Professional Organizers Can Help In Texas Divorce Cases

January 24, 2008

One of the most dreaded aspects of divorce from a client’s point of view may be in completing the inventory and appraisement.

The “I&A” is a sworn statement of all the assets and liabilities owned by the community estate or either party to a suit.  The filing of an inventory by each party prior to trial is mandatory in Galveston and Harris counties, (where the author practices family law) and likely in most other counties in Texas.   The  I&A is the blueprint upon which the property division of a divorce is built .  It is also the basis of any detailed mediation or negotiations in which property is an issue- the parties will use the inventories to divide the property.  The document is a complete listing of not only the property, but what the parties think the value of the property is.  It is also an impeachable document in any adversarial hearing. 

For these reasons, the Inventory and Appraisement is one of the most important pieces of documentary evidence in any divorce- even those with only minor property disputes.  The parties must therefore put a lot of careful attention and detail in the inventory.  Obtaining account numbers, charge balances and other financial information for the inventory is difficult enough.  But for most people, the most intimidating parts of the inventory preparation is trying to catalogue all the “stuff” accumulated over a five, ten, or thirty year marriage. 

Most inventories do not require detailing anything with a value of less than a certain dollar amount (it is assumed the parties will divide such property themselves because the cost of litigating over these items is more than the items themselves are worth).  However, particularly in medium to high net worth families, there can be considerable assets spread throughout a home, in curio cabinets, in attics and in storage units.  Most people do not have a good idea of everything they own, let alone a detailed list and estimated value that is required to prepare an inventory. Some clients are so intimidated by the large task of cataloguing their valuables, that they give up the items in the divorce simply because they don’t have the time or energy to do all the necessary work.

Luckily, help is available through the National Association of Professional Organizers.  According the their website at www.napo.net, “A professional organizer enhances the lives of clients by designing systems and processes using organizing principles and by transferring organizing skills. A professional organizer also educates the public on organizing solutions and the resulting benefits. NAPO (pronounced NAY-poh) currently has close to 4,000 members throughout the U.S. and in 8 other countries.”   A search of their member database revealed 21 NAPO members in the Houston area.

I recently met one NAPO member, Judson Crowder.   Judson, after 9 years working in Hollywood organizing the packing, storage, and retrieval of set pieces (most notably with the show “Everybody Loves Raymond”) has returned to Houston to start his own his service company: Restorganize, LLC. (www.restorganize.com)  As part of his services, he organizes and inventories all items in a home or storage unit.  If you require your items to be put in a certain place for easy access, Judson will do that.  But more importantly for the divorce case, Judson creates a catalogue binder which details all the specifics of your individual pieces of property.  The binder includes a color digital picture, category of the item, and any other details needed. 

Such a catalogue binder could be an invaluable part of a divorce inventory or otherwise used as evidence for trial or mediation.  In a snapshot it allows the judge, mediator or party to see what is being argued over. 

Naturally, such services are not warranted in all cases.  The costs of this service (which can range between $50 to $100 per hour or more and take one or more full days depending on the volume and location) must be weighed against the value of the items to be inventoried.  However, Judson’s and other professional organizers’ services can take the drudgery out of this part of the discovery process in a Texas Divorce.   In medium or high asset cases, such services may be the difference in achieving a fair division of the property.  


Adultry Caught By Toll Booth Evidence aka (Cheaters Pay A Heavy Toll)

August 15, 2007

Here is a new way to catch a cheating spouse: toll booth records. 

According to the Associated Press, electronic toll collection systems are emerging as a powerful means of proving infidelity.  Agencies in seven of the twelve states surveyed indicated that they would provide electronic toll information in response to court orders in criminal and civil cases, including divorces.  Even if the state agency refuses to provide the information, it can frequently be obtained from the other spouse through the normal discovery process.

Texas is not among the states that use “EZ Pass” system, but attorneys can try to subpoena the records of the Texas Department of Transportation to the Electronic toll collection records (Texas E-Pass) kept by the department.

Source:  “Toll Records Trip Up Philanderers” by Chris Newmarker, published at Yahoo! News.


Protection from Discovery In Family Law Cases

January 23, 2007

A person from whom discovery is sought, and any other person affected by the discovery , may move for an order protecting the person from such discovery.  The motion must be brought within the time for response to the subject discovery.  A person should not move for protection when an objection to written discovery or an assertion of privilege is appropriate, but a motion does not waive the objection or assertion of privilege. 

If a person seeks protection regarting the time or place of discovery, the person must state a reasonable time and place for discovery with which the person will comply.

A person must comply with a request to the extent protection is not sought unless it is unreasonable under the circumstance to do so before obtaining a ruling on the motion.  (TRCP 192.6).

Order

To protect the movant from undue burden, unnecessary expense, harassment, annoyance, or invasion of personal, constitutional , or property rights, the court may make any order in the interest of justice that either vacates the request in whole or in part, limits the extent or subject matter of the discovery sought, set the terms or conditions of the methods of getting the discovery, and/or sealing or otherwise protecting the discovery from the public.  (TRCP 192.6(b)). 


What Discovery Must Be Filed With The Court In Texas Family Law Case?

January 22, 2007

The following discovery materials must be filed with the court: (1) discovery requests, deposition notices, and subpoenas required to be served on nonparties; (2) motions and responses to motions pertaining to discovery matters; and (3) agreements concerning discovery matters, to the extend necessary to comply with rule 11. (TRCP 191.4(b)).


Signatures Required For Discovery In Texas Family Law Cases

January 21, 2007

The Texas Rules of Civil Procedure 191.3(a) says that if a party is represented by an attorney in a Texas Family Law case, then every request for discovery, every disclosure, every objection, response and notice must include the attorney’s signature.  It must also include his or her Texas State Bar number, his or her address, phone number and fax number.

If the party is pro se, it must include the party’s signaure, address, and telephone number and fax number (if any). 

The Effect of the Signature 

The signature on a disclosure certifies that, to the best of the signer’s knowledge, information, and belief, which was formed after a reasonable inquiry, the disclosure is complete and correct as of the time it is made.  (TRCP 191.3(b)).  The signature on discovery request, notice response or objection certifies that, to the best of the signer’s knowledge, information and belief, which was formed after a reasonable inquiry, (1) the item is consistent with the rules and warranted by existing law or good-faith argument for the extension, modifiction , or reversal of existing law; (2) has a good faith factual basis; (3) is not interposed for an improper purpose; and (4) is not unreasonable or unduly burdensome or expensive. (TRCP 191.3(c)).

Effect of Failure to Sign 

If a request, notice, response, or objection is not signed, it must be stricken unless it is signed promptly after the omission is called to the attention of the party.  A party is not required to take any action with respect to a request or notice that is not signed. (TRCP 191.3(d)).

Sanctions 

If the certification is false, without substantial justification, the court may, upon motion or its own initiative, impose on the person who made the certification, or the party on whose behalf the request, notice, response, or objection was made, or both, an appropriate sanction as for a frivolous pleading or motion. 


Certificates For Discovery Motions In Texas Family Law Cases

January 21, 2007

Cooperation in discovery is expected from parties and their attorneys in family law cases in Texas.  They should make any reasonable agreements necessary to quickly end the divorce or other family law matter. 

 Any party filing a motion or request for hearing on a discovery must include a certificate in their filing that states that a reasonable effort has been made to resolve the discovery dispute prior to involvement of the court, but that effort failed. (Texas Rules of Civil Procedure 191.2).

Even without a certificate, a court may hear a motion or request.

The failure of a court to require a certificate of conference cannot justify mandamus relief.  Tjernagel v. Roberts, 928 S.W. 2d 297, 300-01 (Tex. App– Amarillo 1996, orig. proceeding).


Modification of Texas Discovery Procedures

January 21, 2007

Except where specifically prohibited, the parties may modifiy the procedures and limitations of the discovery rules by agreement.  An agreement of the parties is enforceable if it complies with rule 11 or, as it affects an oral deposition, if it its made a part of the deposition record.  The procedures and limitations may also be modified by court order for good cause.  TRCP 191.11.


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