CLIENT COMMUNICATION - TexasBarCLEProcedural Aspects of a Jury Trial, co-authored paper and prepared...

CLIENT COMMUNICATION

SALLY HOLT EMERSONUnderwood, Wilson, Berry, Stein & Johnson, P.C.

1500 Amarillo National Bank BuildingP.O. Box 9158

Amarillo, Texas 79105-9158(806) 379-0348

Fax (806) 379-0316E-mail: [email protected]

State Bar Of TexasADVANCED FAMILY LAW DRAFTING COURSE 2002

DECEMBER 12-13, 2002New Orleans, Louisiana

CHAPTER 10

SALLY HOLT EMERSON

Underwood, Wilson, Berry, Stein & Johnson, P.C.1500 Amarillo National Bank Building, P.O. Box 9158

Amarillo, Texas 79105-9158(806) 379-0348

Telecopier No. (806) 379-0316E-Mail: [email protected]

EDUCATION:

B.A. in Spanish with honors, Texas Tech UniversityJ.D., Texas Tech School of Law

PROFESSIONAL ACTIVITIES:

Shareholder – Underwood, Wilson, Berry, Stein & Johnson, P.C.Board Certified in Family Law - 1991

Director, Amarillo Bar Association, 1996-1998; Vice President, 1999-00; President-Elect, 2000-01; President,

2001-02

Founding Member/Secretary, Panhandle Family Law Association, 2000-01; Vice President, 2001-02,

President 2002-2003

Member, Texas Family Law Council: 6/93-present95-96: Scholarships & Awards Committee Chair96-97: Membership Committee Chair97-00: Budget Committee Chair00-03: Membership Committee Chair

Director, Texas Board of Legal Specialization, 1994-2000; Chair, 1996-97Director, Texas Academy of Family Law Specialists, 1996-present; Treasurer, 1997-98;

Secretary, 1998-99; Vice-President, 1999-00; President Elect, 2000-01; President, 2001-02

Fellow, American Academy of Matrimonial LawyersFellow, Texas Bar FoundationMember, ABA Standing Committee on Specialization, 1995-1998Course Director:

7th & 8th Annual TAFLS Trial Institute Series, Reno, Nevada, 1993 & 199412th Annual TAFLS Trial Institute Series, New Orleans, Louisiana, 1998

Workshop Coordinator, 19th Annual Advanced Family Law Course, San Antonio, Texas, 1993

Member, Pattern Jury Charge Committee, 1995-98Frequent author/speaker at State Bar Family Law Courses

LAW RELATED PUBLICATIONS AND PRESENTATIONS:

INTERSTATE ALPHABET SOUP, PRESENTED AT THE 28TH ANNUAL ADVANCEDFAMILY LAW COURSE IN DALLAS, TEXAS, AUGUST 2002

OH, NO, NOT THE WRITS, PRESENTED AT THE WORKSHOP FOR ASSOCIATE JUDGESAND TITLE IV-D MASTERS IN DALLAS, TEXAS, AUGUST 2002

“ETHICS JEOPARDY,” CO-PRESENTER AT THE AAML/AICPA NATIONALCONFERENCE ON DIVORCE IN LAS VEGAS, NEVADA, MAY, 2002

PROTECTIVE/RESTRICTIVE POSSESSION: SUBSTANCE ABUSE, FAMILY VIOLENCE,AND OTHER PERILS, PRESENTED AT THE 25TH ANNUAL MARRIAGE DISSOLUTIONINSTITUTE IN AUSTIN, TEXAS, MAY 2002

Look Who’s Talking Now: Hearsay and Its Exceptions, Including Child’s State of Mind,presented at the 27th Annual Advanced Family Law Course in San Antonio, Texas, August 2001

Jurisdicton and Venue in Divorce Cases, presented at the 24th Annual Marriage DissolutionInstitute in Corpus Christi, Texas, May 2001

Rule 248 Motions – How to Use Them, presented at the 26th Annual Advanced Family LawCourse in San Antonio, Texas, August 2000.

Insurance Aspects Of Divorce, presented at the 23rd Annual Marriage Dissolution Institute inFort Worth, Texas, May 2000.

Marital Agreements, presented at the 25th Annual Advanced Family Law Course in Dallas,Texas, August 1999.

Violation of Temporary Orders Including Visitation, Support, Attorneys’ Fees, Injunctions, etc.,presented at the 22nd Annual Marriage Dissolution Institute in San Antonio, Texas, May 1999.

Handling the Divorce Involving Attorneys Ad Litem, Guardians Ad Litem, Court AppointedSpecial Advocates, presented at the 21st Annual Marriage Dissolution Institute in Austin, Texas,May 1998.

Unusual and Unresolved Property Issues, (co-author) presented at the 24th Annual AdvancedFamily Law Course, 1998.

Participated as counsel for husband in presentation of Temporary Hearing Demonstration, 1997Family Law Art and Advocacy Law Course, Houston, Texas, December 1997.

Characterization of Unique Property (Trust Distributions, Punitive Damages, Retained TrustIncome, Retained Child Support, Partnership Interests, and Partnership Assets), co-authoredportion on Retained Child Support and participated in panel presentation for the New Frontiers inMarital Property Law, San Diego, California, October, 1997.

Participated in presentation of demonstration of Effective Trial of a Divorce Case in ThreeHours, at the 23rd Annual Advanced Family Law Course in San Antonio, Texas, August 1997.

Procedural Aspects of a Jury Trial, co-authored paper and prepared and presented videodemonstration with Mike McCurley of an actual voir dire, in conjunction with Dr. RobertGordon and the Wilmington Institute of Trial Science, at the 1997 Marriage Dissolution Institute,Dallas, Texas, May, 1997.

Preparation for and the Direct Examination Of the Non-Primary Parent in a Relocation Case,presented at the 11th Annual TAFLS Trial Institute in New Orleans, LA, February, 1997.

Preparation for the Direct Examination of Mom (the Accuser) in a Sex Abuse AllegationCustody Case, presented at the 10th Annual TAFLS Trial Institute in New Orleans, LA, February1996.

Sources of Evidence in the Family Law Case, presented at the 21st Annual Advanced FamilyLaw Course in Dallas, Texas, August 1995.

Cross Examination of Mother in Custody Cases, presented at the 9th Annual TAFLS TrialInstitute in New Orleans, LA, January 1995.

Presumptions, presented at and published in the Ultimate Trial Notebook Seminar in Austin,Texas, December 1994.

Characterization, Tracing, and Reimbursement in Family Law Litigation: An Overview,Checklist and Update of Advanced Issues, (co-author) presented at the 20th Annual AdvancedFamily Law Course in San Antonio, Texas, August 1994; and updated in a joint presentationwith Professor Tom Featherston at the 23rd Annual Advanced Family Law Course in SanAntonio, Texas, August 1997.

Presumptions and Burdens of Proof, presented at the 16th Annual Marriage Dissolution Institutein Fort Worth, Texas, May 1993, and at the 19th Annual Advanced Family Law Course in SanAntonio, Texas, August 1993; also updated and presented at the Southern Regional JudicialConference, April 1997. Repeat presentation of this paper, updated, at the Fort Worth FamilyLaw Bar Association on January 27, 1998.

Client Communication Chapter 10

Table of Contents

I. INTRODUCTION..................................................................................................................................1

II. INITIAL CONSULTATIONS.............................................................................................................1A. First Contact ..............................................................................................................................1B. Initial Meeting ...........................................................................................................................1C. Hired or Not Hired....................................................................................................................2

III. COMMUNICATION DURING THE CASE....................................................................................3A. Putting the Case on “Hold” .....................................................................................................3B. Proceeding with Temporary Hearing.....................................................................................3C. Discovery ...................................................................................................................................3D. Notices for Time and Date of Mediation or Trial..................................................................3E. Letter Advising Client Against Settlement ............................................................................3F. Instructions on How to Acting During Trial .........................................................................3G. Let Them Know if You are Going to be Gone.......................................................................3H. Checking on an Inactive Case.................................................................................................3

IV. CLOSING THE FILE....................................................................................................................4

V. CONCLUSION...............................................................................................................................4

APPENDICES:...........................................................................................................................................5APPENDIX I...................................................................................................................................5APPENDIX II .................................................................................................................................7APPENDIX III..............................................................................................................................20APPENDIX IV..............................................................................................................................25APPENDIX V...............................................................................................................................62APPENDIX VI..............................................................................................................................70APPENDIX VII............................................................................................................................72APPENDIX VIII...........................................................................................................................74APPENDIX IX..............................................................................................................................76APPENDIX X...............................................................................................................................78APPENDIX XI..............................................................................................................................82APPENDIX XII............................................................................................................................84APPENDIX XIII...........................................................................................................................86APPENDIX XIV...........................................................................................................................88APPENDIX XV ............................................................................................................................91APPENDIX XVI...........................................................................................................................94APPENDIX XVII .......................................................................................................................109APPENDIX XVIII......................................................................................................................111APPENDIX XIX.........................................................................................................................113


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CLIENT COMMUNICATION

I. INTRODUCTIONSadly, current statistics from the grievance

system of the State Bar of Texas show that moregrievances arise against attorneys out of family lawmatters than other areas of law practice. Why is this?Many have tried to explain this problem by pointingout that, when faced with legal problems in the familylaw area, a client comes to the family law attorney inhis worst emotional state. Compared to contractdisputes, real estate matters, or business matters,family law matters involve very emotional problemswith the party’s spouse, children, other relatives,property, money, or a combination of all. The client isusually not thinking with his head, but rather with hisheart when he comes to consult with a family lawattorney. This kind of client sometimes hears what hewants to hear instead of what his attorney is actuallysaying.

How can the family law practitioner avoidgrievances from these emotional people? One solutionmight be: BETTER COMMUNICATION. Thenumber one reason that clients become dissatisfied isthat something is not being communicated to themproperly or satisfactorily. This paper will outline waysto better communicate with the client in family lawcases, and will set forth some ideas to avoid thedreaded grievance.

II. INITIAL CONSULTATIONS

A. First ContactThe first contact by a client with a family law

attorney is usually by way of a telephone call to theattorney’s office. Many times, the potential client willcall and ask directly for the attorney. The best practiceis to NOT speak with the potential client initially onthe telephone. It is better for the receptionist orsecretary to be trained to tell the person, in a verypolite way, that the attorney will not give initial adviceover the telephone, and that the person needs to comein for an initial consultation. The only time this maybe unavoidable is when the person is calling from outof town and may not be able to come in for an initialconsultation in a timely fashion.

1. Out Of Town ClientsDepending on the facts of the case, if an out of

town person calls, it is a good idea to explain theconcept of the initial consultation, and to obtain thepersons address or fax number, so that the necessarydocuments may be immediately sent to the potential

client. Also, it is very important to review the billingprocedure with the client as soon as possible, just aswould be done in a face-to-face conference.

2. In Town ClientsWhen a person calls from in town, it is so

important to be able to schedule a time to meet withhim or her face to face before the attorney is hired. Itis essential to be able to assess the potential client inperson and for the client to assess the attorney inperson.

B. Initial Meeting1. Fee Agreement for Initial Consultation

Whether or not you charge for an initialconsultation, it is a good idea to get the client tosign some sort of initial consultation agreement. Itis a good practice to charge an initial consultationfee since the client may be only shopping aroundfor an attorney. Without charging a fee, thefamily law practitioner may lose many goodotherwise billable hours in initial consultationswith people who, for whatever reason, decide notto hire him. See Appendix I for a sample of a feeagreement for an initial consultation. It is alsorecommended to have the client sign thisimportant communication about the privacypolicy of your firm. Right from the start, theclient will know about confidentialcommunication, and hopefully will feel morecomfortable in discussing the most personalmatters with you. Also, it is very important toinclude in this initial consultation agreementlanguage that the attorney is not hired to representthis client in the specific matter unless and untilthe client pays the retainer and signs the contactfor legal services. This saves the time and troubleof having to write a follow-up letter to that effect.

2. Informational PacketThe initial consultation should be a broad

exchange of information between you and the client,so that both of you can assess the case and thefeasibility of hiring you. Give the client a packet ofseveral informational items, as well as a request forinformation for the client to provide to you. Thefollowing is a list of suggested items to be included insuch a packet:


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a. Client Interview Sheet –Appendix II is asample of a Client Interview Sheet used in an initialconsultation. There are other suggested forms in theTexas Family Practice Manual. Appendix II is ashorter one and is not too daunting for the client.Some of the other questionnaire forms are quitelengthy and ask for lots of information which the clientmay not have brought to this initial consultation. Itreally depends on how much information you want inthe initial meeting.

b. Texas Lawyer’s Creed –Place a copy of theTexas Lawyer’s Creed in the packet. The client needsto know how the lawyer is bound to treat the other sideand behave in court. This is really good for clientswho say they want the lawyer to be very aggressive –it explains why the lawyer just cannot do some thingsthe client wants. Some lawyers attach it to theiremployment contract, but either way, be sure the clientis aware of it. A copy of the Texas Lawyer’s Creed isfound in Appendix III.

c. Informational outlines – In Appendix IV aretwo informational outlines on divorce andmodification. Depending on the case, of course, it isgood to give the client some basic information aboutwhat to expect in general. These are just twoexamples; you could develop your own, and includethose things you handle more of, such as adoption orchild support enforcement, for example. These areimportant tools which the client can take home andstudy later.

d. Other information – If you come acrossnewspaper or magazine articles that contain relevantinformation, photocopy them and put them in theinitial consultation packet. From time to time,newspapers or magazines will have articles abouttopics such as dealing with debts in a divorce,changing a will after a divorce, insurance issues, andarticles about children coping with divorce. Placecopies of these articles in the packet for the client’sbenefit. Clients really appreciate the currentinformation.

e. Employment Contract – Last, but not least, putthe Contract for Legal Services in the packet. TheContract should set forth clearly how you will bill andget paid for your services, and what is expected of youand what is expected from the client in therelationship. Appendix V is a sample of oneemployment contract; there is another form in theTexas Family Practice Manual that is excellent. It ishighly recommended to inform the client either here orin the initial consultation agreement about the

requirement for the lawyer to report child abuse andhow that is outside of the realm of the attorney-clientprivilege of confidentiality. Whether the client hiresyou immediately or not, make the client take thiscontract with him or her and read it, and make sure itis completely understood by the client. Urge the clientto ask or call you with any questions about thecontract. This is certainly the place wherecommunication and understanding is essential. Whenthe client does sign the contract, be sure to make acopy for the client to keep, and you keep the originalin the file.

f. ADR Statement – Place the ADR Statement,labeled “Exhibit A” in the initial consultationinformational packet, and have the client sign it. Keepit together with the client information sheet, and youwill have most of the information needed to file thepleadings. See Appendix VI for an example.

g. UCCJEA Affidavit Form – If the caseinvolves children, it is a matter of preference whetherto use a form at the initial consultation for the requiredUCCJEA information. Appendix II does have a placewhich asks for this information. Some attorneys feel itis better to prepare the affidavit in a formal, separatelytyped document rather than a form filled out in theclient’s writing.

h. Insurance Information – If the case involveschildren, have the client fill out the required insuranceinformation. Appendix VII shows an example of thisform.

i. Firearm Warning – If there is a possibility of arestraining order being entered, it is a good idea tohave the client sign the warning found in AppendixVIII.

C. Hired or Not Hired?If the client hires you, obviously he or she will

bring you the signed contract. If there is a reason youcannot or do not want to represent the prospectiveclient, you need to take some action to inform thatperson that you are not his or her attorney. That actionneeds to be clear and in writing to eliminate anymisunderstanding that could seriously jeopardize thisperson’s legal rights and to prevent any frivolousgrievance against you. Often we do not take the timeto communicate this fact in writing. The Letter toProspective Client Declining Employment inAppendix IX is an easy letter form to send after eachinitial consultation in which you will not berepresenting the prospective client. Of course, the


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reasons will vary and you need to change the letter toreflect this.

III. COMMUNICATION DURING THE CASEOnce the client has signed the Contract for

Legal Services, the attorney is ready to go to work.Hopefully, the client has been given an explanationduring the initial consultation and in the informationaloutline as to how the case will proceed. See AppendixX for a summary sheet to give clients once they havehired you. This is specific for divorces, and can beedited to accommodate other types of cases. It isessential to keep the lines of communication open anddocumented between the attorney and the client whilethe case progresses. The following are some examplesof typical situations in which communication anddocumentation are important.

A. Putting the Case on “Hold”Many times, after the case is filed, the client

will call and request that the action be placed on holdwhile the parties try to reconcile. Appendix XI is agood sample form to use for the purpose ofdocumenting the client’s request in your file, and toconfirm with the client that he or she does not wantfurther action taken until further notice.

B. Proceeding with Temporary HearingOnce the case is filed, send the client a copy of

every pleading. Always include a cover letter todocument the file as to what you have sent the client.Explain to the client when and where hearings willtake place. Most courts require a financial informationstatement from each party if finances are in issue inthe temporary hearing, so make sure the client knowsthis and is reminded to complete one. Appendix XIIis a good sample letter to use for these purposes.

C. DiscoveryClients usually do not understand the concept

of discovery at first. They need to be remindedfrequently about the deadlines and how important theiranswers are. It is advisable to send the client copies ofthe discovery requests received immediately uponreceipt by the lawyer, along with a written explanationof instructions in answering the requests. SeeAppendix XIII for an example of a letter ofexplanation of how the client should proceed withanswering discovery. Notice the specific deadlinedates given, and the explanation of why those dates arenecessary.

D. Notices for Time and Date of Mediation orTrial

Always notify the client immediately of anysettings for hearing, final trial, and mediation. It is agood idea to send the client a copy of the actual notice,with a cover letter reiterating the time, date, and place.Appendix XIV has two examples of letters to sendnotifying a client of mediation and of a trial setting.

E. Letter Advising Client Against SettlementSometimes the client makes up his mind that

he is going to settle the case despite what the attorneyadvises. They may be doing it to avoid a custodybattle, to buy peace in the future with the ex-spouse orto save attorney’s fees or many other crazier reasons.If the attorney feels strongly that the settlement is amistake, it is important to get that opinion in writingand have the client sign it. There is a sample letter forthis in Appendix XV. (This is commonly knownamong attorneys as a CYA letter.) You do not wantthe client to come back to you later and ask you whyin the !@#$%&* you let him do that. If he does, andyou have your CYA letter, you can remind him thatyou advised him against it. NEVER FAIL TO DOTHIS.

F. Instructions on How to Act during TrialWe all have strategy and instructional sessions

in person with clients before a trial. However, if youput some of these instructions in writing, you can sendthem home with the client and let them cogitate onthem. Results will probably be better if the client hashad time to study something in writing telling him howto behave, and it also will give him a level of comfortto “study” it. In Appendix XVI is a good basicinstructional form, which can of course be tailored toyour preferences.

G. Let Them Know if You are Going to Be GoneSeveral times a year, most attorneys are out of

the office for vacations, conferences or attendance atrequired continuing legal education seminars. It is avery good idea to let your clients know if you aregoing to be out of the office for several days. It willsave them from frustration in not being able to talk toyou in an “emergency” and it will save you somefrustration in not having a million telephone messageswhen you return. Appendix XVII is a sample usedevery year by the author’s office in anticipation of theAdvanced Family Law Course when most of the staffis gone.

H. Checking on an Inactive CaseInevitably, the family law attorney will have a

file or two wherein there has been no action for quitesome time, and the client has not been heard from oneway or the other. It is certainly recommended to


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review all files at least once or twice a year todetermine if any action is needed. In AppendixXVIII is a sample letter sent to clients with such files.It is good to let clients know that the attorney isthinking about them occasionally even if nothing isgoing on in their case.

IV. CLOSING THE FILEClosing the file after the case is final has been

an entire topic of papers and workshops in the past.Of course there are many closing documents that canbe involved, such as deeds, deeds of trust, QDROS,powers of attorney for title transfer of vehicles, etc.Under the topic of “client communications” there isone letter that is very important, which the author’soffice calls the “thank you and close” letter. Thisletter is found in Appendix XIX. This is the letter thatabsolutely closes the file after all other ancillarydocuments are completed, filed and done. At the timethis letter is written, the file is reviewed, organized,and placed in the closed files. It specifically states thatthe representation is concluded.

V. CONCLUSIONThis paper has attempted to give examples

of necessary client communications in a case frombeginning to end. Of course, there are many otherletters and communications that will pass betweenthe attorney and client in any family law case.The attached appendices are offered as samplesthat can be used to automate essentialcommunications such that more time can be spenton the individualized communications of eachparticular case.

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APPENDIX I

6

FEE AGREEMENT FOR INITIAL CONSULTATION

In your initial consultation, you and the attorney will identify the type of case you have, the keyissues, and the options you may have under the law. You and the attorney will discuss whether theUnderwood Law Firm should represent you, what that representation could involve, and the amount of theinitial deposit that would be required.

The Underwood Law Firm charges $200.00 for an initial consultation. You may pay in cash, bycheck, or with Mastercard or Visa. Because of the increased costs of billing and other collection problems,you must sign this agreement and pay the initial consultation fee to the receptionist before receiving anyprofessional services.

At the conclusion of your initial consultation, the attorney can provide you with a contract for legalservices and with client information sheets. If you or the Underwood Law Firm fail to sign this contractfor legal services, an attorney-client relationship between you and the Underwood Law Firm will notextend beyond the initial consultation. Any communications you make to the attorney during the initialconsultation are protected by the attorney-client privilege.

Privacy Policy Notice: Attorneys, like other professionals who advise on personal financialmatters, are required by a federal law (Gramm-Leach-Bliley Act) to inform their clients of their policiesregarding privacy of client information. Attorneys have been, and continue to be, bound by professionalstandards of confidentiality that are even more stringent than those required by this new law. Therefore,we have always protected our clients’ right to privacy. In the course of providing our clients withincome tax, estate tax, and gift tax advice, we receive significant personal financial information from ourclients. If you become a client of the Underwood Law Firm, you should know that all information thatwe receive from you will be held in confidence and is not released to people outside the firm, except asagreed to by you or as required under applicable law. We retain records relating to professional servicesthat we provide so that we are better able to assist our clients with their professional needs and, in somecases, to comply with professional guidelines. In order to guard your nonpublic personal information,we maintain physical, electronic, and procedural safeguards that comply with your professionalstandards.

______________________________ ______________________________Your signature Your Street Address

______________________________ ______________________________Your printed name Your City/Zip Code

______________________________ ______________________________Name of Adverse Party Your Home Telephone Number

______________________________ ______________________________Today's Date Your Work Telephone Number

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APPENDIX II

8

CLIENT INTERVIEW SHEET

Thank you for taking the time to complete all items in this questionnaire. In so doing you will give us the background informationnecessary to begin to understand the complexity of the personal aspects of your family law problem. All information you furnish willbe very helpful to our attorneys and will be held in strict confidence.

DATE:

1. Name:

First: __________________________________

Middle: ________________________________

Last: _________________________________

Maiden: _______________________________

2. Date of Birth: _______________________________

3. City/State of Birth: __________________________

4. Race: _____________________________________

5. Social Security No.:__________________________

6. Driver’s License No._________________________

7. How long have you lived in Texas?______________

8. How long have you lived in the county you arecurrently living?______________________________

9. Home Address:

Street: _________________________________

P.O. Box: ______________________________

City: __________________________________

County: ________________________________

State: _________________________________

Zip: ___________________________________

How long? ______________________________

If you have lived at the above address less than 6months, please give previous address:

Street: _________________________________

P.O. Box: _______________________________

City: __________________________________

County: ________________________________

State: __________________________________

Zip:___________________________________

10. What address do you wish to receive mail, if other than your current address?

Address: _______________________________

P.O. Box: ______________________________

City: __________________________________

State: _______________Zip: _______________

10. Work telephone No.: _____________________

11. Residence telephone No.: __________________

12. Mobile No.:_____________________________

13. Pager No.: ______________________________

14. Fax No.: ________________________________

15. E-mail Address: _________________________

16. Employment Information:

Employer: ______________________________

Years Employed: ________________________

Street Address: __________________________

City: __________________________________

State: __________________________________

Zip: ___________________________________

Job Title: _______________________________

Education: ______________________________

Gross Salary: $_________________________

Please circle : monthly/annually

17. Reason for Seeing a Family Law Attorney:

Divorce:_______

Date of Marriage:___________________

City/State of Marriage:______________

Date of Separation:_________________

Modification:____________________________

Other:__________________________________

18. If a divorce is granted, should the wife’s maiden name be restored?

Yes_______ No ________

If so, what name:__________________________

FOR OFFICE USE ONLY

Consultation Fee:__________

Retainer:___________ Atty.______

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If you are seeking a MODIFICATION, question No. 1 & 2 pertains to an ex-spouse. If youare seeking a DIVORCE, please refer to your current spouse. If you are seeking a suit forPATERNITY, please refer to the alleged father or the mother.

1.(a) First Name:_____________________________

Middle:_________________________________

Last : __________________________________

Maiden:_________________________________

(b) Presently Residing:

Address:________________________________

City: __________________________________

State: __________________________________

Zip: ___________________________________

(c) Telephone No.: __________________________

(d) Date of birth: ____________________________

(e) City/State of Birth: ________________________

(f) Social Security No.: _______________________

(g) Drivers License No.: ______________________

2. (a) Employer: ______________________________

________________________________________

How long employed:______________________

(b) Street address: ___________________________

(c) City:_____________State:_________Zip:______

(d) Telephone No.: __________________________

(e) Job Title: _______________________________

(f) Gross salary: $__________________________

Please circle: monthly/annually

(g) Education: ______________________________

3. No. of children of this suit: ________________

4. Please give the following information for each child: a) Name : ________________________________

Male/Female: ___________________________

SSN: __________________________________

Date of Birth: ___________________________

City/State of Birth: _______________________

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Year expected to graduate high school_________

b) Name : ________________________________

Male/Female: ___________________________

SSN: __________________________________

Date of Birth: ___________________________


Year expected to graduate high school_________

c) Name : ________________________________

Male/Female: ___________________________

SSN: __________________________________

Date of Birth:____________________________


Year expected to graduate high school________

d) Name : _________________________________

Male/Female: ___________________________

SSN: __________________________________

Date of Birth: ___________________________


Year expected to graduate high school________

5. What is your religious preference? ____________

6. What is your spouse’s religious preference?

_______________________________________

7.(a) Do you have a will? Yes ________ No________

(b) If so, prepared by whom? __________________

_______________________________________

8.(a) Does your spouse have a will? Yes____ No____

(b) If so, prepared by whom? __________________

9. Please provide a list of the places where the child(ren) has/have lived during the past fiveyears, and the names and present addresses of the persons with whom the child(ren) has/havelived during that period.

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Dates: From:____________ To:_______________

Persons Lived With:___________________________

Address:__________________________________

_________________________________________

Dates: From:___________ To:______________

Persons Lived With_________________________

Address:__________________________________

_________________________________________

Dates: From:___________ To:______________


Address:__________________________________

_________________________________________

Dates: From:___________ To:______________


Address:__________________________________

_________________________________________

Dates: From:___________ To:______________


Address:__________________________________

__________________________________________

If additional space is needed, please continue on back of this page.

10. If you have participated, as a party or witness or inany other capacity, in any other proceeding concerning the custody of or visitation with thechild(ren), identify the court, the case number, and the date of the child custodydetermination, if any.___________________________________________________________________________

___________________________________________________________________________

_________________________

11. If you know of any proceeding that could affect thecurrent proceeding, including proceedings for enforcement and proceedings relating todomestic violence, protective orders, termination of parental rights and adoptions, involvingyou, your (ex-) spouse, or the child(ren), identify the court, the case number, and the nature of

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the proceeding.___________________________________________________________________________

___________________________________________________________________________

_________________________

12. Please provide the names and addresses of any person not a party to the current proceedingwho has physical custody of the child(ren) or claims rights of legal custody or physicalcustody of, or visitation with, the child(ren).___________________________________________________________________________

___________________________________________________________________________

_________________________

13. If you believe that the health, safety, or liberty of you or the child(ren) would be jeopardizedby disclosure of your address or that of the child(ren), please disclose the reason for thatbelief.___________________________________________________________________________

___________________________________________________________________________

_________________________

ReferralWho, if anyone, referred you to this office?

If you are seeking a MODIFICATION or suit for PATERNITY stop.

***************************

If you are seeking a DIVORCE, please continue:

1. Have you or your spouse ever filed for a divorce?_________________________________

If so, when?_____________________________

2. Does your spouse have an attorney? __________

If so, whom? __________________________

3. Are you now separated from your spouse?______

4. Check as appropriate if your marital difficulties involve any of the following:___ drugs/alcohol

___ sexual disappointment

___ sexual infidelity

___ financial disputes

___ physical violence

___ religion

___ incompatibility

___ other: ______________________________

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5. Have you seen a marriage counselor?_________

If so, whom?_____________________________

6. Will there be a dispute over custody of the children?If not, custody will be with whom?___________

_______________________________________

7. Where are the children living at this time? _____

____________________________________

8. List all property (excluding furniture and clothing) owned by the children of thismarriage:______________________________________________

______________________________________________

______________________________________________

______________________________________________

______________________________________________

______________________________________________

______________________________________________

_____________________________________________

______________________________________________

______________________________________________

9. Your previous marriage(s)?__________________

10. No. of children by previous marriage(s):_______

11. (a) Name : _____________________________

Male/Female: ________________________

Date of Birth :_______________________

City /State of Birth:____________________

(b) Name : ___________________________

Male/Female: ________________________

Date of Birth: _______________________

City /State of Birth:___________________

(c) Name : _____________________________

Male/Female: ________________________

Date of Birth: ________________________

City /State of Birth:___________________

(d) Name : _____________________________

Male/Female: ________________________

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Date of Birth: ________________________

City /State of Birth: ____________________

12. With whom do these children reside?

_______________________________________

13. Do you (receive)(pay) child support? Yes__________ No___________

If so, how much? $__________ per__________

14. Has your spouse been married before? ________

15. No. of children by previous marriage(s):________

16. (a) Name : _____________________________

Male/Female: ________________________

Date of Birth: ________________________

City /Stateof Birth: ____________________

(b) Name : ____________________________

Male/Female: ________________________

Date of Birth: ________________________

City /Stateof Birth: ____________________

(c) Name : _____________________________

Male/Female: ________________________

Date of Birth: ________________________

City /State of Birth: ___________________

(d) Name : ___________________________

Male/Female: ________________________

Date of Birth: ________________________

City/State of Birth : ___________________

17. With whom do these children reside?

_______________________________________

18. Does your spouse (receive)(pay) child support? Yes_______ No _________

If so, how much? $__________per___________

SUMMARY OF PROPERTY

Real Estate

1. (a) Address: ________________________________

_______________________________________

(b) Mortgage Company ______________________

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(c) Estimated fair market value: _______________

(d) Year Purchased: _________________________

(e) Mortgage Balance: $_____________________

(f) Monthly Payments: $_____________________

2 .(a) Address: _______________________________

_______________________________________



(d) Year Purchased: _________________________



3. (a) Address: _______________________________

_______________________________________



(d) Year Purchased: _________________________



Motor Vehicles, Boats, Airplanes, Cycles, Trailers

1. (a) Year:____________ (b) Model: __________

(b) Principal Driver: __________________________

(c) Vehicle Id No.: __________________________

(d) Mortgaged with: _________________________

2. (a) Year:____________ (b) Model: ___________

(b) Principal Driver: ___________________________

(c) Vehicle Id No.: __________________________

(d) Mortgaged with: _________________________

3. (a) Year: ____________ (b) Model: ____________

(b) Principal Driver: _____ _____________________

(c) Vehicle Id No.: __________________________

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(d) Mortgaged with: _________________________

Bank/Savings Accounts, C.D.’s, Credit Unions, Savings, Bonds1.(a) Name of Bank: __________________________

(b) Account Name: _________________________

(c) Amount on Deposit: $____________________

(d) Names on withdrawal card: ________________

_______________________________________

_______________________________________

2. (a) Name of Bank: __________________________

(b) Account Name: _________________________



_______________________________________

_______________________________________

3.(a) Name of Bank: __________________________

(b) Account Name: _________________________

(c) Amount on Deposit: $___________________


______________________________________

4.(a) Name of Bank: __________________________

(b) Account Name: _________________________

(c) Amount on Deposit: $___________________


_______________________________________

_______________________________________

5.(a) Name of Bank: __________________________

(b) Account Name: __________________________



_______________________________________

_______________________________________

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Life Insurance :

1.(a) Name of Company:_______________________

Insuring Life of: _________________________

Amount: $______________________________

2.(a) Name of Company: _______________________

Insuring Life of: _________________________

Amount: $_____________________________

Stocks, Mutual Funds:

1.(a) Name: _________________________________

(b) Estimated amount invested: $______________

2.(a) Name: _________________________________

(b) Estimated amount invested: $_______________

3.(a) Name: _________________________________


4.(a) Name: _________________________________


Retirement, Pensions, Other Company Benefits

1.(a) Do you participate in any retirement plan? _____

(b) Does your spouse participate in any plan? ________

2.(a) Do you participate in any company savings plan?(Yes)__________ (No)__________

(b) If so, how much in that savings plan?

$ ____________________________________

3.(a) Does your spouse participate in any company savings plan? (Yes)__________

(No)________ (b) If so, how much in that savings plan?

(Yes)__________ (No)_________

4.(a) Does anyone owe you or your spouse money?

(Yes)______________ (No)_______________

(b) If so, how much? $_______________________

(c) Owed by whom? _________________________

5.(a) Are you involved in any lawsuits? If so, explain

_______________________________________

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_______________________________________

_______________________________________

_______________________________________

6. Do you own any livestock? Yes_____ No _____

7. Do you own mineral interests?

Yes________ No _________

8.(a) Do you belong to any clubs with an equity interest? ________

(b) If so, where? ____________________________

Debts (other than house or automobiles.)

1. ___________________________ $__________

2. ___________________________ $___________

3. ___________________________ $___________

4. ___________________________ $___________

5. ___________________________ $___________

6. ___________________________ $ ___________

7. ___________________________ $___________

8. ___________________________ $___________

9. ___________________________ $ ___________

10. ___________________________ $___________

Income Tax

1.(a) Have you filed for all previous years? ________

(b) Prepared by whom?_______________________

_______________________________________

(c) Refund received? Yes ________ No _________

(d) If so, how much? _________________________

Separate Property

1.(a) Do you own any separate property (property owned by you before marriage or property

received during marriage by gift or inheritance?) Yes______ No__ _____

(b) List in detail your separate property. _________

_____________________________________________

_____________________________________________

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_____________________________________________

______________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

______________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

2.(a) Does your spouse own any separate property?

Yes _______ No _______

(b) List in detail the separate property.

_____________________________________________

______________________________________________

______________________________________________

._____________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

______________________________________________

_____________________________________________

______________________________________________

_____________________________________________

_____________________________________________

_____________________________________________

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APPENDIX III

21

The Texas Lawyer’s Creed

I am a lawyer; I am entrusted by the People of Texas to preserve and improve ourlegal system. I am licensed by the Supreme Court of Texas. I must therefore abide by theTexas Disciplinary Rules of Professional Conduct, but I know that professionalismrequires more than merely avoiding the violation of laws and rules. I am committed tothis creed for no other reason than it is right.

Our Legal System

A lawyer owes to the administration of justice personal dignity, integrity, andindependence. A lawyer should always adhere to the highest principles ofprofessionalism.

1. I am passionately proud of my profession. Therefore, “My word is my bond.”

2. I am responsible to assure that all persons have access to competentrepresentation regardless of wealth or position in life.

3. I commit myself to an adequate and effective pro bono program.

4. I am obligated to educate my clients, the public, and other lawyers regardingthe spirit and letter of this Creed.

5. I will always be conscious of my duty to the judicial system.

Lawyer to Client

A lawyer owes to a client allegiance, learning, skill, and industry. A lawyer shallemploy all appropriate legal means to protect and advance the client’s legitimate rights,claims, and objectives. A lawyer shall not be deterred by any real or imagined fear ofjudicial disfavor or public unpopularity, nor be influenced by mere self-interest.

1. I will advise my client of the contents of this creed when undertakingrepresentation.

2. I will endeavor to achieve my client’s lawful objectives in legal transactionsand in litigation as quickly and economically as possible.

3. I will be loyal and committed to my client’s lawful objectives, but I will notpermit that loyalty and commitment to interfere with my duty to provide objective andindependent advice.

4. I will advise my client that civility and courtesy are expected and are not asign of weakness.

5. I will advise my client of proper and expected behavior.

6. I will treat adverse parties and witnesses with fairness and due consideration.A client has no right to demand that I abuse anyone or indulge in any offensive conduct.

7. I will advise my client that we will not pursue conduct which is intendedprimarily to harass or drain the financial resources of the opposing party.

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8. I will advise my client that we will not pursue tactics which are intendedprimarily for delay.

9. I will advise my client that we will not pursue any course of action which iswithout merit.

10. I will advise my client that I reserve the right to determine whether to grantaccommodations to opposing counsel in all matters that do not adversely affect myclient’s lawful objectives. A client has no right to instruct me to refuse reasonablerequests made by other counsel.

11. I will advise my client regarding the availability of mediation, arbitration, andother alternative methods of resolving and settling disputes.

Lawyer to Lawyer

A lawyer owes to opposing counsel, in the conduct of legal transactions and thepursuit of litigation, courtesy, candor, cooperation, and scrupulous observance of allagreements and mutual understandings. Ill feelings between clients shall not influence alawyer’s conduct, attitude, or demeanor toward opposing counsel. A lawyer shall notengage in unprofessional conduct in retaliation against other unprofessional conduct.

1. I will be courteous, civil, and prompt in oral and written communications.

2. I will not quarrel over matters of form or style, but I will concentrate onmatters of substance.

3. I will identify for other counsel or parties all changes I have made indocuments submitted for review.

4. I will attempt to prepare documents which correctly reflect the agreement ofthe parties. I will not include provisions which have not been agreed upon or omitprovisions which are necessary to reflect the agreement of the parties.

5. I will notify opposing counsel, and, if appropriate, the Court or other persons,as soon as practicable, when hearings, depositions, meetings, conferences or closings arecanceled.

6. I will agree to reasonable requests for extensions of time and for waiver ofprocedural formalities, provided legitimate objectives of my client will not be adverselyaffected.

7. I will not serve motions or pleadings in any manner that unfairly limitsanother party’s opportunity to respond.

8. I will attempt to resolve by agreement my objections to matters contained inpleadings and discovery requests and responses.

9. I can disagree without being disagreeable. I recognize that effectiverepresentation does not require antagonistic or obnoxious behavior. I will neitherencourage nor knowingly permit my client or anyone under my control to do anythingwhich would be unethical or improper if done by me.

10. I will not, without good cause, attribute bad motives or unethical conduct toopposing counsel nor bring the profession into disrepute by unfounded accusations of

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impropriety. I will avoid disparaging personal remarks or acrimony towards opposingcounsel, parties and witnesses. I will not be influenced by any ill feeling between clients.I will abstain from any allusion to personal peculiarities or idiosyncrasies of opposingcounsel.

11. I will not take advantage, by causing any default or dismissal to be rendered,when I know the identity of an opposing counsel, without first inquiring about thatcounsel’s intention to proceed.

12. I will promptly submit orders to the Court. I will deliver copies to opposingcounsel before or contemporaneously with submission to the Court. I will promptlyapprove the form of orders which accurately reflect the substance of the rulings of theCourt.

13. I will not attempt to gain an unfair advantage by sending the Court or its staffcorrespondence or copies of correspondence.

14. I will not arbitrarily schedule a deposition, court appearance, or hearing until agood faith effort has been made to schedule it by agreement.

15. I will readily stipulate to undisputed facts in order to avoid needless costs orinconvenience for any party.

16. I will refrain from excessive and abusive discovery.

17. I will comply with all reasonable discovery requests. I will not resistdiscovery requests which are not objectionable. I will not make objections nor giveinstructions to a witness for the purpose of delaying or obstructing the discovery process.I will encourage witnesses to respond to all deposition questions which are reasonablyunderstandable. I will neither encourage nor permit my witness to quibble about wordswhere their meaning is reasonably clear.

18. I will not seek Court intervention to obtain discovery which is clearlyimproper and not discoverable.

19. I will not seek sanctions or disqualification unless it is necessary forprotection of my client’s lawful objectives or is fully justified by the circumstances.

Lawyer and Judge

Lawyers and judges owe each other respect, diligence, candor, punctuality, andprotection against unjust and improper criticism and attack. Lawyers and judges areequally responsible to protect the dignity and independence of the Court and theprofession.

1. I will always recognize that the position of judge is the symbol of both thejudicial system and the administration of justice. I will refrain from conduct that degradesthis symbol.

2. I will conduct myself in Court in a professional manner and demonstrate myrespect for the Court and the law.

3. I will treat counsel, opposing parties, the Court, and members of the Courtstaff with courtesy and civility.

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4. I will be punctual.

5. I will not engage in any conduct which offends the dignity and decorum ofproceedings.

6. I will not knowingly misrepresent, mischaracterize, misquote or miscite factsor authorities to gain an advantage.

7. I will respect the rulings of the Court.

8. I will give the issues in controversy deliberate, impartial and studied analysisand consideration.

9. I will be considerate of the time constraints and pressures imposed upon theCourt, Court staff and counsel in efforts to administer justice and resolve disputes.

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APPENDIX IV

26

ABOUT YOUR DIVORCE

27

TABLE OF CONTENTS

I. GENERAL INFORMATION

II. THE DECISION TO DIVORCE

III. ATTORNEY & CLIENT

IV. ISSUES IN DIVORCE

V. STEPS IN DIVORCE

VI. THINGS TO AVOID

VII. COMMON QUESTIONS

VIII. SPECIAL ISSUES

IX. NATURE OF DIVORCE CASES

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ABOUT YOUR DIVORCE

I. GENERAL INFORMATION

The following are basic rules regarding divorce. It is extremely important thatyou understand them completely, so please study them carefully. Keep this document torefer to throughout the course of your case.

Remember, however, that these are only some of the basic rules and are notsubstitutes for detailed discussions with your attorney and his staff. If you have anyquestions, do not hesitate to ask.

Caution: As will be discussed in detail below, this information sheet should not beshown to anyone.

II. DECISION TO DIVORCE

At the outset, you should be absolutely sure that your marriage is beyond saving.If you are uncertain, you should encourage your spouse to join you in marriagecounseling with a qualified counselor acceptable to both of you.

If you find you are experiencing emotional problems, please employ aprofessional counselor for your personal benefit. Your attorney is a specialist in law, notpsychology or marriage counseling, and a counselor can help you with emotionalproblems much more effectively than your attorney.

Also, a new field of development is “divorce counseling”, which consists ofindividual sessions or group sessions designed to assist persons through emotional traumaof divorce. There are also such programs for children. Although somewhat new on thehorizon, these programs seem to be getting very high marks. Many persons, approachingthese programs with much skepticism, have reported them to be life savers and wellworth the time and money.

Caution: Some people hope that filing for a divorce will shock their spouse into realityand, therefore, save the marriage. While filing for a divorce sometimes saves themarriage, this is a rarity. Usually, it causes the other spouse to become more hostile.Therefore, the filing of a divorce should be approached with the realization that if you areasking for a divorce, that is what you will get.

III. ATTORNEY AND CLIENT

The following section discusses the relationship and inner-workings between youand the attorney and his staff.

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A. ATTORNEY AND STAFF

The attorney and staff work as a team, each doing those tasks which they can domost efficiently. The legal assistant is billed out at a lower rate than the attorney;therefore, the legal assistant handles much of the time-consuming tasks involved ingathering information and day-to-day contact with the client. You will be dealing withboth the attorney and the legal assistant, together and individually, throughout therelationship.

B. YOUR ROLE AS CLIENT

This is your case, not your attorney’s. There are a great number of things that youmust do during your case.

1. Be Informed

You should be as informed and as involved in your case as possible. It isimportant that you read this document and understand all of its provisions and ask anyquestions that you might have at any time. You should read and understand any and alldocuments that are produced in your case.

2. Keep File

All correspondence and documents produced in your case will be forwarded toyou. Please establish one file in which to keep all of your divorce-related documents.Please remember to bring that file with you each time that you visit your attorney’soffice.

3. Tell Your Attorney the Truth About All Facts

You should be totally honest with your attorney on every aspect of your case andgive all information about anything of importance to your case. This includes not onlyinformation helpful to your case but, equally important, all facts which might be harmfulto your case. Chances are your spouse’s attorney is going to find out about them anyway,so please do not let your attorney be the last to know. These “bad facts” are usually notas harmful as you may think.

In this respect, you do need to be made aware that, at any time that you are placedunder oath at a deposition or a trial, you will be required to tell the truth, the whole truth,and nothing but the truth. If you do not, you subject yourself to criminal perjury charges.Likewise, Texas law requires your attorney to see to it that you tell the truth; therefore,when you are under oath, your attorney cannot and will not condone any testimony byyou which is less than the whole truth.

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4. Information Gathering

Facts are the heart of your lawsuit. You will be given information sheets to fillout and requested to gather information and documents. This will be time-consumingand tedious work, but it is extremely important. It must be done. You, the client, have amuch greater knowledge of and access to this factual information than your attorney.Further, as you research and piece together this information, you begin to develop thenecessary understanding of your case. Also, you can do this work at no charge toyourself, whereas the lawyer or staff, if required to do it, will be billing you for their timeand labor. For all of these reasons, you should do as much of the information gathering,under the direction of your attorney and staff as possible.

5. Review Spouse’s Documents

Your attorney will provide you with copies of all documents supplied by yourspouse’s attorney. It is very important that you review these documents immediately,familiarize yourself with them completely, and ask any questions or detect anythingimportant or unusual in the documents (e.g., checks written for unusually high amountsor to unfamiliar persons or sources).

6. Decision Making

No final settlement of your case will be made without your approval and consent.Other major decisions will also be made with your approval and consent (e.g., to demanda jury or not, to seek child custody or not, etc.). However, you will need to allow yourattorney the authority to make other decisions which bear on your case, but whichinvolve professional judgment or courtesy. For example, your attorney should decidehow to phrase allegations contained in your pleadings and when to file the pleading. Onoccasion, your spouse’s attorney may ask for a continuance or postponement of a hearingon a motion, deposition, etc. Resistance to a legitimate request of this nature is often notin your best interest. For example, your attorney may know that your side will need tomake a similar request in the future. Your attorney should be the decision maker forthese and similar matters.

C. ATTORNEY-CLIENT RELATIONSHIP

You and your attorney and his staff are in an attorney-client relationship, which isrecognized by law to be a very special relationship. Your attorney and staff owe onehundred percent of the allegiance to you and your case and owe no allegiance to yourspouse whatsoever. Your attorney is required to represent you zealously, but within thebounds of the law.

Do not be mislead if you find your attorney dealing with your spouse’s attorneyon a friendly basis. Professional and common courtesy dictate this. Good lawyers areperfectly capable of zealously defending and promoting their clients’ best interest,without becoming personal enemies. Attorneys are in fact trained to be advocates for the

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children without becoming emotionally involved. One of the very reasons you hire alawyer is to have someone on your behalf who not only has legal expertise, but who willnot become emotionally involved. You want your lawyer to use his head, not his heart.Indeed, you should expect your lawyer to be objective and to remain unemotional onyour behalf, because it will often be hard for you to do so.

D. ATTORNEY-CLIENT PRIVILEGE

By virtue of the attorney-client relationship, there automatically arises what isknown as the “attorney-client privilege”. This privilege prohibits from disclosure anyinformation, whether communicated orally or in writing, between the attorney and theclient, so long as the communication was intended to be confidential. For example, thisvery information sheet you are reading is protected from disclosure to your spouse’sattorney under the attorney-client privilege. Such communications also include allcorrespondence or documents from your attorney/staff to you, and vice versa (e.g.,information sheets you prepare for us), as well as all telephone conversations and in-person conferences between you and your attorney and staff.

Caution: The attorney-client privilege exists only between you and your attorney and hisimmediate, in-house staff. The attorney-client privilege can be waived if the otherwiseconfidential information is disclosed to persons other than your attorney and hisimmediate staff. For example, if you tell your spouse something that your attorney hastold you, then that information will lose its privilege from disclosure and will have to bedisclosed by you in court. Also, the privilege does not exist between you and otherpersons who may be involved in your case to assist you (e.g., CPAs, appraisers, etc.).Therefore, be very careful what you say to these persons, even if they are “on your side”,for anything you do or say may be required to be disclosed to your spouse’s attorney.

E. CONTRACT

You should read and understand the fee contract, agreement for legal services,and/or the engagement letter supplied to you by your attorney. If you do not understandthe financial obligations required of you under the contract, you should immediatelydiscuss those questions with your attorney. You should not sign the contract unless youunderstand it.

F. OTHER PROFESSIONALS

Besides your attorney and his immediate, in-house staff, other professionals aresometimes hired to assist in divorce cases. It may be necessary to engage an appraiser, atax expert, CPA and other such professionals. Your attorney will discuss the necessity ofthese experts with you and hire only those that are necessary in your case and only withyour consent. Caution: Again, even though these persons are hired on your behalf,information provided to them is not protected from disclosure by the attorney-clientprivilege.

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IV. ISSUES IN DIVORCE

This section covers the basic issues involved in a typical divorce case. If youhave no children, you can skip the sections below regarding children. Otherwise, youshould read each of these sections very carefully and go to this section first throughoutyour case if you have any questions regarding these issues.

A. GROUNDS FOR DIVORCE

A divorce may be granted on one or more “fault” or “no-fault” grounds expresslyset out in the Texas Family Code. Most divorces are founded on the no-fault ground of“insupportability” (i.e. incompatibility), which can be granted to either spouse if thatspouse feels that the marriage has become insupportable because of discord or conflict inpersonalities which makes any reasonable expectation of reconciliation impossible.

“Fault” grounds for divorce include adultery or cruel treatment. In that a courtmay consider “fault” in the breakup of a marriage as a factor in deciding how to dividethe property and debts, a party may also choose to plead a “fault” ground for divorce.

B. DOMICILE AND RESIDENCE

At least one spouse must have been “domiciled” in Texas for six months, and a“resident” of the county where the suit is filed for ninety days, before the petition may befiled. The terms “domicile” and “residence” have different meanings, which can beexplained to you if need be.

C. PROPERTY AND DEBTS

This subsection is an elementary discussion of the basic rules underlying Texasmarital property law.

1. Types of Property

In the context of divorce law in Texas, all property, both real and personal, ischaracterized as two different types of property: (1) “separate property” and (2)“community property”.

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a. Separate Property

“Separate property” is property either (1) owned or acquired by a spouse beforemarriage or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance.It is the date of acquisition and the source of the property that controls, not how it iseventually paid for. For example, if one spouse owned a house or a car before marriage,it will be characterized at the time of divorce as that spouse’s private property, even if itwas paid off in whole or in part during marriage.

A gift includes, for example, any Christmas or birthday gifts from one spouse toanother during marriage (even if purchased with community funds). If a gift orinheritance goes to both spouses (e.g., wedding gifts), then each spouse has an undividedfifty percent interest in that one piece of separate property.

Separate property can change forms without changing its character as separateproperty (this is often referred to as a “mutation”). For example, if wife has $5,000 incash which is her separate property and uses that $5,000 cash alone to purchase outright a$5,000 boat, then the boat would likewise be her separate property.

A court has no authority to take a spouse’s separate property from him or her atthe time of divorce. Caution: Any property owned by either spouse at the time ofdivorce is, by law, presumed to be “community property” unless otherwise provided to beseparate property (see discussion of “community property presumption” below);therefore, a spouse must (1) specifically plead and (2) prove by clear and convincingevidence each item of real or personal property claimed to be his separate property.

b. Community Property

“Community property” is any property acquired by either or both spouses duringmarriage by other than gift or inheritance. This includes virtually everything purchasedduring marriage. It is important to remember that a marriage legally endures even afterseparation; therefore, anything earned, purchased, or even merely contracted for, duringyour separation (whether before or after the divorce petition has been filed) will becharacterized as community property. This is true even if the property is not physicallyreceived until after marriage. For example, if the day before the divorce is granted a wifecontracts to purchase a new home (with closing set for one month later), or husbandenters into a partnership agreement, this will be characterized as community property.

All property, which exists in whole or in part in the name of either spouse at thetime of divorce, is presumed by law to be community property. This is referred to as the“community property presumption”. Therefore, if you have any separate property, or ifyou are in possession of property which does not belong to either you or your spouse, youmust point these out to your attorney.

In Texas, earnings from separate property are community property. For example,if husband has $5,000 in a bank account at the date of marriage, the $5,000 remains hisseparate property, but all interest earned on the $5,000 becomes community property.

Unlike separate property, a court has the authority to divide community propertyin any manner that it deems to be “just and right” (as discussed in more detail below).

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c. Out-of-State Real Property

Real estate located outside of Texas, which was purchased while either or bothspouses were domiciled outside of Texas, is treated somewhat differently than“community property” or “separate property”. If such foreign realty exists, please letyour attorney know.

d. Mixed Title to Property

Title to property can be both separate property and community property incharacter. For example, suppose a car is bought during marriage for a total of $10,000 incash; $6,000 of that was from husband’s separate property account which he had prior tomarriage, while $4,000 of it was from a bank account established during marriage andcontaining the community property earnings of the parties. In such event, title to theautomobile would be sixty percent husband’s separate property and forty percentcommunity property.

2. Debts and Liabilities; Taxes

Debts and liabilities incurred before marriage, if still in existence at the time ofdivorce, shall remain the debt of liability of the party who incurred it. Debts incurredduring marriage will be divided by the court between the parties at the time of divorce.One spouse may be required to assume a debt incurred solely by another spouse duringmarriage. Although not an absolute rule, the general rule of thumb is that, following thefiling of the divorce petition, courts are usually going to award a debt to the spouse whoincurred the debt during separation. Decisions will also need be made regardingcontingent liabilities, such as past income tax liabilities which may arise in the future ifthe parties are audited, as well as tax liabilities for the year of the divorce.

Caution: Although a court will order each spouse to be solely responsible for certaindebts and to pay them immediately when due, this is binding only as between the parties.This division, however, is not binding upon the third party creditors who are not partiesto the lawsuit. This is unavoidable unless every creditor (e.g., Mastercard, Visa, etc.) isactually made a party to your suit and, even then, the court would probably make oneparty primarily liable and the other party secondarily liable. The only protection is byway of indemnification, that is, is Spouse A is obligated to pay a bill, but does not do soand the creditor goes after Spouse B, Spouse B has the right to sue Spouse A to recoupthose funds. While this is not a very good solution, it is the only practical one available.While a lien can be placed against one spouse’s property to assure the payment by thatspouse of court-ordered debts, most parties and judges will not agree to so indefinitely tieup a person’s property in this respect.

3. Reimbursement

Pursuant to the rules above, there may at the time of divorce exist three different“estates”: (1) husband’s separate property estate; (2) wife’s separate property estate; (3)

35

the community estate. Each of these estates may have a “claim for reimbursement” backagainst the other estate or estates. For example, if husband owned a car, as well as a noteon that car before marriage, then at the time of the divorce the car will belong tohusband’s separate estate, but the community estate would have a right to ask a court toorder the husband (i.e., his separate estate) to “reimburse” the community estate forcommunity funds used to pay off his separate property car. This is one very simpleexample of the doctrine of “reimbursement”. Again, reimbursement can be by, against,and between any of the three estates.

It should be noted that to prove reimbursement, often requires a great deal of time,accounting, “tracing” of funds (discussed below) and expense to prove the claim.Whether reimbursement should be sought is a decision you and your attorney will makeafter weighing all of the factors.

4. Tracing

To determine title to property as being separate property and/or communityproperty, and to determine rights to reimbursement between the different marital estates,an accounting method referred to as “tracing” is often employed in divorce cases. Forexample, one bank account may contain funds which consist of both separate propertyand community property. Or, community property funds may be used to pay off abalance of a separate property debt. Tracing is employed to determine the title toproperty or the amount of reimbursement.

Doctrine of commingling: If funds in an account contain both separate property fundsand/or community property funds and these funds have been so commingled as to defy aclear divorce-time segregation by means of tracing, then the entire account will becharacterized as community property (because of the “community property presumption”discussion above). This is referred to as the doctrine of “commingling”.

5. Division of Property and Debts

The parties by settlement, or a court after trial, will divide all existing propertyand debts. While the parties may by agreement make any type of division that they want(e.g., give to husband certain of wife’s separate property, agree to alimony, etc.), a courtduring litigation does not have such flexibility but is bound by the rules of law set outabove with reference to property and debts. Also, these rules serve as the primary basisto guide the parties and their attorneys in reaching a settlement (see discussion regardingsettlements below).

Basically, a court may give each party his separate property and separate debts,then may divide the community property and debts in a manner that the court deems to be“just and right”. This may be an approximate 50/50 division of the net community estate,or a division which gives one of the spouses a disproportionately large share of thecommunity property (e.g., 70% to Spouse A, 30% to Spouse B). Contrary to popularbelief, the courts are not required to divide property 50/50.

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The division of property refers to the net community estate (i.e., all communityproperty less all community debts equals net community estate). Obviously, this does notrequire an equal division in kind of all property and debts. For example, suppose that thecommunity estate consists of one home (with a mortgage), three cars (two withmortgages), two retirement accounts, miscellaneous personal property (e.g., furniture),and five bank accounts. All together, this amounts to $100,000 in assets, and $75,000 indebts, for a community estate of $25,000. The court may give the husband 70% of all ofthe assets ($70,000) and 80% of all of the debts (-$60,000) for a net award to the husbandof $10,000 (which amounts to only 40% of the total net community estate).Simultaneously, the wife would receive only 30% of the assets ($30,000), but only 20%of the debts (-$15,000), for a net to the wife of $15,000 (which equals 60% of the totalnet community estate). Again, this is only a very simple example. Courts may enteralmost any kind of order to effectuate what the court finds to be a just and right division,such as requiring the parties to sell the marital home and divide the proceeds in a certainmanner, award certain community property to be held by both parties (and let themdecide later to sell it or not to sell it), etc.

As a general rule of thumb, in order to reach a “just and right” division of thecommunity estate, the court generally begins by presuming that a 50/50 division wouldbe equitable, then varies from there based upon a number of factors, especially the lengthof marriage, a disparity in the earning capacity of the parties caused by the marriage (e.g.,husband worked for 25 years while wife did not), whether there are minor or adultchildren being taken care of by a spouse, “fault” in the breakup of the marriage, etc. Asdiscussed in some detail below, the very nature of divorce cases makes it difficult topredict in advance with any degree of certainty exactly how a given court will divide thisproperty in a given case on a given day.

D. ALIMONY

“Alimony” is spousal maintenance, that is, funds paid by one spouse to and forthe support of the other spouse after a final divorce. Alimony differs from temporaryspousal support, which Texas courts have the authority to order during the pendency ofthe divorce (from the day of filing the petition until the day the divorce is granted). TheTexas Family Code allows a court to order limited alimony to a spouse under certainconditions, but the parties have to have been married at least 10 years for a spouse toqualify for spousal maintenance, unless there has been domestic violence or the receivingspouse is disabled. Even if these conditions are met, there are other rules concerningeligibility, amount, and duration.

The parties may, by agreement (i.e., contract), provide for alimony to be paid afterthe final decree of divorce is entered. The party paying alimony may deduct thesepayments from this income to gain a tax benefit, while the alimony recipient must declarethese payments as income.

E. CHILDREN

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If there are minor children of the parties, all divorce decrees and settlements willcontain orders governing the custody, possession and support of the children after thedivorce. A “child” is any minor who was born or adopted by the parties. Once a childturns eighteen, the court’s jurisdiction over the adult child ends (with several exceptionsregarding child support, which are discussed below).

1. Conservatorship

The Texas Family Code speaks in terms of post-divorce “conservatorship” ofchildren, meaning the legal status between the children and their parents after the divorceas it relates to controlling the children’s lives, have possession of and access to thechildren, and supporting the children.

The code expressly sets out a non-exclusive list of the rights, privileges, dutiesand powers of parents. In a nutshell, these rights and duties may be categorized into threeareas: (1) the right to make major decisions regarding the children; (2) the right to havephysical possession of the children; and (3) the duty to financially support the children.Conservatorship orders divide these various rights and duties among the parents after thedivorce.

a. Conservators

The Code refers to two types of conservators: (1) the managing conservator(s) and(2) the possessory conservator. These terms are confusing, because the “managing”conservator is, generally speaking, the primary custodian of the children, while the“possessory” conservator is not the primary custodian of the children (the “possessoryconservator” merely has some “possessory” rights to the children, e.g., visitation).

1. Managing Conservator(s)

A “managing conservator” is generally given all of the rights, privileges, dutiesand powers of a parent, to the exclusion of all others, including the other parent, except asotherwise ordered by the court. In short, the managing conservator is the primarycustodian of the children, and (1) has the right to make all or0 most of the majordecisions governing the children’s lives, (2) has the primary physical possession of thechildren (custody) and (3) has the right to receive child support on behalf of the children.As discussed below, there are now two types of managing conservators, “sole managingconservatorship” and “joint managing conservatorship”.

2. Possessory Conservator

A “possessory conservator” is generally given (1) only a handful of rights andduties to make decisions for the children which can be exercised only when the childrenare actually in the physical possession of the possessory conservator, (2) the right tocertain limited times of possession of the children (often referred to as “visitation

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rights”), and (3) the duty to pay the managing conservator child support for the benefit ofthe children.

b. Types of Managing Conservatorship

A managing conservatorship can be either “sole managing conservator” or a“joint managing conservatorship” [Unless very extreme circumstances exist, a parent willbe appointed the managing conservator of the children. A non-parental managingconservator (e.g., grandparent) can only be appointed if the appointment of a parentwould create an extreme danger to the child, or unless the parents agree.]

1. Sole Managing Conservatorship

A “sole managing conservatorship” exists when one parent alone is appointed themanaging conservator of the child and given virtually all of the rights, privileges, dutiesand powers of a parent to the exclusion of the other parent. In such an event, the otherparent will be the “possessory convervator”.

2. Joint Managing Conservatorship

A court will order that both parties are to be “joint managing conservators” of thechildren unless it can be proved that it is not in the children’s best interest. This is truewhether or not the parties agree to the joint appointment. Thus, both parents are, jointly,managing conservators, and neither is a possessory conservator. Joint managingconservatorship is often agreed to by the parties. The law presumes that it is in thechild’s best interest for the parents to be appointed joint managing conservators, and thatis what happens in the majority of the cases, even if the parties do not agree to it.

It should be noted, however, that joint managing conservatorships vary. A jointmanaging conservatorship order may be either a “pure” or real joint managingconservator, or a joint managing conservatorship in name only, or any combinationthereof. A “pure” (real) joint managing conservatorship authorizes both parents toequally exercise jointly all of the rights, privileges, duties and powers of a parent. On theother hand, under a joint managing conservatorship which exists in name only, whileboth parents are given the title of joint managing conservator, one parent is in reality, bythe detailed terms of the joint managing conservatorship order, given all of the rights andduties of a sole managing conservator, while the other “joint managing conservator” is inreality treated like a possessory conservator.

c. Possession of and Access to Child (e.g., Visitation

The managing conservator and the possessory conservator will be given certainexact times of possession of and access to the children. Usually, one parent (e.g., solemanaging conservator) is considered to be the primary custodian of the child and has thechild at all times except for those times of possession given to the other parent, while theother parent (e.g., possessory conservator) is given certain court-ordered times ofpossession of and access to the children (sometimes referred to as “visitation rights”).

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The legislature has by statute adopted what is referred to as a “StandardPossession Order”. Basically, the Standard Possession Order gives the non-custodialparent the right to possession of the children on every first, third and fifth weekend(Friday through Sunday), every Wednesday evening, and one-half of all holidays.Excluding the time that the children are asleep or in school, the schedule gives the non-custodial parent about 40% of the quality time with the children. For many reasons,judges rarely vary from this Standard Possession Order and only do so under unusualcircumstances (e.g., child is under three years of age).

2. Child Support

The non-custodial parent (e.g., possessory conservator), who has less physicalpossession of the children, is generally required to pay financial child support to theprimary custodial parent for the benefit of the children. Although this can take manyforms, child support usually consists of periodic (e.g., monthly) payments to the custodialparent.

The legislature by statute has adopted Child Support Guidelines. Basically, theamount of child support under the Guidelines will be based upon percentages (based onthe number of children of the support payer’s “net resources” (as defined in theGuidelines). For example, the guidelines require the payer to pay 20% of his “netresources” for one child, 25% for two children, etc. Most courts generally follow theguidelines in the usual case, absent unusual circumstances.

Also, the Family Code requires that, if the support payer is a salaried employee,the payer’s child support (or a portion thereof) be withheld from his wages by hisemployer and paid directly to the custodial parent. Although this can be waived, it rarelyis.

Child support is usually ordered to be paid through the Child SupportDisbursement Unit in San Antonio, Texas, which agency then keeps a record of allpayments received and forwards the payment to the child support recipient.

Other “child support” is also required in the form of health insurance for thechildren, orders requiring the payment of non-covered medical expenses, etc.

Child support is due until the child turns eighteen or, thereafter, until the end ofthe school year in which the child graduates from high school. IMPORTANT: If a childis mentally or physically impaired to the extent of requiring continuous care, childsupport may be ordered to be paid indefinitely past the child’s 18th birthday. If this is thecase with any of your children, be sure to inform your attorney.

3. Tax Considerations

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Generally, the custodial parent is entitled to the tax exemption for the child,unless otherwise agreed to by the parties. Also, certain child care deductions areavailable. Discuss these with your attorney or tax advisor.

F. OTHER ISSUES

There are also a number of other issues which may or may not directly relate tothe dissolution of your marriage, but which available to you at the time of your divorceand which, as a general rule, must be raised at the time of divorce, or they will be waived.These issues do not arise in the typical case, but they may be applicable to yours. If so,you should discuss them with your attorney.

1. Causes of Action Against Spouse

Besides the typical causes of action raised in a divorce, one spouse may have acause of action back against the other spouse for acts or omissions which may directlyrelate to the dissolution of the marriage. These include, for example, a civil cause ofaction for assault (e.g., one spouse hits the other), invasion of privacy (e.g., one spouseinstalls a telephone tap on the phone of the other spouse), one spouse intentionallydefrauds the other out of their separate property, one spouse takes the other’s separateproperty and gives it to another person, etc. If anything like these examples seem to applyto your case, discuss it with your attorney.

2. Causes of Action Against Third Parties

There are also certain causes of action which one spouse may have against thirdpersons which may be joined in the divorce. These include, for example, a request that athird party transfer back to one spouse property that was wrongfully given to that thirdperson by the other spouse in an attempt to defraud the spouse, a suit against a trustee ofa trust being held for the benefit of a spouse, etc. If any of these or similar matters existin your case, let your attorney know.

Note: The action known as “alienation of affection” which allowed a spouse to sue thelover of the other spouse, has been abolished.

G. ATTORNEY’S FEES, COSTS & EXPENSES

Attorney’s fees, costs and expenses related to litigation are treated as any otherdebt or liability of the parties and will be divided by the court in a manner that the courtdeems “just and right”. The court can sometimes order one spouse to pay the otherspouse’s fees, costs and expenses either in whole, or in part. An order to pay these feesand expenses is within the discretion of the judge. There is no automatic right to theaward of these fees and expenses.

Caution: One of the reasons a judge might require a spouse to pay the fees of the other isthat spouse has been uncooperative and has not followed the law and the rules withreference to the divorce proceeding.

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V. STEPS IN DIVORCE

A. GENERALLY

While these proceedings may be confusing and strange to you, there are sixtypical phases which the average divorce case may go through:

1st – Initiating the divorce2nd – Temporary orders3rd – Discovery of evidence4th – Settlement negotiations and/or Mediation5th – Trial (if no settlement)6th – After trial/settlement

Although each divorce case takes on its own unique personality, these basic steps occurin one form or another in most divorce cases.

Note: The law prohibits a divorce decree from being entered until at least 60 days haveelapsed from the date the divorce petition was filed. The “cooling off” period is, ofcourse, just a minimum period of time. Most cases take much longer to complete.

B. INITIATING THE DIVORCE

A divorce is initiated by the filing of a divorce petition by one of the spouses (the“petitioner”), the service of the petition on the other spouse (the “respondent”) and thefiling of a written response (and usually a counter-petition) by the respondent. Themanner in which a divorce is initiated can set the tone for the rest of the divorce case;therefore, how it is initiated must be carefully considered.

1. Emergencies

Sometimes emergencies may exist requiring immediate action. For example, onespouse may be destroying property, running up unusual debts, hiding or threatening torun off with the children, abusing or threatening the other spouse or the children, etc. Inthese cases, a Temporary Restraining Order (discussed in detail below) can be issued.

2. Petition for Divorce

The first legal step taken by the petitioner’s attorney is the drafting of a Petitionfor Divorce. It sets out the basic information required by the Texas Family Code, statesthe grounds for and requests a divorce, requests a division of community property and arecognition of the petitioner’s separate property, and requests orders concerning thechildren, etc. These are standard provisions. If an emergency exists, the petition maycontain a request for a Temporary Restraining Order (discussed in detail below), and itmay request the court to make temporary orders (discussed below).

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A petition can be amended time and again when necessary, provided it is not laterthan seven days prior to trial or some other deadline imposed by the court. Often theoriginal petition is very mild, without containing any inflammatory allegation, likeadultery. There are several reasons for this. First, it helps start the process on a lesscombative basis, which may help to keep the costs of the litigation from escalating.Second, your attorney may not want to reveal all of your legal positions at the beginning,unless to do so might promote settlement or otherwise benefit you.

The petition will be filed with the court clerk (for which a filing fee is charged),and the clerk will assign your case and a cause number. The clerk keeps a file and docketsheet on your case.

3. Service of Petition

The respondent must receive a copy of the petition. This may be done in one oftwo ways. The petition may be formally served on the respondent by a Sheriff, Constableor private process server. Or, the petition may be informally given or mailed to therespondent or his attorney. Formal service is required if a Temporary Restraining Orderis requested and it may be preferred in many situations; however, it also can beembarrassing to the respondent to be served at his place of business, and this in turn startsthe case off on bad footing. While informal service may be less antagonistic, it has itsdrawbacks. A respondent is required to file a formal “response” (discussed below) withina certain time, but only if formally served. Your attorney will discuss these options withyou before the filing of the petition.

4. Response & Counter-Petition

If formally served, the respondent must file a written response to the petitionwithin a stated time from the date of service, usually 20 days. This response is usuallycalled an “answer” in which the respondent “denies all of the allegations in the originalpetition.” This is a standard form which serves to prevent the petitioner from taking adefault judgment against the respondent. The respondent may file a counter-petition fordivorce against the petitioner. It is usually delivered to the petitioners attorney, withformal service on the petitioner.

C. TEMPORARY ORDERS

Between the time of the filing of the petition and the granting of the divorce, theparties usually enter into temporary orders, either by agreement or by court order, togovern the parties, their property, debts and children pending the granting of the finaldivorce.

1. Temporary Restraining Order (TRO)

If emergencies exist requiring immediate action to protect a spouse, a child, orany property, a Temporary Restraining Order (TRO) can be signed by the judge and

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served on the respondent along with the petition. It immediately restrains the respondentfrom the acts described in the order . If you are served with a TRO, you should be certainto obey all of its terms, failure to do so is punishable by contempt of court. The TROexpires 14 days after it is issued; therefore, a hearing on temporary orders must be heldwith the 14-day period, so that temporary orders of a more indefinite duration can beentered.

2. Temporary Orders

A temporary order may be entered by agreement of the parties or by the courtafter a temporary hearing. If by agreement, the parties save the expense of a pre-trialhearing. A temporary order may be entered whether or not a TRO has been issued.Temporary orders normally stay in effect until the final decree is granted.

The temporary order may provide for an injunction against the parties hiding,wasting or destroying property, prohibiting them from incurring any unusual debts, andcontain orders for temporary custody and support of children. The court may also orderone spouse to pay temporary spouse support to the other spouse. You should be preparedto provide your attorney with details of your monthly living expenses as well as paymentson debts. This information is essential for determining the amount of temporary supportto be paid or received. The temporary order usually requires the parties to producedocuments and/or to file a formal inventory (discussed below).

D. DISCOVERY OF EVIDENCE

The facts regarding the property, debts, the parties and the children form thefoundation of any divorce case. Therefore, information gathering is one of the mostimportant and time consuming aspects of the divorce. You have more knowledge of oraccess to the necessary information and documents than does your attorney. The moreyou can gather, the less time must be spent on this aspect of your case by the attorney.The more you are involved in the process, the more you learn about the facts necessary tomake appropriate decisions regarding your own case. For all of these reasons, you needto be as personally involved as possible in gathering information.

1. Information Sheets

You will be given detailed information sheets to be completed. While tediousand time-consuming, it is extremely important for you to complete these with as muchdetail as possible.

2. Gathering Documents

You may be requested to gather and bring to your attorney many differentdocuments, such as real estate deeds, bank statements, insurance policies, etc. If you do

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not have these in your possession, try to get them from other sources (except yourspouse). If you cannot, notify your attorney as soon as possible.

3. Inventory

In most cases, the parties are required to prepare and file an “Inventory andAppraisement”, which is a listing of all community and separate real and personalproperty as well as liabilities of the parties. Your attorney will assist you with the formof the Inventory. You will be asked to sate the value of the property and the exactamount of any liability. You are required to sign the inventory, under oath.

This is a very important part of your case. You must be complete and truthful inyour Inventory. If your case is not settled and a trial becomes necessary, the judge usesthe information contained in the Inventory to assist in dividing the property. If you swearto one thing in your Inventory and later, at the trial, attempt to take a different position,your testimony will be suspect.

4. Appraisers

Often it is necessary to hire appraisers to help establish the value of property,including real estate, retirement benefits, businesses, or other assets. Your attorney willadvise you if this is necessary in your case.

5. Formal Discovery

Under Texas law, parties to any suit, including divorce, are allowed to discover agreat deal of information from the other party by means of formal discovery devices.These include oral deposition of a party or witness, interrogatories (written questionswhich are answered in writing and under oath), requests for production of documents,request for disclosure, and requests for admissions. One or more of these may be used inyour case. Your attorney will advise you with respect to these matters.

Caution: Most forms of formal discovery require strict compliance deadlines, usually 30days from the day they are served on your attorney. There are harsh sanctions for failureto comply, including payment of fines and/or attorney’s fees. Further, failure tosupplement your answers 30 days prior to trial may result in undesirable consequences.For example, failure to list a witness in answer to an interrogatory will mean that personis excluded from testifying at the time of trial.

E. SETTLEMENT

After all discovery is concluded, the parties will enter into settlementnegotiations. Rest assured that no settlement offer will be made or accepted by yourattorney until you have fully understood and approved the proposal. Usually severaloffers and counteroffers are made back and forth between the parties before a settlementis hammered out.

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Because most cases are ordered to go through mediation, probably over 90% ofall cases are settled out of court, although this can often happen just prior to trial (e.g.,“on the courthouse steps”), or, sometimes, in the middle of trial. Although settlementsmay appear to be possible, your attorney cannot ignore trial preparations if settlementnegotiations and mediation are not successful and the trial date is approaching.

One reason parties settle is to avoid the expense of trial. Also, neither party northeir attorneys can predict in advance exactly how a particular judge on a particular day isgoing to rule in any given case.

The key to any settlement is compromise. While no settlement can be forced onyou or your spouse, both you and your spouse need to understand that compromise and areasonable attitude of “give and take” is necessary if there is going to be any reasonablechance of a meaningful settlement. Neither party ever gets all that they want.

Important: To effectively negotiate a settlement, you must try to look at the settlementnegotiations from your spouse’s point of view; a good negotiator always attempts to puthimself in the shoes of the opponent and try to determine what issues are most importantto the opponent, where the opponent will draw the line on what issues, etc.

As can be expected, attorneys generally advise clients with regard to settlementbased on a number of factors, but the major factor is a determination by the attorney ofwhat a court would probably do if the case went to trial. Any settlement offers which areunreasonably out of line with what a court would probably do are rarely accepted exceptunder the most extreme and unusual circumstances.

Settlement may be achieved by way of a process know as mediation. The partiesmay agree to seek mediation or they may be ordered to mediation by the court. A neutralthird party, usually an experienced lawyer or a retired judge, is selected to serve as themediator. The fees for the mediator are usually shared by the parties. Both spouses andtheir attorneys appear before the mediator in efforts to settle the case.

The mediator is not an arbitrator. That is, he has no power to “force” a settlementor otherwise adjudicate the dispute. He does attempt to compromise the legal differencesbetween the parties and encourage a resolution. Usually, a portion of the time spent withthe mediator is devoted to the parties “venting” their grievances against the other.Following that phase, the mediator will ask each side to express his or her suggestion forsettlement. From there the mediator discusses, in private with each side, possiblecompromises to the differences. If successful, this process eventually results in asettlement. Most cases are mediated in one day’s time. Normally, it does not occur overdays or weeks. Statements made in mediation are confidential and are subject to the“settlement rule”, discussed below. This allows the parties to freely exchange their viewswithout fear that they will be admissible at the time of trial. Your attorney will adviseyou as to the suitability of mediation for your particular case. If the court orders it, whichis almost always the case, you will have no choice but to attend. You should have a good

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attitude towards mediation and make every effort to participate in it, as you promisedwhen you signed the ADR Statement that was attached to your first pleading.

Finally, there often comes a time when settlement negotiations reach the point ofnegative return, and the attorneys must finally turn their energies to preparing for trial.

Caution: In Texas, a rule referred to as the “settlement rule” generally keeps out ofevidence any settlement negotiations going on between attorneys; however, this onlyapplies to formal settlement negotiations between or conducted by the attorneys. Thisrule does not apply to private settlement discussions between the individual spouses;therefore, anything that you say to your spouse can (and most likely will) be admissibleinto evidence if the case goes to trial. This can be devastating. For example, in one case,a husband told his wife in a phone conversation that he really didn’t want the children,that he was only asking for custody of the children in order to try to help him on theproperty settlement, and that if she would just not ask for so much property and childsupport, then he would gladly let her have custody of the children. As you can expect, allof this conversation was brought out to the court, and it was quite harmful to husband’scase.

F. TRIAL (IF NO SETTLEMENT)

If settlement negotiations fail, then the case must go to trial. Do not be undulyfearful of trial. Trials in real life are not what they are on TV or in the movies. Rarely isthere anybody present in the entire courtroom except the two parties and their attorneysand staff, the judge, a clerk and the court reporter. The atmosphere is usually very formaland subdued. No one gets up in a witness’s face and mercilessly grills the witness oncross-examination until they break down. No judge would allow such conduct in reallife. Your attorney and the staff will prepare you extensively for any and all roles youwill have at trial.

Sometimes only the parties testify, while in other trials a large number of expertand fact witnesses will be called to testify. The vast majority of divorce cases are triedbefore the judge, not a jury. For one reason, jury trials are much more expensive andtime-consuming than trial to the court. In some cases, however, jury trials areappropriate. Your attorney will discuss these two options with you.

At the conclusion of trial, the judge will enter his rulings and orders, usually rightthere in the courtroom or, sometimes, days later by way of a letter to the attorneys.

G. AFTER SETTLEMENT/TRIAL

After a settlement has been reached or the trial court has entered its orders, thereis still a great deal of work to be completed.

1. Post-Trial Motions

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If the case has been tried, very often one or both parties may file various post-trialmotions with the court, asking the court to reconsider its rulings, etc. There are certaindeadlines for the filing of these motions (e.g., 30 days after the divorce decree is signed).You and your attorney can decide whether or not you need to file any post-trial motions,but you cannot control what your spouse and his/her attorney does. In any event, thesepost-trial matters can sometimes be quite time-consuming.

2. Drafting Documents

Whether your case is settled or tried, there is a great deal of work to be done withrespect to drafting of the divorce decree and other documents. Any agreed or litigatedjudgment for divorce is only as good as it is enforceable, and its enforceability depends inlarge part on how carefully it is drafted. Many lawyers have done well for their clients attrial or in settlement, only to end up losing much of what they had gained because of theattorney “out drafting” them with respect to the decree and/or agreement (lawyerssometimes refer to this as getting “pencil whipped”). Therefore, a great deal of time andcare must go into the tedious drafting of your unique decree and the documents related toyour divorce.

Rest assured that you will approve in advance any and all documents before theyare finalized and signed by the parties and the court.

a. Divorce Decree (Agreement Incident to Divorce)

If your divorce case is settled, it may result in two documents – a lengthyAgreement Incident to Divorce, which is signed by the parties (this is a contract betweenthe parties), and a short Agreed Final Decree of Divorce, which incorporates andapproves the parties’ agreement and is signed by the judge (this is a judgment by thecourt). Or, your settled divorce may result in only one document entitled an AgreedDecree of Divorce, which is signed by the parties and a judge and serves, simultaneously,as both a contract between the parties and a judgment of the court. The consensualdecree is enforceable not only as a private contract between the parties, but also as adecree which is enforceable as any other judgment entered by a court.

If your divorce is litigated, then only one judgment – a Final Decree of Divorce –will be signed by the judge. It is enforceable as any other civil judgment, but is notenforceable as a contract between the parties.

b. Other Documents

Besides the decree and the agreement discussed above, many other documentsoften need to be drafted to implement the terms of the divorce decree or agreement, suchas real estate conveyances, qualified domestic relations orders (which divide retirementbenefits) vehicle transfers of title, etc. Again, your attorney and you will fully reviewthese documents before they are signed.

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3. Appeal

Neither party can appeal a settled divorce, but either party can appeal the ruling ofa court following a litigated divorce. Although appeals are extremely difficult to win andcan be very costly, they are available. Your attorney will discuss the option of an appealwith you should the need arise.

VI. THINGS TO AVOID

There are a number of very important things for you to carefully avoid throughoutyour entire divorce case. Despite what your spouse may do, it is important that you keepa “white hat” on throughout these proceedings. Violating any of the following rules canbe very detrimental to your case. Although most of these rules have been discussedabove, they bear repeating.

A. DON’T DISCLOSE CONFIDENTIAL INFORMATION TOOTHERS

Remember, the attorney-client privilege only exists between you and yourattorney and his immediate, in-house staff. Therefore, in order to keep this type ofconfidential information privileged from disclosure, do not discuss it with or give it toanybody, including your spouse and including any professional hired to assist you in thecase.

B. DON’T HIDE/DESTROY PROPERTY OR DOCUMENTS

Whether or not any temporary orders have been entered, never destroy, waste,hide, alter, collateralize or otherwise do anything to affect the title or the value of anyproperty, or destroy or alter any documents. Be sure to consult with your attorneyregarding any question that you have with respect to dealing with present property andexisting documents.

C. DON’T INCUR UNUSUAL DEBTS/LIABILITIES

Whether or not temporary orders have been entered, never incur unusual debts orliabilities (e.g., charge an unusually high amount of clothes, and expensive vacation,etc.). This will generally be considered against you by the judge and, more often thannot, the judge will first make an overall “just and right” division of the property and debtsand then, thereafter, order that you be solely responsible for any such unusual liabilities.

D. DON’T DISCUSS THE SETTLEMENT WITH SPOUSE

As discussed, the rule precluding evidence at trial of settlement negotiationsbetween attorneys does not apply to settlement negotiations between spouses. Therefore,do not discuss settlement with your spouse unless authorized in advance by your attorney.

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E. BEWARE OF TELEPHONE TAPE RECORDINGS

It is not unusual for one spouse to tape record the telephone conversations he haswith the other spouse. These recordings are admissible into evidence and have been thedownfall of many irrational spouses. Any time you speak to your spouse on the phone,you should presume that it is being taped.

F. DON’T BELITTLE YOUR SPOUSE TO OTHER PEOPLE,ESPECIALLY THE CHILDREN

Judges and juries do not take kindly to one spouse belittling the other spouse tothird persons, and especially the children. Everyone realizes that there are certain peoplewith whom you will confide about your divorce and that some criticism of your spouse isnatural; however, try as hard as you can to keep this to a minimum, for these people mayhave to testify under oath as to all of the negative remarks or hot-headed threats you mayhave made against your spouse in a moment of anger. It is not uncommon to take thedeposition of the best friend of one of the spouses, who will admit that the spouse hasstated that “I’m going to take that so-and-so to the cleaners, and I don’t care what it costs,even if I have to lie to the court to do it.” These remarks will have extremely undesirableconsequences.

Above all else, never criticize your spouse in front of or to the children. It cannotbe overemphasized how detrimental this will be to your case. It has literally cost many aparent custody of the children. Judges and juries are extremely critical of this behavior.Most mental health professionals will tell you that the children get their own self-esteemfrom both parents; therefore, when one parent tells the child that the other parent is “nogood”, this can leave long-lasting scars on the child’s self-image. Also, childpsychologists warn that eventually this criticism of the other parent will backfire on thecriticizing parent; the child, as he grows older, starts to know the other parent in adifferent and better light and feels that his earlier alienation from that parent wasunjustified and caused by the other parent; they eventually resent the criticizing parent.In any event, you are strongly advised against making any criticism of the other parent ortaking any action which could remotely tend to alienate the affections of the children forthe other parent.

G. DON’T START A BUSINESS, OR CONTRACT FOR ORPURCHASE PROPERTY

Even if you are separated and the divorce petition has been filed, you are stilllegally married, and any property purchased, even if it is on the day before the divorcewill be considered community property. If that property is not divided at the time of thedivorce, then it will be considered undivided community property to which both partieshave an interest. Even years after the divorce, the court can require you to partition thatproperty or order it sold, so that your spouse can own a share of the property. The same

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rule applies to the establishment of a business. Before you purchase any property or enterinto any contracts during the pendency of your divorce, consult your attorney.

VII. COMMON QUESTIONS

The following are questions frequently asked by persons at the beginning ofdivorce litigation. The answers provided are general. You should ask your attorney todiscuss the specifics of your case.

WHEN CAN I BEGIN TO DATE?

Not until the divorce is final. Adultery is a ground for the granting of a divorcebased upon fault. Your legal status as a married person does not change until a divorce isgranted. Although some judges are lenient regarding dating while a divorce is pending,you should be cautious about taking this risk. The fact that your spouse may be datingshould not be an excuse or justification for your conduct. You need to wear the “whitehat”. If you do decide to date, you should know that it may impact adversely on a childcustody dispute. In no event should you introduce the children to your dates. Nocommunity funds should be spent for the entertainment of third parties.

HOW DO I GET A “LEGAL SEPARATION”?

There is no such thing as a “legal separation” under Texas law. Even thoughtemporary orders may be entered by the court, they are not to be construed as a legalseparation.

CAN I OPEN MY SPOUSE’S MAIL?

No. If you receive any mail addressed solely to your spouse, it should beforwarded to him or to her by you or through your attorney.

SHOULD I CLOSE BANK ACCOUNTS AND/OR CREDIT ACCOUNTS?

If you have been served with a Temporary Restraining Order, you will beprohibited from closing accounts. If you have not, you are free to close the accounts.You should consider the possible consequences. Closing an account without notice toyour spouse may cause unnecessary embarrassment. It may also increase hostility andmistrust.

If your spouse is likely to spend or hide money in an account or run up largebalances on a credit card, it may be a wise decision. If you close bank accounts, youshould not spend the funds. The best plan is to deposit all the funds from the closedaccount into a new account, solely in your name, so that you can fully account for thetransaction later.

CAN I RECORD TELEPHONE CONVERSATIONS?

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Wiretapping is a felony and can subject you to criminal prosecution. However, itis lawful to tape record a conversation as long as one party to the conversation consentsto the recording. Therefore, you may record a conversation between yourself and anotherperson. You may NOT secretly install a recording device so as to intercept conversationsbetween others. To do so is a felony. The whole issue of recording telephoneconversations is very sensitive. You should carefully discuss it with your attorney.

CAN A WITNESS TESTIFY BY AFFIDAVIT?

No, except in very limited circumstances relating to business records. Generally,testimony must be given in person at the time of trial, or by pre-trial deposition. Thisgives each side the opportunity to examine and cross-examine the witness. An affidavitcannot be cross-examined.

VIII. SPECIAL ISSUES

If your case involves domestic violence and/or child abuse, you should makethese matters known to your attorney immediately.

A. VIOLENCE

If your spouse has a history of violence or threats of violence toward you orothers, you should be aware of the availability of protective orders which can be issuedby the court. These orders will prohibit your spouse from coming near you, yourresidence or place of business. Violation of the order can result in immediate arrest.

However, if a person is intent on causing harm to another, no court order willprovide full protection from danger. You may need to consider taking refuge in a shelteror other secure location. These are serious matters and you should employ all means toprotect yourself from harm. This also means that you should IMMEDIATELY cease anycontact with your spouse.

B. CHILD ABUSE

If you have reason to believe that your child has been abused, you shouldimmediately report it to the police or child welfare authority as well as your attorney.However, you should never make unfounded or capricious allegations of child abuse.That will adversely impact your position in a child custody dispute.

If the allegation is based upon sound evidence, your attorney will discuss themethods available to protect the child from further abuse. In most cases, the child shouldbe seen by a physician and/or mental health professional as soon as you learn of theabuse.

IX. THE NATURE OF DIVORCE CASES

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Divorce cases are unlike virtually all other civil litigation. For one thing, they areextremely emotion-charged. Further, they require a working knowledge of such a widevariety of different areas of the law. Also, judges have much broader discretion in familylaw cases than they do in most other areas of the law.

Another major distinction between divorce cases and most other areas of litigationis that there is virtually never a clear-cut “winner” or “loser” in a divorce case. Bothdivorcing parties are usually asking for the same thing – a “fair” division of the assets anddebts, and a “proper” decision that is in the best interest of the children. The problem is,each has a completely different view of “fair” and “proper”. Because judges have suchbroad discretion in family law cases and because each judge brings his own set of valuesto the bench, the results in a divorce case are frequently unpredictable in virtuallyidentical cases.

Additionally, judges have a tendency to “play Solomon” in divorce cases. Theytry to be fair by splitting things down the middle i.e., to give both parties some but not all,of what they want. For example, a husband will say that his business (which he will wantto receive in the decree) is worth only $10,000. Wife’s expert will swear it is worth$50,000, and the judge will determine it is worth $25,000, which pleases neither party.Unfortunately, this is often the rule rather than the exception in divorce cases.

Each spouse, convinced that his or her points of view are the only “fair” and“proper” views, feel that they need to somehow be vindicated for all of the pain and hurtthey have gone through. They set up false expectations. They expect courts to “solve”their financial and other problems. In reality, courts cannot usually “solve” a party’sproblems; all a court can do is to divide up what presently exists and grant a divorce.

Because of all of the above, it has become an unfortunate but often-stated sayingamong divorce attorneys that, if the court enters an order which is not satisfactory toeither party, it is probably a fair decision.

Also, because of the above, it is very difficult for any attorney to predict with anydegree of certainty exactly what a judge will do in a particular case. All attorneys havewon some that they thought they should lose and have lost some that they thought theyshould have won, and while attorneys can generally give a broad ballpark idea of what ajudge will probably do (if everything falls into place), there is no way for any lawyer toguarantee what a judge is going to do on a given case. This is one of the reasons so manycases settle.

Finally, it is very difficult for any party to come out of a divorce feeling as if he isthe “winner”, no matter what the result is. Sometimes this is because of falseexpectations, and often it is because there is simply no way for either party to be a“winner” or “loser” in the overall scheme of things.

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INFORMATION ABOUT MODIFYING YOUR

YOUR DIVORCE DECREE

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INFORMATION ABOUT MODIFYINGYOUR DIVORCE DECREE

Any time parents with children divorce, there are specific parts of the divorce decreerelating to the children. These include conservatorship (the word we use instead of “custody”),child support, and periods of possession (commonly called “visitation”). The Texas courts havethe power to change the parts of a divorce relating to children until the children get out of highschool (or earlier, if they are living on their own).

In some situations, the child-related provisions of a decree may be updated and changed.Except in rare cases, the property division contained in a divorce decree may not be changed. Ifparents are divorced when children are very young, it is common for child-related provisions of adivorce decree to be changed several times before the children are out of high school.

Modification by Agreement

Frequently, parents who need changes to court orders will make informal modificationsto the divorce decree. Although parents are free to make agreements which are in the bestinterest of the child, agreements for changes which are not included in court orders will notofficially change the duties and rights of either parent.

For instance, parents might agree that child support ordered in their divorce decree shouldbe lowered because the paying parent’s income has gone down. If the agreement is not recited ina court order, the paying parent could be required to pay the entire amount as originally orderedby the court if a dispute between the parents arose and could also be held in contempt of courtand jailed. This is true even if the parties write down their agreement, unless it is approved bythe court.

If the paying party had received a court-approved modification of the divorce decreesetting out the reduced amount, he or she would not have been at risk for owing the higheramount unless the court order was changed again. The same risks apply to informal agreementsconcerning visitation, health insurance payments and any other court orders relating to children.

Most modifications are, however, settled without hearings or trials. The parents’agreement is written into an Agreed Order Modifying Prior Order in Suit Affecting the Parent-Child Relationship. Each party and the attorneys sign the orders and present them to a judge forapproval.

If the parents cannot agree, the facts are presented to a judge, associate judge, or, in somecases, a jury, who will decide whether an order should be modified.

Conservators Defined

In Texas, parents will be named as conservators of children unless there is a good reasonwhy a parent should not be allowed to be a child’s conservator. There are some situations whereothers, like grandparents, may also be named as children’s conservators.

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Generally, parents who divorce will either be named as Joint Managing Conservators, orone parent will be named as Sole Managing Conservator and the other will be named asPossessory Conservator. The Texas Family Code sets out the following as the rights, privileges,duties and powers of Conservators, as amended effective September 1, 1993:

1. A parent appointed as a conservator of a child has during the period thatthe parent has possession of the child:

(A) the right to physical possession and to direct the moral andreligious training of the child;

(B) the duty of care, control, protection, and reasonable discipline ofthe child;

(C) the duty to support the child, including providing the child withclothing, food, shelter, and medical and dental care not involvingan invasive procedure; and

(D) the power to consent to medical, dental, and surgical treatmentduring an emergency involving an immediate danger to the healthand safety of the child.

2. Each parent appointed as a conservator of a child has at all times:

(A) the right of access to medical, dental, psychological, andeducational records of the child;

(B) the right to consult with any physician, dentist or psychologist ofthe child;

(C) the right to consult with school officials concerning the child’swelfare and educational status, including school activities;

(D) the right to attend school activities;

(E) the right to be designated on any records as a person to be notifiedin case of an emergency; and

(F) the right to manage the estate of the child to the extent the estatehas been created by the parent or the parent’s family.

3. A parent appointed as the Sole Managing Conservator of a childexclusively has:

(A) the right to the services and earnings of the child;

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(B) the power to consent to marriage, to enlistment in the armed forcesof the United States, to medical, dental, and surgical treatmentinvolving invasive procedures, and to psychiatric andpsychological treatment;

(C) the power to represent the child in legal action and to make otherdecisions of substantial legal significance concerning the child,including the right to establish the primary residence of the child,except when a guardian of the child’s estate or a guardian orattorney ad litem has been appointed for the child, a power as anagent of the child to act in relation to the child’s estate if thechild’s action is required by a state, the United States, or a foreigngovernment; and

(D) the power to receive and give receipt for periodic payments for thesupport of the child and to hold or disburse these funds for thebenefit of the child.

A Joint Managing Conservatorship is nothing more than a division of these rights andpowers between the parents. Parents can agree to share some of the rights that would otherwisebelong to only a Sole Managing Conservator. Naming the parents as Joint ManagingConservators has no effect on visitation rights or on the amount of child support due under theguidelines. However, the parents can agree to do something that is different than what is calledfor in the statutory guidelines.

Jurisdiction

The Texas court that granted a divorce retains the power to modify the parts of the decreerelating to children until a child is out of high school or living on his own. If however, the children havelived for at least six months in another county in Texas, the case must be moved to that county upon anyparty’s request.

If the children or parties have relocated to another state, there may be differentjurisdictional problems. These situations may be governed by a federal law called the UniformChild Custody Jurisdiction Enforcement Act. You need to discuss this with your attorney todetermine the jurisdictional problems, but in most cases, the action will remain in Texas.

Persons Who May Bring Suits for Modification

Any person who has rights to possess a child under a court order may ask for amodification. This will almost always include both of the child’s parents and no one else. Insome limited cases, other people may be allowed to bring a suit to modify a prior order.Examples are listed below.

Grandparents

A grandparent may start a suit asking for Managing Conservatorship of a childonly if the grandparent can prove that the current court order puts the grandchild at risk of

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serious physical harm. Grandparents may ask a court to order specific times for them tovisit a grandchild. Grandparents can start a suit to get only visitation rights if they canprove that:

(1) the parent who is the child of the grandparent has been in jail, prison, orhas been found to be incompetent; or

(2) the parents of the child are divorced or have been living apart for at leastthree months; or

(3) the child has been abused or neglected by a parent; or

(4) the child has been found to be delinquent; or

(5) the grandparent is the parent of a person whose parental rights have beenterminated (unless the child has been adopted by someone other than astep-parent); or

(6) the child has lived with the grandparent for at least six months out of theprevious 24 months.

Persons With Whom the Child has Lived for Six Months

If the conservators under a court order have allowed a child to live with a personwho is not a conservator for six months or more, the person who has cared for the childmay ask a court to modify a prior court order to give him or her ManagingConservatorship. This would include a step-parent in situations where the child’s parentdies.

Proof Requirements

In each suit to modify a divorce decree the court will require the person who brings thesuit (called the “Petitioner”) to prove certain facts. If the Petitioner cannot do this, the court willorder that the divorce decree will not change. Suits asking to change various parts of the decreerequire a Petitioner to prove different elements, but all elements must be proved by credibleevidence presented through witnesses and documents. Generally, affidavits are not accepted bya court as evidence.

Changed Circumstances

Any time a person asks for changes in a decree, he or she must prove that thecircumstances of one or both of the parents, or of the child, have materially and substantiallychanged since the time of the prior order. Whether a change is “material and substantial” isdecided on a case-by-case basis. Courts have ruled that anything from the increased costs ofolder children to a move by a parent and the children across the country are material andsubstantial changes.

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Elements Required for Modifying Specific Provisions

A suit to modify a prior order will require the Petitioner to prove different elementsdepending on the part of the divorce decree he or she is trying to change. The elements aPetitioner will be required to prove in the most frequently-sought modifications are listed below.

Petitions to Modify Conservatorship or Possession and Access

A conservator may believe that the child would be better off living with him or her thanwith the parent who was given that right in the original court order. In this event, the Petitionerwould have to prove that the modification would be in the best interest of the child and:

(1) the circumstances of one or both of the parents or the children havematerially and substantially changed since the rendition of the prior order;

(2) the child is over 12 and has signed a pleading called a “choice” whichindicates where the child wants to live; or

(3) the other conservator has relinquished possession of the child to thePetitioner for at least 6 months.

If a suit is brought within a year of a prior custody order, the Petitioner must alsoprove that the conservatorship as set out in the court order presents a serious threat to thephysical safety or emotional welfare of the child. Unless the primary joint managingconservator has left the child with the Petitioner for six months or more, a court must finda threat to the child before the Petitioner will even get a hearing.

A change in the terms and conditions of visitation will usually revise the scheduleof time a child spends with each parent. In some unusual circumstances, however, such amodification could deal only with the non-schedule issues such as requiring a parent’stime with a child to be supervised.

A modification of the schedule of visits is almost always required when oneparent moves more than about 50 miles away from the child, and this is the mostcommon time that a suit to modify visitation occurs. A court will also decide who shouldpay any increased costs relating to visits, including transportation costs like air fare orbus tickets for the child or hotel accommodations for a parent who visits a child from outof town.

Recent changes to the Texas Family Code now allow parents with weekendvisitation to elect to extend their periods of weekend possession so that they begin at thetime school ends on Friday and ends at the time school resumes the following Monday.If such a provision is not in the prior order, the election may be made at the time othervisitation provisions are modified.

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Petitions to Modify Child Support:

The Petitioner must show that the circumstances of one or both of the parents orthe child have materially and substantially changed since the prior order to change theamount of child support, or that more than three years have passed since the last orderand the amount differs either by 20 percent or $100 from the amount in the child supportguidelines in the Texas Family Code. Support modifications may not be entered foramounts that were owed prior to the filing of a request for an increase or decrease. Aparent who had custody of a child during a period for which he or she owed support mayuse that fact as a defense against a motion for contempt for nonpayment of child supportduring that period.

The Texas legislature has enacted guidelines setting out the amounts of childsupport that should be paid based on the paying parent’s net income from all sources. Anew spouse’s income should not be considered in setting child support. Orders that wereentered before there were child support guidelines may be modified so that the amountordered is consistent with the guidelines. The Family Code is clear, that an increase inthe needs, standard of living, or lifestyle of the person who receives the support is not areason to raise the paying parent’s child support obligation. However, the courts will rulethat if the paying parent’s lifestyle has improved, the children should benefit from his orher ability to pay more.

A court may set support in an amount that is different than what the guidelinescall for based on factors including whether the paying parent is putting a child throughcollege, the expense related to visitation and the income of the receiving parent.

A parent who pays support is also expected to pay the child’s health insurancepremium and part of the uncovered medical expenses for the child. Given the rising costof both health insurance and medical care, issues relating to health insurance – includingpolicy types and minimum coverage requirements – are frequently the subject of petitionsto modify child support.

Effective September 1, 1993, the legislature revised the child support guidelinesto lower percentages of net income to be paid to each family in cases where a payingparent owes support to more than one family. These provisions may allow a parent whopays for children in more than one family to change the amounts paid to each family.

The receiving parent may seek to modify a child support order which calls forsupport to be paid only through a child’s eighteenth birthday. Newer orders continuechild support until a child is out of high school. In cases where children become disabledafter a child support order has been established, modification is available to extendsupport indefinitely.

Best Interest of the Children

In all cases, the Petitioner must also prove that the requested modification would be in the bestinterest of the children involved.

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Testimony of Children

Generally, judges take the position that children should not be asked to testify in custodymatters. It is very difficult for a child to sit on a witness stand, look a parent in the eye and sayunder oath that he wants to live with the other parent. Judges may interview the childrenprivately, however, and are required to talk to a child who is more than 12 years old if any partyrequests that the child be interviewed. Judges can decide whether to interview children who areunder 12.

Children who are at least 12 years old may sign a statement choosing one parent as theconservator with whom they want to live. A child’s testimony about where he wants to live orthe fact that a statement of choice has been signed are not binding on a judge. If a parent canconvince a judge that pressure to choose has been put on a child or that a child’s choice wouldnot be best for him or her, the child’s choice will not be honored. Generally, however, the choiceof a teenager will greatly influence a custody decision.

Procedure for Modifying Prior Orders

Contents of Petition

All suits by parents to change court orders are started by filing a Petition toModify Prior Order in Suit Affecting the Parent-Child Relationship. Suits brought bypersons who were not mentioned in a prior order, like grandparents or persons withwhom a child has lived for more than six months, would file a Petition for Further Actionin Suit Affecting the Parent-Child Relationship.

Each request for a change in court orders must state that the elements necessary to provethe requested modification (listed above) exist. Petitions which seek to changeconservatorship within a year of a prior custody order must also contain an affidavitsigned by the Petitioner stating specific facts to support a claim that the child is in dangerof physical or emotional harm.

Citation and Service

Each person whose rights are affected by the order to be modified must be servedwith the Petitions. Persons who are served with a petition must file a written answerwithin about 20 days if they want to participate in the modification proceedings. A courtmay not make a valid modifications order unless all persons involved have been servedwith citation or have taken part in the suit.

Temporary Orders

A court can grant a party’s request to make an immediate change in the priororder until a full hearing on the requested modification can be held. In larger counties,hearings on temporary orders are heard by Associate Judges who hear only family lawmatters. A party to a modification proceeding who disagrees with the ruling of the

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Associate Judge may request a new trial before a District Judge, called a trial de novo.Parties pursuing trials de novo after an Associate Judge’s ruling are required to followstrict procedural rules to protect that right.

A court will not change the conservatorship with whom a child lives duringtemporary orders unless it finds that the child’s physical or emotional welfare would be indanger if custody were not changed immediately, or unless a child over the age of 12 hassigned a statement choosing one parent as a Managing Conservator. Even in cases wherechildren have filed such statements, if a Petitioner is unable to prove that the temporarycustody change would be in the best interest of the child, the change will not be ordered.

In situations where the children have lived for more that six months in a countyother than where the prior order was entered, the original court may enter temporaryorders before moving the case to the new county.

Final Hearings

Attorneys prepare for final hearings on Petitions to Modify Prior Orders in SuitAffecting the Parent-Child Relationship in the same way that they prepare for originaldivorce trials and other lawsuits. Clients are asked to prepare lists of possible witnessesand written questions to be answered under oath, called interrogatories, may be sent toeach party. Documents, photographs, video and audio tapes relating to the matters inquestion will also be collected by each side. Often, the parties and some experts will berequired to give depositions.

In suits to modify prior orders, parents are entitled to a jury only if custody iscontested. Judges decide requests to change visitation, support or the relative rights ofthe parents. Even in cases where a parent wants a change of custody, the jury only gets todecide who gets custody, not the parents’ rights, visitation or support.

Modifying Orders

Changes to child-related parts of a prior order will be set out in an OrderModifying Prior Order in Suit Affecting the Parent-Child Relationship. Parts of the priororder not addressed by the new order will remain in effect.

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APPENDIX V

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CONTRACT FOR LEGAL SERVICES

STATE OF TEXAS §§

COUNTY OF POTTER §

___________________________________ ("CLIENT") agrees to employ UNDERWOOD,WILSON, BERRY, STEIN & JOHNSON, P.C. ("UNDERWOOD") to provide legal representationunder the following terms:

1. Purpose of Employment

This representation is limited to the following matter(s):

Unless specifically stated, this representation does not include any presentation of this case to anyappellate court nor does it include any motions for enforcement or motions to modify following thefinal order in the matter(s) described above. Should CLIENT's needs expand beyond the scope ofthis representation, a new contract for legal services will be necessary.

2. Scope of Service

Some, but not all, of the professional services for which CLIENT agrees to payUNDERWOOD include court appearances, travel, legal research, conferences, telephoneconferences, investigative work, review of material received from all sources, drafting pleadingsand correspondence, participation in all settlement negotiations, and furnishing CLIENT legalcounsel and advice on all matters touching upon this matter both during and immediately after itspendency.

CLIENT should be aware that UNDERWOOD bills for time spent discussing the casewith CLIENT, opposing counsel, or other persons who can assist in the matter, whether theseconferences occur in person or by telephone.

Unless requested by CLIENT, UNDERWOOD's representation does not include tax advice.CLIENT is advised that a wide variety of events may trigger tax consequences for CLIENT,including but not limited to:

- divorce- sale of house or purchase or sale of spouse's interest in house- division of retirement plans, including individual retirement accounts (IRAs) and 401Kplans- spousal maintenance (alimony)

UNDERWOOD can provide CLIENT with tax advice. A tax attorney from UNDERWOOD can assistCLIENT's family law attorney in preparing for trial, in negotiations with the opposing party, and in preparingCLIENT's divorce decree or final order. This assistance can be particularly beneficial in a divorce proceeding. If

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CLIENT wishes to take advantage of this advice, CLIENT must contract separately with UNDERWOOD for thistax advice. Again, tax advice is not included within the scope of this contract.

Whether or not CLIENT chooses to employ a tax attorney from UNDERWOOD to consultwith CLIENT about the tax consequences and options of CLIENT's legal action, UNDERWOODstrongly recommends that CLIENT seek the assistance of a qualified tax advisor before filingCLIENT's next tax return.

3. Attorney's Fees and Expenses

A. Attorney's Fees

Attorney's fees will be calculated and billed on an hourly basis. EACH PORTION OF AQUARTER OF AN HOUR IS BILLED AS A FULL QUARTER OF AN HOUR. FOREXAMPLE, 27 MINUTES IS BILLED AS 30 MINUTES. DUE TO ADMINISTRATIONCOST, THERE WILL BE A MINIMUM CHARGE OF A QUARTER OF AN HOUR ONANY SERVICE PERFORMED.

CLIENT agrees to pay for the professional services of the following attorneys at the rateslisted:

SALLY HOLT EMERSON: $250.00 per hour

CHRISTOPHER K. WRAMPELMEIER: $225.00 per hour

CLIENT agrees to pay for the professional services of the following legal assistant atthe rate listed:

NANCY GORMLEY: $80.00 per hour

In the event that it is necessary to consult with other attorneys in the firm relating to otherareas of practice, (e.g., tax, probate, business law) UNDERWOOD will bill CLIENT at the hourlyrate regularly charged for those attorneys' services.

CLIENT agrees that CLIENT's responsibility for the payment of attorney's fees andexpenses is not affected by an award of attorney's fees and expenses to CLIENT. In the event thecourt awards attorney's fees, the amount awarded does not limit the amount CLIENT owesUNDERWOOD. CLIENT will receive a credit from UNDERWOOD for any attorney's fees andexpenses received from an opposing party; any amount received in excess of the amount owed byCLIENT will be promptly given to CLIENT. An award of attorney's fees to CLIENT by the courtdoes not mean CLIENT may postpone the timely payment of attorney's fees to UNDERWOOD. IfCLIENT has paid CLIENT's bill in full, UNDERWOOD will assign the judgment for attorney'sfees to CLIENT at CLIENT's request.

If court costs or attorney's fees are assessed against CLIENT, CLIENT agrees to be solelyresponsible for their payment.

B. Expense Reimbursement

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In addition to compensation for legal services, CLIENT agrees to reimburseUNDERWOOD for expenses incidental to the conduct and handling of the legal representation.The following are the amounts for which UNDERWOOD will bill CLIENT:

Filing Fees and Court Costs: Amounts set by the particular court or county

Travel Expenses: $0.325 per mile

Long Distance Phone Calls: Amounts charged by phone carrier

Certified Mail Charges: Amounts charged by mail carrier

Overnight Mailings: Amounts charged by mail carrier

Courier Service: $10.00 per pickup or delivery (+ travel expenses ifoutside Amarillo, Texas) (no courier fee is chargedfor trips to the Potter County Courthouse or PotterCounty Courts Annex)

Facsimile Transmission (Fax):$1 per page + long distance telephone charge (if applicable)

Photocopying: $0.20 per page

These fees are subject to change by UNDERWOOD without notice. CLIENT may be required toreimburse UNDERWOOD for expenses not listed above.

C. Deposit and Billing

All payments pursuant to this Contract shall be made to The Underwood Law Firm at 1500Amarillo National Bank Building, P.O. Box 9158, Amarillo, Texas, 79105-9158.

UNDERWOOD bills its clients on a monthly basis. It has the option to bill more frequently.CLIENT's failure to make a reasonable payment to UNDERWOOD each month there is an amountowing shall be an indication to UNDERWOOD that CLIENT no longer wants to retainUNDERWOOD's services. CLIENT agrees to pay the balance on the billing statement in fullwithin thirty days after receipt of the bill. CLIENT agrees that the failure to pay this balancewhen due gives UNDERWOOD the option to terminate its representation of CLIENT. Youhave the option to pay with Visa or Mastercard credit cards.

CLIENT agrees to deposit with UNDERWOOD the amount of $__________ for futureattorney's fees and expenses. CLIENT agrees that UNDERWOOD's representation ofCLIENT will not commence and work will not begin until UNDERWOOD receives thesedeposits in full. At the end of the representation, UNDERWOOD agrees to refund to CLIENT anyportion of the deposit not applied to the final billing statement.

If the amount of CLIENT's initial deposit falls below 40% of its original amount at anytime, CLIENT agrees to deposit additional money with UNDERWOOD so that the amount ondeposit is brought up to the amount of the initial deposit. For example, if the initial deposit was

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$5,000.00, when that deposit is depleted down to $2,000.00, the client will deposit an additional$3,000.00. CLIENT agrees to make such additional deposits within twenty days after noticeby UNDERWOOD of the need to do so.

CLIENT agrees that at the option of UNDERWOOD, UNDERWOOD may demandpayment of any outstanding balance before final disposition of CLIENT's case.

D. No Estimate of Fees

CLIENT understands that since each case is different and no one can predict how theadverse party will react to events, UNDERWOOD cannot provide an accurate estimate of the totalfees for the legal services in this matter.

E. Collection Costs

In the event UNDERWOOD is compelled to initiate legal action to recover any fees orexpenses due to it pursuant to this Contract, CLIENT agrees to pay, in addition to the fees andexpenses as set out herein, the reasonable attorney's fees incurred by or on behalf ofUNDERWOOD in recovering amounts due to it pursuant to this Contract, together with all costs ofcourt and other expenses incurred.

4. Attorney-Client Relationship

A. No Representations or Guarantees of Outcome of Case

CLIENT acknowledges that UNDERWOOD has not and cannot make any representationsor guarantees concerning the outcome of this case or how long the case will take to complete.

B. Confidentiality and Candor

Almost all confidential communications between the attorney and CLIENT are privilegedand protected by law. Warning: all professionals, including attorneys, are required by law(Texas Family Code section 261.101) to report any suspicions of child abuse or neglect ifthe professional has cause to believe that a child has been or may be abused or neglected. Thisrequirement applies even if the communication giving the professional cause to believe abuseor neglect has occurred would otherwise be protected by a privilege, such as the attorney-client communication privilege. To protect CLIENT's rights and interests, CLIENT agrees tocommunicate to the attorney all relevant facts, particularly those that may be damaging toCLIENT's case. CLIENT agrees that absolute candor is essential to UNDERWOOD's providingeffective representation. To maintain the confidentiality of communications with the attorney,CLIENT is advised not to share these communications with any person not employed byUNDERWOOD.

C. Agreement to Cooperate and Texas Lawyer's Creed

CLIENT agrees to assist UNDERWOOD in the preparation and presentation of CLIENT'scase, including providing information in a timely manner and assisting in furnishing necessarywitnesses. CLIENT acknowledges that UNDERWOOD has provided CLIENT with a copy of the

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Texas Lawyer's Creed. CLIENT agrees to cooperate with UNDERWOOD so that UNDERWOODcan use its best efforts to follow the Texas Lawyer's Creed. CLIENT further agrees not to take anyaction to prevent UNDERWOOD from following the Texas Lawyer's Creed.

D. Notice of Dissatisfaction

CLIENT agrees that if CLIENT should at any time become displeased or dissatisfied withany aspect whatsoever of UNDERWOOD's legal representation or has any serious questionconcerning that representation, CLIENT shall immediately notify UNDERWOOD by certifiedmail, return receipt requested, of that fact. This notification allows UNDERWOOD theopportunity to immediately resolve any misunderstanding, correct any errors, or withdraw fromrepresentation and so minimize the expense and inconvenience to both CLIENT andUNDERWOOD. E. Termination of Representation

Both CLIENT and UNDERWOOD agree that each has the right to terminate the attorney-client relationship, with or without cause. Notification of the termination shall be effective if madein writing and sent by certified mail, return receipt requested. In the event of such termination,CLIENT agrees to promptly pay UNDERWOOD for all other fees, charges, and expenses incurredpursuant to this Contract before the date of the withdrawal. UNDERWOOD agrees to promptlyrefund to CLIENT any unearned portion of the deposit if CLIENT is entitled to a refund.

F. Power of Attorney

CLIENT assigns to UNDERWOOD a lien against any and all sums of money coming into the possessionof UNDERWOOD to which UNDERWOOD may be entitled to the extent of all unpaid attorney's fees andexpenses. CLIENT appoints UNDERWOOD as CLIENT's attorney-in-fact to endorse, negotiate, cash, deposit,and apply those funds to the payment of those outstanding attorney's fees and expenses.

G. Privacy Policy Notice

Attorneys, like other professionals who advise on personal financial matters, are requiredby a federal law (Gramm-Leach-Bliley Act) to inform their clients of their policies regardingprivacy of client information. Attorneys have been, and continue to be, bound by professionalstandards of confidentiality that are even more stringent than those required by this new law.Therefore, UNDERWOOD has always protected its clients’ right to privacy.

In the course of providing UNDERWOOD’s clients with income tax, estate tax, and gifttax advice, UNDERWOOD receives significant personal financial information from its clients.As a client of UNDERWOOD, CLIENT should know that all information that UNDERWOODreceives from CLIENT is held in confidence and is not released to people outside the firm,except as agreed to by CLIENT or as required under applicable law.

UNDERWOOD retains records relating to professional services that UNDERWOODprovides so that UNDERWOOD is better able to assist CLIENT with CLIENT’s professionalneeds and, in some cases, to comply with professional guidelines. In order to guard CLIENT’snonpublic personal information, UNDERWOOD maintains physical, electronic, and proceduralsafeguards that comply with CLIENT’s professional standards.

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5. General Contract Provisions

A. Entire Contract

CLIENT and UNDERWOOD agree that this Contract, including any attachments hereto,embodies the entire agreement of the parties and supersedes any prior understanding or written ororal agreement between the parties respecting the subject of this representation. The terms of thisContract may not be modified or revoked except by written agreement signed by CLIENTand UNDERWOOD.

B. Contract Binding on All Parties

This Contract is binding on CLIENT and UNDERWOOD and their respective heirs,assigns, successors, executors, administrators, and legal representatives.

C. Legal Construction

In case any one or more of the provisions contained in this Contract shall for any reason beheld to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, orunenforceability shall not affect any other provision thereof and this Contract shall be construed asif the invalid, illegal, or unenforceable provision had never been contained herein.

D. Place of Performance

CLIENT and UNDERWOOD agree that the place of performance and payment of thiscontract is Amarillo, Potter County, Texas.

CLIENT ACKNOWLEDGES THAT CLIENT HAS READ THIS CONTRACT INITS ENTIRETY, THAT CLIENT UNDERSTANDS THIS CONTRACT, THAT CLIENTAGREES TO EACH PROVISION OF THE CONTRACT, AND THAT CLIENTCONSIDERS THE CONTRACT AND EACH OF ITS PROVISIONS TO BE FAIR ANDREASONABLE. CLIENT ACKNOWLEDGES THAT CLIENT VOLUNTARILY ANDKNOWINGLY SIGNED THE CONTRACT.

SIGNED AND AGREED TO on this the ______ day of_______________, ________.

______________________________ ______________________________Client's Signature Attorney's Signature

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NOTICE TO CLIENTS

The State Bar of Texas investigates and prosecutes professional misconduct committed by Texasattorneys. Although not every complaint against or dispute with a lawyer involves professionalmisconduct, the State Bar Office of General Counsel will provide you with information about howto file a complaint.

For more information, please call 1-800-932-1900. This is a toll free call.

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APPENDIX VI

71

EXHIBIT A

STATEMENT ON ALTERNATIVE DISPUTE RESOLUTION

I AM AWARE THAT IT IS THE POLICY OF THE STATE OF TEXAS TO PROMOTE THEAMICABLE AND NONJUDICIAL SETTLEMENT OF DISPUTES INVOLVING CHILDREN ANDFAMILIES. I AM AWARE OF ALTERNATIVE DISPUTE RESOLUTION METHODS INCLUDINGMEDIATION. WHILE I RECOGNIZE THAT ALTERNATIVE DISPUTE RESOLUTION IS ANALTERNATIVE TO AND NOT A SUBSTITUTE FOR A TRIAL AND THAT THIS CASE MAY BETRIED IF IT IS NOT SETTLED, I REPRESENT TO THE COURT THAT I WILL ATTEMPT INGOOD FAITH TO RESOLVE CONTESTED ISSUES IN THIS CASE BY ALTERNATIVE DISPUTERESOLUTION WITHOUT THE NECESSITY OF COURT INTERVENTION.

____________________________________Signature of Party

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APPENDIX VII

73

STATEMENT OF HEALTH INSURANCE

Status of Health Insurance (check one):

� Private health insurance is in effect for the child(ren) the subject of this suit

� The child(ren) the subject of this suit is/are receiving medical assistance under Chapter32, Human Resources Code (i.e., health care and related services and benefits authorizedor provided under federal law for needy individuals, such as Medicaid)

ì The child(ren) the subject of this suit is/are receiving health benefits coverage under thestate health plan under Chapter 62, Health and Safety Code (i.e., Children’s HealthInsurance Program (CHIP)).

ì Private health insurance is not in effect for the child(ren) the subject of this suit, but aparent has access to private health insurance at reasonable cost to that parent.“Reasonable cost” means the cost of a health insurance premium that does not exceed10% of the responsible parent’s net income in a month.

ì None of the above.

If private health insurance is in effect for the child(ren) the subject of this suit, state:

The identity of the insurance company:

The policy number:

The name of the parent responsible for payment of any insurance premium for the coverage:

Is the health insurance coverage provided through a parent’s employment? Yes No(circle one)

If the coverage is provided through a parent’s employment, the name and address of the

employer:

The cost of the premium: $ per month

Signature of Party

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APPENDIX VIII

75

WARNING

IF YOU POSSESS FIREARMS OR AMMUNITION THE FOLLOWINGLANGUAGE, OR SIMILARLY WORDED LANGUAGE, THAT IS

CONTAINED IN VIRTUALLY ALL TEMPORARY INJUNCTIONS MAYSUBJECT YOU TO FEDERAL PROSECUTION:

1. Threatening the other party in person, by telephone, or in writing to takeunlawful action against any person.

2. Intentionally, knowingly, or recklessly causing bodily injury to the otherparty or to a child of either party.

3. Threatening the other party or a child of either party with imminent bodilyinjury.

IT IS ROUTINE PRACTICE FOR THE COURTS TO ENTER MUTUALTEMPORARY INJUNCTIONS, WHICH INCLUDE THIS LANGUAGE.ACCORDINGLY, YOU NEED TO PLAN TO REMOVE ALL FIREARMSAND AMMUNITION FROM YOUR POSSESSION, UNLESS THE COURTMAKES A SPECIFIC EXCEPTION FOR YOUR CASE.

SEE United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).

I HAVE READ AND UNDERSTOOD THE ABOVE WARNING ANDADVICE.

____________________________________Client’s signature

____________________________________Client’s printed name

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_5thcircuit&volume=270&edition=F.3d&page=203&id=44470_01

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APPENDIX IX

77

UNDERWOOD, WILSON, BERRY, STEIN & JOHNSON, P.C.A PROFESSIONAL CORPORATION

JEROME W. JOHNSONJAMES A. BESSELMANDON M. DEANGERALD G. BYBEEMICHAEL H. LOFTINTHOMAS R. DIXON, JR.KELLY UTSINGERSHARON E. WHITEPATRICK B. MOSLEYT. ALAN RHODESD. LYNN TATEDAN L. SCHAAPSALLY HOLT EMERSON

A T T O R N E Y S A N D C O U N S E L L O R S A T L A W1500 AMARILLO NATIONAL BANK BUILDING

P.O. BOX 9158

A M A R I L L O , T E X A S 7 9 1 0 5 - 9 1 5 8TELEPHONE (806) 376-5613

FAX (806) 379-0316

www.uwlaw.comCLIFFORD A. STEIN 1914-2002

OF COUNSEL:WINSTON R. SMITHEDWARD H. HILL

E.T. MANNING

GAVIN J. GADBERRYCHARLES A. MALLARDMICHAEL S. SMILEYCHRISTOPHER K. WRAMPELMEIERGRANT ADAMSCHAD PIERCEGLEN D. SANBORNSLATER C. ELZAFRED A. STORMERDON S. GALVEZDOUGLAS W. BRYANTGEOFFREY M. KOLANDER

WRITER’S EMAIL WRITER’S DIRECT [email protected]

October 30, 2002379-0348

M

Amarillo, Texas 791

Re:

Dear :

This letter is in response to your initial visit to our office requesting representation by this lawfirm on the above matter.

I am regretfully unable to represent you in your divorce matter because, as you know and wediscussed, I have confirmed that another member of my firm has handled matters for your husband andhis business in the past. I am really sorry that I cannot represent you, and I wish you best of luck in thefuture.

Very truly yours,

Sally Holt Emerson

78

APPENDIX X

79

UNDERWOOD, WILSON, BERRY, STEIN & JOHNSON, P.C.

ATTORNEYS AND COUNSELLORS AT LAW1500 AMARILLO NATIONAL BANK BUILDING

P. O. BOX 9158AMARILLO, TEXAS 79105-9158

TELEPHONE (806) 376-5613FAX (8061 379-0316

www.uwlaw.com

FAMILY LAW SECTION

ALL OF THIS IS VERY IMPORTANT. PLEASE READ AND REVIEW ITVERY CAREFULLY. WE NEED YOUR HELP IN ORDER TO DO THE BESTWE CAN FOR YOU.

To give you a clearer over-view of the divorce process, we have prepared thefollowing summary which should help you to have an idea of what to expectbetween the time of filing and finalization of your suit.

1. PARENT EDUCATION PROGRAM. This applies only to parents who have childrenunder the age of 18 or who are still in high school. Some courts require this in all caseswith children.

2. ALTERNATIVE DISPUTE RESOLUTION (ADR). This is required in alldivorce cases which are not settled prior to the date the court assigns fortrial. All parties must participate in a mediation if they are unable to reachan agreement. There are attorneys who have been specially trained inmediation and a determination of the mediator will be made at a later date.ADR has become a very useful tool to the Courts in that many cases aresettled at this time and a trial is not necessary thus clearing the Courts’calendars.

3. INVENTORY & APPRAISEMENT. This is a very important document andinstructions concerning it are very detailed and warrant a separate set ofinstructions

4. FACT WITNESSES. You should begin now to make a list (includingnames, addresses and telephone numbers) of all persons who haveknowledge of any facts involving your marital situation and, if applicable,knowledge of your parenting abilities. With each name, make a notation oftheir area of knowledge.

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If you know anyone your spouse may list as a witness, include that as well,with a notation as to what that person may have to say, even if it may besomething bad about you.

5. DISCOVERY. This may be the most onerous process you will be requiredto complete. If your spouse’s attorney sends me a request for disclosure,interrogatories and/or requests for production, they will immediately beforwarded to you. We have a total of 30 days in which to respond. Thatdoesn’t mean you have 30 days to forward the information to me becausedocuments will have to be assembled and interrogatory answers placed inproper form for your signature before a notary public. This is timeconsuming but it must be done and there is no way around it. Of course, Iwill also be sending the same types of requests to your spouse’s attorney,and your spouse will be going through the same process.

Discovery may cover many different areas but be prepared to produce copiesof some or all of the following (and any others requested) which may or maynot be requested by your spouse’s attorney:

a. Bank records, including statements, canceled checks and depositslips for a specified number of years.

b. Income tax returns for a specified number of years, both individualand corporate.

c. Life insurance policies.

d. Medical insurance policies.

e. Information concerning pension, profit-sharing plans through youremployment.

f. The items listed in connection with the inventory.

Another type of discovery is the taking of depositions. It may or may not benecessary for me to take your spouse’s deposition or for your spouse’sattorney to take your deposition. If it is necessary, you will be notified andwe will go over what to expect at that time.

Sometimes, the court may make a Scheduling Order in a case, with particulardeadlines for each phase discussed above. If a Scheduling Order is received fromthe court, a copy will be sent to you and we will review it at that time.

The Family Law Section of the Underwood Law Firm has two secretaries and alegal assistant who will be familiar with your file. They cannot offer any legaladvice to you, but can give you information or refer your question to your attorney.

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Please do not hesitate to call us with any question you may have at any pointduring your case.

82

APPENDIX XI

83




P.O. BOX 9158


FAX (806) 379-0316



E.T. MANNING



October 30, 2002379-0348

M

Amarillo, Texas 791

Re: Cause No. ; In the

Dear :

This letter confirms our conversation of October 24, 2002, in which you requested that I take nofurther action in the referenced cause of action. Accordingly, until I receive other instructions from you,I will do no additional work on this matter.

Very truly yours,

Sally Holt Emerson

84

APPENDIX XII

85




P.O. BOX 9158


FAX (806) 379-0316



E.T. MANNING



October 30, 2002379-0348

M

Amarillo, Texas 791


Dear :

I am enclosing herein copies of the divorce petition and notice of hearing for temporaryorders, which have been filed on your behalf and sent for service on your husband. Please notethat the hearing is scheduled for Monday, September 20, 2002 at 9:30 a.m. in the Carson CountyCourthouse in Panhandle.

Also, I am enclosing herein another financial information sheet for you to fill out andreturn to me as soon as possible. The judge requires that we prepare one for the temporaryhearing so he can see your expenses and income. We will prepare it in a final form when youreturn it to us.

Please call and schedule an appointment prior to the hearing so that we can prepare.

Very truly yours,

Sally Holt Emerson

86

APPENDIX XIII

87


JEROME W. JOHNSONJAMES A. BESSELMANE. T. MANNINGDON M. DEANA. W. SoRELLE IIIGERALD G. BYBEEMICHAEL H. LOFTINTHOMAS R. DIXON, JR.KELLY UTSINGERSHARON E. WHITEPATRICK B. MOSLEYT. ALAN RHODESJAMES W. WESTER


P.O. BOX 9158

A M A R I L L O , T E X A S 7 9 1 0 5 - 9 1 5 8TELEHONE (806) 376-5613

FAX (806) 379-0316

www.usa-soft.com/ulfOF COUNSEL:

CLIFFORD A. STEINWINSTON R. SMITH

EDWARD H. HILL

D. LYNN TATEDAN L. SCHAAPSALLY HOLT EMERSONGAVIN J. GADBERRYMICHELLE A. EGGLESTONCHRISTOPHER K. WRAMPELMEIERCHARLES A. MALLARDGRANT ADAMSGINGER P. NELSONCHAD PIERCEMICHAEL S. SMILEYSTEPHEN W. STEWARTR. CHRISTOPHER WRIGHTSLATER C. ELZA


October 30, 2002(806) 379-0 356

M

Dear :

I am enclosing herein copies of the following documents I received from Rick Harris:

Petitioner’s Request for DisclosurePetitioner’s Set of Interrogatories; andPetitioner’s Request for Production of Documents.

Please answer the Interrogatories as best you can. We will have to answer most of theRequest for Disclosure – your main concern is number 5. Be SURE to include addresses,telephone numbers, and what relevant knowledge all potential witnesses have. For the Requestfor Production, gather up whatever documents you have in your possession that they arerequesting, and please note on the document request itself which documents you are providing orwhich ones you don’t have. The more care you put into your responses to all these discoveryrequests, the less attorney’s fees you will be billed for our preparation time.

Please get all this to me as soon as possible; however, NO LATER THANNOVEMBER 4th, so I may have ample time to prepare the answers in final form by November15th. If you have any questions, feel free to call. Thank you for your prompt attention to thismatter.

Enclosures

Sincerely,

Nancy H. GormleyLegal Assistant to Sally HoltEmerson

88

APPENDIX XIV

89


JEROME W. JOHNSONJAMES A. BESSELMANE. T. MANNINGDON M. DEANGERALD G. BYBEEMICHAEL H. LOFTINTHOMAS R. DIXON, JR.KELLY UTSINGERSHARON E. WHITEPATRICK B. MOSLEYT. ALAN RHODESJAMES W. WESTERD. LYNN TATEDAN L. SCHAAP


P.O. BOX 9158


FAX (806) 379-0316

www.uwlaw.comA. W. SoRELLE III 1939-2001

OF COUNSEL:CLIFFORD A. STEINWINSTON R. SMITH

EDWARD H. HILL

SALLY HOLT EMERSONGAVIN J. GADBERRYCHARLES A. MALLARDMICHAEL S. SMILEYCHRISTOPHER K. WRAMPELMEIERGRANT ADAMSCHAD PIERCER. CHRISTOPHER WRIGHTSLATER C. ELZAFRED A. STORMERDON S. GALVEZDOUGLAS W. BRYANTGEOFFREY M. KOLANDER


October 30, 2002379-0348

M

Dear :

Enclosed please find a letter from Pam Coffey, director of Dispute Resolution Center,notifying us of your mediation date on June 19, 2002 at 2:00 p.m. When you know your travelplans please call to schedule a time to meet with Sally to prepare for mediation.

Yours very truly,

Misti JanesSecretary toSally Holt Emerson

/mjEnclosure

90




P.O. BOX 9158


FAX (806) 379-0316



EDWARD H. HILL



October 30, 2002379-0348

M

Dear :

Enclosed please find a copy of a letter that Sally received from Carley Wells, CourtAdministrator for Judge Smith, advising that a hearing on the Motion to Modify has been resetfor Monday, February 25, 2002, at 1:30 a.m., in Perryton.

Yours very truly,

Misti JanesSecretary to Sally Holt Emerson

/mjEnclosure

91

APPENDIX XV

92




P.O. BOX 9158


FAX (806) 379-0316



E.T. MANNING



October 30, 2002379-0348

M

Amarillo, Texas 791


Dear :

A settlement proposal has been received in this matter and previously communicated to you. Thedecision to settle and under what terms is yours alone. My obligation is to inform you of alternatives tosettlement so that you may make an informed decision.

If a settlement cannot be reached in your case, it must be presented to the court fordetermination. The decision made by the court will be binding, subject to the right of appeal. The court’sruling may be different from any proposed settlement, and there can be no guarantee that the court’sdecision will be more favorable.

I cannot recommend that you accept the proposed settlement. The settlement proposal isunacceptable for several reasons. I believe the proper way to resolve you case is by further negotiationsor trial.

Notwithstanding this advice, you have indicated your desire to accept the settlement offer and Iwill respect your decision and will begin work on the settlement documents. I am asking that you sign acopy of this letter to confirm the legal advice I have given not to settle this matter as proposed.

Very truly yours,

Sally Holt Emerson

93

I acknowledge the advice given and wish to proceed withsettlement of my case against the advice of my attorney.

______________________________________________Name of Client

94

APPENDIX XVI

95

RULES REGARDING YOUR TRIALAND TRIAL TESTIMONY

After discovery is complete if you are unable to settle all issues in a case, you mustpresent your case to a judge or jury. That is a trial. The purpose of a trial is to present your case,both law and facts, in the most favorable light possible. We do that in a courtroom and you havea specific role in your case’s presentation.

A. The Courtroom and Surrounding Complex

1. The Courthouse ComplexThe scrutiny of your conduct and behavior, together with that of your attorney, starts in

the parking lots surrounding the courthouse. For it is there that you may first be observed bypotential jurors, court personnel, prospective witnesses, or anyone else who may have any impacton the final result of your trial. Therefore, from the time of arrival at the courthouse complex, youmust be conscious of how others may perceive you or your behavior.

2. The CourtroomYou may have already appeared in a courtroom for some preliminary hearing. If you have

you know that a courtroom looks similar to what you have seen on television. The judge is at thefront of the courtroom, elevated above everyone so he can see everything from his bench. There isa place for the court personnel, generally a clerk or two, a bailiff and a court reporter. There is aspecial place for the witness to sit, generally referred to as the witness stand. There is a jury boxwith twelve seats in it (upon occasion there may be six seats) and is usually to one side so thejurors can observe everything that goes on in the courtroom.

As you come into the courtroom, you will probably walk into the spectator area. There is agate through which you and your attorney will pass at the appropriate time which leads to thecounsel table(s) before the judge’s bench. Your attorney will assist you as to when you are toenter arid where you are to sit. During all other times when your trial is not in session, except forbrief breaks, you will sit in the spectator’s section.

Before any trial starts you need to know the location of rest rooms, water fountains, cokeand coffee machines, or areas in which you are forbidden to enter such as the areas behind theCourt’s bench.

B. Decorum in the Courtroom

1. The Client’s AppearanceSince you may be observed by someone who may impact the outcome of our case, you

should look your best and behave your best from the moment you arrive at the courthousecomplex until the moment you leave the area. If you have any doubts about your dress orbehavior, check with your attorney’s office.

Your clothing should be appropriate, relatively bland (the June and Ward Cleaver model),that is, there should be nothing ostentatious or flashy. You cannot go wrong if as you leave thehouse, you get a negative answer to the question ‘Would my mother be embarrassed if I took herto church dressed as I am?”

Women should avoid flashy jewelry, purple nail polish, tight clothing, extremely shortskirts, excessively low cut bodices, unkempt hair, and the like. Men should avoid flashy jewelry,an unshaved look (unless they normally have facial hair), unkempt hair, shirts unbuttoned

96

significantly below the neckline with a show of gold chains or jewelry, wearing hats in thecourtroom (the ‘gimme” type, cowboy, or otherwise). Men, please leave the earrings home. Mendo not have to wear ties and jackets, but many attorneys prefer that they do.

Any lapel pins suggesting your position on provocative political, religious or social issuesshould be absent, to avoid evoking any adverse response. You should not wear dark glasses in thecourtroom and if you do, court personnel may request you to take them off. There is no gumchewing or eating in the courtroom. Many courthouses currently are no smoking facilities or havespecified smoking areas. These policies must be scrupulously followed.

2. General BehaviorAlways be punctual for court. Be sure you know the exact time you are supposed to be in

the courtroom. Be sure to give yourself sufficient time to deal with any traffic congestion, find aparking place, walk from the parking place to the courthouse, go through the security system (ifthe court has one), wait for an elevator, and get to the courtroom. In some major metropolitanareas there can be a considerable lapse of time between arriving in the courthouse complex andgetting into the courtroom, depending upon the time of day or the day of the week. If you havesome concern about these factors, ask a staff member for some assistance in gauging your time sothat you can be punctual.

At all times be attentive to the proceedings. You will not be attending your trial in avacuum. Before trial you will have read your deposition to be certain you are familiar with yourprior testimony. You will have read and refreshed your recollection as to interrogatories whichhave been asked of you and answered by you. You may have read any prior testimony in earlierhearings. You will have reviewed critical documents. You will have refamiliarized yourself withyour inventory, updating for any changes. You may have been prepared for the questions yourattorney will ask you as well as for potential questions your spouse’s attorney might ask you.You will have talked with your attorney about the theme of your case or his theory of recovery,with an awareness of the advantages of your case and anticipated pitfalls that may exist. You willhave been completely truthful with your attorney and he will have offered you guidance on howto handle various issues. So as you approach trial, you will have an understanding of the issuesand evidence that is anticipated. An informed client who pays attention to the proceedings can bea help as opposed to a hindrance to his attorney and the cause.

Be very careful of your body language, both while court is in session and when it is not,whether you are testifying or sitting at counsel table. Body language sometimes speaks louderthan words, and it can be particularly significant to an experienced judge in a bench trial.

Dramatic gestures, grimaces, vigorous and even subtle shakes and nods of the head,furious writing, drumming on the table with pen, pencils or fingers, mouthing unspoken words tothe opposite side of the table, mouthing unspoken words to a witness while he is testifying,passing or throwing notes to the opposite side of counsel table, whispering statements to yourattorney in such a loud voice the opposite side, the court or court personnel can hear what you aresaying, clicking of ball point pens, jingling change, or use of profanity are all types of bodylanguage and behavior to avoid.

If it is necessary for you to take any medication during the course of your trial, you needto alert your attorney, either directly or through a staff member, so arrangements can be made toassure you an appropriate opportunity to do so. If you are on any particular medication duringyour trial, your attorney should have that information before commencement of your case.

It is acceptable to bring a book or magazine to keep you occupied during court breaks,recesses, or other interruptions during the trial. However, reading of books, magazines and

97

newspapers are generally not permitted in the courtroom while court is in session.If you carry a beeper or mobile telephone with you, be sure that it is not activated while

you are in the courtroom.It is totally unacceptable to bring any type of weapon to the courtroom. Do not even think

about it. Besides, many courthouses now have electronic security systems that one must gothrough to even gain admittance to the court areas.

3. When You Rise

Rising momentarily when a judge enters the courtroom is a recognized sign of respect.Frequently as a judge enters the courtroom, a bailiff will say something to the effect “All rise, the123rd Judicial District Court is now in session, the Honorable John J. Jones, Presiding.” In suchan event, of course, you rise and remain standing until the judge directs that all be seated. Uponoccasion this formality is not observed, in which event it is not inappropriate to remain seatedwhen the judge enters, but if you see the attorneys at the front of the courtroom rise, you will notbe criticized for rising also.

You will observe that attorneys are expected to rise when addressing the judge. Since youare never to address the judge directly, unless the judge has directed a matter to you which callsfor a response, you may stand when addressing the Court, i.e. judge, but it is not imperative.Certainly standing to address the court will show proper respect, but many times a judge willsuggest that a party remain seated. If that is the case, then do so.

4. Conversing with OthersIn the event the judge directs a question directly to you, you are to respond in a respectful

manner, truthfully and in a voice loud enough to be heard.Other than for social amenities you should not engage in conversation with opposing

counsel or your spouse in the courtroom, during breaks or otherwise, without the presence ofyour attorney and your attorney’s permission. That does not mean to say you must engage insocial amenities, but they are permissible.

In any event, when you are conversing with anyone in the courtroom or the courthousecomplex, always use a pleasant tone of voice and be absolutely certain to use appropriatelanguage. One should be particularly wary of making statements in rest rooms where the view ofpersons may be somewhat hidden. Harsh angry hostile comments containing expletives orrevealing statements have no place in court or where they can be easily overheard by a judge,potential witness, juror, opposing counsel or staff, or court personnel. There is a tremendous riskthat the conversation will be reported to others with resulting damage to your case.

5. Communicating with your AttorneyIf court is not in session and you need to talk with your attorney, advise him that you

need to do so and converse with him in a manner which will assure the privacy of theconversation.

If your attorney is engaged in a trial, you simply cannot communicate with him verbally.It is impossible for an attorney to follow the evidence and court’s rulings, and talk and/or listeneffectively at the same time. You should have a note pad and pen in front of you at all timesduring the trial and make notes about matters which you need to discuss with your attorney at theappropriate time. If your message relates to the ongoing testimony, write the message and veryinoffensively pass the note to your attorney for his disposition as he sees fit. If your attorney

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chooses at that moment not to use your written question, information, or suggestion, wait untilthere is a recess to discuss the matter with him.

Do not punch your attorney to get his attention. Do not start whispering to him about thewitness, the testimony, or a question to be asked. Your attorney needs to keep his undividedattention on the matters before him and you should not interfere with that concentration.However, that does not mean that a helpful note placed before him cannot be useful andconstructive.

At the conclusion of the day’s testimony, be sure that all notes you and your attorneyhave exchanged are in either your possession or that of your attorney. Do not leave them oncounsel table nor put them in the courtroom wastebasket for possible pilfering and review by theopposition.

C. Preliminary Trial Matters

Most preliminary or pretrial matters are heard before the trial of the case on the merits.However, upon occasion there are preliminary issues which have to be resolved on the first daybefore the commencement of the trial such as the ruling upon a law issue, the failure of a witnessunder subpoena to appear, the exchange of some documentary information, or the like. Thesematters are generally handled by the attorneys and judge, and your participation is limited exceptperhaps for your sitting at counsel table, awaiting the outcome.

1. Swearing in of WitnessesAt the beginning of the trial proceeding commonly the court will ask all witnesses to rise,

raise their right hand, and take the witness oath. The court endeavors to try to have all thewitnesses subpoenaed sworn in at one time to avoid having to repeat the swearing in processwith each witness. Since you will be a witness you will rise, raise your hand and take the oath atthat time.

The oath that wilt be administered will probably be, “Do you solemnly swear (or affirm)that the testimony you are about to give in the case pending before this court will be the truth, thewhole truth and nothing but the truth, so help you God?” If for any religious or moral reason youhave any compunction about taking this oath, you need to address the problem with yourattorney or a staff member before you get to court.

2. Invoking the RuleAt any point in the trial, but generally before the first witness testifies, either attorney

may announce to the court that he is requesting “the Rule be invoked.” The judge will theninstruct all witnesses, except the parties, to leave the courtroom, stand outside the hearing of anyof the proceedings, and not discuss their testimony with anyone, except the attorneys involved.The failure of a witness to comply with the court’s instructions can result in the witness beingheld in contempt of court, fined and/or becoming unable to testify.

Once the rule has been invoked, you must be certain to abide by the rule as well. You arenot to discuss your testimony or the testimony of any other witnesses with any other person whomay testify. You are not free to discuss testimony after that particular witness has testified, as therule endures throughout the trial of the case. If you violate the rule, valuable testimony for yourcase may be excluded during the trial.

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3. Attendance of Observers/Family or FriendsA trial is a public hearing and although spectators are allowed, generally there are very

few public observers during a divorce trial. As a consequence, other than the court personnel,attorneys and parties to the divorce action, you will probably not have many people listening toyour case. This is particularly true if your case runs into the afternoon or lasts more than one day.

If you desire having a family member, friend or member of a support group present, theperson you select should not be a potential witness because since the rule is generally invoked,that person will be required to wait outside the courtroom. Further, many times when an attorneysees a supporter, he will ask the judge to swear the person in for the sole purpose of expelling thefriend from the courtroom during the trial. On the other hand, attorneys sometimes agree thatfriends/supporters may remain in the courtroom if they are not witnesses.

By all means avoid asking your lover (significant other) to the courtroom for the trial ofyour divorce case. Also, do not have your minor children accompany you to trial.

4. Leaving the CourtroomIf the court is not in session, you may leave and return at will. You may also leave and

return if the court is in session on another matter unrelated to you, such as another case, and youare in the spectator section. You leave quietly so as not to disturb or interrupt the proceedings.However, you cannot leave the courtroom during the trial of your case without permission.Normally, courts take breaks during the conduct of a trial at which time you are free to leave andreturn to the courtroom at will. If you have a crisis which necessitates your leaving the courtroom,pass a note to your attorney indicating that need and he will seek permission from the court toenable you to leave. If this is a critical issue with you, obtain guidance on this matter from yourattorney before the trial.

5. Length of the TrialThe length of a trial varies from case to case and court to court. Obviously one of the

factors is the complexity of issues and evidence involved. Since courts conduct ancillary(interim) hearings and have other professional and administrative duties and responsibilities, allof which take considerable time, another factor is how the court conducts its business. If time isimportant to you, consult with your attorney or his staff about the probable length of your case.

6. In Chambers ConferencesUpon occasion the judge requests that the attorneys for both sides of a case confer with

him in his chambers, which many clients view with great suspicion. If the judge makes such arequest, your attorney has no alternative but to join his opposing counsel and the judge. To dootherwise would be offensive and against your interests. What usually transpires during an inchambers conference is an effort by the court to streamline the case, to see if the court can doanything to expedite the case and to resolve scheduling matters which may arise due to the lengthof the case. The court will endeavor, in this relatively informal atmosphere, to become familiarwith the issues, determine how many witnesses may be involved, obtain the attorneys’ estimateof time for the trial of the case, explore any possibility of settlement or stipulations (agreements)of the parties, make sure that all exhibits have been marked and/or exchanged, and ascertain ifthere are any significant legal issues. If done properly, an early in chambers conference can bevery useful in assuring an orderly and trouble free trial. Because of the feeling among the generalpublic that deals are cut in smoke filled back rooms, the court may deal with these issues in a

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pretrial conference from the bench in view of the clients, but often they are conducted inchambers.

D. Presentation at the Trial

1. Opening StatementsEach attorney is permitted to give an opening statement to the court, with the Petitioner

going first. The purpose of the opening statement is to give the court an overview of the issues andthe anticipated evidence in support of the party’s position on those issues. The Respondent giveshis opening statement second, but has the right to waive presenting his opening statement until theRespondent starts to present his case in chief, or his evidence.

2. Petitioner’s Case in ChiefAfter the conclusion of opening statements, Petitioner starts the presentation of his or her

evidence (Petitioner’s case in chief). The presentation of evidence may be done in a number ofways, but generally it is done by testimony of witnesses. Petitioner’s attorney asks the witness,usually friendly to his client, various questions (direct examination). After Petitioner’s attorneyhas asked the witness all the questions he desires, Respondent’s attorney is entitled to ask thatsame witness questions (cross examination). When Respondent’s attorney concludes, Petitioner’sattorney may ask any further questions he deems appropriate (re-direct examination), and soonuntil both sides have concluded their questioning. At that point, the witness is excused and thenext witness is called and the process is repeated.

3. TestimonyYou will be a witness. If you have testified in prior hearings or give deposition testimony,

you already have some understanding of the do’s and don’ts of testifying. But if this is your firstexperience at testifying, you should consider the following suggestions.

The overriding consideration in your testimony is to be truthful. Irrespective of thecourtroom dramas on television, the worse thing you can do is lie under oath. If it is proven bythe opposing side that you lied, your credibility is destroyed. This is particularly true in a benchtrial, where the trier of facts is a judge, who will probably be far less tolerant of lying thanperhaps a jury might be. Since you enjoy an absolute communication privilege with yourattorney, any damaging information should have been revealed to your attorney long ago and astrategy of how that information is to presented or dealt with will have been addressed.

It is the attorney’s job, not the task of the witness, to get the evidence before the court.The witness’ job is to listen to the question and answer only the question asked. Since you aregoing to be held to your answer, be sure that you understand the question before you attempt toanswer it. Do not guess what the question is. If the question contains a word you do notunderstand, do not hesitate to ask the attorney to state the question in such a way that you dounderstand it.

Further, you are not to volunteer information. If the answer is inadequate the attorneywill follow up with another clarifying question. Do not speculate or guess at the answer. If youdo not know the answer, say so. If the attorney has asked you to answer a question “yes” or“no,” be sure that every assumption or statement in the question is accurate before responding“yes,” otherwise the answer should be “no.” You may pause a reasonable amount of time toformulate an answer, but long lengthy pauses sometimes give the appearance of evading thetruth. You should attempt to be as responsive as possible to avoid this impression. This cangenerally be accomplished by being as attentive as possible and keeping your concentration. Do

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not let your mind wander and get distracted by trying to figure out what objectives the attorneyis trying to achieve.

Your tone of voice should always be pleasant, polite and calm and your demeanor andmannerisms should appear as relaxed as possible. The volume of your voice, particularly if youare female, should be sufficiently loud so that everyone can hear without straining. Anger doesnot project well in a courtroom even when it is totally justified, and you are to avoid loss oftemper for any reason. You should not be argumentative with the opposing counsel nor “takehim on.” He is experienced and you are not and generally you will come out a loser. You are toaddress opposing counsel formally as “Mr. Jones,” not as “Bill.”If you are being asked questions by one counsel, and during that questioning or immediately

after the question, the other attorney rises or says “Objection,” stop talking immediately as theattorney wants to address the court and is requesting a ruling. Do not rush to answer because youthink it is helpful to your cause. Patiently wait for the objection to be lodged and for the court torule. In that regard, if the opposing attorney is objecting based on “Non-responsive” and thecourt is sustaining the objection, it means you are volunteering and answering more than thequestion asked. An example is “Please state your name?” Assume the answer given is “Myname is Sally Sue Brown, and I was born in San Antonio, Texas, in 1955.” The answer in non-responsive after “Brown,” since no one asked where you were born or the year in which youborn.

Try to avoid the use of words such as “never” or “always.” These type of words can leadto trouble. It is better to say “rarely” or “most of the time,” or some other words which providesflexibility while remaining truthful.

When you take the stand to testify, do not take any documents or notes with you otherthan those which your attorney has directed. If you testify from a document, the opposingcounsel is entitled to examine that document. Further, if your attorney, not opposing attorney,hands you a document with which you are familiar and asks you to identify the document, do sopromptly without reading every line of every page, and causing irritation of everyone as thoughyou had never seen the document before. If opposing counsel tenders you a document, look at itsufficiently to be certain it is a document with which you are familiar and then promptly identifyit. That does not mean that you should identify a document with which you have no familiarityor which may have been altered. What you want to avoid is an unreasonable and unnecessarylong delay in time in identifying familiar documents.

When Petitioner’s attorney concludes the presentation of Petitioner’s evidence, Petitionerwill rest.

4. Respondent’s Case In ChiefAfter Petitioner rests his case, Respondent’s attorney moves forward with his case in

chief. He may have already put on much of his case through the cross-examination ofPetitioner’s witnesses. However, he may have additional witnesses and testimony. The procedureof putting this evidence before the Court is the same as in Petitioner’s case in chief. WhenRespondent’s attorney concludes the presentation of Respondent’s evidence, Respondent willrest.

If you are Respondent in a divorce action, you may be called during Petitioner’s case inchief, but the rules regarding testifying remain the same.

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5. Rebuttal TestimonyAfter both sides have rested their respective cases, Petitioner is entitled to put on rebuttal

testimony, the purpose of which is to rebut any evidence previously unrebutted in Respondent’scase in chief. And, of course, thereafter if need be, Respondent can offer re-rebuttal evidence. Ifrebuttal and re- rebuttal evidence is presented at all, it is usually very short and limited.

6. Closing ArgumentsAfter the introduction of evidence has been closed, both parties through their attorneys

are entitled to make closing statements for the purpose of arguing to the court the evidenceintroduced and the applicable law as applied to the case.

Procedurally the court allots a certain amount of time for closing arguments. Assumingthe court has allotted twenty minutes, Petitioner, who opens or starts, then divides the timebetween opening and closing. For example, Petitioner’s counsel may announce fifteen minutes toopen and five minutes to close. The procedure following is Petitioner argues for fifteen minutes,Respondent argues for twenty minutes, and Petitioner argues for five minutes. The courtcustomarily keeps strict time for closing arguments.

7. The Court’s DecisionAfter closing argument, the Court will make its decision on all issues which have not

previously been agreed upon by the parties. Sometimes the Court will make a ruling immediatelyafter closing arguments, but more often than not, particularly if there has been considerableevidence or testimony or a lengthy trial, the court will take the case under advisement, whichmeans the court wants time to consider and review the evidence and his notes before making aruling.

The time a case is under advisement varies, but experienced judges understand the needfor prompt rulings and attempt to get the court’s order made within days or a few weeks afterthe conclusion of the case. Usually a case is not under advisement for more than two weekswithout some understandable explanation such as other professional commitments of the court,although upon rare occasion it can be considerably longer.

Once the court is prepared to announce its ruling (rendition), a hearing will be set oryour attorney will receive the ruling by mail. If there is a hearing, your attendance may or maynot be required depending upon the court’s policies and your attorney will advise you if youneed to be there.

After the rendition is received, one of the attorneys will prepare an order, containingthe provisions of the rendition. Quite often the rendition has also included the name of theattorney the court expects to prepare the order and the date by which it was be prepared andpresented to the court (entry date). Between the receipt of rendition and the entry date,attorneys for both parties attempt to resolve the form of the order. If resolution is had, the formof the order is approved and submitted to the court for signature. If resolution cannot be had,any conflicts will be resolved by the court at entry date. Thereafter, the final judgment isrevised in accordance with the court’s instructions and signed by the court. This final judgmentbecomes your Final Decree of Divorce.

F. ConclusionAfter you have reviewed these rules and the summary of them attached as Appendix A,

if you have any questions, concerns or fears, you should discuss those with your attorney or oneof the staff members. Alternatively, you can observe the courtroom and the judge before whom

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your case is going to be tried during a trial similar to yours. You may find that experiencehelpful in getting a clear insight as to what to expect during your trial.


APPENDIX A

1. BE AWARE OF YOUR BEHAVIOR AT ALL TIMES.

2. SIT IN THE SPECTATOR AREA UNLESS OTHERWISE DIRECTED. DO NOT SITWITH YOUR SPOUSE IN COURT.

3. DRESS APPROPRIATELY.

4. BE PUNCTUAL.

5. BE ATTENTIVE TO THE PROCEEDINGS.

6. BE CAREFUL OF YOUR BODY LANGUAGE.

7. ADVISE YOUR ATTORNEY OF ANY MEDICATION YOU NEED TO TAKE.

8. DO NOT READ IN THE COURTROOM WHILE COURT IS IN SESSION.

9. BE SURE YOUR BEEPER OR MOBILE PHONE IS TURNED OFF IN THECOURTROOM.

10. DO NOT VIOLATE ANY COURT RULES ABOUT SMOKING, GUM CHEWING,OR EATING.

11. DO NOT TAKE ANY WEAPONS TO THE COURTHOUSE AREA.

12. RISE WHEN RESPONDING TO THE COURT OR WHEN THE JUDGE ENTERSTHE COURTROOM. DO NOT ADDRESS THE JUDGE DIRECTLY, ONLYRESPOND.

13. KEEP THE VOLUME OF YOUR VOICE LOUD ENOUGH SO EVERYONE CANHEAR.

14. OTHER THAN SOCIAL AMENITIES, DO NOT TALK WITH OPPOSINGCOUNSEL OR YOUR SPOUSE.

15. ALWAYS USE A PLEASANT TONE OF VOICE. UNDER NO CIRCUMSTANCESUSE PROFANITY OR VULGAR LANGUAGE. BE WARY OF MAKINGSTATEMENTS OR COMMENTS IN REST ROOMS OR IN ANY OTHER PLACESWHERE THEY MAY BE OVERHEARD.

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16. ALWAYS BE RESPECTFUL.

17. WHEN TALKING WITH YOUR ATTORNEY, ATTEMPT TO ASSURE PRIVACYOF THE CONVERSATION.

18. DURING THE TRIAL DO NOT PUNCH, WHISPER TO OR DISTRACT YOURATTORNEY. COMMUNICATE WITH YOUR ATTORNEY BY WRITING.

19. REMOVE ALL NOTES FROM THE COURTROOM EACH DAY.

20. DO NOT CREATE A SCENE OVER THE WORDING OF THE WITNESS OATH.

21. IF THE RULE HAS BEEN INVOKED, DO NOT VIOLATE IT.

22. DO NOT ARRANGE FOR YOUR LOVER OR MINOR CHILDREN TO ATTENDTRIAL AS SPECTATORS.

23. DURING THE TRIAL DO NOT LEAVE THE COURTROOM WITHOUTPERMISSION.

24. DO NOT BE SUSPICIOUS OF IN CHAMBERS CONFERENCES.

25. DURING YOUR TESTIMONY, ALWAYS BE TRUTHFUL.

26. LISTEN TO THE QUESTION AND ANSWER ONLY THE QUESTION.UNDERSTAND THE QUESTION BEFORE ANSWERING. BE SURE YOUUNDERSTAND THE WORDS USED IN THE QUESTION. DO NOT SPECULATEOR GUESS AT AN ANSWER.

27. DO NOT VOLUNTEER INFORMATION.

28. TRY TO AVOID LONG LENGTHY PAUSES DURING YOUR TESTIMONY.

29. KEEP YOUR CONCENTRATION WHILE TESTIFYING.

30. DO NOT LOSE YOUR TEMPER.

31. REMAIN POLITE AND CALM DURING YOUR TESTIMONY.

32. DO NOT BE ARGUMENTATIVE WITH OPPOSING COUNSEL.

33. ADDRESS COUNSEL FORMALLY AND NOT BY FIRST NAMES.

34 DO NOT TRY TO RUSH YOUR ANSWER IN OVER AN OBJECTION. WAITPATIENTLY FOR OBJECTIONS TO BE RULED UPON.

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35. AVOID THE USE OF WORDS SUCH AS “NEVER” AND “ALWAYS.”

36. DO NOT TAKE NOTES TO THE WITNESS STAND WITHOUT PERMISSION OFYOUR ATTORNEY.

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APPENDIX BWORDS AND PHRASES

1. ANCILLARY HEARING. Any hearing other than the trial. Sometimes calledpreliminary hearing.

2. BAILIFF. The person responsible for maintaining decorum in the Court.

3. BENCH. The place where the Judge sits during trial.

4. BENCH TRIAL. A trial where the judge determines all fact issues and there isno jury.

5. CHAMBERS. The Judge’s office.

6. CASE IN CHIEF. The testimony and evidence offered by one side in support of thatside’s positions.

7. CLERK. One of the persons who handles the paperwork of the Court.

8. CLOSING STATEMENTS. Final statements by each attorney at the end ofthe trial when they argue to the Court the evidence and law.

9. COURT. Often used interchangeably with Judge.

10. COURT REPORTER. The person who records the testimony and court proceedings.

11. CROSS EXAMINATION. Questions asked of witnesses called by the opposing attorney.

12. DECREE OF DIVORCE. The final order which is signed by the judge disposing of allissues. Sometimes called Final Judgment.

13. DIRECT EXAMINATION. Questions asked of witnesses called by that attorney.

14. FINAL JUDGMENT. The final order which is signed by the judge disposingof all issues. Sometimes called Final Decree of Divorce.

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15. INVOKING THE RULE. The process of requiring all witnesses, other thanparties, to leave the courtroom and not discuss their testimony with anyone but attorneys involved.

16. JURY BOX. The place where the jurors sit during the trial.

17. NONRESPONSIVE. When referring to the answer to a question, the answer goes beyond thequestion and the witness has volunteered information.

18. OBJECTION. Notice to the judge by one attorney that the proceedings are objectionable for somereason and the attorney wants to bring it to the attention of the judge and request a ruling. Overruledmeans the judge disagrees with the objecting attorney. Sustained means the judges agrees with theobjecting attorney.

19. OPENING STATEMENT. A brief statement by an attorney of his client’s position on the issues andapplicable law, generally at the beginning of the trial.

20. 20. ORDER. A ruling by the court.

21. PETITIONER. The party who initially brings or files the divorce action.Opposite party to Respondent.

22. PRELIMINARY HEARING. Any hearing other than the trial. Sometimescalled ancillary hearing.

23. REBUTTAL. Testimony which rebuts or refutes prior testimony.

24. RECESS. A period of time when court is not in session.

25. RENDITION. The pronouncement of the court’s final ruling, which may beoral or written.

26. RESPONDENT. The party against whom the divorce is initially filed. Oppositeparty to Petitioner.

27. STIPULATIONS. Agreements made between the parties and/or their attorneys which are binding.

28. SUBPOENA. A document served on a witness ordering that person toappear at a certain time and place to testify and/or bring designated documents.

29. SWEARING IN. When a witness takes the witness oath to tell the truth.

30. TRIAL The final hearing which decides all issues of the case.

31 UNDER ADVISEMENT. A period of time after the trial when the Judge considers the testimony,evidence and his notes and makes his final decision about the issues.

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32. WITNESS STAND. The place from which the witness testifies.

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APPENDIX XVII

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EROME W. JOHNSONAMES A. BESSELMAN

DON M. DEANGERALD G. BYBEEMICHAEL H. LOFTIN

HOMAS R. DIXON, JR.KELLY UTSINGER

HARON E. WHITEATRICK B. MOSLEY. ALAN RHODES

D. LYNN TATEDAN L. SCHAAP

ALLY HOLT EMERSON


P.O. BOX 9158


FAX (806) 379-0316



E.T. MANNING



October 30, 2002379-0348

M

Amarillo, Texas 791


Dear :

I just want to let you know that I will be out of the office during the week of August 5 throughAugust 9, 2002, attending the Advanced Family Law Course in Dallas. My partner, ChrisWrampelmeier, and my legal assistant, Nancy Gormley, will also be attending this course. We willprobably be in contact with the office sporadically during the week, and, if a true emergency arises, ouroffice will be able to contact us. Otherwise, if you need to talk to one of us about your case, please callus the following week. Thank your for your patience and understanding.

Very truly yours,

Sally Holt Emerson

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APPENDIX XVIII

112




P.O. BOX 9158


FAX (806) 379-0316



EDWARD H. HILL


WRITER’S EMAIL WRITER’S DIRECT [email protected] 379-0348

December 29, 2001

M

Amarillo, Texas 79022

Dear :

I last wrote you on January 25, 2001, inquiring as to the status of you and your wife’s situation.You e-mailed me on or about February 21, 2001, and let me know that nothing was going on.

At the end of every year, or close to it, I review all of my files to make sure that I have not overlooked anything. It does not appear that I have in your case, but I would like to again “check in” to see ifyou wish to proceed in this matter, or whether it needs just to be dismissed. Please let me know at youearliest convenience about the status of this matter.

Yours very truly,

Sally Holt Emerson

SHE/mj

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APPENDIX XIX

114




P.O. BOX 9158


FAX (806) 379-0316



E.T. MANNING



October 30, 2002379-0348

Mr

Amarillo, Texas 791

Dear :

Enclosed please find a file-marked copy of the Final Decree of Divorce.

This letter concludes my representation of you in this matter. Thank youfor the opportunity to be your attorney. If you have any questions, please feel freeto call me.

You should be receiving your final bill around the middle of next month.Your prompt payment is appreciated. If you are entitled to a refund of any moneydeposited with us, the refund check should be enclosed with that bill.

I wish you all the best for the future.

Yours very truly,

Sally Holt EmersonSHE/mjEnclosure

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