MAKING YOUR BEST CASE IN FAMILY COURT

By Keith Spencer

Family law litigation can be emotionally charged, complex and expensive.  Despite what we see on television, cases are not “won” by attorneys’ theatrical performances. Successful cases are built upon effective presentation of facts that compel the judge to render the desired decision.  Working closely with your attorney, you can focus the court’s attention on facts supporting your position and undermining the opposing party’s arguments.  

Clients who assist their attorneys by promptly providing requested documents can help manage their litigation costs and strengthen their cases.

Clients who provide their attorneys with well-organized information in an efficient manner save time and money.  E-mail and letters are cost-effective and precise.  Telephone calls made to the paralegal, rather than the attorney, cost less and allow the attorney to focus on the case going to court that day.

Your attorney is trained and generally specializes in family law matters.  Your attorney spends most mornings in court and afternoons in client meetings, mediations and doing research.  His or her paralegals and staff carefully organize and maintain detailed notes and files regarding each case and generally bill the client on an hourly rate for the time associated with these activities, including phone calls with clients.

REALISTIC EXPECTATIONS:

Good attorneys know the law.  Great attorneys also know the judge.

Your attorney practices before the local courts every day and has experience regarding the importance your judge places upon specific facts.  Courts do not let passion, bias or colorful arguments influence their decisions.  However, certain facts carry greater weight than other facts in court.  For example, the needs of children usually outweigh financial factors.
There is rarely a clear winner or loser in family litigation.  You must decide which issues are most important to you and communicate their importance to your attorney.  Your attorney’s goal is to help you get the best outcome possible on the issues most important to you.

CHILDREN’S ISSUES:

Parents divorce.  Children do not.

A guiding principle in family law is to make decisions that are in “the best interest of the child.”  Courts have wide discretion to fashion rulings that protect children and their need for healthy relationships with siblings and both parents.  Your child needs to love and be loved by both parents.  It is your divorce, not your child’s.  Courts consider which parent is more likely to encourage a healthy relationship between the child and the other parent in custody determinations and often go to great lengths to insulate children from litigation.  Parties are strongly discouraged from discussing any aspect of litigation with their children.  DO NOT BRING YOUR CHILD TO COURT UNLESS INSTRUCTED TO DO SO BY YOUR ATTORNEY!

CUSTODY:

Absent a pattern of violence, parents will almost always have “joint managing conservatorship” of their children.  Courts may designate a location or school district in which the children must reside.  Courts may also grant one parent the exclusive right to choose where the children will primarily live within that geographic area.  Both parents retain rights to consultation and access to records, doctors and teachers regarding their children’s health, education and general welfare.  Let your attorney know if you think your case should be treated differently.

ACCESS TO THE CHILD:

Parents’ access to and possession of a child should be agreed upon by the parents, with the help of the attorneys.  In the event the parents cannot agree, the court must create an access schedule dividing the child’s time between the parents.  Parents can agree upon customized schedules better suited to children’s individual needs and other practical considerations.  Otherwise, a standardized schedule can be imposed.

CHILD SUPPORT:

Child support payments are computed according to statutory guidelines based upon the obligor’s defined net income.  Support payments will be 20 percent of net for one child, 25 percent for two children, etc. The percentage is reduced when an obligor supports children in different households.  The family code presumes the obligor will also be responsible for the cost of dependent health insurance premiums covering the children.  Parents share equally unreimbursed medical expenses.  Courts may deviate from guideline calculations for good cause, but it is rare.

PROPERTY ISSUES:

COMMUNITY PROPERTY:

Community property consists of all property owned during the marriage that is not proven to be separate property by clear and convincing evidence.  Separate property may be property owned prior to the marriage or property acquired during the marriage by gift, devise or inheritance.  Courts will attempt to render a just and right division of the community estate between the parties.  That does not always mean an equal division, but there is a legal presumption that equal is fair.

Your attorney may provide you with an Inventory and Appraisal worksheet to fill out, identifying all your personal and real property, as well as bank, investment and retirement accounts, and liabilities.  It is essential that you complete the worksheet promptly and completely and return it to the paralegal for the attorney’s review.

NO STUPID QUESTIONS:

There are no stupid questions.  Your attorney and paralegal work for you.  You deserve to understand the issues relating to your case.  Armed with a thorough understanding of the issues, you can effectively assist in the preparation and presentation of your case.  Keep a notebook handy to jot down questions and organize them for discussion during meetings with your attorney or paralegal.  Remember, the paralegals charge less than the attorneys for their time.  They can answer most questions about your case and they are easier to reach.

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