Jake Gilbreath and Brian Walters celebrate the 70th episode of the For Better, Worse, Or Divorce podcast by sharing a few of their favorite recent episodes and what they look forward to in future episodes. The partners also discuss current trending family law topics and answer recent listener questions.
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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
Jake Gilbreath: All right, well, thanks for tuning in to For Better, Worse, Or Divorce podcast, where we provide you tips and insight on how to navigate divorce and child custody situations. I’m Jake Gilbreath, I’m with my partner Brian Walters, and we are going to celebrate our 70th episode, which is shocking to believe. And we thought we’d recap a few of our last several episodes, answer some listener questions, as well as give some insight on what’s to come.
Let’s talk about favorite episodes actually. Those that listen, that know us, will probably guess which ones are our favorite episodes, but Brian, let’s start with you. What’s been your favorite episode so far?
Brian Walters: Well, I guess first of all, before we even do that, talk to me about the podcast. We started this during COVID, didn’t we? I think towards the start.
Jake Gilbreath: I think so. It was an easy way to put some information on the website and talk about it. You and I both listen to podcasts out there, and we thought maybe there’ll be two or three people that are interested in what we’re talking about, maybe not. And it’s really taken off, it’s been great. I’ve been surprised.
I repeatedly hear about it when I do intake calls of, “Hey, I listened to you guys talk about this or that.” I think probably now that we’re at 70, I’m not going to hear this very often, but I remember earlier on, I remember a couple of people said, “I’ve listened to all your podcasts,” which was startling to me. But yeah, it’s been great, and it’s of course easy, and I learn things sometimes. I did one the other day about grandparent rights and third-party access and stuff with our partner up in Dallas. I learned several things that I’m now applying to a new case I have on that point, so it’s helpful for me, even.
Well, I tell people this is one thing that I really like about our podcast. It really is unscripted, which you can tell sometimes, but it really is unscripted. It’s just, hey, there’s no rehearsal or anything. This is just you and I talking, or us and a guest talking. I mean I think it’s a testament that I don’t know what this says about us, our psychological functioning, but I really enjoy what I do. I know, Brian, you really enjoy what you do. We enjoy talking to other people about what we do and so it’s actually a lot of fun doing for us.
So now back to the question which is, of those 70, what comes out to you Brian, as sort of what your favorite thing that we’ve talked about?
Brian Walters: Kind of related, I have two of them that come to mind. I mean the one we talked about our intake system, which I think is Episode 58. We’ve worked really hard on that. We’ve got a really wonderful staff that handles that initially. And you and I constantly juggling around our day to make ourselves available between.
Right before this podcast started, I was scheduling intake for this afternoon with the client in Washington DC and trying to find a time, and yeah, that’s just typical of us. So I think you and I are both really proud of that system we’ve built, to make it really easy for folks to talk to us when they need us. And then a personal favorite, “Can I fire my attorney?”, which I think we meant to apply to another attorney other than us, but I guess it applies to us too.
That fortunately doesn’t happen very often with us, with our clients, but I don’t know, a third of our caseload is probably we’re the second lawyer where people have said, “Whoops, I made a mistake in my first hire, and I need to upgrade.”
And I get that all the time when I talk to people. I’m like, “Well gosh, they’re kind of embarrassed.” Maybe they’re upset with their former lawyer, but they’re usually just disappointed. And they’re like, “Can I do that? Will the judge think there’s something wrong with me? I don’t know if I want to break the bad news to them.”
So, we go over all that stuff in there, and that was an interesting one, because I think we also got into some tangents about how bad some of these other lawyers are, which is not surprising. Knowing when you look at the surveys of people, Americans’ views of lawyers is not real high. So anyway, what about you? What’s your favorite one or ones that come to mind?
Jake Gilbreath: Well, first of all, I love yours. Like you said, it gave us an opportunity to talk about my favorite topic, which is communication. And those who listen to the podcast know somehow, some way, I’m going to weave that into probably 70% of the episodes, of how bad other people are at communication, and how much we stress it, the communication between the client and the attorney.
But I also love those episodes that you said, Brian, so much, because I like that we’re very open about how we do things. We want our clients to know how we do things, we want our peers to know how we do things, we want our competitors to know how we do things. I mean, it’s no big secret out there, of how much work we’ve done making the client experience better. Frankly I hope that people replicate it, because I think people deserve a better service. Now, shockingly, people don’t.
I really enjoy those episodes. I think one of them, you took the lead, Brian, with Katy, one we did together. I listen to our own podcasts. I don’t know what that says about me, but I listened to our own podcasts and I really enjoy listening to those.
So my personal favorite was a recent one we did with Keith Maples, and for those who haven’t heard, Keith is a phenomenal lawyer in the Austin area. He mediates a lot, he litigates a lot. He’s somebody I’ve looked up to since, I think I probably knew his name in law school. But even outside of law school, once I graduated from law school, I would see his name all the time. And he is just a great lawyer, and he and I both have a passion for representing families for kids with special needs.
He and I are both very open about, both of us have a son that are on the autism spectrum. We’re both very open about that and talk about that. And we did a series on representing families with kids in the special needs. And that meant a lot to me, that Keith did that with me, as somebody who I really look up to, and that we are able to get that information out to people. So that’s probably what comes to mind as my favorite.
And it also says something, I guess, just as an aside, about the community of lawyers that we have. We talk about the problems out there in the legal community, but there’s also a lot of positive, and Keith is somebody who’s a competitor. Keith is somebody who we’ve tried cases against each other, we’ve tried contentious cases against each other, multi-day trials, we’ve had jury trials against one another. And at the end of the day, we respect one another, and we work together, and I preach this till I’m blue in the face. I understand why it’s hard to believe sometimes for clients, but it’s actually better for the clients when there’s a mutual respect and we work together, even if we have opposing goals, that we can do that. So that meant a lot to me.
And then I guess another episode was, I really enjoyed yours Brian, our personal stories when we did a meet Brian and meet Jake episode. I enjoyed that because I didn’t know everything about you. I mean you and I have talked a little bit about our backgrounds over the years, but I didn’t know everything about your background. So I enjoyed that part of that episode. But I also really enjoyed the fact that the way that you and I see the practice of law and particularly being family lawyers, is that I think our personal lives are something that we are and should be open to sharing.
I mean, people come into our office, and I think they care that you and I both went to UT Law, they care that we’re both board certified. They obviously care that we’re very good at what we do, and we hired lawyers who are very good at what they do.
But it’s also important to remember that we’re human, and so many lawyers shield that part of their lives, I think. They’re not open to talking about their own personal experiences and where they come from, and our clients are coming to us in a really difficult time. And that can be, I guess, something that really means a lot to our clients, if we’re opening up about our own personal experience.
Everybody’s life is different, but here’s where I’m coming from. I talk to people about my own divorce or my own divorce decree. I talk to people about being remarried, and that my wife runs the business and how much that means to me. I talk about my kids, and I talk about my son who’s on the autism spectrum.
I want my clients knowing about me just like I think I know about them. And I want to be partners with somebody I know about his life and his family, and our families and our wives are close, and our kids are close and everything. And that just means a lot to me of how we should approach business and to practice the law.
So let’s talk about the recent topics. You’re more than welcome to listen to Episode 1 all the way to Episode 70. I think the production quality has probably gotten better over the years. I guess it has been years, but it’s always the same, it is me and Brian talking to a guest about this information that we think people would be interested in.
Some recent topics, we’ve talked about grandparents’ rights recently. Brian, like you talked about with one of our partners, Ryan, up in the Dallas office. Geographic restrictions obviously always a very important topic in child custody litigation.
Tax season. We just recently recorded something on that. Informal law marriages and informal marriages. We have a recent episode on that, which you and I really enjoy that, because those get litigated a lot and we get hired a lot on those issues.
And then, of course, we recently had a series on businesses, shared businesses, how to deal with businesses in a divorce. And so those are all recent episodes of people, more current episodes of what we’ve been talking about lately.
But let’s talk about some questions that we’ve gotten from listeners. We want to address that on our 70th episode, and then we’ll transition what’s to come on the podcast for those that are interested.
So let me just throw some questions at you, Brian. We’ll go through those, and then we’ll wrap up with plans for the future. But somebody wrote in and said, “My spouse said she wants to file a collaborative divorce. What does that mean? And do you take these types of cases?” So this is a question we get pretty commonly, Brian. So tell me about what’s your take when somebody comes in and uses the phrase “collaborative divorce”?
Brian Walters: Yeah, absolutely. In fact, I’ve dealt with that twice this weekend, on a new case and then on a sort of new case. So there’s really two paths you can go down. You can go down the collaborative divorce path. That is a very specific set of rules and processes. It’s relatively new in Texas, it didn’t even exist when I started practicing. And I would say that it’s less than 1% of all cases are formally doing that. In that system you have to tell the court, “That’s what we’re going to do.” And you basically agree to keep it out of court, and to try to reach an agreement, but of course, if it fails, you’ll be right back in court. The problem with it is, and the reason we don’t see people using it that often, is that, I think there are two problems.
One is that there’s almost always someone more in a hurry to get divorced than the other. And so, for the person in a hurry, this is not a good system, because the only way to really force the case along if the other party doesn’t want to get divorced or isn’t in a hurry get divorced, is to set it for court. And you can’t do that in a collaborative divorce.
The other problem is that if it fails, you have to get new lawyers, and that’s a problem because that’s expensive, first of all. And I think that can cause some incentive issues with lawyers, too, maybe wanting to keep it in the collaborative box longer than it should be in certain cases, to keep the case.
So that’s why I think it’s pretty rarely done. I mean we can do them if necessary, but I have very few people that once they’re explained the options, actually want to formally do that.
What I find much more common, and I’m sure you do too, is that people tell me, “Look, I don’t want to have a big fight. I’m sorry our marriage is coming to an end.” Or you could even do that in a non-marriage, but let’s use that as an example. “I want you to work together with the other lawyer, and let’s get ourselves divorced, and let’s not spend a bunch of money and tear each other’s, you know, apart. I don’t want to do that.”
And that’s collaborative, I guess informally, right? That we’re going to try to work it out with the other side versus immediately going for the jugular, is the way I’d put that. Is that sort of how you see it, or do you have a little different experience with it?
Jake Gilbreath: No, that’s kind of my experience. I mean, I get the concept. I’m pretty open about my skepticism towards the process, and I always remind people, because “collaborative” has a legal meaning to it. There’s a section of the Family Code for collaborative divorce. Just because we’re not in the collaborative process doesn’t mean that we’re not going to be cooperative. I have cases all the time where we never see the inside of a courtroom or virtual courtroom, and we proceed logically. But it’s not in this collaborative system because it is a system where, frankly, I describe it to clients as where we sit around and talk about thinking about what the agenda is going to be for the next meeting. Where we determine the schedule for the final meeting. I mean, it’s just a lot of, I think, stuff that’s not necessary and bogs down the process.
And like I said, it causes an incentive to sort of play the system. I mean, if I’m in the collaborative system, so you have the wife, and the husband said, “We want two years of your business’s tax returns and three years of banking statements from your business,” totally normal request. And he goes, “No, I’m not going to do that,” if you’re in the regular process, which is technically the litigation process, I go, “Well, yeah, you are going to give that to me, and here’s your discovery request, and here’s your motion to compel. I’ll see you in court in three days.”
But if you’re in the collaborative process, it’s, “Please give it to me, pretty please. No, seriously, please give it to me.” And then if they won’t, you got to bust out and go all the way to the beginning, and fire your lawyers. I get the concept, we can do a whole podcast episode of, I think, problems.
But again, it doesn’t mean, just because you say no to the collaborative process. The main takeaway is just because you’re not doing this formal legal process, the collaborative process, that doesn’t mean you’re going down to the courthouse and fighting like cats and dogs. It just means that you’re not in that system, which I don’t think is a very good system. I get the concept. I don’t think it’s a very good system.
Brian Walters: I agree. It reminds me of Austin, Travis County back, I think it was before I started practice. I think it was in the ’80s when they tried to implement the, I think it was called the Santa Fe System, like Santa Fe, New Mexico. I guess that’s where they did it. And they basically tried to make the whole litigation system for family law like that, made it very, very difficult to get into court.
And as you well know, that doesn’t exist in Travis County anymore. That went the way of the dinosaurs pretty quickly.
Well, here’s a question. Another one. I’ll ask it and you can give an answer, and I’ve seen variations on this, but, let’s say a person got married in 1995, so quite a while ago. “We were never legally divorced,” but they haven’t seen their husband in many years and have no idea where the husband is. I’m going to assume there’s no children either. “I’m ready to get remarried.” So how would the divorce work in that case?”
Jake Gilbreath: Yeah, it’s a relatively straightforward answer. I’m going to try to use the terminology right, because I haven’t done one of these in a while. You still have to file for divorce, and you still have to notify and serve the other side of the divorce petition. Any lawsuit, the other side has to be served or file a waiver. If you can’t find them, you have no idea where they are, then there is a process where you essentially serve them by, if there’s no kids, it’d be by posting. I mean you have to have a motion and a court order for it. I’m going to be able to prove to the court that I really had no idea where this person is, and I can’t locate them. And then essentially they give notice of the divorce petition, based on by posting it at the courthouse, actually, is I believe how it’s formally done.
And that gives the other side, that’s actually the citation, the return of citation from the point of posting, and then you can proceed on it. But I’ve seen courts, where there’s kids involved, they have to do it by publication. There has to be an amicus to try to locate the other side. It can get, and sometimes I see courts want to appoint an amicus even when there’s not kids, just because they want that comfort level, of a third party trying to locate the individual.
But the long and short of it is there is a way to move forward. It’s really easy to mess up, and it’s tedious, but it can be done.
And here’s a, I’m just sort of rattling these off. There’s this kind of common one, Brian, pretty straightforward answer but a common one. “If I have proof my spouse cheated on me, will this help me in court?”, I think is the way the listener phrased it.
Brian Walters: Yeah, and I think we did a podcast a while ago where we dealt with this issue in some more detail, but broadly speaking, yes.
So in two ways, I think. There is specific basis for getting divorced in Texas, which is adultery. So that would allow that. And if that’s true, the court can, when it’s dividing property, take that into consideration in the division of the property, and basically punish someone for that behavior by giving more money to the other side.
That doesn’t always happen. There’s no guideline about, “Hey, it’s an extra 5% or 10% or $10,000,” or anything like that. So it’s very specific as to the situation. That’s a complex question, which you’d want to talk to your lawyer about, about your specific situation.
On a custody case, I used to say that didn’t matter. I actually modified that a little bit. I think it depends a little bit on some of the details around it. If your spouse has cheated on you and introduced their boyfriend or girlfriend or whatever as mommy or daddy, that’s not going to look good in a custody battle. And in fact, the court could take some pretty strong actions along those lines. Generally that’s not what happens, but it could be.
So the short answer is, yeah, it could help you in court, but exactly what that’s going to look like is a very complicated answer. That’s going to depend a lot on the specifics, which court you’re in, which judge you’re in front of, and overall facts in the case.
Jake Gilbreath: Well, it depends, but most likely it’s going to play one way or the other.
Brian Walters: All right, so here’s a question for you. “The majority of my income is determined in commissions and an annual bonus. How would my child support payments be determined if I don’t have a set salary?”
Jake Gilbreath: Historically going to look at, just look at a couple of years, two- or three-year’s worth of tax returns, is what has been the case. And they’re going to expect that to continue unless there’s a really good explanation why that’s not going to continue. And so a lot of times we’re looking respectively for prior years in setting child support payments.
But if you have a situation where somebody’s taking a new job or maybe gotten a promotion, or commissions are going up and stuff, then there may be more on either side. There may be exploration into what we actually think the albacore’s income’s going to be. Maybe we’re looking at a contract he or she signed, how the company’s doing. Could be even deposing people in some situations from the company, because the court’s going to try to get it right, but they’re going to look historically most of the time. And then if you want the court to look at something other than history, then you’re probably going to be doing some additional discovery on that.
Brian Walters: Yeah, I agree. I was just going to add, on Saturday morning, I just had this exact discussion, and it was not so much the amount of child support. The question was because they were very much on commission, what about the payment schedule? Could it follow their cash flow? And I know the short story. “No, it’s going to be a set amount on the first day of each month,” and you’re going to have to manage your cash flow, the court’s not going to do it for you, essentially.
Jake Gilbreath: Yeah. This last one, somebody asked, if they’re currently pregnant with their first child, should I wait till after the baby is born to file for divorce?
Brian Walters: Well, there’s no legal reason to, and in fact, in theory, the court could grant a divorce even if you’re pregnant, but as a practical matter they won’t. They’re going to wait until the child’s a live birth and then go from there. There may even be a DNA a test, if there’s any question about that. In fact, that’s probably not a bad policy in general, in that situation. So no, it doesn’t affect it. It shouldn’t affect when you file. It may affect when the divorce is finalized, though. So that’s the difference. It could delay it a bit. So there we go.
Jake Gilbreath: Yeah, I think that’s all right. And if you’re the parent, the non-pregnant parent, you may, frankly, I mean obviously everything’s kind of a personal decision, and there’s emotional things about the filing of divorce, the timing of it. But sometimes it’s better to have something on file so you can get to court sooner, if it’s just the other side’s not going to let you see the baby and you’re missing out on. Every situation’s different. So you think about it both ways.
But yeah, those are some common questions or some current questions that we’ve gotten. So coming up on the podcast, what we have planned, is we’re going to continue to have guests on. I think we’re going to have some experts and other family law attorneys from around the country actually, to discuss family law trends. I think we have some immigration issues and interstate issues coming up.
I think we’re going to do a series on stock retirements and investments in a divorce. And one of our favorite topics is jury trials. We’re going to actually do a whole series on jury trials, so that’ll be coming up.
We’re going to continue to do this. We are really, really appreciative of all the support that we’ve gotten over the years in this podcast. We really enjoy it, so we love hearing when other people enjoy it. So if you like what you’ve heard today, obviously do us a favor and leave a review. Any feedback, good, negative, in between. It always helps us with the podcast. And so feel free to reach out to us at podcast@waltersgilbreath.com. You can go to our website at waltersgilbreath.com. I’ve really enjoyed this, and so signing off for this episode, I’m Jake Gilbreath, I’m here with Brian Walters, and thank y’all all for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, Or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed, or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.
Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
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