% of cases settle.
Interviewer: Even where they’re separated, will the attorneys still have the ability to communicate with one another on behalf of their client? They’re not worried about this third person is handling everything?
Mediation Is Usually Ordered by the Judge Several Months into the Divorce Process
Gary: Exactly. It does happen from time to time, because the attorneys typically have a lot more familiarity with each other. The mediation process takes place further along in the litigation process. It doesn’t take place typically right at the beginning.
It takes place months down the road, so the attorneys have dealt with each other for months; they’re both familiar with the issues and familiar with each other. A lot of times they have a good working relationship, and good mediators will recognize that and not get in the way of that.
Why Opt for Mediation During a Divorce?
Interviewer: Now, why is mediation better than going to court? Some people might just assume it’s better to go in front of a judge to plead their case? Why would mediation be a better option?
Gary: Exactly, and sometimes they’re right. Some cases need to be tried. All cases are going to get sent to mediation, but mediation is not appropriate in every case. There are some aspects that just have to be decided by a judge. In those circumstances, the mediation process isn’t going to resolve it.
What normally happens is you figure that out pretty quick, and the mediation process is terminated pretty quickly. Everybody gets ready for trial to prepare to try the case.
In Divorces with Serious Allegations between the Parties, Mediation Is Not the Best Option
Those kind of situations are cases where there needs to be some kind of factual resolution. When you are working with two people, often times, they just see things very differently. Maybe one party is saying there was domestic violence, the other one is saying the other side’s just making that up because they’re trying to get leverage and get custody of the kids.
Mediation Works Best if Both Parties Have Reasonable Expectations
Mediation only works if both parties can actually get realistic with regard to their own facts and areas, if they’re honest with themselves about the facts, both sides. Because you’ve got to be able to evaluate your case to be able to evaluate what the other side is saying in order to see what the other side’s case is.
Mediation Usually Takes Place after the Facts of the Divorce Have Been Presented
It’s not typically a lot of bluffing. Most often, mediation is taking place after all the facts have been discovered. If you’ve done your job as an attorney and the other side has done their job, there’s nothing anybody’s going to find out in mediation that they don’t already know, typically.
Mediation Can Save Both Parties Money during the Divorce Process
It’s about getting the parties in a room and setting a time limit and some pressure on them to make a decision. That’s what the whole point of the mediation is. The benefit to it is you save yourself substantial amounts of money.
Mediation is typically a one-day process, sometimes a half-a-day process, so your fees to your attorneys are probably for four or five hours or maybe even ten or eleven hours. It’s not like a trial, where the attorneys are going to spend twenty hours preparing for it, and they’re going to be in court for ten or more hours.
Mediation is much less expensive than litigating a case all the way through to the trial. What people don’t realize and what most people find out in the mediation process, and what you tell your clients a lot of times is, “If you settle this case …”
Compromise: Mediation Is Advantageous during a Divorce if the Parties Concede on Matters That Are Expensive to Litigate in a Trial
Let me say it this way: Everything that you do from that point on, in mediation onward, after the mediation is over, there’s a price tag to it. Yes, you might win the case, but you’ve got to balance that against the economic cost of winning that issue. Sometimes it may not be worth it.
Fighting for custody of your kids is always worth it, but sometimes people fight for property, or they’re fighting over some piece of land that they never visit and they never go to; they just don’t want to lose the monetary value of it. Well, if the monetary value of getting that land exceeds the value of the land, then obviously it’s not an economic reality that you’re going to go for that.
That’s something that when you look at going to trial, and you look at the fact that even if you win at trial, the other side is probably going to appeal it, and there’s a cost to that appeal. And these things go on and on and on.
There is no real end to litigation. It just keeps going and people don’t realize it. People think, “Oh, we’re going to win at trial, and then it’s all going to be over.” That never happens. When the trial’s over, it’s just another stage of litigation till post-trial begins, and it just keeps going.
The Judge May Order Mediation Following the Conclusion of a Trial to Limit the Appeals Process
A lot of times after trial the judge’s order the parties back to mediation.
Interviewer: So, mediation is possible after the trial portion of it if it’s drawn out that long?
Gary: Yeah. Most Courts of Appeal want people to mediate. You can have mediation at multiple times during the divorce process. Often you’ll meet for mediation, and the mediator will make a decision that this case just isn’t ready for mediation; the people don’t know enough about their own case or the other side’s case to go forward.
The Mediator May Postpone the Mediation Process if Both Parties Are Not Prepared
So, they need to do some more preparation and maybe do discovery and get more familiar with the facts. Then they’ll say, “We’re going to come back in six months and mediate after you prepare further and sort most of the issues out.” Then when that’s done, then they come back and mediate, and it’s usually more successful.
Attorney, Gary Warren, Finds That the Mediation Process Tends to Be More Successful Following a Postponement
I think the one reason mediation is more successful after a postponement is that people get used to their situations. In family law it’s really important, because you’re going from a situation where typically people are living together in a family-type situation where they split into two families.
The Beginning of the Divorce Process Can Be Very Emotional for One or Both Parties
That is a hard adjustment period. If you have the mediation too close to that division of the family, one side or both sides may not be comfortable enough to be able to make rational decisions about how they view the end result or how they want to end up after this. Their nerves are raw. There are raw emotions at the very beginning, and sometimes after a while, that sorts out in most cases.
People get used to the fact that maybe I’m just doing visitation with my children for the time being. Many times in the beginning that sounds bad because they feel like, “I’m a bad parent because I didn’t get custody.”
But in the reality of it, they may realize that maybe that’s better for them.Maybe their time with the children, when they have time to do it, is a lot more valuable to them, and it’s a more enriching time for their children. And they realize this isn’t such a bad thing; this is really working better for a family than being together and fighting all the time and having the time that they are together just miserable.
Choosing the Right Mediator
Interviewer: Over the cats. As a client, possibly I’ve heard of mediation but I know I still need a lawyer, what questions should I be asking an attorney about mediation just to know that they have that experience dealing with the process?
Gary: Most initial consultation are typically very hectic and very stressed out. Maybe they’re in there saying, “My husband just took my kids, and they’re in Mexico,” or a similar type of issue. Typically, you’re dealing with a stressful, chaotic situation, so the mediation process doesn’t even come up to anybody’s mind. Most family law cases start out in a very chaotic state, and they settle down, and then you go to mediation.
It Can Be Helpful to Ask the Mediator What His or Her Philosophy Is about Mediation
If you are smart and you’re ahead of the game, you might ask the person what their whole philosophy about mediation is. My response is always, “I’ll mediate anytime, anywhere, as soon as anybody wants to mediate, because I’ve always had good results.
Attorney Warren Is a Proponent of Expeditious Mediation because of the Benefits to His Clients
I’ve always believed that the sooner you can get people into mediation, the faster the case is going to get over with, and the better off the client is going to be and the better off both parties will be even though your client is all you’re looking out for. It’s going to be better for them if they can get resolution as soon as possible.
It Is Advisable to Ask about the Mediators Experience, the Cost of Mediation and the Length of Time Mediation Will Take
That would be just one thing. Then the other question you’d want to ask about is what experience the mediator has and how much the process is going to cost. When the time comes up, those are good questions to ask, how long is it going to take, who are we dealing with in the mediation, what’s their likelihood of being able to be successful, and why are they appropriate for this case?
Court-Appointed Mediators are Paid for by Disputing Parties
Interviewer: I didn’t even realize that. I’m just sitting here assuming in my head that this is a court-appointed person. But this is actually a third paid party then?
Gary: De facto. They’re working for the court, but they’re private, though. They work for the court, but the parties pay them. They’re appointed. Their authority emanates from the court, they’re an officer of the court, but they’re not supported by the court. Mediation is a private practice.
Most Court-Appointed Mediators Continue to Receive Court Appointments because of the Results They Achieve
Most court-appointed mediators continue to be appointed because the results they achieve. If they settle a complicated case that looks like there’s no chance of it being settled, then the judge is probably going to send them another complicated case where the outcome is equally doubtful.
The best mediators, in my opinion, are typically mediators that either were judges or attorneys that have practiced a long time, and they have an insight into cases that is far in excess of the lawyers in the case.
I’ve been doing this for 22 years. I just came from some cases where I dealt with the judges, and the mediators were former judges. Well, I’ve never been a judge, so I’m never going to have the perspective that that judge has from the thousands of cases that have gone on before, which are infinitesimally greater than the number of cases I’ve worked on.
I’m very grateful for a former judge that will sit in there and basically say, “Look, Mr. Warren, this is what’s going to happen. You may not have seen this before, but I’ve seen it many times, and even though 21-years of experience are a long time, you haven’t seen everything, and this is what’s going to happen, and you need to tell your client that.”
How Does Mediation Work in the Divorce Process?
Interviewer: I guess through family law, mediation is where this comes into play. I’m literally just learning about mediation, so I’m just going to start with, what exactly is mediation when you’re trying to explain it to someone that might not understand?
Mediation Is Considered an Alternate Dispute Resolution Process
Gary: It’s an alternative dispute resolution process. There are basically two kinds of alternative dispute resolutions. There’s arbitration and mediation. In the family law context, there’s not a lot of arbitration. That typically takes place in a commercial litigation context.
In Texas, If There Are Contested Issues in a Divorce, the Judge Refers the Case to a Mediator
In the family law context, mediation is the best fit and is practiced much more commonly. Essentially, what happens is the judge refers almost all cases that look like there is some controversy involved, or contested facts or contested issues, over to the mediation process and then appoints a mediator to handle the mediation.
Essentially, what the mediator will do is schedule a time for the parties to meet together. At that point, there’s some variation to the process, but, typically, there is, what an outside person would call, an extended negotiation session, and that’s essentially what it is.
Disregard Negative Feedback about Mediation
When considering mediation to resolve a dispute, I would be really careful about listening to anybody that basically trashes mediation. I think mediation is a useful process but I think within the legal community, there is some skepticism. Typically, that’s not constructive advice.
Everything in a litigation process has a place and a purpose. When you’re facing mediation with an uncooperative client, you should explain to him or her, “Look, this may not be what you want to do right now. You may not think there will ever be a chance that you’ll ever settle this, but you need to go and go through this process, because there’s a real good reason why this process exists.
There are many people that went before you that had the same mentality you had, and they worked out really good agreements, and they were really happy. You need to recognize that.” That’s what I would say.
As in Every Profession, Some Mediators Are More Skilled Than Others and Your Attorney Should Be Familiar with a Qualified Mediator
It’s also helped a lot of people realize that there are resolutions to their case that their own attorneys weren’t telling them about and that they never thought about. Good mediators are people that can really think out of the box, come in there and, with their initiative, come up with really unique and specialized, tailored programs and resolutions for people’s problems.
Interviewer: Can you request one of those really good mediators?
The More Skilled Mediators Can Be Expensive to Work with but Typically Arrive at the Best Results
Gary: Your lawyer should be familiar with the good ones. They’re not all created equal. In most of the cases, the clients don’t have the money to afford the high-end mediators. I tell my clients, “Yes, it’s costing you a fortune, but there’s a reason this person is costing you a fortune.” Typically, if they charge you a lot of money, they’re going to get an equitable resolution, and they’re good at getting resolutions.
Mediators that require high fees usually do not declare impasses—they get process resolved. Even if they can’t get it done the day you’re there, they don’t leave it. They keep working. They are a third party in that case that tries to work through these issues and tries to come up with innovative ways to make things work. And you’re paying for that. It’s like anything else; you get what you pay for.
Why Does Experience Help in Mediation?
That helps. Because I don’t want to be embarrassed in court, and this recognizes that I can tell my client, and my client is going to save a lot of money and maybe a bad outcome, a bad result and save me problems too. My ego’s not so big that I don’t want to hear the facts. I want to know the truth. This is because it’s going to serve my client the best.
The Best Attorneys Are the Ones Who Continue to Increase Their Knowledge Base and Develop Their Skills
Interviewer: You’re kind of getting a little bit of mentoring there too? If you’ve got a judge who’s been at it for so long?
Gary: If you go in there, and the two lawyers know more than the mediator, that’s a bad sign. If you go in, and the two layers look up to the mediator, they respect the mediator because they’ve tried cases in front of this mediator when they were a judge, and they’ve known him for 15 or 20 years, this is something that’s in the best interest of getting things done.
Because that mediator can talk to the lawyers in a way that a mediator that doesn’t have that respect and doesn’t have that authority, can’t talk to those people. Because if I know this person is not a good litigator, if I’ve clobbered him in court two or three times, I may not have the respect for him that I would for a former judge or maybe a mediator that’s beat me in court more than once.
Interviewer: Actually, one of my last questions is because you having 22 years’ experience, that is a great deal of time practicing. How do you know when another attorney is experienced in mediation and that they’ll get the job done?
Experience Is Important because of the Amount of Referrals One Can Receive from Satisfied Attorneys
Gary: I’ve used so many mediators. I’ve used hundreds of them. I know from mediations which ones are good. I have a group of mediators that I like to use. Those mediators reach out to me and try to get our business, because they love it when you don’t wait around for the court to appoint somebody. They love it when two lawyers say, “Hey, let’s get use mediator.”
This happens most of the time because both lawyers know that they might appoint somebody that the lawyers aren’t familiar with or just isn’t going to get it done.
When Parties Agree to Mediate a Settlement, Their Attorneys Choose the Mediator
Interviewer: Well, that actually brings up a good point. The two attorneys are coming together and saying, “We’re agreeing on this mediator.”
Gary: Typically, you do that right off the bat, and you say, “Let’s find this person.” “Do you want to use this person or that person?” Typically, one side will give the other side three names of mediators. Family law in the Dallas, DFW area, there are many lawyers, but the ones that are active, and handling the most contentious cases with the best-paying clients all know each other.
That list of three or four mediators is probably going to have one or two with common people on them. My four is going to be similar to somebody else of my level’s four.
We already have people that match up, and we’re going to say, “So, two of these matched up. Which one do you want to use?” We’ll go, “Well, let’s see who’s available, who’s going to be able to do it sooner.” The secretaries will call them and coordinate it. Typically, the one that can get us in there sooner and under the circumstances we want to go in there as is the one we’ll hire.
Where Will Divorce Mediation Take Place?
Interviewer: I want to get a feel for the mediation setting. Is this a court setting or a conference room setting? I know you had touched on who’s all present: the mediator, the attorneys and the clients. Is there anyone else included in that?
The Majority of Mediators Are Attorneys or Retired Judges and Have Their Own Office
Gary: Sometimes mediators will use courtrooms. They’ll use them like a conference room. They’ll just use them because of the availability. Some mediators don’t have their own facility, but I would say 90% of the mediators out there have a facility that they work in. Most of them typically are in law firms, because a lot of your mediators are lawyers or ex-judges and they are associated with a law firm.
Most Offices Have Multiple Conference Rooms
So, you’re typically at a law firm, and you just go in a different conference rooms. Most law firms have multiple conference rooms. You’re just in there. Everybody else is going about their day, working on their cases in that law firm, but you’re in there doing your mediation.
It shouldn’t take place, in my opinion, in one of the lawyer’s law firms that’s actually involved in the case. It should be a third-party firm, kind of neutral ground as best as you can get it.
Mediation Is a Completely Confidential Process to Allow for Better Disclosure between the Parties
Interviewer: Now, are there court reporters present transcribing the meeting?
Gary: Nobody else. It’s a completely confidential process, in fact, so nobody’s supposed to be taking notes, nobody’s supposed to be recording anything. What the mediator says is confidential. If you say something, let’s say, there’s some part of your case that you don’t want to concede in the courtroom but you’re willing to basically say, “Look, we’ll concede it for the sake of the mediation, if it helps us get down the road, if it helps us make this work.”
Sometimes that helps, because if a party just holds too hard onto something, then they’re not going to get settlement. If your party breaks down and says, “Let’s just assume that it isn’t the way we say it is, that it’s the way you say it is, and what does that do?”
The offer that comes back is something that your client is willing to take. It doesn’t really matter what the facts are at that point. They’ve broken down the barrier to communication which is blocking the settlement.
Child Support
Garnishing Wages to Pay Child Support
Interviewer: With child support, does the court literally garnish your wages, or do they just hope you pay it on your own?
Gary: Well, if you are a private business person and you have your own company, then there is no way to really garnish your wages. However, if you are an employee of anybody or anything, your wages in Texas are most likely going to be garnished.
Well, we use the term “withholding.” There is going to be a withholding order. That is really the best thing for any individual because you never see the money under those circumstances.
So there is no temptation to spend this money on something other than your children. I would think most people would have the willpower to make sure they get the child support paid. However, I think history has shown us that is not the case. Furthermore, since they started withholding, the percentage of child support getting paid has increased over time.
Interviewer: Yes, that makes sense.
If you are self-employed, will the court ask you for more child support, less, or the same amount?
Gary: You are going to pay the same amount as anybody else. If you are self-employed, you have a lot more control over your personal income. You do not have an employer withholding it. You are withholding your own income to do that.
So it is just a little bit more problematic to get the money to the other parent who is basically receiving the child support. There is no withholding because you are the one that would withhold your own income, under those circumstances.
The MSA is Difficult to Amend
Gary: If you’re with inexperienced counsel, you can lose control of the mediation and that is not what you want. You can experience a lot of pressure during mediation and end up arriving at settlement agreement that you didn’t want. There is a great deal of buyers’ remorse in certain circumstances where people don’t stand up for themselves. People that aren’t getting good legal advice can get railroaded into a settlement they don’t really want, and they come out of it, the morning after, they feel like, “This is not what I want.”
That’s a real problem, because the MSA is really hard to overcome. You’re not going to be able to undo it in most cases.
Interviewer: That was my next question. Are the orders for mediation able to be changed? Is there a different process to that? Are they able to backtrack and say, “You know what? After thinking about this, it wasn’t right for me.”
An Experienced Attorney Knows to Prepare for the Mediation in Advance to Protect His or Her Client
Gary: That’s the reason you’re supposed to have thought about it enough when you get there, you know. If you do it right, you work through this process already. If your lawyer’s up to speed, he’s got an agenda, you know what your envelope is and you don’t violate it. You know that you’re not going to cut a certain deal. You have certain aspects that you’re willing to concede, but you’re not going to go beyond that.
In Attorney Warren’s Experience, It Is Rare to Have a MSA Amended
Well, some people don’t do that, and they realize that they gave up something, for whatever reason, that they didn’t want to give up, and then they want to do the MSA and get it set aside.
I file motions like that all the time, and they never get granted. The whole point of having the mediation process is that if you start undoing the MSA, then nobody’s going to care. Mediation becomes just a wasted amount of money because it’s not enforceable. You have to have something enforceable. The courts do back it up almost 100% of the time.
Interviewer: Are there any rare cases where the judge would change the order?
In the Rare Instances a Drafted MSA Is Amended It Is Primarily because the Agreement Was Not in the Best Interest of the Children
Gary: If your complaint is, “I made this settlement, and it just isn’t fair, and it isn’t in my child’s best interest,” and you’re able to demonstrate that as well as demonstrating why you agreed to something that isn’t in your kids’ best interest because it’s inherently unfair.
Maybe the reason was the client didn’t take my medication that morning, and he or she functioned poorly because of that. Because of the poor functioning or nervousness due to the lack of medication, the party agreed to a settlement that is detrimental to the welfare of the children. In that case, the judge may set aside the MSA, but you’d have to have some valid and compelling reason for it.
Interviewer: I was not aware that forgetting to take medication could serve as a rationale for a poor decision.
Gary: It can. Typically, they’ll ask people in criminal pleadings in Federal Court, “Have you taken anything? Are you on some drugs or medication?” Because if you do anything that would impair your ability to realize you’re going to prison for 50 years the case could be appealed later on.
Child Support Adjusted After Loss of Income
Interviewer: What happens if you suddenly experience a decrease in income or you get fired from your job? What do you do about child support then?
Gary: Anytime your income goes down or goes up more than 20%, then that is considered a substantial change in circumstances. A motion to modify can be filed to adjust your child support.
I had a lot of clients return from overseas, where they were working as contractors in Iraq. They were making big money, like six figure money. They come back but there are not a lot of convoys to guard here in the United States. So they were not getting the same income and compensation that they were getting in Iraq.
Well, a lot of the ex-spouses did not understand that. But the reality is that child support had to be reduced significantly in all of those circumstances. This adjustment accommodates the parent paying the child support, as he or she was no longer earning anywhere near the kind of money they were making at a different time. We have done a lot of adjustments for people in that circumstance.
Interviewer: You said, oftentimes one spouse complains that the other spouse is not spending the money they should be spending on the children. Unless it is egregious, substantial or obvious neglect, is there much you can do about it?
Gary: The problem is that is a perception issue most of the time. How does this person really know what the other parent is spending money on? If the kids are malnourished and starving to death, CPS is going to get involved.
But short of a situation where there is neglect, they are not going to bother with it. The court is not going to say, “You have to spend your money on these things and these things only.”
There is the element of just living in a house. When the parent pays rent, they are paying rent for the kids also; not just for themselves. A lot of times, the other parent just does not see that. It is a perception issue most of the time.
What Happens If You Do Not Pay Child Support?
Interviewer: How does the state of Texas view people who do not pay their child support; or those who pay deliberately late or cause other problems with it?
Gary: If you do not pay child support, it is problematic all the way around. You are basically telling the court and everybody else that you do not value your children. This is because child support, the child support obligation, is something that has been very well thought out.
A lot of people do not think it is fair. There are differing opinions about it, and I understand those opinions. However, to the extent the court decided to base child support, if you do not pay it you are not supporting your children. It has nothing to do with your spouse.
The biggest complaint I get is the other parent saying, “Well she never spends” or “He never spends money on the kids.” Well suppose they are not really spending and the kids turn out to be neglected, due to the fact that they are not getting what they need.
Then, there will be an opportunity there for the parent paying the child support to get possession of their kids. This parent can become the primary parent, or the parent with the right to determine domicile. You can change that around.
But in reality, if you are not paying and supporting your children, it is a very tough case to make before the court to ask for any relief for a person like that.
Ultimately, the court in the state of Texas is going to put you in jail if you do not pay that support. It is just a matter of time.
The longer you go without paying, the deeper the hole is going to be and the harder it is going to be for you to get out when the time comes. It will come and you will face a judge. You will be looking at up to 180 days in jail for not paying your child support.
Child Support in the State of Texas
Interviewer: What would happen if, for example, the husband makes $200,000 a year, the wife is a stay at home mom and they’ve been married for nine years. Besides splitting all the community property 50/50, there is a huge income disparity. Is that not addressed by the courts?
Child Support for One Child Is Awarded at Typically 20% of Income
Chris: With regards to children, assuming the wife has primary custody, she would receive child support. If the children, for whatever reason, require a certain level of finances, you might even get more child support than what is customarily awarded. You typically receive, if you have one child, 20% of the other spouse’s income and then it goes up by percentage as you have more children together.
In this scenario, the husband, if there was one child would be paying 20% of his income, they call it net resources and that would be child support. That would be given to the mother to help pay the expenses of raising the child.
The 20% Can Increase Due to the Needs of the Children and the Income Level of the Party Paying Support
Now, if there were extraordinary needs that the child had and because of the higher income earned by the spouse paying support, then the custodial parent could ask the court to make a special arrangement to receive a higher amount of child support.
Because the couple in your example has been married less than 10 years, you would look for exceptions to get alimony, but typically, that’s the rule. You have to be married for 10 years to qualify for alimony.
Courts May Award Temporary Spousal Maintenance during the Time Period a Divorce Takes to Resolve
In reality what happens is you get divorced. These divorces can sometimes take several months, even longer, maybe sometimes up to a year to resolve and so sometimes you will have a divorce that takes a year but if you represent the mother in this case, you can get her temporary spousal maintenance while the case is pending.
That helps the mother have some available income to pay some of the expenses and allow her to get herself on her feet for example, if she needs to get a job she can certainly do that at that time too.
If the Length of the Marriage Precludes Alimony, One Spouse May Have to Assist the Other with Living Expenses for a Specified Time Period
Another thing that will happen is when you have such a difference in income, many times in these divorce decrees, you’ll have the higher earner, the husband in this case, helping pay the mortgage for a few years after the divorce to help the wife get adjusted to the new life. In this example, the wife is going to have to start finding a job or find a source of income to help her maintain a home.
During the Divorce Process, Your Attorney Can Help You Research and Arrive at Favorable Resolution
Our responsibility as the divorce attorney is to sort through all this and try to figure out from everyone’s perspective what resolution may work out best. If you represent the mother, obviously you’re trying to get her as much security as possible because of the fact that she’s losing that security in her husband’s income.
You try to help your client get security in other ways, through child support and through the division of the property. While the case is pending, we request temporary spousal maintenance. Divorce is a frightening prospect for many people and our job includes helping to mitigate our client’s trepidation and uncertainty while helping them attain what they require to be successful, productive and happy after this period of transition.
Custody
What Specific Days Will You Have Your Child?
Interviewer: Literally, what does a 49/51% scenario look like? Where does the kid stay, and how many days?
Gary: Essentially, when we say 49/51% it probably breaks down closer to a 53% or 54% to 45% or 46%; around those areas. It looks like this: The visiting parent would not have the right to determine a domicile.
That parent would have the right to do visits on the first, third, fifth weekends of the month. The visits begin Friday when the kids get out of school, and they end when you take the kids back to school the next Monday morning.
Again, it is the first, third, fifth weekends of the month. Now, what makes it really even is during the summer that parent gets the children for an entire month. So you make up a lot of time during that month.
Then you have the holidays. All are broken down under what they call the standard visitation order. Another definite is every Thursday night- regardless of who has the children on weekends, the children are going to spend the night with the parent with the visitation rights. Every Thursday, you pick them up from school and then take them back to school the next day.
It is a pretty expansive program.
Interviewer: That seems very clearly defined. Does it include all holidays?
Gary: It does. What makes the standard visitation order nice is that it is enforceable. That is a big issue in this business. Can you enforce the visitation agreement?
If you write up something that is unenforceable, then you are going to wind up losing visitation time. You cannot enforce it if the other parent decides, “I am not going to let you see the kids.” You have to have that enforceability in there.
How Far Can a Parent Move With the Children?
Interviewer: What typically happens if there is no abuse and neglect? Will the courts always go 50/50?
Gary: The court, in most cases, will try to get as close to 50/50 as they can. In the state of Texas, they are going to make it more. I think you have to think of it more in terms of 49-51%. One of the parents is going to have that right to determine domicile of the children.
But that domicile is going to be limited usually by the county they live in and the contiguous counties. Texas is a pretty vast area but it does limit the parent’s ability. It was very common in the past, as soon as the divorce was over, to take the children. It was common to move to another state, while leaving the other parent there.
This 49-51 percentage makes them stay in the same jurisdiction with the parent. It makes them deal with the other parent all the time. The court is basically saying “Yes, they have this right, and that makes them the 51%. You are going to pay them support.” That is no small thing.
But, at the same time, the court is going to say, “Everything else with you guys is even; on an even playing field.” They have this right but it is highly limited. In some cases I have handled, sometimes domicile is limited to school districts. They cannot move these children out of that school district.
So you are effectively 50/50 with them at that point.
Interviewer: What happens if you have a parent who wants to move out of state or out of the jurisdiction? Can they really be barred from doing that?
Gary: Yes, in Texas they are. That is one of the strengths of the father’s rights in Texas. I am not familiar with all the laws in all the other states, but some states do not have this.
People move here and they show us their decrees. They can move anywhere in the country they want. That is not the case in Texas, unless you have maybe done your own divorce and you did not put a clause like this in there.
But in most cases done professionally, there is a clause in there that limits the ability of a parent to move. That parent might get the best job in the world in Spokane, Washington.
However, the courts are rarely ever going to allow an economic reason for somebody to move. This applies as long as the other parent is still in that jurisdiction, and the other parent has not done anything to warrant the removal of the child from that jurisdiction.
The procedure is you actually have to go to court and get specific permission to change that geographic limitation.
Following a Divorce in Texas, Who Gets the Kids?
Interviewer: How does the court define custody? Is it literally just the kids stay with me, or is there more to it?
Gary: It is a really complicated process. To break it down, custody is the idea of a court defined relationship between you, the other parent, and the child or children. So someone says, “I have custody.” Well, in the state of Texas they do not even recognize that terminology.
We talk about conservatorships in Texas. We have joint conservatorships in primarily all of our cases. There are some cases involving abuse and neglect and family violence, where you will have a sole managing conservator. But we talk in terms of conservatorships to avoid the labels of custody and primary.
We really want people to realize that in the state of Texas it is always a joint venture. All the rights of a parent are shared except for a couple rights, such as determining where the children are going to reside.
That is not something that usually can be agreed upon. One parent or the other parent is going to have that right. But that right is going to be self-contained. It will be limited by a lot of factors; as many factors as the court can put on it to keep both parents in as even a position as possible.
Interviewer: Do people ever come to you and say, “I don’t want my spouse to ever see the kids again. I want full custody?” Is that completely unreasonable?
Gary: I do hear that a lot. In some cases, it is completely unreasonable. However, there are other cases involving abuse and neglect and violence where that is a completely reasonable position to take.
Suppose you say, “My husband is a degenerate person who has hurt our children.” I think you are actually hurting yourself if you don’t say, “I do not want this person to ever see the kids again.” I think that is a completely reasonable position to be in.
However, in the vast majority of the cases absent of abuse and neglect or family violence, people really should not think of those terms. I do the best I can. I tell them that right off the bat. I get them out of that mindset.
I get them into the mindset of collaborative parenting, where they know that they have to work with this person. They may not like them, but that is part of their life; just like there is air out there. There is good ground out there. This person is a force of nature that will be in your life. You are going to have to deal with them.
The Children’s Voice in a Divorce
Gary: No. Typically, the court doesn’t involve them.
Now, like you said, after they’re 12 in Texas, children can make an election of which parent they want to live with. The judge doesn’t have to follow that election, because a lot of times, you take a 13-year-old, they want to go live with their dad only because he has a real rocking life and they go to baseball games every day and they stay out all night.
That may not be what’s in his best interest, and the court may go, “Living with your mom is a real bore, but you’re also in high school. You need to make good grades. Your dad doesn’t even make you go to school.”
In most cases, a judge is going to talk to the children, because the judge is going to not necessarily find out what they want. The judge is going to find out what’s really in his or her best interest by talking to them.
That’s what’s really good about it, and that’s why, when the judges decide to talk to the children, they’re not as polished as an adult is. They’re not as guarded as an adult. They’re going to say, “I want to go live with my dad.” Well, the judge may break it down and find out this child doesn’t really want to live with their dad. They just had to say that because dad’s put them up to saying it or some other reason.
It’s just a very complicated process. There’s a lot of moving parts. That’s why they’re not in the mediation, because if you had them sitting there in the mediation, they would need their own attorneys. It would just create too much cost to the process. It would create too much complexity to the process. Family law is about making a process easier and not making it more complicated.
Interviewer: If they’re not going to go in front of the judge and they obviously aren’t allowed in the mediation, are the mediators still able to talk to them to go between both parties, or does only the judge talk to them?
Gary: I would say, as a practical matter, they don’t. I don’t think there’s anything that prohibits them from talking. If I was a mediator, I would be really careful talking to a child without first getting the judge’s permission to do so, because they’re not usually trained to do that.
Mediation Is a Viable Option When Determining Custody and Visitation during a Divorce
I would say this: In family law cases, there’s a lot of flexibility. Mediators typically like doing the custody part of it, the visitation parts, because there’s so many possible outcomes that they can pretty much craft a visitation arrangement that will probably almost make everybody happy or make the side that’s not happy less unhappy.
They can really come up with an arrangement that really will meet everybody’s expectations or come very close to it. When I go to mediations about custody and visitation, we rarely talk about the children. That’s not where it breaks down. It typically breaks down over other things, economics and financial matters.
Custody of a Family Pet, Which Is Considered Property, Is Often a Topic during Mediation
Interviewer: But all of those aspects can actually be resolved through mediation, whether it’s property, money, kids, the dog?
Gary: Yes, the dogs. The pets are mediated about all the time.
Interviewer: I was about to ask, how important were the pets? You are in Texas. We do love our animals. I honestly didn’t even know if family pets or something, that even went into the court proceeding regardless. I guess that would be considered property; right?
Gary: Yeah, they consider them property. Like any other property, they can argue about them and fight over them. In Texas you encounter people that have a lot of animals.
I just had a case where a lady had a group of cats, and the irony, both sides wanted to get rid of the cats. They just had different ideas about it. One side wanted to say, “We’ll just send them to the pound,” and the other side wanted to give them to some shelter or something or farm them out over a long period of time. It was an unusual case.
Misconceptions About Child Custody
Interviewer: I would imagine that many fathers are thinking during the divorce that they will never see the kids again or at least, see them very seldom. You mentioned earlier though that the courts are pretty fair in how they allocate custody?
Today’s Court Allocate Child Custody in a Responsible and Equitable Manner
Chris: Yes they are. However, that is a common misconception for both parents but statistically; it is more common among men because fathers tend to believe that the woman is awarded custody over them. But it goes both ways.
One of the misconceptions is that they think, I’m a good parent, I’m a good person, but my spouse does not work or they work while the kids are in school and she is home when the children are. If you are both good parents there’s nothing wrong with not be awarded the primary custody if you work or you travel a lot.
The Courts Will Award Primary Custody to the Parent That Is More Available to the Children but Does Not Favor One Gender over the Other
The preference from the court typically is if both parents are good, is to have those children with the parent who is available to them the most. If you’re a husband who is constantly working or even traveling because of business and you want primary custody of your children, it’s not necessarily a strike against you that the court doesn’t think you should have the primary custody.
Not Being Awarded Primary Custody Is Not a Poor Reflection of Parenting Skills
The reality is that you’re not home. Your wife is home more and is able to be there when the children get home from school. We’re going to put the children with the party that’s available more often, and in this case it would be the mother.
It’s not because the father doesn’t deserve custody or is not a good father or has done anything inappropriately, that’s just the way it is. I say that about myself. If I were in a custody dispute, taking into account with my schedule, I would have custody of the children but it wouldn’t be the primary custody because I’m not home during the time when my wife’s home.
She’s there the majority of the time to take care of the kids. It doesn’t mean I’m a bad father, it doesn’t mean I did anything wrong, it’s just the reality of the situation.
We want the children to be with a parent rather than the children to be with another party such as daycare, grandparent or a babysitter. If a good parent’s available, that’s where the children will be.
How Are Visitation Disagreements Handled?
Interviewer: How often do you run into a situation where the custody arrangement is set up but then one of the parents starts violating it, coming late or playing games? What are the consequences?
Gary: I run into it a lot because that is part of my job. People who are having these problems are finding their way to me.
But if you asked me the percentage of parents are out there with visitation and custody agreements, I would say a very small number will need my help to get this worked out.
Interviewer: What if they do? How can you intervene?
Gary: Well, typically when a person comes to me they say, “Look, I have not seen my child in X number of weeks, months or years.” The next step is we are going to basically file a petition with the court seeking the court’s intervention of the process.
You bring this court’s powers of contempt to enforce the order and make the other parent comply with it. So basically the judge threatens to put the other person in jail.
Interviewer: That will get anybody moving.
Gary: Yes, it is the ultimate sanction. In this circumstance, it takes a while to get there. They will try other sanctions available, such as making up time and cost. Basically one of the sides is forced to bear the cost of the entire process.
Those types of fines and penalties and other sanctions are there. But, ultimately, what really drives them is the contempt powers of the court to incarcerate somebody who is not complying with the court’s orders.
