FAQ Topics

Family Law Questions

• How should I choose my attorney?
• Can I do my own divorce?
• What is the meaning of “Board Certified” and do I really need a Board Certified Attorney?
• How long will my divorce take to complete?
• What is the difference between Joint Custody and Sole Custody?
• Do mothers and fathers have equal rights when we go to Court?
• Do more mothers than fathers end up with “primary rights”?
• How much child support will I receive?
• If I let my spouse have one half the time with my children will my child support go away or be reduced?
• Do we still have any Grandparent Rights?

How should I choose my attorney?

First of all, ask for a referral from a friend or co-worker who has used the attorney. If the matter is not urgent, and you are not in need of a Protective Order or other emergency orders, then you should select an attorney like you would buy a house. See at least three before you decide who to use. It should be an attorney who will listen to your needs, and with whom you feel comfortable. Also, you want an attorney whose primary practice is in Family Law and you want an attorney with at least ten years experience in Family Law. There are attorneys who charge a very minimal fee up front but who will hand you a packet and basically say, "Good Luck; you are on your own." Some will charge a small amount up front just to pull you in as a client and then bill you excessively once the initial retainer is gone. If you don’t pay your bills the attorney will often withdraw as counsel leaving you without legal representation at all. Some will charge huge initial retainers and then create unnecessary notices and orders causing you to take extra time off from work and running back to Court every so often just to run up your bill, and use up your retainer so they can bill you more. Most will set a mid-level retainer to be paid up front and then will bill you for time and fees incurred on your behalf.

The Law Office of Elaine K. Ryan charges a mid-level initial retainer and then issues monthly statements so you will have a regular accounting of how your retainer is being used. You will be forewarned if the retainer is nearly gone and if additional funds are needed to continue work on your behalf. At all times we try to work as economically and as efficiently as possible to make your retainer last as long as we can. In some cases, the initial retainer may cover all costs. Usually, however, some additional amount will need to be added to the retainer as your case proceeds.

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Can I do my own divorce?

If you have acquired no assets and no debt during the marriage and you have no children, sure - go to the nearest Law Library and do your own divorce. Otherwise, there are too many pitfalls that may affect you financially in the future and that may affect your children detrimentally if not handled by a seasoned Family Law Attorney.

What is the meaning of “Board Certified” and do I really need a Board Certified Attorney?

You can get a detailed definition of “Board Certified” from the Texas Board of Legal Specialization. However, the most important factors in choosing a Family Law Attorney are:

a. Does he/she have at least ten years experience in Family Law; and
b. Does he/she focus at least seventy-five percent of his/her practice on Family Law?

How long will my divorce take to complete?

It depends (isn’t that a typical lawyer answer)! However, it does depend on several factors including but not exclusively:

a. Is it a completely agreed divorce on 100% of all issues? There are usually several details that can cause amicable parties to become contentious once the matter starts.
b. Does the other party have an attorney?
c. If the answer to b. is yes, then the time involved often depends on who the other party’s attorney is. Some attorneys are better than others at promptly returning phone calls and responding to letters, e-mails and faxes. If there is a delay in receiving a response to communication, there is not a whole lot your attorney can do, other than filing a Motion that requires the attorneys to go to Court on a relevant issue, which can cost both parties more money in attorney fees.
d. Is the client getting back to the attorney promptly with information needed to draft the final decree? Sometimes the attorney waits for weeks for the client to deliver factual information such as account numbers, vehicle identification numbers on cars, legal description of real estate, etc. Without the requested information, the decree cannot be finalized.
e. Are there ANY issues or items in the decree as drafted to which the opposing party and/or his/her attorney do not agree?
f. Has the client met all requirements of the attorney/client contract?
g. Is a trial necessary?
h. Has mediation been ordered? If so, with what mediator? Some mediators have very tight schedules.
i. Is it a Collaborative Law case? These cases generally take less time to resolve than a Litigated case - but also depend on the busy schedules of four or more individuals (the litigants, their attorneys and any allied professionals such as a financial planner).
j. Was your case filed around a holiday period, such as July 4th, Labor Day, Thanksgiving or Christmas when the Court is closed for a few days?

All of these factors can go into determining how long it takes to complete a divorce. If there are NO contested issues and there is no difficulty in locating the other party and both parties communicate promptly and amicable, etc. it is possible for a divorce to be completed in sixty-one days!

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What is the difference between Joint Custody and Sole Custody?

“Joint Custody” is a term the Courts began using several years ago and which has now become by far the most often used term to apply to parents who are sharing custody, regardless of the agreed upon or Court ordered visitation schedule. In other words, you may have Joint Custody and the visiting parent may have “standard visitation” (1st, 3rd, and 5th weekends, etc.) or you may be sharing one week with one parent, one week with the other parent and so on. The visitation will depend on many factors, such as both parents’ work schedules, parenting skills, past and current involvement with the child or children, etc. Parents who have Joint Custody must be reasonably able to agree on most issues where the children are concerned.When one parent has a history of seriously endangering the children or others, or has a seriously addictive drug or alcohol problem, the custodial parent (the one who the children live with most of the time) may end up with “Sole Custody.” However, the other parent has to be “pretty bad” to get this title in the present Court climate. The sole custodian is typically the only parent who can determine whether a minor child (unmarried and under eighteen) can join the armed services or marry before he/she reaches his/her eighteenth birthday or graduates from high school. In years past, “Sole” meant the party who the children lived with and “Possessory” meant the parent who had visitation rights. There are a few other nuances but the differences between Joint and Sole/Possessory Custody are no longer truly significant.

Do mothers and fathers have equal rights when we go to Court?

Technically, yes.

Do more mothers than fathers end up with "primary rights"?

Yes, but the trend is becoming more equalized each year. If the admissible evidence holds up and a case can be made, either parent can end up with primary rights in Texas Courts.

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How much child support will I receive?

This is based on the paying party’s total annual income, including bonuses, overtime, etc. Deduct from this taxes, social security and other required withholdings (i.e., not savings deposits or 401K deposits etc.) and multiply the net monthly figure by the proper multiplier depending on the number of children before the Court in this case and taking into consideration the number of other children the paying party is legally obligated to support (i.e., an obligor who has multiple children with various partners and who is paying child support to multiple partners will receive what I call a “volume discount” on child support paid to you for your child or children). Note, that the cost of covering health, dental and vision insurance on the child or children is also a factor used in calculating child support. It also depends on who is providing the insurance for the children.

If I let my spouse have one half the time with my children will my child support go away or be reduced?

There is no definitive answer to this question. There are a great many unknown factors which will go into determining the outcome of the answer to this question. Some of those are:

a. Who is the Judge in your case?
b. Is it exactly equal shared time?
c. Is there a large disparity in income between the spouses?
d. Is either spouse paying for extra expenses such as day care, camps, extracurricular activities at school, band instrument, etc. If so, is that spouse paying 100% of those costs or one half or some other portion?
e. Is there going to be a large amount of travel expense for the parent who does not have primary custody? (i.e., one parent typically has the right to decide where the children will live and to decide where they will go to school and has the right to receive child support. "This person is usually the primary Joint Conservator.") Remember, however, these are just labels and as long as you and your spouse can agree on how to raise your children and can trust one another at least where the children are concerned, you will be handling decisions and expenses on your own by agreement. The issues of who will be the primary is not as critical when the parents have agreed to share equal time with the children. Sometimes parents agree that the children’s primary residence will remain in a specific school district until they are 18 and have graduated from high school.

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Do we still have any Grandparent Rights?

Yes, under a very specific set of facts and circumstances, a grandparent can still pursue the right to see their grandchildren under the Texas Family Code. Do not hesitate to seek legal counsel if you are being denied reasonable access to your grandchildren!

Estate Planning Questions

• Why do I need a Will?
• Why do I need Powers of Attorney?
• What is a "Living Will"?
• Why not just do a Guardianship?

Why do I need a Will?

Because you have worked hard to accumulate what you have and you want it to be distributed to those you care most about in the manner you choose and, not just according to what the state says you must do. Also, because if your estate requires probating at your death, it is a much faster, cleaner, less expensive process than if you had died intestate (without a Will) and will be far less painful and troublesome for those you leave behind.

Why do I need Powers of Attorney?

First of all, there used to be one catch-all "Durable Power of Attorney" that was intended to allow the named agent to handle all of another person's affairs, whether medical, financial, real estate or others. Title companies and banks began to require much more detail and in some cases were not transferring title based on the old Durable Power of Attorney. There are now two independent Powers of Attorney in its place. These are: Power of Attorney for Financial Affairs and Power of Attorney for Health Care. The Power of Attorney for Financial Affairs will allow your "agent" to make financial transactions on your behalf during the time you are incapacitated (i.e., in a coma, suffering from dementia or other period of time in your life when you can no longer make rational decisions for yourself). Once you are deceased, the Power of Attorney for Financial Affairs expires and the Executor of your Will takes over from there.  Without a Power of Attorney for Financial Affairs, if you were to become incompetent to handle your affairs, your family will need to seek a formal Guardianship in order to handle your financial affairs and every move must be approved by the Court. The Power of Attorney for Financial Affairs can help avoid the necessity of a guardianship. The Power of Attorney for Health Care and Living Will allow your Agent to make decisions with your doctors, such as, "I know he/she would prefer medication over surgery, given the risks involved with this surgery." Again, the Power of Attorney for Health Care is only effective if you are deemed by your Doctors to be incapacitated and unable to make decisions for yourself, or unable to communicate your wishes. Without the Power of Attorney for Health Care and the Living Will, the hospital must use all heroic measures available to keep you alive, even if you have been determined "brain dead" already. Without a Power of Attorney for Health Care, your loved ones may expend your entire estate paying medical expenses to the hospital, doctors and/or nursing home.

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What is the "Living Will" you referred to?

This is the signed statement that will let the doctors and the hospital know you do not wish to be kept alive if you are deemed terminal and "brain dead". Again, as stated above, the hospital will do everything they can to keep you "alive" even if you are no longer able to live a reasonably healthy and active life. For example, a very dear friend of mine was raised by his Grandmother. Because she had never given anyone a Power of Attorney and had never done a Living Will, he watched her suffer over the last three years of her life, flat on her back, fed by a feeding tube in her stomach in a vegetative state, with brain damage and unable to communicate in any manner. No one should have to "live" like that if that is not their wish!  You may elect to receive water, nourishment and pain medication and nothing else, if you wish.  Certainly, for religious reasons some will not want a Living Will, but most of us choose to have one.

Why not just do a Guardianship?

Two words come to mind: Hassle and Cost. Yes, you can seek to obtain Guardianship of a Person or of a Persons' Estate or of a Person and their Estate. The initial retainer for attorneys' fees for a Guardianship are at least ten times that of a Power of Attorney. Also, the appointed Guardian is required to file with the Court detailed accountings and annual inventories through the attorney throughout the life of the "Ward." This means the Guardian will be going back to Court repeatedly each time you need to transfer funds, etc. or move an elderly parent to another home or a nursing home, if that be the case. All of this incurs additional attorney fees each time. Sometimes of course a Guardianship is your only option! It can be a lot less painful if you obtain an attorney who does these regularly and has experience in Guardianships. But, the least expensive course of action is to obtain a Power of Attorney prior to your loved one becoming incompetent.

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Probate Questions

Someone dies and you are the Executor.....

• Do I have to probate the Will?

Do I have to probate the Will?

Not necessarily. There are many factors involved in whether or not a Will must be probated. The best thing to do is to consult with an attorney who handles probate on a regular and continuing basis.

This office practices in probate matters throughout the Metroplex area, in addition to Family Law, Estate Planning and Personal Injury matters.

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