Law Firm of Arthur N. (Art) Bashor

How Do I Know What a Judge Will Decide in My Divorce or Child Custody Case?

When I attended my first class in law school, the professor asked a seemingly simple question: What is “the law”?

As I was to find out, law professors never ask simple questions, and never accept simple answers. But after much discussion by the class, the professor gave his definition of “the law”. Frankly, I was pretty shocked at his answer, because I had always thought that the law was something clearly defined so that we mere mortals could understand and follow the dictates of society as laid down and enforced by the mighty power of the government.

So what was my professors definition of “the law”? He said “The law is what a judge will say it is. The law is what a judge will decide.”

Hmm, I thought, surely our entire social structure as codified in law is not so arbitrary. What of all the stacks of books in the law library? What about the reams of statutes enacted by Congress and the state legislatures each year?

But not as fixed an entity as many of us might believe. In order to be adaptable to the myriad of different situations that arise in life and wind up in court, the law must be flexible to be relevant. So the court will apply “the law”, consisting of statues and cases and precedent and following complex rules of procedure and evidence to the facts of your case. Then the court will use its judgment to come to a conclusion as to what the law is, as it relates to our particular circumstances. So in your case, the law is what a judge will decide.

Perhaps the most powerful tool in a court’s arsenal of decision making powers is called judicial discretion. In most civil cases a court has a considerable amount of discretion or leeway in rendering its judgment. That’s not to say that there are not rules and guidelines that a judge must follow, but that generally in family law cases, an appeals court will not overturn a judges decision unless it is an abuse of proper discretion.

In my experience, most judges are intelligent, capable, and compassionate people. They will take your case seriously and make the best decision they can, realizing that peoples lives and futures will be deeply affected by their decisions. But since each judge is an individual, with their own understanding and background, and also because each case is unique, it is just not within the realm of possibility to know in advance what the court’s ruling will be in your family law case. Sure, similar cases usually get decided similarly, so its not a random outcome, but anyone involved in a family law case should be acutely aware that the eventual outcome of their case is always somewhat uncertain.

So the bottom line is this: if you are taking your case to trial you might get the results that you expect, but then again you might not. Usually neither side gets everything they want. It’s important to factor in this level of uncertainty into your decision-making process before you decide to take a case to trial.

One last note:  If you can negotiate an agreed settlement with the opposing party that both parties can live with, you can avoid having a judge make that decision for both of you. That reason, along with the expense of litigation, is the primary reason over 90% of cases settle before trial; It gives both parties the power to decide their own resolution and avoid uncertainty.

Use Software to Manage and Document Your Child Custody

If you have the unfortunate experience of getting into a battle over child custody, your best friend in court (besides your lawyer) is good evidence. So it is extremely important that you keep written records to back up any assertions you have that it is in your child’s best interest to have you as primary conservator.

If the other parent does not exercise their visitation rights and you have records that show that he or she hasn’t bothered to see the children for months at a time, you have evidence that indicates that you are more involved in the children’s lives. That kind of history may be very important in helping the court to decide in your favor.

Or if the other parent will not allow you to pick up the children at the scheduled time for visitation, denies you visitation, or is constantly very late in dropping off the children as per your agreement, then it helps if you have evidence to back up your claims. It is much better to be able to say that your spouse did or did not do something at 4:30 PM on August 12 than to just vaguely assert that the event happened sometime last year.

One of the blessings of computer technology is that there are many niche software programs that can help you with particular tasks; in this case there is software that can help you keep track of events regarding your child custody issues. One such program is called Custody Toolbox. It includes a journal to record events and observations as well as a calendar to keep track of your child custody schedule. I have experimented this program and found it to be a useful tool for parents. For parents who are comfortable using technology, these kinds of tools are a handy way of keeping records.

Here is the developer’s website: http://www.fiveoclocksoftware.com/index.htm

Keeping good records can help you if you are in a child custody dispute. The records themselves may or not be admissible in court (that is another issue altogether, but good records will help you remember things that you would otherwise have difficulty remembering.

What You Need to Have Besides Your Will

You realize that a will is essential, but you really need more than just a will to really put your personal and financial affairs in order.  If you want to do anything like comprehensive  estate planning, there are some additional documents that you need to have your attorney prepare for you.

Here are some critical documents that you should have in your estate plan and what they do for you:

• A Simple Will establishes a guardian for your children in the event your spouse predeceases you, transfers your property to the people you choose, and names the administrator of your estate. Your will also can include provisions for a trust to provide for your minor children.
• A Durable Power of Attorney grants authority to a person that you name to manage your property if you become incapacitated.
• A Medical Power of Attorney grants authority to a person that you name to make medical decisions on your behalf if you become incapacitated.
• A Declaration of Guardian names a person to manage your personal and financial affairs if you become incapacitated.
• A HIPAA Release authorizes a doctor or hospital to release information so that informed decisions can be made regarding your medical care.
• A Living Will describes your wishes regarding life-sustaining medical treatments if your prognosis for survival is unfavorable and you are incapacitated.

I offer a will and estate planning package that combines all of these elements together for you at a reasonable price.  For a limited time you can get this comprehensive estate planning package for $350 for an individual and $500 for a married couple.  This package provides the appropriate estate planning strategy for many people. Each person’s situation is unique and this package may not be appropriate for people with special circumstances, for example individuals with very large estates or those who desire a bypass trust.

How is Collaborative Divorce Different?

COLLABORATE: definition - To work cooperatively toward a common goal. (From the Latin collaboratus, meaning to labor together).

The standard process for obtaining a divorce is emotionally painful and financially expensive. Have no doubt about it, a divorce is a lawsuit between you and your spouse. You will have to endure an adversarial process in which you file a lawsuit, gather information in a most unpleasant manner called discovery, open up your personal life to the courts and the public record, bicker over the terms of the property division, argue for reasonable child custody and support provisions, and possibly endure a bitter trial.

There has to be a better way to do this thing called divorce. A way that minimizes the unpleasantness of the inherantly unpleasant process of obtaining a divorce. And there is.

Collaborative divorce is an entirely different method of ending an unworkable marriage.

Here’s how it is different:

• Both spouses (and their attorneys) sign a contract to do their very best to resolve their issues by MUTUAL AGREEMENT.
• Both spouses and their attorneys agree to act and speak to each other with respect, considering the circumstances.
• The spouses (and their attorneys) hold a series of meetings in which they discuss what each person wants to see as a fair resolution.
• In these meetings, the spouses work together to create an agreed settlement on the children and the property that is fair for both partners and is in the best interests of the children.
• Everyone gets a chance to speak and be heard.
• The attorneys agree to set aside the normal bulldog tactics that often tend to insult the other spouse and simply inflames matters. Your attorney will represent your interests in a way that leads to a fair resolution.
• Often a “neutral facilitator” such as a trained counselor is present at the meeting to keep things running smoothly, productively, and respectfully.
• Attorneys who practice collaborative law are a different breed of lawyer. They are trained in the special techniques of collaborative law. They actually CARE about getting you through your divorce with your soul and your pocketbook intact.
• Everyone involved in the collaborative divorce agrees by contract that they will handle the divorce without putting the couple through the trauma of a trial. Taking the divorce to trial or threatening to do so ends the collaborative process. The attorneys agree to withdraw from the case under these circumstances and so they have no incentive to wage expensive guerrilla warfare through litigation. The couple who withdraws from the collaborative process will have to hire new lawyers at additional cost. The financial incentive for everyone is to finish the divorce by collaboration, not litigation.
• Collaborative divorce is usually much less expensive than litigation. It is also usually less time consuming.
• Collaborative divorce, because it is based on respect and agreement, helps the parties to maintain a civil working relationship after the divorce, particularly when there are children involved. This allows both parents to be better co-parents to their children and protects the children from the lingering effects of harsh feelings between their parents. Traditional divorce often makes both parties so bitter that they may have trouble co-parenting after the divorce.

What the Heck is “Administrative Law”?

In high school civics class you were probably taught that laws were passed by Congress and signed into law by the President.

That’s true to an extent, but despite the lengthy and verbose language of most federal statutes, usually Congress just establishes the rough outline of how a federal law will actually perform. It is left to one of the many federal government agencies in the executive branch to “flesh out” how the law will work in actual day-to-day practice. In other words, most federal statutes are just a rough outline that is filled in by administrative regulations.

What this means is that an alphabet soup of federal agencies (EPA, SSA, FDA, HUD, FEMA, etc.) write detailed regulations that specifically clarify and implement the laws that Congress has passed. These regulations carry the full force of federal law and they are enforceable under the authority of the US government. Oh yes, one more thing: The agencies that write the regulations are also usually the very same agencies that enforce those regulations. Hmm…

Most days literally a book full of laws, called the Code of Federal Regulations or CFRs is published containing these regulations. …And you are responsible for complying with these regulations. “Ignorance of the Law is no excuse!”, they proclaim. But the fact is that there is no person on Earth who is aware of each and every federal regulation.

Here is a link to the Code of Federal Regulations:

http://www.gpoaccess.gov/cfr/index.html

During the 20th century, the American legal landscape changed drastically with the rapid proliferation of government regulatory agencies. Indeed some have come to refer the “regulatory state”. Many of the laws that now govern seemingly every aspect of our lives are not passed directly by Congress or the State Legislatures, but are made by government regulatory agencies.

The system of laws promulgated by government agencies is referred to as regulatory or administrative law.

The same scenario is true on the state level as well. From Auctioneers and Barbers and Cosmetologists to Water Well Drillers and Vehicle Warrantors, there is a state agency in Texas that issues and enforces regulations upon you or your business.

If you own a business, you would be well served to consult an attorney occasionally to make sure you are in compliance with the myriad of state and federal laws that affect your business. If you are concerned about the legal costs, rest assured that it is cheaper to stay ahead of the curve than to be inspected, cited, and fined for violating an administrative law that you didn’t even know existed.

This is a field of law that has special rules and requires particular skill set and knowledge from a lawyer. Having worked for a government agency myself for over decade in the field of regulatory enforcement, I know the system from the inside out. I can help you navigate the maze of red tape.

Questions?

To contact Attorney Art Bashor with your question, use this form, call 817-305-0615, or email info@bashorlaw.com

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