18
August 13, 2012
TEXAS LAWYER
inside
Thrive at Work
How to survive
in a high-stress
SpecialReport
practice area.
Page 18
Fight These Myths
Clients may believe
these fairy tales, but
they’re just not true.
Page 22
Heart of the Matter
Understand the
“best interest of the
child” standard.
Page 24
Know the Risk
A pending case could
endanger mediated
settlement agreements.
Page 28
How to Love Being a Family Law Attorney
by CYNTHIA L. CLACK
I have practiced law for 34 years in West Texas.
During the first decade, I defended murder cases,
drug cases and traffic tickets. Workers’ compensation
was in its glor y, as were lucrative plaintiffs personalinjur y cases, and I had some of both in my general
law practice. In 1987, I took my board certification
exam in family law and began my career as a specialist in that field.
Today, my cases are primarily highly contested
divorce and custody litigation. This area of the law, in
my opinion, is probably the hardest on the emotions
and the most stressful of any field. The following are
my recommendations to lawyers who practice family
law or who are considering this area.
1. Be knowledgeable. Family law is a complex area.
The Texas Family Code has grown exponentially
since I began practicing in 1978. As a young lawyer,
my clients’ divorce decrees were two or three pages
long. Now, they typically are 40 to 50 pages long,
many times with appendices.
The days are long past when just anyone could
knock out a divorce. There often are powers of
attorney, deeds, deeds of trust to secure assumption,
qualified domestic relations orders, letters under the
Consolidated Omnibus Budget Reconciliation Act,
forms under the Health Insurance Portability and
Accountability Act of 1996, and the list goes on.
2. Charge adequate retainers. The legal team is
about to do a whole lot of work for a client who is
emotionally volatile. Many times clients are scared,
confused, angr y or depressed. It is unwise to assume
they will pay at the end. Sometimes, they reconcile
with their almost-ex-spouses. The judge may decline
to honor a jur y verdict that calls for payment of attorney fees. Attorneys who are going to jump into highly
contested litigation must be realistic with clients and
themselves about the fees and the time involved.
3. Create balance. Since divorce and custody cases
create significant burnout risks for lawyers, it is vital
to find outlets to relieve the stresses on attorneys
and staff. Writing, exercise, meditation and yoga are
some smart, logical choices.
At my office, I have an in-house chef to keep us
on a healthy diet for breakfast and lunch; a personal
trainer who works with us Monday, Wednesday and
se e How , p a g e 20
August 13, 2012
TEXAS LAWYER
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19
20
August 13, 2012
TEXAS LAWYER
How to Love Being a Family Law Attorney
c o n t i n u e d f r o m p a ge 1 8
Friday; and a chi machine that helps us
with our energy levels in 10-15 minute
timeouts. I suggest to my employees
who smoke that they use the chi
machine instead.
4. Practice law with integrity and
respect. If children are involved, many
divorcing clients will have to deal with
their former spouses for the rest of
their lives. Lawyers should refrain from
adding to the acrimony if there is a better way to practice.
Having compassion for the clients
and becoming a good listener can go a
long way toward defusing their difficult
emotions. If the lawyer is treating himself right by charging adequate and fair
fees, he is less likely to resent listening
to clients’ concerns and helping them
work through the process.
5. Remember that family law cases
change constantly. Unlike criminal or
personal-injur y cases, which center on
a specific act that occurred at a certain
point in time, family law cases involve
disputes and solutions about people’s
ongoing lives and the fluid motion of
emotions, actions and events. The strat-
egy an attorney develops today may
be totally inappropriate tomorrow, so
a successful family law attorney must
be flexible.
6. Be prepared to work hard. There
is no substitute for this. What a lawyer does while working through the
process with clients may impact those
clients for the rest of their lives. At
issue in the case may be the client’s
(or spouse’s) addictions, infidelity,
emotional instability, greed, laziness,
control issues and fears.
A lawyer must be prepared to do
excellent work in the office and the
courtroom and to provide good counsel, coaching, encouragement and a
box of tissues. Frequently, I go to my
bookshelves to give or loan a client a
book or DVD when I think it might
help them.
MAKING
Life transitions can lead to feelings of insecurity and fea
the high emotions and vulnerability of the participants i
a group of family law and divorce lawyers have steppe
and reevaluated the high cost and low return for clients
solu
Collaborative Law.
greater privacy and control of the process and ultimate
Since divorce and
custody cases
Collaborative Law is especially valuable to spouses who
create
significant
and protect
their business, and/or preserve other mutu
Quaid & Quaid
LLC, Family
Law,
burnout
risks
for
to their clients and experience in helping them resolve
move forward
life with
peace of mind.
lawyers,
itin is
vital
to find outlets to
Can you achieve peace of mind during and after d
relieve
the stresses
When you think about the outcome of divorce, what com
on attorneys , custody of children, and p
assets, no doubt. These are important results, and Qua
pursues them with vigor on behalf of its clients, but the
and staff.
Quaid & Quaid believe every divorce should grant one a
peace of mind.
Quaid & Quaid management team
“ Though each case involves different issu
desired outcomes, one constant remains
guiding families
commitment
These clients sare
fellow to
human
beings who have come to the family
lawyer at one of the worst times of their
you divorce can
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lives. ThisHow
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to keep
mind
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a
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Some
Too often, divorce, as commonly practiced, is a destruc
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challenging
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are divorced,
yes, but left feeling
defeated and, often, m
toward
recommend
it.one another.
“As experienced family law attorneys, we’ve seen this
again and again”
saysL.Julie
H. Quaid.
Cynthia
Clack
is an “We’re committe
clients prevent this outcome by guiding them toward re
with thethat
Law
cooperative attorney
ways of divorcing
build rather than de
appropriate, we strongly recommend collaborative law
Offices
of Cynthia
L. serves them and
offers our clients
a solution
that better
She is
Divorce willClack
alwaysinbeOdessa.
one of life’
But the wayboard
you divorce
can
make
the difference betwe
certified in family
your next steps or obstructing them.
law by the Texas Board
of Legal Specialization. She also owns Tiger
Tale Publishing
and Production Cos. and
To learn more about Family Law and Divorce options
has written books, screenplays, songs and
a rock opera. She is a frequent lecturer and
teaches office management.
August 13, 2012
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22
August 13, 2012
TEXAS LAWYER
Eight Common Myths Clients May Believe in Family Law Cases
by BRAD M. LAMORGESE
Family law sometimes seems part
Wild West, part “War of the Roses”
and part “Boston Legal.”
These perceptions may
have some truth, but many
are based on myths. Here
are some top myths in
Texas family law cases
— debunked.
1. There is no alimony in Texas. Once, this
was actually true. Texas
historically has been a no-alimony
state. Texas, however, has enacted and
amended a maintenance statute.
Generally, Family Code §8.051
allows a court in a divorce to order
maintenance in cer tain
domestic-violence situations, if a spouse is disabled, or if the marriage
lasted 10 years or longer and the spouse lacks
income to provide for his
or her minimal reasonable
needs.
Family Code §8.054
provides that a maintenance order
may last five years, seven years or 10
So, fault does matter. But most judges will
not look at fault as the end of the story.
years, depending on the length of the
marriage. Family Code §8.055 allows a
court to order maximum monthly maintenance at the lesser of $5,000 or 20
percent of the spouse’s average gross
monthly income. Texas has a form of
alimony, indeed.
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2. A cour t cannot divide unvested
stock options. Many people fall for the
myth that unvested stock options must
be separate proper ty because they
are not totally earned by the time of
divorce.
But Family Code §3.007 allows for
the division of unvested stock options.
It provides a formula that accounts for
any pre-divorce efforts, post-divorce
efforts and continued employment; it
characterizes that percentage as separate property. The formula also characterizes a percentage for the portion
earned during marriage as community
property. Stock options are divisible in
Texas.
Just because a
spouse moves out
of state does not
mean that Texas
loses jurisdiction.
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3. Fault makes a huge dif ference in
a proper ty/debt division. Family Code
§7.001 requires a court to divide the
parties’ estate in a just and right manner, having due regard for the rights of
each party and any children. In Mur f f
v. Mur f f (1981), the Texas Supreme
Court stated property division factors,
and included among them are “[f]ault
in the breakup of the marriage.”
So, fault does matter. But most
judges will not look at fault as the end
of the stor y. An affair, for instance,
does not mean that one spouse will get
no property and all the debt, and the
other spouse will get all the property
and none of the debt. How much do
judges weigh fault? It depends on the
individual judge.
4. Social media postings are irrelevant. Many spouses post on Twitter,
Facebook, Instagram and other social
media. Frequently, the children of
divorcing parents also will post interesting items on social media websites.
Even better, relatives, friends and
paramours may also make scandalous
posts. These postings can be admissible in court. Lawyers should beware
of their clients’ reckless postings and
pictures on social media; they could
appear in court.
5. Child suppor t is a game of chance.
Another myth is that courts determine
child suppor t on an ad hoc basis.
August 13, 2012
TEXAS LAWYER
Typically, a person wanting to avoid
paying child support will invent and
discuss reasons why child suppor t
should be extremely low.
Most courts will set child support
according to the guidelines in Family
Code Chapter 154. These are rather
scientific and apply a percentage calculation to a person’s net resources. In
some instances, the court can exceed
these guidelines, based on the child’s
proven needs. But, it is rare that a
court will fall far below the mechanical, guideline child support calculation.
6. Texas does not have personal jurisdiction for a divorce because a spouse
moved away. Spouses with large estates
sometimes move to or from a jurisdiction to gain an advantage of a particular
state’s property division laws.
Family Code §6.305 states that
Lawyers should
beware of their
clients’ reckless
postings and
pictures on social
media; they could
appear in court.
23
known as Lord Mansfield’s rule, which
was the law in Texas for generations.
Of course, in 2012, paternity testing
exists. Over the past few years, Texas’
version of the Uniform Parentage Act
in Family Code Chapter 160 has come
to rely heavily on DNA testing to determine a father’s identity. Lord Mansfield
is indeed dead, in Texas at least.
8. Divorces are easy, and anybody can
do them. It is certainly noble for a lawyer
who doesn’t practice family law to take
a case for a person who is in need, but
it is not usually an easy task. If custody,
relocation or mental health are in issue,
the family law case can be extremely
complex, difficult and time-consuming.
Family law cases involving complex
property estates are a mix of property
law, business entity principles, business valuation principles, tax law, probate law, contract law and many other
areas of the law. Litigants frequently
underestimate the complexity of a family law case. An attorney should not
make this mistake and should consult
an experienced family law attorney for
a thorough consultation.
Texas may exercise personal jurisdiction if one spouse continues to reside in
the state and Texas was the last marital
residence within two years before filing
suit. The long-arm law also has the
catchall that personal jurisdiction is
proper if there is any basis consistent
with the Texas and U.S. Constitutions.
So, all of the other factors for
personal jurisdiction come into play,
such as whether the parties owned
The attorneys at Price & Price are proud to offer our clients
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proper ty or conducted business in
Texas. Additional grounds for personal
jurisdiction are available if children are
involved. Just because a spouse moves
out of state does not mean that Texas
loses jurisdiction.
7. Lord Mansfield still lives. In 1777,
Lord Mansfield proclaimed that a husband was presumed to be the father of
a child born to his wife in Goodright
ex dim. Stevens v. Moss. This became
partner in Dallas’ McCurley
Orsinger McCurley Nelson
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August 13, 2012
TEXAS LAWYER
The “Best Interest of the Child” Standard Explained
by JONATHAN J. BATES
The Texas Family Code states that
the “best interest of the child” shall
always be the primar y consideration in determining
issues regarding children.
The Texas Supreme
Court set out a list of factors in Holley v. Adams
(1976) that courts should
consider in the bestinterest analysis. These
include: the emotional and
physical needs of the child now and in
the future; the emotional and physical
danger to the child now and in the
future; the parental abilities of the
individuals seeking custody; and the
acts or omissions of the
parent that may indicate
that the existing parentchild relationship is not a
proper one.
Many subject areas
in family law have their
own presumptions, rules
and additional factors for
courts to consider.
For example, there is a rebuttable
presumption that the standard posses-
For some judges, legal presumptions are
extremely significant and are difficult
to rebut. For others, presumptions carry
little weight and are quickly discarded.
sion order is in the best interest of the
child. However, for a child less than 3
years of age, the Family Code provides
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factors, including: the caregiving provided to the child before and during
the current suit; the ef fect on the child
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of the par ties to personally care for
the child; and the physical, medical,
behavioral and developmental needs
of the child.
For some judges, legal presump-
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August 13, 2012
tions are extremely significant and are
difficult to rebut. For others, presumptions carr y little weight and are quickly
discarded. A lawyer should attempt
to determine the judge’s tendencies.
Particularly with judges less experienced in family law, the attorney should
consider filing a trial brief detailing the
appropriate legal authority.
Generally, cour ts view the bestinterest analysis from the child’s perspective, rather than from the parents’
perspective. However, that concept is
not always readily apparent to family
law litigants. A significant part of a
family lawyer’s job involves managing
the client’s expectations and behavior.
Client Management
TEXAS LAWYER
Generally, courts view the best-interest
analysis from the child’s perspective,
rather than from the parents’ perspective.
child, rather than on those that irritate
the parent. The lawyer should insist
that the client always take reasonable
positions and travel the high road.
There is a family law expression:
“Shoes come in pairs.” This means
that a party in a divorce often engages
in negative behaviors similar to those
about which he or she is complaining.
Sometimes, however, only one party
25
is a bad actor. Unfortunately, because
judges so often encounter two sides
slinging mud or engaging in inappropriate behavior, it can be difficult to
convince a judge that the ugliness is
only coming from one side of the case.
For the well-behaved party who is
on the receiving end of such unilateral
malfeasance, family court can be a frustrating place. The client often develops
an understandable focus on justice and
punishment that litigation never will
satisfy. This requires the lawyer to
emphasize the factors that comprise
the best-interest analysis.
Parties in family law litigation often
c o n t i n u e d o n p a g e 26
Parents often focus on the hours
or days each spends with the child.
However, such a scorecard approach
may treat the child as a possession to
be maximized, rather than as a vulnerable being with emotional needs to be
The client often
develops an
understandable
focus on justice
and punishment
that litigation
never will satisfy.
met through time with both parents.
Usually, the proper focus is on the
child’s needs regarding the parents,
not the parents’ needs or desires
regarding the child.
Parties often are on their worst
behavior during divorce litigation.
Often, the family lawyer experiences
an ongoing struggle with the client
because of the party’s inappropriate
behavior with the child or other parent.
When the other side does something
inappropriate, many parents are unable
to resist the urge to respond in kind.
Fur ther, par ties often insist on
unwise litigation goals or tactics, which
only ser ve to demonstrate to the court
that the party does not have the child’s
best interest at heart. The lawyer may
lose credibility with the court if she
simply parrots the client’s untenable
positions.
Instead, the lawyer repeatedly
should remind the client to focus on
the issues that significantly affect the
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26
August 13, 2012
TEXAS LAWYER
c o n t i n u e d f r o m p a ge 2 5
focus on “winning.” But one side winning often doesn’t advance the best
interest of the child. Rather, the child
wins when the parents or the court
achieve the best possible balance in
imperfect circumstances.
The family lawyer should focus
on the real issues. A parent’s sordid
conduct may be largely irrelevant if it
did not occur in the child’s presence.
Because salacious details may play little
or no part in the best-interest analysis,
excessive focus on such conduct often
is ineffective or counterproductive.
Because salacious
details may play
little or no part in
the best-interest
analysis, excessive
focus on such
conduct often
is ineffective or
counterproductive.
Often mental health professionals,
parenting facilitators and amicus attorneys help the court evaluate the best
interest of the child. In some situations,
the lawyer has no choice regarding the
appointment of such ancillar y professionals. In others, he must evaluate
the case’s circumstances to determine
whether such an appointment would
be practical and productive or simply
introduce a wild-card element. The lawyer should counsel the client regarding
the need to cooperate and appropriately
interact with such professionals.
The lawyer should be familiar with
all applicable best-interest factors set
forth in the Texas Family Code and
case law. Often, the trial presentation
should track that outline. Witnesses
should be carefully chosen to provide
supporting evidence for the best-interest factors. Often a smaller amount of
high-quality evidence is more effective
than a large quantity of irrelevant testimony or documents.
While the best interest of the child
standard may seem simple, its application can be complex. A solid grounding
in the law and skillful client management are necessar y for a successful
family law practitioner.
Jonathan J. Bates is a
partner in Kinser & Bates
in Dallas and is board
certified in family law by
the Texas Board of Legal
Specialization.
August 13, 2012
TEXAS LAWYER
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August 13, 2012
TEXAS LAWYER
Enforceability of Mediated Settlement Agreements at Risk
by ANGELA PENCE ENGLAND
and PATRICIA N. CARTER
Over the past 20 years, nothing
appears to have changed the face of
family law in Texas as much as the
use of alternative dispute
resolution procedures. In
most of the larger counties
across the state, cour ts
will not hear a contested
final trial unless the parties first have attempted
mediation. Some cour ts
require mediation before
allowing a contested temporar y orders hearing. ADR procedures — including mediation, arbitration and collaborative law — seem to
The Texas
Supreme Court
is considering a
case that could
undermine the
effectiveness of
ADR procedures.
have significantly reduced the congested family court dockets.
But the Texas Supreme Court is considering a case that could undermine
the effectiveness of these ADR procedures. In Re Stephanie Lee
is a case in which the trial
cour t declined to enter
judgment on a validly executed mediated settlement
agreement (MSA), notes
Houston’s 14th Court of
Appeals in its opinion in
the case.
Understanding
the
impact of the high court’s pending
decision in Lee requires some familiarity with the development of MSAs
in family law litigation in Texas. As
mediation became a more regularly
mandated procedure, family law attorneys faced some unique issues regarding the enforceability of settlement
agreements.
Lawyers considered early MSAs to
be Rule 11 agreements and assumed
they could enforce the MSA as a contract if a party attempted to get out
of it. However, Texas law is clear that
people cannot contract for custody or
child support arrangements.
In light of decisions questioning
how such MSAs could be enforceable, the Texas Legislature passed two
impor tant statutes: one concerning
property settlements and one concerning custody agreements. Those stat-
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The ﬁrm proudly accepts lawyer referrals and joint ventures many cases with attorneys who enjoy staying engaged in the litigation process. The proven laser guided
pool discovery system that Mr. Guerra has designed over the years is second to none.
“We know what you expect when you refer a case and WE DELIVER!”
FURMAN PLAZA, 418 PEOPLES STREET
SUITE 400, CORPUS CHRISTI, TX 78401
PHONE: 361.760.0020 FAX: 361.760.0026
EMAIL: [email protected]
Healy &
McNamara, PLLC
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T EXA S L AW YE R. C O M
The United States District Court for the Southern District of
Texas is soliciting qualified applicants in order to appoint a fulltime United States magistrate judge for its Corpus Christi Division. The current annual salary of the position is $160,080. The
term of office is 8 years.
A full public notice for the position is posted in the office of the
United States District Clerk at Brownsville, Corpus Christi,
Galveston, Houston, Laredo, McAllen and Victoria. The notice
is also available on the court's website at:
www.txs.uscourts.gov
attorney’s network
T EXA S L AW YE R. C O M
APPEALS
michele barber chimene
Attorney • The Chimene Law Firm
Appeals
[email protected]
(713) 885-0668
9700 Gleneld Ct Ste 626.
Application forms and more information may be obtained from
the court's website at www.txs.uscourts.gov or at the District
Clerk's Office in any division of this district. Applications may
be submitted in person or by mail at the Office of the United
States District Clerk, Southern District of Texas, 1133 North
Shoreline Blvd, Room 208, Corpus Christi, Texas 78401, Attn:
Magistrate Judge Merit Selection Committee. All materials
must be received by 5:00 p.m. on August 31, 2012.
All applications will be kept confidential, unless the applicant
consents to disclosure. Applications will be examined only by
members of the merit selection committee and judges of the
district court. The committee's deliberations will remain confidential.
For more details, please contact:
Danny Williams
404.419.2819
[email protected]
(Statewide)
800-456-5484, ext. 706
Online Legal Career Center
Appointment of Full-Time United States Magistrate Judge
Mr. Guerra’s hard work ethic earned him the prestigious award from Texas Lawyer Magazine as one of
twenty-ﬁve attorneys out of over 8,000 attorneys in the State of Texas in 2009. The award focused on his
litigation success in aquatic litigation cases. Mr. Guerra is a bright lawyer who knows the law and how to best
use it to accomplish his client’s goals in litigation.
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Texas’ Legal Marketplace
PUBLIC NOTICE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI,TEXAS
C post an ad for 2 weeks,
JULY 30, 2012
Houston, Austin
& San Antonio
800-456-5484, ext. 751
The Houston Office of Shook, Hardy & Bacon LLP is seeking
a litigation associate with 4 - 6 years of experience for their Litigation Division. We are seeking a candidate licensed in Texas
and has experience with, or interest in, product liability defense. Former federal court clerk experience is a definite plus.
Candidates should have a strong academic record from a nationally respected law school and an equally impressive undergraduate degree. To apply, please click on the following link:
https://secure.shb.com/legalapply/virecruitselfapply/
redefault.aspx. No third party submissions, please.
Houston, Tx 77096
Not Certied by the Texas Board of Legal Specialization
LEGAL MALPRACTICE
LITIGATION SUPPORT & APPEALS
Need Help With Litigation?
Board Certied Civil Trial Attorney
Available on Contract or Of-Counsel Basis
• Signicant First-Chair Experience, Help With Overow
• Litigation Management, Triage, Manage Outside Counsel
• Consultation, Depositions, Discovery, Mediation
Steven M. Strong
Steven M. Strong, P.C. s 8226 Douglas Ave, Ste 550
Dallas, TX 75225 s Tel 214 890 1100
Fax 214 890 9875 s [email protected]
STATE BAR GRIEVANCE COMPLAINTS
LEGAL MALPRACTICE
LAW OFFICES OF ERIC G. OLSEN
7000 North Mopac Expressway, Suite 200
Austin, Texas 78731
[email protected]
Tel: 512-201-4348 Fax: 512-201-4349
&ORMER$ISCIPLINARY0ROSECUTOR
FORTHE3TATE"AROF4EXAS
(ANDLINGATTORNEYGRIEVANCESANDLEGAL
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(Reviewing cases throughout Texas and Florida)
STATE BAR LICENSING/GRIEVANCE DEFENSE
LEGAL MALPRACTICE
The Boyd Law Firm, P.C.
Dan S. Boyd
*Eight time Texas Superlawyer Honoree
Pharmaceutical Litigation Attorney
Downtown Houston Plaintiff's law firm seeking attorney with 5+
years experience for immediate opening. Must have federal
court experience with proven track record. Mass tort and/or multi-district litigation experience preferable. Competitive salary and
benefits package. Please forward resume to:
[email protected]
REACH TEXAS LAWYERS
ADVERTISE HERE
CALL 214.744.7751
*Double board certied-Civil Trial and Civil Appellate
*Texas Board of Legal Specialization-since 1988.
5001 Spring Valley Rd., Dallas, TX 75244
972-383-1260
fax: 214-292-8491
dan@boydlawrmpc.com
Statewide practice.
We’ll help you fill your firm with Texas Lawyers. Advertise Here.
Contact Forrest Williams at 214.744.7751 or [email protected]
August 13, 2012
TEXAS LAWYER
utes, Texas Family Code §§6.602 and
153.0071 (d)(e), mandate that courts
approve MSAs containing certain language if they are signed by each party
and his or her attorney, if any.
Section 6.602 mandates that a party
is entitled to judgment on a validly
executed MSA notwithstanding Rule
11 or “another rule of law.” Section
153.0071 similarly provides that a
party is entitled to judgment based on
the terms of the executed MSA, and
it specifically limits the court’s ability
to set aside the MSA: Doing so is only
permissible if a signing party was a
victim of family violence, his or her
decision-making ability was therefore
impaired, and the agreement reflected
in the settlement is not in the best
interest of the child. Accordingly, a
best-interest review is only warranted
under the statute if there are allegations of domestic violence.
The passage of these statutes provided a sense of finality in family law
mediation sessions. Parties could be
sure each would be bound by the agreements reached and that they could
secure a judgment on the settlement
terms, even if someone woke up the
next day with buyer’s remorse.
And then along came Lee. In this
recent mandamus proceeding, the finality of agreements reached in mediation
is once again in question, potentially
negating the benefit that the mediation statutes set out to give to parties
involved in contentious family law
litigation.
In Lee, the trial court declined to
enter judgment on a valid MSA. The
court found that the agreement was not
in the best interest of the child. But the
court ignored the additional statutor y
requirements that a party to the MSA
Only upon
allegations of
domestic violence
would a best
interest review be
warranted under
the statute.
must be a victim of family violence and
that this circumstance impaired the
party’s ability to make decisions. The
14th Court upheld the lower court’s
decision earlier this year and denied
mandamus.
If the Texas Supreme Court agrees
with the 14th Court and upholds the
trial court’s refusal to enter judgment
on the MSA, allowing the court to
review for best interests even when
there is no statutorily required allegation of domestic violence, the decision
will eviscerate the mediation statutes
and the mandator y-mediation requirement that exists in a vast number of
jurisdictions in Texas.
Such a decision by the high court
also would open collaborative law
agreements to judicial review. Parties
often enter into such agreements
after months of extensive negotiations. Collaborative law agreements get
similar enforcement protections under
Title 1A of the Family Code, Texas’
enactment of the Uniform Collaborative
Family Law Act.
Such a decision also could open the
door for judicial review of all agreedupon settlements. That runs contrar y
to the U.S. Supreme Court’s holding
in Troxel v. Granville (2000) that fit
parents have a fundamental right to
determine with whom and when their
children spend time.
The effect on family law litigation
in Texas will be significant. Parties to
family law disputes will no longer have
incentives to negotiate in good faith
to work on an amicable resolution of
their disputes if a court can undo the
agreement.
There are other options for courts
than declining to follow the MSA statutes, such as entering judgment pursuant to the MSA and then immediately
granting a new trial if warranted by
29
the facts.
The statutes are clear and unambiguous: Parties entering into validly
executed MSAs after mediation should
know that the court will approve the
deal they struck and enter judgment.
Hopefully, for the sake of amicable
settlements in all family law cases, the
Supreme Court will agree. Angela Pence England
is a partner in Tindall
& England in Houston.
She is board certified
in family law by
the Texas Board of
Legal Specialization
and a fellow of the
American Academy of
Matrimonial Lawyers.
She is a member of the
Family Law Council,
the governing entity of the State Bar of
Texas Family Law Section. The council
filed an amicus brief in In Re Stephanie
Lee. England is writing in her individual
capacity and not as a representative of
the council. Patricia N. Carter is board
certified in family law by the Texas Board
of Legal Specialization and is a partner in
Short Carter Morris in Houston.
Domestic anD international Family law
Laura Dale & Associates, P.C., is a full-service family law firm that provides representation in domestic family law
as well as international divorce, custody and child abduction cases.
When you need a smart, experienced attorney to help you protect your family’s future, you can rely
on our specialized knowledge and skills.
Laura is Board Certified in Family Law by the Texas Board
of Legal Specialization, and Legal Counsel to the Consulate
General of France in Houston, Texas. Laura practices
exclusively in the area of family law involving high-conflict
divorce and custody cases, international abduction and
other cases brought under the Hague Convention.
Attorneys
Laura D. DaLe*†
JoeL a. GranDstaff*
Liza Greene*‡
John M. ransoM, ii
ashLey toMLinson
aManDa tucker
*Board Certified in Family Law by the Texas Board of Legal Specialization
†2012 Super Lawyer
‡Houston Top Lawyer and Board Certified in Consumer Bankruptcy Law
by the Texas Board of Legal Specialization
1800 St. James, Suite 620
Houston, TX 77056
713-600-1717
www.dalefamilylaw.com