Category Archives: Uncategorized

February 12, 2015

You’ve Been Served, Now What?

Notice of LawsuitThere are many pop culture references to the phrase “you’ve been served,” which generally is associated with a phrase allegedly said by process servers when notifying a person they have been sued.  Even the Urban dictionary defines the phrase “you got served” as “you got skooled or beating very badly.”  That’s not very comforting, but somewhat appropriate.

The process of being served in itself is intimidating and overwhelming, let alone the reality you have been sued.  The reality you have been sued is a beating.  But at the point you receive proper notice of being sued, a countdown begins.  That countdown is the time frame in which you should respond because if you fail to do so, a default judgment may be ordered against you.  Essentially, a failure to respond within the alloted time is seen as a waiver of any denials or defenses you may have.

Rule 99(b) of the Texas Rules of Civil Procedure requires that a person being sued file with the Court of jurisdiction a written answer, asserting denials and defenses, to the petition initiating the lawsuit by or before 10:00 am on the Monday following twenty days after the date of service.  For example, if you are served on Wednesday, February 11, 2015, then twenty days after is Tuesday, March 3, 2015.  Therefore, your answer would be due by or before 10:00 am on Monday, March 9, 2015.

Being sued is no laughing matter.  However, the inconvenience of a lawsuit can be minimized by acting wisely, which begins with answering the lawsuit within the requisite time.  As always, if you have been sued and are unsure of how to proceed, seek legal counsel.  It will likely cost you less to respond properly the first time versus having to hire someone to correct a situation in which mistakes were made because you did not fully understand your rights.

February 4, 2015

Did You or Did You Not Say “I Do”?

The recent tragedy surrounding Bobbi Kristina Brown, daughter of the late Whitney Houston and infamous Bobbi Brown, is nothing short of heart-breaking.  However, the rumored conflicting opinions between family members over Ms. Brown’s medical care has led to an important discovery – Bobbi Kristina Brown and Nick Gordon were never actually married.  Why does this matter?  Because as a spouse, you generally have certain rights, including the right to make medical decisions for your husband or wife when they are incapacitated.  The question now becomes were Ms. Brown and Mr. Gordon informally married, or in laymen’s terms, did they have a common law marriage?

I cannot speak to the laws in Georgia, where the couple resides.  But in Texas and pursuant to Title 1 of the Texas Family Code, a heterosexual couple has a common law marriage if they (1) have an agreement to be married, (2) live together in Texas as husband and wife, and (3) hold each other out to the public as husband and wife.  The agreement does not need to be formally written and can be a verbal agreement, but there must be proof that the parties intent was to be in a marital relationship.  Additionally, there is no minimum requirement of how long a couple must cohabitate, but there must be evidence that the couple resided as a married couple, which typically involves an intimate relationship.  The last requirement means that the couple should consistently and openly present themselves as husband and wife to others.  There can be no “secret” common law marriage, and presenting yourself as husband and wife to a selective few likely will not be enough to meet this requirement.

Marriage, whether formal or informal, carries certain rights and duties.  If you think you are in a common law marriage, make sure you meet the requirements above.  Otherwise, you may find yourself in a difficult situation in which you thought you had certain legal rights and in all actuality, you do not.  

***Family Legal Source is an informational blog on family law matters.  It is not intended as legal advice or as a substitute for legal counsel.  If you have a family law matter, please seek the advice of a licensed attorney.***

 

January 29, 2015

Five “Dos” and Five “Don’ts” When Going Through A Divorce.

Divorce is hard, even if it is the best decision for you.  Divorce signifies the beginning of the end of a dream or hope.  Divorce signifies a loss, and for some, may feel like a failure.  And a divorce may significantly affect more than the married parties, particularly where a child or children are involved.  That is why it is important to act reasonably in a divorce and minimize the potential harm.

With that said, when going through a divorce do NOT:

1.  Lose Perspective.  In a divorce emotions tend to be on overdrive and more often than not will cloud your judgment.  The last thing you want to do is make a decision you will regret.

2.  Retaliate.  Divorce may be painful or, in some instances, infuriating, but retaliation is not going to make the process any easier and will likely backfire or cost you more than it should.

3.  Lie or Omit Important Facts or Information.  The truth eventually comes out, so be forthcoming, even if the facts or information are not particularly flattering to you.

4.  Ignore the Law.  There are boundaries you have to operate within during a divorce.  Ignoring those boundaries could be damaging to you, or worse, to your child(ren).

5.  Let It Consume You.  A divorce will consume you if you allow it, which is unproductive.  There is a reason you are divorcing, so focus on the outcome not all the minutiae in between.

Conversely, when going through a divorce, DO:

1.  Hire An Attorney Who Will Be A Reasonable But Strong Advocate.  You need guidance in a divorce – the law and procedures are not simple to navigate.  But there are attorneys who actually make a divorce more difficult or more expensive than necessary.  Be sure to hire an attorney who has not only the knowledge, but also a passion for their work – you will likely have a better experience if you do.

2.  Focus On the Goal.  The goal is to unyoke yourself from the other party with as little damage as possible so you can go on with your life.  The goal is not to “make the other party pay” or “hurt.”  Be sure to remind yourself of that throughout the divorce because it is likely there will be times it is easy to forget.

3.  Expect Change and Prepare For It.  Life as you know it will change.  One of you will likely need to move out of the home.  You may need to get a job.  Property will need to be divided.  Start taking care of those things as soon as possible and work as much as you can out with the other party. Inventory all assets, liabilities, and such.  The more prepared you are, the more seamless the process may be.

4.  Keep the Interest of Your Child(ren) at the Forefront.  Your child(ren) did not ask for the marriage or divorce – they are the ones who are truly losing.  Be sure to avoid discussing litigation or the other party with them, and give them a third-party outlet to express their thoughts and opinions, such as a counselor.  Chances are the divorce is harder on them than it is on you.

5.  Choose Your Battles Wisely.  See DO #2.  If fighting the battle is not going to assist in accomplishing #2, then like Elsa from Frozen, let it go.

November 7, 2013

Is Your Attorney Working For You?

I often tell people that one of the biggest challenges of litigation is that people are coming to you unhappy.  Unhappiness can rarely be a good starting point, particularly in an adversarial system. That is why it is important to choose an attorney who is not going to intentionally increase that unhappiness, and hope the opposing party does the same.

I once received an inquiry from a person who retained an attorney that has greatly increased his unhappiness.  He wanted a different attorney, but the damage has already been done.  When I reviewed their online record of actions, what stood out most to me was that both sides were fighting – a lot.  Moreover, those fights were over procedural technicalities not important issues of the case, like the best interest of the children.  When attorneys use the Court as their vehicle to fight, it costs you more.  That is why it is important you consult with an attorney prior to retaining them and prepare questions that can assist you in determining if he or she is a good fit for your case.  Some questions you may want to ask include:

  1. What’s your general approach to family law litigation
  2. What’s your general position on alternative dispute resolution?
  3. Do you think there are issues in my case that can be resolved without Court intervention.  If so, what issues and how?
  4. What facts do you think weaken my case?
  5. Have you represented parties in cases similar to mine?  If so, what were the results?
  6. How do you view the position of children in relation to the lawsuit?

As a lawyer my job is to be upfront and honest with a client about their case (the good, the bad, and the ugly), advocate firmly for his or her best interest, and assist as much as possible in minimizing damage already done, whether emotional, mental, or financial.  That is definitely easier to accomplish when there is an attorney on the other side who believes in the same approach.  Unfortunately, there are a number of attorneys who think fighting over the minutiae is how to “win” a case.  That’s why it is even more important you take the time to qualify an attorney who is going to work best for you.