A (NOT SO) Simple Equation To Calculate What Your Case Is Worth.

A while ago, Jimmy Buffet wrote a song called "Math Sucks", a sentiment shared by many mathphobes.  But math probably never sucked harder than when it is being used to deconstruct your life and reduce years of memories and hard work down to such a feeble thing as a raw number.  But when you are involved in a divorce, getting the right number is critical in determining whether you will come out ok, or getting financially destroyed.  Now that REALLY would suck.

If your attorney is a good one, he is getting your case ready for the worst possible scenario and will be busily preparing your case for trial- that is the ultimate goal of his efforts.  However, the client’s calculations should be geared towards settlement, as that is often the most favorable result.  So how can you decide if a settlement offer is a good one or not?  Once again we have to turn to our old "frien-emy": math.

Knowing the total value of your property is the first and hardest step but unfortunately, it is not the only part of the equation.  You should also add in the costs of litigation to your calculation. So when you are considering whether to accept a settlement offer, you can use the following formula.

Total value of assets you think the judge will award you  -  the total amount of debt you think the judge will award you -litigation fees (Legal fees + Expert fees + other costs + time missed from work + mental health costs + time value of money)  < settlement offer.

In other words, if the value of the settlement offer is more than what you think the judge would award you LESS all the costs of litigation, you should take the offer.  

Obviously there are lots of variables in this equation and the values for each of these may be constantly changing.  But that is why the help of a good attorney team is essential to helping you decide if a settlement offer is even in the ballpark and even worth considering.

Texas Parenting Plan Law Amended

The 2005 law on Parenting Plans in Texas Family Law has recently changed in response to grumbling among Texas family law attorneys about some of the practical aspects of the law.

No longer any need to file a "temporary parenting plan".

Texas House Bill 555 (HB 555) eliminates the requirement that couples develop temporary parenting plans and prohibits a court from such a requirement by local rule.

The requirement of preparing a temporary parenting plan prior to a temporary order hearing, was widely ignored by attorneys and judges who saw writ ting out a detailed "proposed temporary parenting plan", as a waste of time and money. The bill also eliminates the possibility that the court adopt a parenting plan simply because the other side failed to file one.

Texas Family Code Sec. 153.602 will now read:
"A temporary order in a suit affecting the parent-child relationship rendered in accordance with Section 105.001 is not required to include a temporary parenting plan. The court may not require the submission of a temporary parenting plan in any case or by local rule or practice."

Mediation or other ADR No Longer Mandatory

H.B. 555 also eliminates the requirement that a parent must attend alternative dispute resolution to resolve any future disagreements about the parenting plan prior to being able to seek relief from the court. Many attorneys (including this author) believed that this requirement put an unnecessary hurtle for gaining access to court if a parent needed enforcement or modification. And although this does not reverse the general encouragement of the courts (and this author) for the use of ADR prior to resorting to litigation, it eliminates that the parties MUST attend ADR before getting access to the court.

ATTENTION ALL DRAFTERS OF TEXAS DIVORCE OR SAPCR ORDERS: HB 555 eliminates the requirement of the old 153.603 (a)(4) that a final parenting plan must "provide for a dispute resolution process or other voluntary dispute resolution procedures, before court action, unless precluded or limited by Section 153.0071."

The enrolled version of the law can be viewed by clicking here: "Enrolled Version of HB 555"

Approval of Texas Family Mediated Settlement Agreements

One of the issues that inevitably comes up in Texas Family Mediations, especially when the parties are trying to creatively resolve their dispute by coming up with a custom made possession order for the child, is the question of whether the judge will approve the mediated agreement once it is presented to the court to be fashioned into a court order.

It would seem to be a fundamental right for two parents to come up with a parenting plan for their child. However, in Texas, this is not the case. The parties, even if they are in full agreement with how the child will be parented, must present their plan to the judge for his or her approval. This is because it has been the practice of some family law judges to take a heavy handed approach of setting aside agreements of parents because, in the judge’s own opinion, the agreement is not in the child’s best interest. The judge’s assumption of this sweeping power is based on case law and the long standing tradition of judges.

However a 2005 amendment to Texas Family Code 153.0071, the statute governing alternative dispute resolution procedures in family law cases, adds a new requirement that effectively takes the sweeping power away from judges to override the judgement of parents. In the the old statute, a court could decline to enter a judgement on a mediated settlement agreement regarding the conservatorship of a child if the court found “the agreement is not in the child’s best interest”. In 2005, subsection (e-1) was added which strictly limited this right of the judge. Now for a Court to disapprove a properly executed and submitted mediated settlement agreement, not only must the court find that the plan is not in the child’s best interest, but also it must find that a party to the agreement was a victim of domestic violence and was too impaired by that to make a good decision. In essence, the legislature has taken away the power of judges to override the wishes of parents to decide at mediation what is in the child’s best interest. The only time the court may not render an order based on a mediated settlement agreement is in the very narrow situation when one of the parents is (a) a victim of domestic violence and (b) that past domestic violence has caused the person to psychologically not be able to make decisions that are in a child’s best interest.

There are several outstanding questions that need to be answered in how this new provision of the ADR procedure statute will be applied. For example, does the domestic violence referred to have to stem from the specific relationship or facts surrounding the present case, or does any past domestic violence count? What if the domestic violence occurred years ago? What if the domestic violence was from a former relationship that has no connection with the present case?

Despite these and other unanswered questions, this newly revised statute is a long step in the right direction for Texas Family Law. It has firmly placed the power of parents to enter into written agreements about their children without unnecessary influence of the courts. For parents going through a divorce or other suits affecting the parent-child relationship, they have the freedom to fashion their parenting plans according to their wishes, and with minimal interference from an impersonal court. For Texas family law mediators and family law attorneys, this means that they have the freedom to help the parties fashion a binding parenting plan with as much customization as is necessary for the personal situation of the parties. No longer will it be necessary to worry about creative solutions for custody and possession going outside of the comfort zone of judges who are afraid to approve any parenting plan that is not cookie-cutter. In today’s age of mixed and blended families, non-traditional families and families separated by long distances, this flexibility is absolutely essential for parties to peaceably resolve their issues regarding their children.

Texas Family Code Sec. 153.0071 as amended states in part:

“…(d) A mediated settlement agreement is binding on the parties if the agreement: (1) provides in prominently displayed statement that is in boldfaced type or capital letters or underlined that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

(e) If the mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or any other rule of law.

(e-1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that: (1) a party to the agreement was victim of family violence, and that circumstance impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest.” (emphasis added).