Posted on January 14, 2014 by Shannon Cavers
I take issue with many things said in the Divorce Corp. documentary, and my focus for today’s post is the statement “The court System is designed to create conflict.” To the contrary, the court system is where civilized people go to resolve conflict that they cannot fix on their own. Conflict comes to the courthouse with the litigants.
The adversarial system of justice has served humankind well for longer than our nation has been in existence, so it should be no surprise to anyone that litigation increases conflict before the resolution. Litigation and the adversarial process are rigorous and designed to permit people in conflict to get their day in court. There are always winners and losers in litigation, and even the party who “won” often does not feel like the victor. Where should people resolve conflict they cannot handle if not at the courthouse? Mediation and collaborative law are other options, but people need to be educated about them.
I do agree with the documentary makers that litigation and the adversarial process is not well suited for family law matters. I’ll go a step further and say litigation isn’t really good for any conflict where the parties need to have a good relationship in the future. People tend to feel better about resolutions they create for themselves and they tend to honor those resolutions much better than something a court hands down. This fact and the overwhelmed justice system are reasons why parties are required to mediate their dispute at least once before having a final trial. A good mediator who knows how to size up people, conflict, and break conflict down into manageable parts serves the litigants well. The overwhelming majority of civil cases and family cases resolve at mediation.
The documentary disparages mediation – at least as it exists for family law cases in Sacramento and Marin Counties in California. Next time, I’d like to take a look at mediating family law disputes in Houston, Texas.
Posted on January 13, 2014 by Shannon Cavers
After seeing Divorce Corp., I’m taking the opportunity to correct the impression that there are no juries in family law cases – only judges. The documentary quotes Thomas Jefferson about the importance of juries:
“It is left, therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.”
One of the law professors in the film said it more simply: Juries keep us honest.
While the absence of a jury in family law trials may be norm in some states, juries are alive and well in Texas. The right to trial by jury is guaranteed in the Texas Constitution under Article I Section 15 as inviolate. In fact, all one must do to obtain a jury trial is timely pay the sanctioned jury fee to the clerk of the court, which is about $30.00.
In child custody cases a party is entitled to a jury verdict on issues such as:
- Whether parents are appointed as joint managing conservators,
- Whether one parent is appointed as sole managing conservator,
- Whether a party is appointed a possessory conservator
- Which party has the exclusive right to designate the primary residence of the child, and
- If there is a geographic restriction on the primary conservator, what that restriction will be.
Once the jury delivers a verdict, the judge cannot disregard the verdict. See Tex. Fam. Code Section 105.002. Texas is unique in delegating these decisions to a jury if a party makes a demand for jury trial.
In issues pertaining to marriage dissolution and property division the jury can also make binding verdicts on in areas such as grounds for divorce, characterization of property, and valuation of property.
Jury trials in family law cases are rare mainly because of the expense of presenting a jury trial in comparison with a bench trial. Whether an attorney is preparing for a jury trial for commercial litigation, personal injury, probate or a family law matter, it is always more labor intensive and expensive. However, the jury trial is very powerful and can protect a litigant if a presiding judge is known to have a bias that could impact a party in a family law case.
Posted on January 12, 2014 by Shannon Cavers
I am proud of my work as a family attorney. At seven years old I was subjected to the family law system. At the end of the first custody go-round, I felt angry with my parents, their attorneys, and the judge. My seven-year-old self told off the court, judge, and parents by saying “I could do way better than you guys.” My experiences with family court, judges, and attorneys were a huge part of my decision to grow up and be an attorney. Hopefully, if that seven-year-old girl critiqued me today, I’d pass muster.
Many of the interview clips in Divorce Corp. were beyond appalling. The ones that stuck with me were attorneys in various states:
- Boasting about charging upwards of $600.00 per hour,
- Billing $54,000.00 in just over two hours,
- Encouraging clients to make up allegations of abuse to gain advantage,
- Advising they will win their client’s case based on campaign contributions, and
- Referring to weddings as “future inventory.”
Despite what the film may lead you to think, not all family law attorneys are rich, unethical, jaded, or liars. Most of us work extremely hard and take our role in helping families seriously. We are hired to use our legal education to advocate for our clients within the confines of the law. Litigation is essentially war, so it is not well suited for any relationship a litigant values and wants to maintain for the future. That is especially true when loved ones turn against one another.
What Divorce Corp. does not do is explain other ways of resolving conflict in the family dynamic, such as pursuing an uncontested divorce, early intervention mediation, or collaborative law. If you consult with a lawyer and the only option he/she provides is litigation, then I strongly suggest you speak to someone who will give you options and explain each one in depth. Otherwise, there is no way to make an informed decision. This is very similar to the notion of informed consent in medicine, such as when forms in 8-point font are shoved before you on a clipboard with the expectation that you sign without asking questions. To me, informed consent means the person seeking services was told about options, the risks and benefits associated with each, the estimated cost, and what a reasonable outcome might include.
Whether you’re talking about lawyers, doctors, teacher, contractors, or the church pastor, there are good ones and bad ones. It’s unfortunate that most of the time we hear only about those who denigrate their profession rather than those who commit themselves to learning throughout their professional life, obtain positive results for clients, give of their time and talent to those who are less fortunate.
Posted on January 11, 2014 by Shannon Cavers
This morning I went to see Divorce Corp., the documentary about the family law industry in the United States. I took copious notes throughout and had many emotional reactions. For the most part, I was not surprised about the tone or perspective of this film. Though it portrayed attorneys, judges, custody evaluators and investigators in the most repulsive light possible, the film does a valuable service – it gets people talking and thinking! Getting a reaction out of people and inciting them to discuss is a first step in any social change such as civil rights and gender equality.
While many of the topics presented in Divorce Corp. are accurate, my aim is to encourage people to:
- Look closer and think for themselves,
- See that some of the sweeping statements made are not true in every jurisdiction, and
- Empower people to educate themselves about family law and conflict resolution.
If family law and reasonable resolutions are of interest to you, please see the documentary and follow my blog posts over the next few weeks.
Posted on September 13, 2013 by Shannon Cavers
Going back to school has always been one of my favorite times of year. It marks a new beginning, opportunities for learning, making new friends, and participating in enriching activities. For families that are newly separated or divorced, back to school can add another stressor to parents and kids because two households with less than ideal communications have difficulty staying on top of homework, class projects, parent/teacher conferences, getting kids to and from activities after school, and the little extra expenses that frequently crop up. One of the biggest concerns I hear from parents who aren’t the primary custodial parent is they feel like they’re not “in the know” about what goes on at school. My advice: plug into technology. This is especially helpful if you’ve not yet established good communications with the other parent, and in the event communication remains a challenge. These days it’s easier than ever to keep up with the kids and teachers. Most school districts and individual schools have web sites where parents can register for e-mail notifications of open houses and special events, projects, homework assignments, quizzes, tests, and report cards. Not everyone can get off work to attend PTA meetings or go to parent/teacher conferences during the middle of the day, but parents can show their interest by staying in regular contact with the teachers and expressing concern for their kid’s learning, class participation, socialization, and conduct in class. Even if your schedule doesn’t permit you to bake cupcakes, perhaps offer to donate supplies or sponsor a class party. Teachers tremendously value parents who are interested in what they can do to help their child succeed. Bottom line – you owe it to your kids to be involved, show interest in what they do, and help them succeed.
Posted on August 19, 2013 by Shannon Cavers
Texas parents paying or receiving child support may be impacted by a legislative update. Presently, the cap for calculating guidelines child support is the first $7,500 per month of the paying parent’s net monthly resources. However, as of September 1, 2013, the new cap increases to $8,550. For high wage earners, this means that child support for one child can increase from $1,500 per month to $1,710 per month based on the 20% multiplier for one child. This increase is not something “new” Texas legislators imposed during the 2013 regular session; rather, it is in response to statute adopted in 2007, which adjusts the child support cap. (Texas Family Code Section 154.125). It’s important to note that this adjustment is not automatically applied to parents. In order to obtain this increase, a modification for child support must be filed with the court of continuing jurisdiction over the case. A modification is something to be handled by an experienced family law attorney. In instances where the paying parent is a high wage earner (meaning they earn up to and over $8,550 per month), sometimes this can be handled by agreed motion and order between the parties’ attorneys.
Posted on February 14, 2013 by Shannon Cavers
Many adults cope with generalized anxiety disorder (GAD) by working with counselors, taking medications, and/or using cognitive behavioral therapy (CBT) skills to manage their symptoms. Therapy, CBT skills, and medication can be effective in alleviating GAD symptoms. However, when working with the elderly population, the health care community has to alter the approach. That is because most elderly people view psychology, anxiety medications, and therapy as things for “crazy” people or those with serious emotional disturbances. That prevalent mindset closes the door the elderly need to feel better and maintain a good quality of life. When the person suffering from GAD is elderly and socially isolated their anxiety can become worse. While most people worry about things from time-to-time, people who suffer from GAD are consumed with worry about almost anything, and the thoughts are so intrusive that they can be debilitating. For example, an elder person may worry about falling or driving. There are symptoms beyond just feeling angst, which may include insomnia, headaches, depression, and even avoidance of certain situations. To illustrate, if Grandpa is afraid of falling, he may avoid going to the grocery store or pharmacy to pick up much needed items. Adult children may wonder why Grandpa is always eating take-out or fast food from the drive-thru lane. Most caretakers will not put together than Grandpa is using avoidance techniques to manage his fear of falling. So, what is a caretaker to do? In the Houston elder care and elder law community, there are many resources for the aging and their families. The Houston Gerontological Society presented a lecture about managing GAD in the elderly population and how techniques used for younger adults can be adapted to help the aging population. The principal investigators have learned that providing more education about psychology, less psycho-jargon, going at a slower pace, using more visual aids, and involving family members makes management techniques more effective. This research is called The Peaceful Living Project and is associated with Baylor College of Medicine.
Posted on February 13, 2013 by Shannon Cavers
Saturday, March 9, 2013 from 8:30 a.m. to 2:30 p.m. Interfaith CarePartners is sponsoring a conference to answer the many questions that confront us when caring for aging or disabled loved ones. There is no cost to attend this conference, but those interested must register so that the host, St. Luke’s United Methodist Church, knows how many people to expect for lunch service and so presenters know how many materials to bring. There are three different workshop sessions at 9:45 a.m., 11:05 a.m., and 1:20 p.m. with professionals teaching about topics such as Medicare, life care planning, Medicaid benefits planning, caring for loved ones with dementia, and how to handle stress as a caregiver. The speakers at each of the workshops are professionals in fields such as elder law, in home health care, counseling, and so on. Having been a past speaker on Medicaid benefits and a conference attendee, I can say that there is much to learn. There are exhibitors at the conference, but they are separate and apart from the workshops. The workshop presentations are meant to provide educational services to the Houston community, and not be a sales pitch for services. For more information on how to register for these workshops and take advantage of these learning opportunities, please visit the conference website.
Posted on February 7, 2013 by Shannon Cavers
If you’re reading this post, then it’s likely you are facing the possibility of caring for aging parents or other loved ones. Even under the best of circumstances, planning for the future is stressful because it involves the unknown: (1) How long will my loved on live? (2) How healthy will s/he be going forward? (3) How much will future care cost? Though these questions produce anxiety, issues like managing assets, housing, health care, transportation, and estate planning are important to confront now rather than later. As in all things, the future depends on preparations made in the present. Today’s post focuses on housing for aging loved ones. Research tells us that people prefer to remain in their own homes for a variety of reasons; not the least of which is retaining independence and not burdening the family. Staying at home is referred to as aging in place, which can be a very good option if your loved one is able to care for their basic needs alone or with a modicum of assistance from family or helper. It is usually much less expensive than senior living facilities. Another option is to bring the loved one home with you. This can be helpful if s/he can remain at home alone while family members are at work, or if an in-home helper is available to tend to his/her needs. Senior living facilities offer a range of options from independent living apartments, to assisted living, and in some instances nursing home care. Knowing which option to choose is difficult and persuading your loved one to make changes to his/her lifestyle (even if it’s to have an in home helper) can create conflict among the family. Though all involved want the same thing – what’s best for Mom or Dad – simply agreeing on what is best is difficult. However, there are competent professionals in the Houston area whose careers are in elder law, geriatric medicine, geriatric care, and home health care because these professionals are committed to helping families in this period of transition. Future posts on housing will discuss independent living, assisted living, nursing home care as well as financial and legal planning.
Posted on January 7, 2013 by Shannon Cavers
When I first started my career, a wise Houston family law attorney and mediator told me after successfully settling a high conflict case, “Trials destroy families.” Obviously, I knew trial was not the optimal way to bring order from chaos of divorce and custody battles, but I recall judging her statement was somewhat melodramatic. Having spent some years in the trenches now, I agree that experiencing a custody trial as either Mom or Dad from start to finish is a very effective way to destroy co-parenting, trust, respect, and once treasured memories. The judge is not King Solomon, and cannot split the child in half. However, if you ask a child involved in a custody dispute, that image is close to how s/he feels. A North Carolina attorney specializing in family law posted from a court reporter’s transcript, the statements of a presiding judge asking the parties and their attorneys to settle their case before asking the court to decide. This judge paints an accurate description of what trial attorneys have to do to accomplish their client’s objective. Though not King Solomon, this judge perhaps has his wisdom. Even after the parties leave the courtroom, a custody ruling can scar the family for years to come. This is not to say that child custody trials should never occur, but to encourage parties to be very aware of consequences and make every attempt to put their children first.