In this podcast episode, Brian Walters and Jake Gilbreath discuss some of the benefits of hiring an attorney for a range of family law matters, from prenuptial agreements to modifying a divorce decree. Brian and Jake also address some common scenarios they often see where people initially did not hire an attorney and end up needing one later.
Texas cases involving divorce and child custody can be complex and difficult processes to navigate on your own. If you have a family law matter you are interested in speaking to an attorney about, email us at email@example.com or find out more about our firm at www.waltersgilbreath.com.
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.
Brian Walters: All right, well, welcome back to For Better, Worse, or Divorce. I’m Brian Walters here with Jake Gilbreath, and today, we will be addressing a common question from potential new clients calling the firm, which is, do I need an attorney, or why do I need an attorney for my case? So, we’ll discuss some of the common scenarios where people may not have thought they needed an attorney, ended up needing to hire one later, as well as things to be mindful of you may not have considered.
Jake, there’s some things that I typically talk about with people when they’re making this decision, and it’s a legit decision, by the way. You don’t always need an attorney, and I certainly wouldn’t encourage someone to always get one. But these things can be sometimes more complex than we think, especially when it’s a divorce matter. One of them that comes up, what’s commonly called alimony, but we in Texas call spousal support or maintenance. Do you want to talk just briefly about that, about why that can be an issue or a source of conflict or disagreement?
Jake Gilbreath: Yeah. First of all, I’ll mimic what you said. There are legitimate cases where you’re more than welcome to have a lawyer and obviously, always better to have a lawyer. We’re recording this in December of 2022, and across Texas, a lot of our pipes froze. There’s some stuff that’s plumbing jobs around the house that probably, in theory, I could do myself. I could probably watch a YouTube video. I could read a book or something like that, and maybe there’s some simple jobs around the house that I could do myself. Frankly, I’m not doing that because I know that I will mess it up. The simplest job to the most complex job, I will figure out some way to mess up any type of plumbing job around this house.
So, for me, even if a plumber told me, “Hey, that’s such a simple issue. I don’t need to come out for that,” I would say, “I would really appreciate if you come out. I’ll pay for your time.” It’s the same for divorces. I talk to people all the time in consults where I say, “Your case is so simple. Here’s some forms. Here’s a website you can go to, and if you get stuck, you’re welcome to call us, or we’re happy to do it.” But just so you know, just give the consumer that choice.
And some people say, “I appreciate that. I still want y’all to do it.” Some people go try on their own if me as the lawyer really thinks that that makes sense for them. I would generally encourage people not to make that judgment call themselves, to at least consult with a lawyer to see if it’s something you can handle yourself. For example, spousal support, alimony, stuff like that, there’s some very specific rules on that in the Texas Family Code that you could try Googling here and there, probably get conflicting answers. Sometimes shockingly you’ll get conflicting answers from people that are lawyers and claim to be experts in family law, but it’s very, very specific to the statute and very fact-specific.
We’ve had other podcast episodes on spousal maintenance, and we’re talking spousal maintenance when a case is over, not temporary support when a case is pending. And we’ve done podcasts on what actually qualifies for spousal maintenance, but it’s pretty limited. I’ll have people that’ll come in, and they’ll be dealing with it because they Googled it or they used some website that’s really nationwide, not specific to the states, and either extremes. Somebody will end up agreeing to pay for spousal maintenance, and you’re talking to them three years later at their divorce decree and going, “Why are you paying 10 years of spousal maintenance when y’all were married for two years? She or he would have qualified for spousal maintenance.” “Oh, I didn’t know.”
Or the reverse. It’s like, “Why on Earth did y’all not have spousal maintenance? You married for 15 years. You’re a stay-at-home mom, and he works outside the home and makes half a million dollars a year, and y’all had very little assets to divide up. You’re telling me there wasn’t spousal maintenance in your case?” Like, “Oh, I didn’t know. I didn’t have a lawyer.” Both extremes and everything in between are hard to hear about after the fact.
A lot of people will call me a couple years after the divorce, buyer’s remorse is probably not the right way to put it, but having regrets, and tell me, “Well, my spouse told me not to get a lawyer,” or, “If I get a lawyer it’s going to be a big fight,” or, “He or she won’t give me anything if I get a lawyer, so I just did this myself, and I just signed the paperwork. Can I change it now?” And the answer’s no, you can’t. So, that’s just one example of the complex issues that can come up that you should at least consult with a lawyer about, and that’s a relatively easy one, frankly.
Then, Brian, talk to us about asset division because asset division could be as easy as we’re splitting our vehicles, we just rent our apartment, so somebody’s taking the lease, and divide up the joint bank account. That’s it. I’ve seen people try to represent themselves and deal with more complex property division, so talk to us about that as far as having a lawyer involved or not and the problems that can happen.
Brian Walters: Yeah, there are a lot of them, and I agree with you. If you have a simple situation, you’ve been married a year, you don’t have anything other than maybe a cat or dog together, you’ve each got your own bank accounts, you own one car, you rent. I agree. I don’t think there’s too much to worry about with that, but most people are not in that situation. Most people have been married longer, at least have a house together, probably retirement accounts, other assets and debts, and those things can be very complex.
There’s things you need to think about that I think a lot of folks don’t think about, which is taxes a lot of times, either unpaid taxes that are coming up or the tax effect of various assets. $100,000 sitting in a checking account is really worth a different amount than $100,000 sitting in a 401k because of taxes, and probably would want to take that into consideration when you’re dividing up your assets.
Another one is debts. A lot of people will think, “Oh, well, we have a joint credit card, and we’re just going to say my husband is going to take the credit card.” Well, the credit card company may not agree with that. If he doesn’t pay it in the future, that will come back likely onto your credit, or you could be the one held liable for it. So, there’s a lot of things like that to think about. As you’ve been together longer and you have more assets and debts, there’s more things to deal with.
There’s also a lot of kid-type issues. There’s things like child support, which is another one where you mentioned alimony or spousal maintenance, Texas deviates are different. Actually, each state is very different as it calculates child support and what is an exception and what is not, how often are the exceptions applied. Those type of things can be pretty complicated, and kid things, unlike a property division which is final once and for all, can be modified in the future, but it’s difficult. If you agree with your spouse that you’re going to do something with child support or custody or visitation or decision-making with your child, and then a year later, you don’t think that’s a great idea, yes, you could theoretically come back and ask the court to change it, but I think it’s going to be difficult because you just agreed to it.
Has that been your experience in dealing with these situations as well?
Jake Gilbreath: Yeah, that’s been my experience. Again, a lot of times I get this situation where people come in, and they haven’t had a lawyer, and they feel kind of bullied in a kid arrangement, which, if you can work it out amongst yourselves and you talk, ultimately, I tell my clients, you’re this child’s parent, the two of y’all are this child’s parents, y’all know better than we do as far as what’s best for your kids. So, if y’all can work it out, knock yourself out.
But extreme amount of clients come in. They just feel absolutely bullied into a possession schedule. The stereotype is you have a parent that’s primary caretaker. The other parent maybe works a lot, which is nothing wrong with that, but just not as involved in the kid. Then they go through a divorce, and somebody gets bullied into a 50/50 arrangement with no child support because they’re told by their spouse if you fight me on this, I’ll make your life a living Hell, or spend all the money, or whatever, which are unfortunately, common threats that we sometimes hear people use to bully their spouse. And they sign off on something which makes no sense given their situation.
Another example, though, is we’ll see people that do have kind of an idea of what they want to do with their kids, and they try to draft it up with good intentions on both sides, and it just doesn’t make sense. Either legally it doesn’t make sense, or it’s not enforceable the way they drafted it, or it just doesn’t make practical sense. A lot of clients, this is their first divorce or their first time separating from a parent. This is my 10,000th divorce or however many divorces I’ve done, how many divorces you’ve done, Brian. So, we’ve seen the various different ways that things can go awry and big problems and help people think through those problems.
Again, even if it’s just a consult, I have people come in for example, and they say, “We’ve talked.” They’re getting divorced with a two-year-old kid or a one-year-old kid, and we’re going to split every single Christmas. That’s a common one you hear. It’s like we want to share Christmas because it’s important to both of us, so we’re going to split Christmas day from now until this kid’s 18. As an experienced lawyer, you go, “I get it. I understand why you feel that way right now. Think about the fact that four years from now, five years from now, statistically, both of y’all are going to be remarried. Statistically, you’re going to be married to somebody who has kids, and you’re going to have to have that conversation with someone of we never get to have Christmas with your family because I agreed in my divorce decree that I’d spend every single Christmas with my ex.”
You just have to think through that stuff, and, again, just talking to a lawyer through a consult or having somebody represent even for your low-conflict or minimum-conflict or even no-conflict divorces, those are the types of things that a lawyer should be able to chime in efficiently and get direction to save you from those pitfalls.
Brian Walters: Very much agree. Okay, so we’ve talked a little bit about what happens if you realize you need an attorney after your case is over, which the answer is it’s too late at that point. And we’ve talked about most people who have complex cases are probably going to hire an attorney right off the bat. And there are situations where, let’s say, the case has already been filed, you both agree we’re not going to get attorneys, and then you hit a problem area, maybe one of these that we’ve just discussed.
Can you tell us a little bit about what happens in that situation? Let’s say, two months after someone’s filed, someone decides they want an attorney. Are they allowed to get an attorney, even though they’ve started out without one? If so, what does that process look like?
Jake Gilbreath: Yeah, I mean the short answer is yes, absolutely. You’re allowed to get an attorney. If you have a lawyer like we’ve talked about in other podcast episodes, you’re allowed to switch. If you have a lawyer and you decide to represent yourself, you’re allowed to fire your lawyer and represent yourself. Yeah, the situation where you’ve been best efforts trying to represent yourself, and it just doesn’t work out, and I need a lawyer to help me through this process, or I need a lawyer to review something that we’ve done, that’s a relatively easy process.
For our office, you go through the intake process just as if you were somebody who had filed before. Once we do a consult and we decide that we’re a good fit, contract’s signed, retainer’s paid, we file what’s called a notice of appearance, just telling the court and the other side, we’re this person’s lawyer now, and then we just take over the case from there. It’s relatively simple to do on our end. Sometimes people, I think, think that it’s difficult for us to jump in if somebody’s been handling it themselves, but sometimes, I have clients that come in, they’ve been representing themselves, and frankly, they’re a little embarrassed with kind of the mess that they’ve made.
No different than if I tried a plumbing job at my house and gave it my best, and then called the plumber. Odds are I’ve probably made it worse. The odds are probably embarrassing the way I’ve went about it. For us, we see it all the time, and we can, if there’s things that need to be fixed or amended pleadings, typically we’re coming in and cleaning up pleadings, making sure that you’ve actually pled for the things that you’re entitled to. That’s another thing, by the way, that we haven’t talked about, somebody representing themselves and forgets to plead for separate property or forgets to plead for a reimbursement claim or a disproportionate division.
We take pleadings serious in Texas, particularly when a case is going to trial, and that’s something that one paragraph in a divorce petition could be a six-figure mistake or a smaller mistake, but it could be a mistake that could be easily fixed. But we’re fixing. We’re checking everybody’s pleadings, making sure if things need to be cleaned up, they need be cleaned up, making an appearance. It’s pretty seamless, and nothing to be embarrassed about. I tell people it’s this …
By the way, I’ve had clients come in and I go, “Well, do you want to come work for me? This is great. You’ve been doing an amazing job on this so far,” but they need that extra expertise to help move them along. But it’s easy. It’s easy. It’s seamless. It happens right away, and for most of my clients, the experience is when you make that, and I understand it’s an expense, but when you make that decision to go from representing yourself to having a lawyer, the goal is that it’s a huge relief, and it takes a lot of the anxiety out of the process because it’s a stressful process as is, and then doing it yourself just adds to the stress.
I’ll say this. I don’t mind sharing this. I tell clients this all the time. I talk about it on the website. I’m pretty open with people. I’ve been through a divorce. When I was going through my divorce, I was a board-certified, family lawyer, and I had a lawyer represent me. I suppose I could have done it myself. I certainly knew what needed to happen, but emotionally, I’m not going to do that. And frankly, being so close to it, I would’ve made mistakes or poor judgment decisions just because it’s a hard time. It sucks.
I tell clients that all the time. Going through divorce sucks a lot, and then representing yourself on top of that did not sound like fun to me. I was fortunate to be able to have a lawyer represent me in my divorce, and it certainly helped through the process. But that’s the goal. We get involved, and we take that off your plate, and reduce anxiety, and make sure that your legal rights are protected, your family’s protected, and take the case to the finish.
Brian Walters: Yeah, I agree. Another common question we get is, “Hey, we’re going through a divorce. We’re agreed it’s going to be uncontested. We do want to have a lawyer represented so we can understand, get the paperwork right and understand the process and procedures, so can I bring my spouse in and we both hire you to represent us?” The answer is no. The state bar won’t let us because even though you might be agreed now, there’s a potential conflict of interest in the future, and we’re not allowed to do that. We have to represent one or the other of you.
So, if you’re the one calling us, it’s going to be you. Now, as a practical matter, that doesn’t need to mean anything bad. When I do that, most of the time, the spouses tell me or the client tells me, “Hey, treat them fairly. This is totally above board. We’re not doing anything that’s underhanded or tricky or anything like that.” Of course, I wouldn’t do anything unethical anyway, but that’s the way we approach it, and we draw it up. We try to be fair, open with everybody.
But just to be clear, we can’t represent the both of you. That doesn’t mean the other person needs to hire their own attorney, although they often will, at least to review it, but that’s a common question and just wanted to get that out there. Any thoughts or experiences you have other than that, Jake?
Jake Gilbreath: I think you covered it. I tell people all the time, just because you have lawyers involved doesn’t mean you’re fighting. I have cases. It’s buying a house. Both sides can have a realtor. That doesn’t mean they’re in some bidding war or it’s contentious or anything like that. It’s just a transaction. And sometimes divorces on the very low conflict to no conflict, it’s just a transactional matter no different than buying a house, but there’s paperwork involved that needs to … There’s things that need to happen, that need to be taken care of from small to more complexity.
Just because both sides have a lawyer doesn’t mean that you’re at each other’s throats or that you’re fighting or anything like that. It could just be that you both have somebody guiding you through the process. If Brian and I decided we were going to buy a business together, he and I decided that this divorce work’s a lot of fun, but let’s go purchase a carwash together … Let’s not do that, but we’re going to go purchase a car wash business, and we found one. He and I would have a lawyer and our broker at least, and the seller would have a lawyer or broker. That doesn’t mean we’re fighting. It just means that we have professionals that know what they’re doing.
Brian Walters: I represented folks who owned, actually, a bunch of car washes one time. It’s actually a good business, but-
Jake Gilbreath: Well, there you go.
Brian Walters: Okay. Well, just a couple other quick things before we wrap up here. We also get calls pretty frequently about, “Hey, could you just review some documents,” either review a proposed prenup or postnup or documents I’m drafting, that kind of thing. We tend not to do that, just the review of the documents. It’s a bit of an undertaking to do that for what is often a 30-minute or one-hour job. We do have consults where we can go over those as part of a consult. That’s slightly different than a formal review of the documents and any kind of written opinion, but that will usually give you what you need.
But we do make exceptions. I got hired yesterday to review a prenup actually and exactly what I’m doing. But that’s the way we approach it is generally we don’t do these too often, these little one-off review of things, but we do a lot of consults, and we will make exceptions in certain cases. At least, that’s the way I typically approach it. Is that the way you think of those things, Jake, or do you have a little different policy there?
Jake Gilbreath: No, I’m the same. Do the consult, we’ll talk about it, and then if it needs more than the consult, I may refer it, or if there’s an exception, then we’ll do it. Yeah, do the consult, and certainly, I tell people if you’re representing yourself, at a minimum, and I mean bare minimum, before signing anything, do a consult with a lawyer and have them review it to see if there’s any glaring red flags because, in a consult, I can identify glaring red flags. A more intense document review, like you said, maybe we’ll do a one-off representation for that, or maybe we’ll refer it to somebody.
Brian Walters: Absolutely. One last thing before we wrap up. We’ve got a lightning round of four quick questions. I’ll just answer each question. If you want to jump in or add or contradict me or whatever, feel free to do it, and then … It happens all the time. I don’t always get it right. Anyway, just those four quick questions that also sometimes come up.
One of them is, will hiring an attorney expedite the divorce process? The answer’s yes, if nothing changes. If it’s an agreement, you guys have the terms that you’re hiring an attorney to just kind of walk it through the system, yeah, I think that will be much quicker than trying to do it yourself. Now, if you hire us and we say, “Well, gosh, this proposal that your spouse has made is really unfair because of some of the things we’ve just discussed, then that will probably slow it down because now, there’ll be a disagreement that we’ll have to resolve in some way. But that’s only if you opt to do that, and that’s only because you wanted to protect your interest. So, it might take a little bit longer, but you’re going to get a better outcome. Does that make sense to you?
Jake Gilbreath: Yeah, it’s tedious work. If you don’t have a lawyer doing it, then it’s going to drag.
Brian Walters: Exactly. If my spouse hires an attorney, do I need one? I think we sort of touched on this a little bit above. You don’t need one. It’s not required by law, but that is a red flag. It’s that your spouse has now got somebody who’s an expert and looking at it and is going to make sure the Ts are crossed and the Is are dotted and that all their rights are protected. So, you might want to have … I think it’s probably smart to have an attorney at least look at the document if they’re presenting something to you to sign.
Jake Gilbreath: Yeah, agree 100%.
Brian Walters: Can getting an attorney for limited representation help bring the cost down? Yes, and that’s relatively a new thing in Texas where you can have limited rep. We mentioned that a little bit above, where talked about just a document review. It used to be you had to hire an attorney, just hire them overall. That would be more expensive because it opened the attorney up to a lot of responsibility. Now, you can do it on a more limited basis. As we mentioned, that’s not something we do a whole lot of, but we’re open to it. We’ve done it.
Jake Gilbreath: Yeah, it’s hard to do la carte. I want you to handle this small portion because everything bleeds into everything. But for hearings particularly, if somebody says, “I’ve got a contested protective order coming up or a temporary orders hearing,” that may be something that we jump in for, handle the hearing, jump out of the case once it’s done. Then certainly, for trial, we have people all the time contact us either with a lawyer or represent themselves and it’s 45 days out, 30 days out, a week out from trial, and they say, “I can’t do this,” or, “My lawyer can’t do this. I need you guys to come in and try the case.” That is what we’re built for, so certainly, those situations.
Brian Walters: I agree. And lastly, are there any downsides of staying legally married and just living separately? There’s consequences, upsides, and downsides. Texas is, as far as I can tell, the only state that doesn’t have legal separation, so there is no difference between living together or living separately. You still have the financial obligations to each other. The money that you earn and your spouse earns is still community property. Money from investments, interest, dividends, profits, those kind of things are still community, so it is probably not a smart idea to do that.
I think there’s a couple of options. One is you could have a post-nuptial agreement which would address those kind of things, but that’s a fairly complex legal document you’re going to have to have drafted. Another one is to somehow divide things out or maybe you have very simple circumstances, and it doesn’t really make much difference, sort of the example we talked about two people with just a cat and someplace that they rent.
Generally speaking, I don’t think that’s a wise idea. We’ve had people come to us 10, 20, even 30 years later, “We’ve been separated. I just want to make the paperwork,” and it’s not that simple, at least in Texas. Any thoughts on that?
Jake Gilbreath: Yeah, same. If you’re staying married, don’t go buy a lotto ticket because you may be splitting out the proceeds with somebody that you thought that you were legally separated from. But just another reason to talk to a lawyer. What’s this legally mean without me and my spouse separating? I never push people to get a divorce, but it is our job to let people know what the legal consequences of their decisions are.
Brian Walters: Okay. All right. Well, that’s all we have for today. If you like what you heard today, do us a favor and leave us a review. We appreciate all feedback, especially when it helps us better the podcast. If you have any questions, reach out to us at firstname.lastname@example.org or any of the other ways you can reach us. I’m Brian Walters here with Jake Gilbreath. Thanks for listening.
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