8/25/2017 The rules are different in Texas family law | Dallas Divorce Law Blog

The rules are different in Texas family law

By Michelle O'Neil on May 8, 2012

Posted in Divorce

I read with interest an article written by a Dallas Divorce Lawyer (Jonathan Bates of Kinser & Bates),
Bakers Dozen: 13 Unique Ingredients of Family Law Practice

Texas Lawyer, March 12, 2012. He set out 13 ways that family law differs from other areas of law in the way a
case is handled. I thought his 13 points would be instructive for potential divorce parties, particularly in
thinking about what kind of lawyer to hire. I always recommend that a potential divorce litigant hire a
lawyer who is experienced in family law in the particular geographic area where the divorce will be
filed. Example, hire a divorce lawyer in Dallas, Texas if your divorce will be filed there. Further, it is
important to find a lawyer who is board certified in Texas family law to ensure that the attorney has a
minimum level of competence in divorce cases. Jonathan Bates 13 points justify why just any lawyer wont
do to handle a divorce case, but instead why a family law specialist is best.

His 13 points, in summary are:

1. Children: Divorce cases involving children have nuances that a general litigation attorney may
not appreciate. Although it sounds simple to say that the best interest of the children are the
primary factor for the court to consider, this concept affects how the case is prepared and
presented, from the beginning pleading to the end of the case.
2. Pleadings: In civil cases, pleadings must have a lot of factual specifics. In family law, these facts
are not required and are very much frowned upon. Texas family law pleadings are broadly
interpreted and failing to following the commonly accepted format screams to the Judge and
opposing attorney that the lawyer does not know what he/she is doing.
3. Trial strategy: An overly aggressive style, although common in civil or criminal cases, may not
play well in family court. Instead, a certain finesse is essential to show the court that you are
sensitive to the issues at hand, while still presenting the right amount of assertiveness of the
clients position.

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4. Prioritizing: An experienced Texas family law attorney will be able to discern what information
is probably not crucial to the case (example, one-time instance of adultery committed by a
spouse five years prior to the divorce) and what information the Judge will really want to hear
(example, taking the children for sleepovers at the boyfriend/girlfriends house before the
parents are separated). In other words, in a custody case, the focus should be on actions that
directly affect the parenting of the children.
5. Discovery: Pretty much all information about either parent or the children or the money is
discoverable in a divorce. All bank statements for any account owned by either party is usually
discoverable for several years before the divorce was filed. In a custody case, medical and mental
health treatment of either parent may be relevant. The contents of either parents computer may
be obtained, including emails, text messages (for iPhones, stored in iTunes), and websites
visited. Further, objections to the standard family law discovery requests result in disfavor with
Judges.
6. Privacy: Because of the sensitive nature of the information exchanged in family law cases, judges
will liberally grant requests to seal a court file or enter confidentiality orders protecting the
parties information.
7. Evidence: Judges are sensitive to a party trying to block the entry of standard and customary
information in a family law case. Such actions make a party appear to be hiding something, even
when a lawyer may be making a technically correct objection. Bates suggests that the evidentiary
victory of challenging the admission of relevant information may be more damaging than the
admission of the evidence in the first place.
8. Developmental tools (for evidence): There are many tools in the family lawyers toolkit for
developing evidence social studies, psychological evaluations, drug testing, and forensic
accounting evaluations are examples.
9. Characterization: Determining whether certain assets owned by either spouse are community
property (obtained by either spouse during the marriage and divisible in the divorce) or separate
property (owned by either spouse before the marriage or obtained through gift or inheritance
and not divisible upon divorce) is a crucial part of the divorce. Expert witnesses, such as
valuation experts or forensic accountants, can evaluate documents and evidence and provide
useful testimony.
10. Statutes: Texas family law statutes are revised every two years when the Texas Legislature
meets. Having an attorney who is current on the latest law and the effect of any changes is
essential to the effective presentation of a divorce case.
11. Facts: Texas family law cases are very fact-specific. Judge because a friend or co-worker had a
certain result in their divorce does not mean that result will be the same in another situation
based on different facts. As Bates says, Unfortunately, many divorce litigants receive inaccurate
information from Hollywood, the Internet, or friends and family members. They often do not
understand that an outcome implemented by agreement in another case may not be the likely
result after a trial on the merits. What happened in another state or county may be inapplicable.
Even slight variations in the facts of two cases may result in significantly different outcomes.
12. Counseling: People (spouses or children) going through a family law case are often seeing some of
their worst times and may need someone to talk to (other than a very expensive attorney).
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13. Terminology: Using the right vocabulary is important. The term custody is used in lay terms
but is not a common term in Texas Family Law. Know what the words conservatorship and
primary residence mean. Understand that rarely does one parent get the children 100% of the
time instead, almost all cases are about how the parents are going to share the children.

Copyright 2017, ONeil Wysocki Family Law. All Rights Reserved.

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Family Law
Dallas

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