Dallas Divorce Lawyer Blog

Discovery Explained

In a nutshell, discovery is a procedure in which information is exchanged between two parties. This is a general description to be used for civil cases only (as opposed to criminal cases). The term “discovery” is very broad. It covers a wide variety of requests that one party makes to another in order to obtain information.

There are several reasons why providing one party with information regarding litigation is important, but under the American system, no other reason is more important than the concept of fairness and a fair trial. If one party withholds potentially powerful evidence or information from the other party, because that information is damning to their case, then that is not fair to other party, especially in a criminal setting, but almost as much in a civil trial. If a party has information helpful to their case withheld from them on the basis that the other party was in control of it and they knew it was harmful to their case, without discovery rules, the other party almost certainly would not be able to present their case fairly before a judge or jury.

Think about it this way: a chemical company is being sued for contaminating the water supply to a small town. They have information that shows that they knew about the contamination and continued on without working towards fixing the contamination or remediating it. If there were no rules that compelled the chemical company to release such information, then the people of the small town may have a very difficult time trying to prove that the water company knowingly continued to contaminate the water supply. (This is not the best analogy because there are likely other ways of obtaining the information, and there are probably ways that the chemical company could try to deny discovery of such material, but you get the gist).

Types and Scope of Discovery

Rule 192 explains the permissible forms of discovery:

(a) requests for disclosure;

(b) requests for production and inspection of documents and tangible things;

(c) requests and motions for entry upon and examination of real property;

(d) interrogatories to a party;

(e) requests for admission;

(f) oral or written depositions; and

(g) motions for mental or physical examinations

Tex. R. C. Proc. 192.1. There are also rule regarding what is and what is not information that can be admitted into discovery. Rule 192 further explains that,

“In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action … It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Tex. R. C. Proc. 192.3.

Put into perspective, Rule 192.1 outlines the various types of discovery allowed in a given case. Not all forms of discovery are needed in a given case, but they can apply to any type of civil case in Texas if necessary. Rule 192.3(a) provides a general scope of discovery applicable to all types of discovery under 192.1. It states generally that a party may request information that is not privileged, that is relevant to the subject matter in some way, and appears to be “reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a). The word appears is absolutely important to that sentence. It means that it doesn’t necessarily have to lead to the discovery of admissible evidence, and it doesn’t as a matter of face have to be “reasonably calculated”, it only has to appear to be reasonably calculated. That is very important. It provides the requesting party with just a little more leeway in their requests. That does not exclude the other party’s ability to object to requests, but they must assert that the request does not on appear to be reasonably calculated to lead to the discovery of admissible evidence. Taken together, rules 192.1 and 192.3 taken together help us to understand the types of discovery and an outline of their scope.

Requests must be made with relative specificity. Tex. R. Civ. P. 196.1(b). Under rule 196.1(b), the requesting party must provide the other party with what they’re looking for from the other party and in specific enough terms so that the other party will know what they are to send. Additionally under 196.1(b), if you plan on testing the thing produced for inspection in a lab or some other way, you must disclose what you plan to test or sample regarding any such item.

Objections and assertions of privilege will necessarily affect what is shared between parties, but we do not need to worry about these for now. The concept of discovery is what we are trying to understand

Compelling Discovery

Request for Admissions, Request for Interrogatories, Request for Production, and Request for Disclosure are the four most common ways to obtain information from another party. Requests for admissions and interrogatories are typically in the format of question and answer. The request for production and inspection of tangible things is just how it sounds, but it is usually provided in an enumerated form to provide the responding party with specific enough requests to know what needs to be found and produced. The request for disclosure is more like the first two. The party requesting disclosure may request that the responding party provide them with any and all potential legal claims/defenses in the litigation as well as any factual bases for their legal contentions. It also requests the responding party to provide their names, addresses and contact information, as well as name and contact information of any witnesses. But before we go too far, lets take a look at each of the four types individually.

Request for Admissions

Within the realm of written discovery requests you can request another party to make certain their position on certain facts or situations related to the case. They typically come in the form of enumerated sentences or descriptions of events. Responses to such a request can take the form of an admission or a denial. They can also be yes or no, true or false, but the point is always the same. The party seeking answers is trying to verify which facts are actually in contention in the case. This is actually a much more important tool in litigation than might originally appear. Sifting through the contested facts and circumstances to get to a set that are agreed on by both parties allows the court to get a better picture of the events that led to the litigation.

Request for Interrogatories

Interrogatories are slightly different from requests of admissions in that instead of admitting or denying specific things, they are requested to give an answer to a specific question. It is not that they are admitting anything, they are simply answering a question about a fact. A common question in an interrogatory requests that the responding party provide their account of the event or circumstances that gave rise to the litigation. That is the difference: In an interrogatory, you are giving an account or description of the events that eventually lead up to the litigation, or providing information about the parties involved, not admitting or denying whether those certain things happened, or about whether they happened in a certain way. The party responding only needs to respond to things that they have actual knowledge of, or can acquire the information through a reasonable search.

Request for Production

This is the more commonly known form of discovery. Once requested, the other side is required to compile information that they have and hand it over to the other side. This is usually done by both parties in a civil suit, and sometimes it is supplemented when new information is discovered. As always, there are certain privileges and exclusions that can apply to production requests. The requests have to be reasonably specific so that the other party knows what to prepare and hand over. When making an objection or asserting a privilege to production, it must be done in regards to a specific request, in writing, and state the legal and factual bases for the objection so that the other party knows what you are trying to withhold and why.

  1. Request for Disclosure

Disclosure is a bit like an interrogatory in that there is a series of enumerated requests and questions to answer on a standardized form, but they usually aren’t as involved as interrogatories. Disclosure requests usually ask for the names and addresses of parties or persons with relevant information (witnesses, experts). For experts they request to know the information the expert will testifying to, and the information or documents they will be referencing. Disclosure requests will also contain requests for legal theories the party will be using at trial.

 Responses

According to the Texas Rules of Civil Procedure, responses must be served on the requesting party within 30 days after having been served. However, if the request is received before the Defendant’s answer is due, such as being served with everything at once (notice of the suit, and request for disclosure, etc… at the same time). In that case, the response is not due until 50 days after service of the request. (Tex .R. Civ. P. 194.3, 196.2(a), 197.2(a), 198.2(a)).

Each type of response has its own procedural rules governing what the “content” of each type of response should be. For instance, the Texas rules for an interrogatory state that the response should include “the parties answers … and may include objections and assertions of privilege.” Tex. R. Civ. P. 197.2(b). But it also provides an option to produce certain records if the “burden” is substantially the same for either party to derive or ascertain the information from public record, responding party’s business records or a compilation of the business records. Tex. R. Civ. P. 197.2(c). This means that if the information is just as easily obtainable by the other party through the public record or the business records, the responding party can just provide that information and have the other party find it in the record. But you cannot just send the party on a wild goose chase through thousands of pages of documents. The answer that the requesting party sought must be “specified in sufficient detail” to allow them to find the information as easy as it would have been for the party who gave up the information.

Conclusion

It is important to understand that discovery is a broad term with broad goals. The concept of discovery encompasses many different types of information. The rules in Texas are meant to organize a broad and complicated process into a streamlined, understandable, and cost-efficient tool for both sides of the litigation. Knowing the what and how of the response is pivotal to providing the correct information to the other side. Understanding what can be objected to, or what could be privileged is paramount to the case. With discovery, it is about having a keen eye. A keen eye that is fixed on the minutia of the question or request, but also on the bigger picture of the litigation at hand.

The purpose of the discovery rules in Texas is to facilitate a cost-efficient transfer of information between opposing parties in a lawsuit. The rules seek to accomplish this goal by providing parties with notice of how discovery should be conducted, explaining what may be requested, and the proper form of how to request it.

 What is Discovery?

Discovery is the transfer of information from one party to another party or multiple other parties. It is an immensely important function in litigation because in all likelihood the information you need to win your case will come, at least in part, from the other side during discovery.

In a world of extreme competition, why would the legal system require one side to provide the other with potentially damning information? In a word, fairness. Sharing information between the parties is but a subpart to broader goals of the law, which is to deal in good-faith with one another.

Discovery allows for a more expedient trial. One, because it provides the parties with dates that they must abide by to turn over the information. Secondly, it puts the other party on notice of information the other side plans to use against them, and the legal theories that will accompany that information.

The two sides in the litigation are still adversarial, to say the least, but the right to a fair trial is at the heart of the American system.

Please do not misunderstand me, it is not like discovery is always a field of flowers to get from the other side. And it is not like there cannot be contention between what should and should not be shared between the parties. There is also abuse of discovery. Sometimes what one party requests of another is a huge burden to obtain, or it is very costly. Then there are the times when you just are not exactly sure of the scope of the request. Situations such as these will be discussed in further detail below. 

Responding to Discovery

Responding to discovery is all at once a complicated and very simple process. Usually it is not incredibly difficult to understand what has been requested by an opposing party during discovery. What makes it difficult is to comply with the response by getting the information and returning it on time. The standard time frame for responding to all types of discovery is 30 days under the Texas rules. There is an exception to the 30 days rule if the request for discovery is received prior to sending in the defendant’s original answer. The parties can, at there discretion, or by order of the court, set their own time period for discovery.

Responses to discovery must be made in writing (or whichever format or type of discovery requested), and must form a complete response to the question or request for production or inspection of documents, etc.. An objection, or assertion of privilege, if the legal and factual bases for their assertion is proffered, will act as a complete response to the request because it is your complete and full response to their request. If the other side would like to argue about it, they have the opportunity to request a hearing before the court regarding that objection or assertion of privilege, and the court can decide whether or not the assertion of the privilege or objection is proper.

If the court overrules the objection or assertion of privilege, the party losing the assertion would do well to object and make an offer of proof (statement to the court arguing why you believe the assertion should stand) and ask that the objection be preserved on the record. By doing so, you preserve the record on appeal, so that in the event there is an appeal, the ruling on the assertion may be argued on appeal and possibly overturned.

Objections, Privileges, and Exemption: Know the Difference!

There are three powerful tools at the respondents’ disposal that provide a means for not complying with some or all of the requested discovery materials. Two of which were discussed briefly above, the objection and the assertion of privilege. The third, the exemption, is handled in a much different way by the courts.

The Objection

An objection is usually made because there is something about the request that subjects it to repudiation by the responding party. The most common objections are claims that the request is overly broad, cumulative, duplicative, does not state with sufficient clarity the item for inspection or some other combination of the above. In a single discovery request, if the responding party objects to half of the requests, they must object to each one individually and state the legal or factual basis for the objections. It is a line-by-line procedure.

When something is said to be “overly broad”, it usually means that the requested information is outside of the requisite relevancy to the litigation. All information requested under the rules of discovery in Texas must be relevant to the litigation, and must appear to be reasonably calculated to lead to the discovery of admissible evidence at trial.

If a party makes the claim that the request is overly broad, they must explain in what way the request is overly broad. First, provide the legal bases for why the request is “overly broad”. Is the requested information irrelevant to the case? Does it appear to be reasonably calculated to lead to the discovery of admissible evidence? Second, provide the factual basis for the objection. These will be determined on a case by case basis as the facts of each case are different.

The Privilege

A second type of protection from disclosure is the privilege. The privilege is a function of the law that protects certain type of information from disclosure to the opposing party. Spousal privilege and attorney-client privilege are the greatest examples under the Texas rules. As with objections, all assertions of privilege must be made in writing to the other party. It must state the privilege asserted, and state the information or materials that is being withheld due to the privilege. An example of a privilege would be where a spouse has been subpoenaed to testify against her own husband in a trial or hearing. She would be protected from having to testify against her husband under the spousal privilege.

The Exemption

The last type of protection is the exemption from discovery. A good example of an exempted material is an attorney’s work-product. It is probably the biggest example of an exemption because an attorney has his or her own work product in every single case. This would likely include communications between attorney and staff or other attorneys working with him on the case, as well documents prepared in advance of litigation to prepare for the lawsuit, such as notes, and memoranda. If an attorney had to hand over work-product, they would be providing the opposing party more than just an idea of where they plan on going with their case, but they’d essentially be handing them the keys to their case.

To be exempt under work-product, the documents must have been created or made by the lawyer in conjunction with legal services provided for the current litigation and the current client. It cannot be from a prior case or a related case. Unlike the objection or an assertion of privilege, an assertion that the information requested is exempt from discovery does not have to be made in writing. Essentially, the other party does not even have to be notified that the information requested is being withheld. The responding party can simply disregard the request.

Tips For Responding to Discovery

Several factors come into play when thinking about just how to respond to a discovery request. The important thing to remember is that making full and complete responses is the goal. This is true regardless of whether you are answering their request by providing what they asked for or objecting to it. Whatever you do, never leave a question blank. Even if you are stating that the information is exempt, or asserting that the information is not discloseable. You are required to make a full and complete response.

When the Cost Outweighs the Benefits

            When looking at a discovery request, you must ask yourself, “what is the cost of responding to this request relative to the value of the claim?” Unreasonable cost would be a valid objection. Requests that are overly burdensome are also likely to be overly broad because the way they are worded expands the scope of the request and creates a greater burden on the responding party for trying to complete the request. For example, if the cost of providing the information will cost Corporation A $200,000, but the value of the claim against Corporation A is only $100,000, would it be unreasonable for the court to require Corporation A to provide that information? There is very a good chance that it would be unreasonable. Because of this, the court would likely require Corporation A to provide another form or type of information to complete the response that is less costly. If the court did not provide Corporation A with a means to object to the cost as unduly burdensome, what is the likelihood that Corporation A settled with the requesting party as opposed to completing the request and continuing on in the litigation? They’d probably settle. Without the ability to object to such requests, plaintiff’s or defendant’s could easily misuse the system and make requests that squeezed at the pocket book of the opposing party until they were forced to settle or back away from their claims.

Requests that are Overly Broad

As discussed earlier, discovery requests can be overly broad or request irrelevant information. An overly broad question can do several things: (1) it can log jam discovery by creating a burden on the party trying to figure out what the request means, and how to comply with it, or (2) it is meant to drive up the cost of litigation. If the information requested is quite costly, then it might incline the responding party to settle or back down from the action for fear of the expense.

Do Not Let Them Go Fishing!

When a party requests information that is irrelevant, that type of request considered a “fishing expedition” and can be objected as such. When a party goes on a “fishing expedition”, they are likely seeking additional information outside of the scope of discovery for potential new parties and new claims, or they just do not have a particularly strong case, and they are fishing for anything they can catch.

Duplicative Requests

  1. If the request seeks information that has already disclosed, then it is considered to be duplicative. It is key for an attorney to keep an eye out for these types of requests. They are time-consuming, and costly. Objecting to this type of request does not hurt anyone involved. Simply object to the information as duplicative and provide the type of information that was sent previously and in what format.

Get it Yourself!

If the request seeks information that can be obtained in some reasonable manner, an objection should be made. This type of request amounts to having the other party do their due diligence for them. It is unnecessary to request another party to provide you information that is reasonably and easily obtainable for yourself. It is a common sense objection.

Be Sure of the Time and Place

            Every request for discovery will have a time and place provided to the responding party to advise when and where the discovery should be sent. If the time and place provided is unreasonable or burdensome, then request that it be changed. This must be done in writing, prior to the deadline for returning the requested discovery documents and items.

Conclusion

Overall, it is important to pay close attention to each and every discovery request. There are procedures in place that require the responding to party to comply with the requests, but there are safeguards from unreasonable requests. It is important for an attorney to be keenly aware of what is being requested, why it is being requested, and how it is being requested, in order to fully comply with the discovery rules in Texas and provide the absolute best legal aide to their clients. It is important to keep the scope of discovery in mind while going through a discovery request. Is the request going to be costly? Too costly? If you find yourself asking what a question means, then you may want to think about an objection for it being vague, overly broad, or unduly burdensome.

What is a Discovery Control Plan? 

Three levels of “Discovery Plans” are found under Texas Rules of Civil Procedure Rules 190.2-190.4. Each section has its own requirements for who falls under what level and how discovery will be organized and completed. In order to get a better understanding of what a “Discovery Control Plan” is, we will discuss three pertinent questions about them: (1) What are they?; (2) Why?, and; (3) How do they work?

What Are Discovery Control Plans?

In order to get a better understanding of what a discovery control plan is, let us briefly discuss discovery. Discovery is a procedure where all the relevant information is exchanged between the parties in order to provide a fair trial to both sides. It just lays out the information either party has, so that everyone understands the facts of the case and is able to present an informed case in court.

From what we now know about discovery, we can discern that a discovery control plan is how discovery will be organized and conducted within a divorce. It takes the broad concept of discovery and reigns it into a particular situation for individual parties. The process is meant to make a very complicated process simpler and more predictable for those involved, and for the most part, it accomplishes its goals.

Why the Levels?

There are three levels of discovery plans in Texas and they are all governed by the Texas Rules of Civil Procedure. It can be done by the parties under rules 190.2 or 190.3 or it can be done by court order under rule 190.4. To sum it up for you, the levels were established to further organize the proceedings. A single discovery plan for all divorce proceedings may be unfair to a lot of people because divorce can be a time consuming and difficult process for everyone involved. Amount of assets the parties have is one example of why levels are necessary and helpful. They are so helpful that amount of assets is a prerequisite in the first two levels. Most people have more than $50,000 in assets, but for those who have less than that, the division of assets is likely to be a whole lot less time consuming than for a divorce including $10 million worth of assets. Shouldn’t there be an easier route for parties in that situation? Yes, and there is under level one.

For parties that have over $10 million, it might be a good idea to go with a level three plan although they technically do not have to do so) because the division of assets might be more difficult and require some modifications to the discovery process.

How Do They Work?

Most divorce proceedings take place under level two because it is the “catchall” level. Whatever does not fit into level one or level three, falls necessarily into level two. For practical reasons it occurs this way. Usually a divorce involves more money and assets than the $50,000 limit set by level one or it involves children (or both), so it has to go to level two or three. But a level three plan is usually tailored to specific circumstances of the case that require modifications to either a level one or two plan. So, most plans fall into level two sort of naturally. Level three plans are tailored to the circumstances of the particular suit. Rule 190.4(a). They are issued by a court when either party makes a motion, or when the court deems it necessary. Effectively this means that the parties can submit an agreed order for the court to consider, but the court can modify the agreement if it sees fit to do so. Id. The Court can do this because it is within the Court’s discretion to do so. Id.

Rule 11 agreements are terms that a party can agree on and have the same affect as a court order. So long as the agreement satisfies the requirements of Texas Civil Procedure 11, these agreements are enforceable.

Can I get out of a Rule 11 agreement that I entered into by mistake?

There are certain situations where these agreements can be considered void; one way to make the agreement void is by showing the agreement was made by mistake. In the Dallas 5th District Court of Appeals case, In the Interest of A.B. & D.Y, a mother wanted to void a Rule 11 agreement that she had made because she claimed the agreement was made by mistake. In this case, the court explained, “mutual mistake is an affirmative defense, that states when the parties to an agreement have contracted under a misconception or ignorance of a material fact, the agreement will be avoided.” When someone wants to void a Rule 11 agreement based on a mistake, it is up to that person to prove to the court that the agreement should be voided.

The mother in In the Interest of A.B. & D.Y., wanted to void a Rule 11 agreement that terminated her parental rights because of, what she claimed to be, a mutual mistake. The mother’s children were taken from her by the state and she did not follow court orders that established how she could get her children back. The mother argued that she entered into the Rule 11 agreement to terminate her parental rights before knowing that, because of a criminal matter, she would be receiving Department services that would provide housing and help stabilize her life. On appeal, the mother wanted to void the Rule 11 agreement based on mutual mistake, because she did not know that she would be receiving help through her probation. Unfortunately though, before the appeal and during the trial process, the mother did not mention or raise the mutual mistake issue and the trial court never considered it. Therefore, the appeals court enforced the Rule 11 agreement that terminated the mother’s parental rights.

If you want to raise a mutual mistake issue on a Rule 11 agreement you need to make sure that you bring the mistake to the court’s attention as soon as possible. Then, even if the trial court does not agree that the issue is a mutual mistake, when you appeal it, the appeals court will have something to review. Be sure, though, if you want to prove a mutual mistake that you have evidence showing that the Rule 11 agreement was made under some kind of misconception or that you made the agreement without knowledge of certain material facts pertaining to your case.

What if I don’t like how the court divided the property in my divorce? Can I appeal it?

 You can try and appeal the courts division of your property in a divorce settlement but the appeals court will have a certain standard that they will use when reviewing the trial court’s decision. The appellate court is going to review the court’s decision by using an abuse of discretion standard. What this means is that the appellate court will review the case and make sure there was sufficient evidence for the trial court to base its division of property on. Then, based on that evidence, the appellate court will decide if the trial court’s division was reasonable. If the trial court can show that its decision is based on meaningful and firm evidence, then the appellate court will not overrule the trial court’s division of property.

In my divorce, the court did not divide the property equally, is this fair?

Community property does not have to be divided equally in a trial court’s decision. The trial court can consider factors such as; each party’s earning capacity, abilities, education, business opportunities, physical condition, financial condition, age, size of separate estates, and any future need for support that either spouse may have. The court will evaluate these factors, along with the evidence of each case, to determine a fair division of the property.

For example, in O’Carolan v. Hopper, the appeals court did not agree with a trial court’s division of property and allowed for a new property division. The wife, in this case, had a severe brain malformation. In the divorce, the wife was only awarded spousal support, while the husband had a greater income and more business opportunities than she did. The appellate court decided that the division of property that the trial court rendered was “manifestly unfair”. They allowed for the case to be reviewed again because the division of property that the trial court ordered left the wife vulnerable financially.

If any of the factors listed above applies to you, and the court did not consider them when making the property division in your divorce, then you may be able to appeal it. Your attorney will need to be able to point to specific points of evidence that proves that the division is unreasonable and unfair.

How is tax debt treated in the division of property?

            In Cole v. Cole, the appellate court concluded that tax liability should be considered in order to make a fair division of the community estate. The case of Munai v. Munai is an example of how the court handled $49,000 of debt to the IRS. The husband and wife had been separated for fifteen years when the divorce was finally brought before the court. The trial court awarded the husband all the property that he had acquired in those fifteen years and that he was liable for the $49,000 tax debt. The wife was only given $1,000 from the husband and argued that she should have received more of a share in the husband’s property, even though they had been separated for fifteen years. The wife argued that the trial court should not have considered the tax liability when they divided the community property. However, the court determined that the trial court was correct by doing this because the husband was in the best position to pay the tax liability.

The appellate court concluded that it was reasonable for the trial court to award each party their own assets and debts that they had acquired separately in their fifteen-year separation. Because of the conclusion in Cole v. Cole, tax liability will be considered when making a division of the community estate.

When someone decides to become a lawyer he or she must go through a rigorous process before becoming certified to practice law. It is required that he or she complete law school, which can take anywhere from to three or four years, and pass an extensive exam. During the course of study, prospective lawyers will learn civil procedure, criminal procedure, evidence, legal writing, and various other courses that will prepare them to sufficiently represent a client in the courtroom. Years of preparation and thousands of hours are spent for a person to prepare to be able to adequately represent another person. With all the criteria that must be met for a lawyer to represent another person in court, it would be unreasonable to expect people, without adequate education, to be successful in representing themselves in a courtroom. But, some people try to represent themselves in the courtroom with no legal assistance. This is what the legal field refers to as “pro se”, the Latin phrase meaning “for oneself”. Unfortunately, in some cases, people do so to no avail and Mr. Lares, in his appeal to the Fourth Court of Appeals Court, Lares v. Flores, found out just how difficult the process can be.

Why did Lares’ attempt to represent himself fail?

When a decision is made on a case a person can attempt to appeal the decision by claiming the original court made an error. When making an appeal there are certain rules of procedure that must be sufficiently followed for the court to consider your appeal. Lares had several issues that he wanted to appeal from the trial court. He claimed the trial court erred by failing to provide him notice of the hearing, denying his motion for continuance, refusing to hold his ex wife, Flores, in contempt, and believing his ex wife’s testimony over his because he was incarcerated at the time. Lares needed to prepare an adequate brief of these issues that followed the Texas Rules of Appellate Procedure. Lawyers are trained to know these rules and expected to follow them when they are submitting a brief to the court. If the brief is not adequate, the court will wave the complaints made and the appeal will not be considered.

The brief filed needs to contain a statement of facts, clear arguments for the issues the person is complaining about, and citations to support these arguments. In Lares’ case, because he was representing himself and did not have legal assistance, he was unaware of these requirements. In the very first year of law school, learning how to correctly use citations is the first technique that a student must learn. Law students are trained to know how to make proper citations to authority and students have a brief, similar to what Lares needed, due in the first year of school to present.

Lares, though, did not make proper citations in his brief and the court did not accept his first brief. The court, though, was gracious and allowed Lares to make a second attempt in his brief but he was still unsuccessful. Even with the court specifying what needed to be done to have a proper brief, he was still unable to submit one with the needed criteria. In the end, Lares was unable to submit a correct brief that followed the guidelines set out in appellate procedure. Lares’ brief was deemed inadequate, and because of this, the court considered his inadequate brief as no brief at all. Lares was unable to have his complaints reviewed and failed at his attempt to have his issues reviewed by the court.

Why should I hire an attorney instead of representing myself?

As we saw with Lares’ situation, a court is not going to go easy on you just because you have decided to represent yourself. The appeals court explained that “even though he was pro se, he was required to comply with all applicable rules of procedure, including the Texas Rules of Appellate Procedure, and he was held to the same standards as a licensed attorney.” The “court is not going to give pro se parties an unfair advantage over persons who have counsel to represent themselves.” Lares did not sufficiently provide in his brief basic skills that are taught in the first year of law school. Had Lares consulted with an attorney, the lawyer would have known what was expected, and his brief would have been prepared correctly. When attempting to represent yourself in a courtroom, you are going to be expected to prepare your case to the same standards as an attorney. A lawyer is trained to spot issues and know how to argue them before a court. By representing yourself, you may not be able to spot certain issues that may be needed to win your case. Hiring an attorney to help with your legal matter will greatly heighten your chances of success rather than trying to attempt the process on your own.

 

Usually, it is in the best interest of a child to live with their parent. This is not always the case though, and there are times that a court may need to terminate the rights of a parent. The court will terminate a parent-child relationship if it finds it to be in the best interest of the child and if the parent committed one or more of the statutory acts set out in Texas Family Code 161.001. Abuse and neglect will not always be the only reasons that a parent’s rights have been terminated. Instead, each case that is brought before the court will be determined on a fact based analysis considered by several factors.

How does the court determine the best interest of the child?

In 1976 the court came up with several factors that determine the best interest of the child in Holley v. Adams, and are now termed the Holley factors. These factors include 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the person seeking custody; 5) the programs available to assist the person seeking custody in promoting the best interest of the child; 6) plans for the child by the person seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. Not all of the factors listed above will apply to each case brought before the court. The court will use the factors on a case-by-case basis to decide if termination of the parent’s rights is in the child’s best interest.

How does the court apply the Holley factors?

In the Fifth District Court of Appeals case, In the Interest of F.A.B., the court terminated a mother’s parental rights who had been arrested several times for methamphetamines. The court used both the statutory factors listed out in 161.001 and the Holley factors in making its decision. Below is how the court used several Holley factors to terminate the mother’s parental rights.

The court analyzed Holley factor number one, the desire of the child. The child stated several times the want to live with the foster mother rather than the mother of the child. The child had been taken from the mother and was put with a foster mother when the mother was arrested for meth. The mother followed the court’s orders and the child was given back to her. During the time that the child was back with the mother, the child grieved the separation from the foster mother. The counselor testified that the child had feared being taken from the foster mother. The child’s desires weighed in favor of terminating the mother’s parental rights.

The child had been removed from the mother twice because of her meth use. After her second arrest for meth, the child was again removed from the mother and picked up from a CPS worker from school. The worker stated that the child was very upset that the mother had made such a bad decision. After the second removal, the mother only visited her child one time and did not follow the court order to get the child back. The instability of the visits from the mother, and the negative emotional effects of the mother’s arrests favored termination of the mother’s parental rights under Holley factors two and four.

Holley factor three considers the current and future emotional and physical danger to the child. After the child had been removed from the mother the first time, the court allowed for the child to go back to the mother, so long as a person named J.B. had no contact with the child. But, during this time, the mom started using drugs again, and J.B. had moved in with the mother and the child again. The drug use and J.B. both were considered dangers to the child and both circumstances pushed for termination of the mother’s rights.

Holley factor seven considers the stability of the home or proposed placement. The foster mother, in this case, had planned to adopt the child and had been providing the child with a stable environment. The stability that the child could receive with the foster parent also favored termination of the mother’s rights.

Can a parent’s rights be terminated if they use meth?

In the interest of F.A.B. is an example of a mother’s rights being terminated because of meth. She could not stop using meth and it kept her from being able to provide a stable and emotionally safe environment for her child. All the circumstances of that particular case, when analyzed by the Holley factors, led to the mother losing parental rights of her child. However, as the court has noted, not one of the Holley factors is going to determine the case more than the other. The court will have to analyze each case by using the Holley factors that apply to that particular case to decide if parental termination is in the best interest of the child.

How do I prove that I am in a common law marriage?

Texas is a state that recognizes common law/informal marriages but certain elements must be met to prove that a common law marriage between a man and woman exists. Section 2.4019(a)(2) of the Texas Family Code establishes these elements. If a person wants to prove that an informal marriage existed, he or she must be able to prove each of the following. First, it must be established that both persons have made an agreement to be married. After this agreement has been made, during the time that the informal marriage is alleged, both persons must live together in Texas, as husband and wife. While living together it must also be shown that both persons represented to others in the community that they are husband and wife.

In a Texas First District Court of Appeals case, Miller v. Prince, Miller was unable to establish that she and Prince had a common law marriage because she did not live with Prince during the relevant times of the alleged common law marriage. During the course of the relationship, Miller moved to California and then returned to Texas in 1994. When Miller returned to Texas in 1994, she did not live with Prince and therefore was unable to meet that element needed for a common law marriage to be established. A person must be able to prove all of the listed elements when trying to establish a common law marriage. Because Miller and Prince did not live together at the relevant times the court found there to be no common law marriage. Even if Miller had been able to offer some proof to the other elements of common law marriage, it still would not have been granted because all criteria must be met.

What happens if the person I am alleging a common law marriage with marries someone else?

            The Texas Family Code in Section 2.401(d) explains that if someone is trying to prove an informal marriage neither party can be presently married to an outside third party. If either party is legally married to someone else, courts will not allow for you to establish an informal marriage to a different person.

During the time that Miller had moved back to Texas, a couple of months later, Prince married a different woman. “When a person alleges two marriages, courts will consider the most recent marriage valid, unless a party from a previous marriage can prove the previous marriages’ validity.” In this situation, we know that Miller was unable to establish that the common law marriage was valid because she and Prince did not live together. Therefore, Prince could not be a party in Miller’s alleged common law marriage because he was ceremoniously married to another person.

How long do I have to prove an informal marriage existed?

            A party will have a certain amount of time that they can try and prove a common law marriage once the relationship ends. Before 1995 the law said that parties had one year from when the relationship ended to prove a common law marriage. The law now has changed and it is established in Section 2.401(b) of the Texas Family Code. Parties now have two years to prove an informal marriage. The clock on the two years will begin to run once the parties have separated and stopped living together. If the validity of the common law marriage is not brought before the court within two years, courts will then decide that the parties did not enter into an agreement to be married, and an informal marriage will not be recognized.

In Miller’s case the two parties stopped living together in April 1993. Miller only had one year to allege a common law marriage because the relationship ended before 1995. Had the relationship ended after 1995, Miller would have had two years to allege the common law marriage once they separated and stopped living together. In this case though, no matter which law applies, Miller did not bring her claim until 2011. Miller waited too long to try and establish her common law marriage to Prince and the court held that the statute of limitations barred her claim. Once the relationship ends, either party will have two years to bring their alleged common law marriage before the court.

When you are married, you and your spouse accumulate debts together.  Most likely, those debts are either in one or both of your names.  From a divorce attorney’s perspective, it is always best if the debt is in your name or your spouse’s name and it is associated with an asset that you are receiving.  For instance, if you are awarded the car but there is still a note on the car—as long as the note is in your name alone, awarding you the car and the debt associated with it does not create an issue for your spouse.  But, if the debt is in both of your names then the other spouse either wants you to refinance OR sell the asset.  Reason being, if your spouse is ordered to pay a debt that is in both of your names but fails to do so then it affects your credit and the creditor can still come after you for repayment of that debt.

In some instances, people rely upon indemnification provisions within divorce decrees in order to protect them when a debt is in both parties’ names but only one spouse is ordered to pay the debt.  An indemnification provision looks like this:

“Each party represents and warrants that he or she has not incurred any outstanding debt, obligation, or other liability on which the other party is or may be liable, other than those described in this decree.  Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to hold the party not assuming a debt, an obligation, a liability, an act, or an omission of the other party liable for such debt, obligation, liability, act or omission of the other party, that other party will, at his or her sole expense, defend the party not assuming the debt, obligation, liability, act, or omission of the other party against any such claim or demand, whether or not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or omission of the other party and hold him or her harmless from all damages resulting from the claim or demand.

Damages, as used in this provision, includes any reasonable loss, cost, expense, penalty, and other damage, including without limitation attorney’s fees and other costs and expenses reasonably and necessarily incurred in enforcing this indemnity.

IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on demand, for any payment made by the indemnified party at any time after the entry of the divorce decree to satisfy any judgment of any court of competent jurisdiction or in accordance with a bona fide compromise or settlement of claims, demands, or actions for any damages to which this indemnity relates.

The parties agree and IT IS ORDERED that each party will give the other party prompt written notice of any litigation threatened or instituted against either party that might constitute the basis of a claim for indemnity under this decree.”

When reading a provision like this, it does seem pretty solid.  The key thing to keep in mind is that it is an indemnification from liability, not damages.  The Tenth Court of Appeals addresses this issue in Jason Stubbs v. Julianne Stubbs.  In that case, the husband was awarded business entities and the liability associated with those entities in the divorce.  Shortly after the divorce, the wife was sued by a credit card company for credit given to one of the business entities.  The wife had to hire a debt defense attorney and incurred attorney’s fees as a result.  The wife then sued the husband to enforce the indemnification provision in their divorce decree (identical to the one above). The trial court granted the wife her attorney’s fees that she incurred in the debt defense suit and for the installment payments that the husband failed to pay for the credit card.  The husband appealed.

The Court of Appeals noted that a claim under an indemnification provision is associated with the liability and the liability for the party seeking damages has to be “fixed and certain” before the indemnification provision arises.  Therefore, the Court of Appeals upheld the trial court’s decision because they stated that the language within the decree stated that the husband would hold the wife harmless for any claim that arose and would indemnify her from all damages that arose from said claim.  In this instance, the wife’s damages were fixed because of the attorney’s fees she had to pay in defending against the debt collection suit.

This gives hope to many people who have been affected by their spouses failing to pay a debt.  There are two obstacles though—the key seems to be that you do have to defend yourself in a debt suit and accrue “fixed damages” before you can sue your spouse under the indemnification provision; the second key is that what you will get from the suit is a judgment.  You have a right to enforce that judgment, but you incur more attorneys’ fees to do so and you incur more attorneys’ fees to sue them.  So, if you know that your spouse has the money to cover all of those damages then you should sue them. If anything, you have a judgment to hang over their head and for a significant amount of money it is worth it.  These are the types of cases that you have to weigh your pros and cons.  If you would like to discuss this further, call today to schedule a consultation.

 

I have answered this question time and time again for people and the answer is always the same—nothing good would come of you representing yourself.  While law school does not prepare us for everything the legal world has to throw our way, it definitely prepares us to analyze legal issues on your behalf.  There are numerous examples out there in the appellate cases as to why you should never represent yourself.  But, most people try to rationalize and say that it is not a big deal and that they will ultimately be okay.   My thought process is if you can pay an attorney to even review the documents you are about to sign that is always better than just outright signing something.  Reason being, when it turns out to be something that you did not ultimately want the likely result will be that you will just have to get over it.

The most recent example of why you should never go this alone is out of a bill of review from the 422nd Judicial District Court of Kaufman County.  The case is entitled Laurie Faye Walker v. Brad Vincent Walker and in that case the wife filed a bill of review in the 422nd Judicial District Court, the same court that signed off on her decree, asking the Court to basically review and reconsider her divorce.  The Court denied her bill of review and the wife subsequently filed an appeal.  The Fifth District Court of Appeals upheld the 422nd Court’s denial of the bill of review for numerous reasons.  A bill of review carries a high burden and you have to exhaust all other remedies before filing it.  Thus, the bill of review has to be your last resort that you seek when you do not have any other remedy and the Court of Appeals found that the wife did have a remedy when she was mailed the decree within a week of it being filed.  At that point, she could have filed an appeal but she did not.  She waited four years later and filed a bill of review.  Also, she stated that she signed the decree out of duress but the Court clearly found that she could not be believed when she was in a different state and her husband was not even around her when she signed.  Finally, she claimed that she did not have notice of the final hearing but the Court found that she had signed off on all of the documents and she did have hearing that those documents were approved by the trial court within a week of being filed.  Therefore, the Court held that this was sufficient notice and based on all of these reasons agreed with the trial court.

Do not let this happen to you—hire an attorney to assist you in your divorce.  You always want to hire someone (no matter what stage you are at in your divorce) as opposed to not hiring and then facing the consequences of representing yourself.