August 2014 Archives

Self Representation and its Four Major Problems

"Pro Se" means you want to represent yourself in your divorce case and skip hiring and paying a family law attorney.  It is never a good idea and almost always is a very bad idea when contemplating self representation. Understandably, you are probably thinking you can get forms from the internet and fill in the blanks yourself.  That makes perfect sense.  Here's the problem: the Texas Legislature does a lot of things which make no sense at all.  No doubt you already know that.  You just haven't considered how that can impact the Texas Family Code and your divorce.  So that is Problem No. One. Problem No. Two is you have no way of knowing who drew up the forms you are proposing to use in connection with the disposition of everything that matters to you in life.  Your kids; your house; your money; your retirement plan; your car; your couch and TV; your debts and your credit rating; your grandmother's sterling silver; your father's best rod and reel.   You can see that is not a wise move for you to make.  Plus, going back to Problem No. One, the legislature meets every other year.  Something is always changing.  How are you going to know if your forms were ever correct in the first place, much less whether they remain current and correct? Problem No. Three is that you will likely get weak in the knees at some point in the process and decide to have a lawyer look over your paperwork.  Somebody you already know.  Maybe a criminal lawyer.  Maybe a personal injury lawyer.  Maybe a real estate lawyer.  That would be like calling a plumber to fix your electrical circuit breaker; a carpenter to fix your air conditioner.  How is that likely to have a good ending?  Probably better than if you tried to fix the circuit breaker or air conditioner yourself, but it's more likely your acquaintance will be unwilling to give you casual legal advice outside his area of expertise. Problem No. Four is that you have no way of knowing what your spouse is doing.  Maybe your spouse is telling you he/she doesn't have a family law attorney, but - hey! - what if that's not true?  Don't forget you are divorcing this person for some reason.  Maybe not telling the truth is one of those reasons. There are so many ways you can hurt yourself trying to avoid the expense of hiring a lawyer.  Some of them might be fixable, but many of them will be irrevocable.  So, think that over and read our blogs before making this important decision with self representation.  If you have no kids, no money, no property, no retirement plan interest and no rod and reel, the decision becomes slightly less important.  Still, we have seen homemade divorce decrees that actually fail to grant the divorce, so be careful.  You might end up an unintentional bigamist!

Going Through a Divorce? Get it Right the First Time

Divorce can be an exhausting and traumatic experience, often made worse by your spouse, and sometimes made worse by your divorce lawyer or perhaps your spouse's lawyer.  At some point, or maybe at several points in the process, you may be tempted to just sign the papers and end the misery.  Never give in to that temptation.  If it's your spouse making it unnecessarily difficult, there's not much you can do about it.  If it's your spouse's lawyer, you could try telling your spouse to have his/her lawyer stop it.  Sometimes when people realize how much money is being spent to little or no purpose, the light bulb flickers on.  If it's your lawyer, tell your lawyer to stop it.  If it's you, then you know what to do. There is a certain amount of difficulty in every divorce case; it's inherent, when two people each want to have possession of their kids every day, but not live together.  Or when two people both want all the money in the retirement plan.  That square peg has to be modified to fit into the round hole.  You just have to put up with it until a workable solution can be fashioned. At divorce is the only time when neither you nor your spouse has a legal presumptive head start on the other with respect to being named the primary custodian of the children.  Even if you have 50-50 possession of the children, one of you will usually be given the right to establish their primary residence, at least for purposes of fixing the school district they will attend.  Just that little edge will give one of you a leg up if the terms of possession and residence need to be modified later on.  Court orders concerning children are never final; they are kept fluid so the orders can be changed as circumstances change, both as to custody and support.  Even so, there are limits on how often a parent can request a change, and a burden of proof to be met by one or the other.  It's important to get things as right as possible for yourself and your children when you get divorced, for the present and for the future. Note that one aspect which can never be changed is the allocation of the right to claim tax exemptions for the children.  That can only be done by agreement between you and your ex, which presumably would not the forthcoming; the judge has no power to make orders about tax exemptions.  Unless you are the person getting the right to claim the exemptions, you are better off not agreeing to any provisions about it in your divorce decree.  You and your ex can always make agreements on it year-to-year.  It's not wise to agree to divide up the exemptions, either, as you may end up with full custody of all the children and should be able to claim them all at some future date. On the property side, barring very rare exceptions, all provisions for dividing your property, both assets and liabilities, become final thirty days after the judge has signed your divorce decree.  If there is later-discovered property which was not addressed in the decree, that is subject to future division by the court.  But let's say your divorce decree awards your spouse all employee benefit plan interests arising from his/her past and future employment.  Although you may think that would only apply to the 401k account you know about, it would pick up ("grandfather") all other plan interests as well.  That similarly applies to the award of bank accounts, household goods in possession, and so on.  It is critical that you patiently make sure your divorce decree is correct in all respects.  Take the time to get it right.

What Clinical Notes & Records must be Maintained by Therapists?

Mental health care professionals are increasingly being called into depositions and court hearings to provide records and testimony concerning treatment provided to their clients.  Whether you like it or not, clinical notes -- including computer files -- cannot be fully protected in legal proceedings.  Every therapist must keep and maintain clinical notes, in some cases preserving them for seven years for adults and longer for clients who are minors. Professional rules indicate what records must be maintained. In addition, the ethical canons of many jurisdictions, usually stated in guidelines published by the various licensing boards, require that certain records be maintained for each client. These include: 1.    The therapist shall base their services on an assessment, evaluation, or diagnosis of the client. The standard suggests that therapists must maintain notes that contain clinical information and the rationale for the assessment, evaluation, and diagnosis of client. It also implies that the treatment plan should be supported by the same factors. 2.    The therapist shall evaluate a client's progress on a continuing basis.  All client notes must be maintained and updated throughout the treatment process.  Changes to the assessment, evaluation, prognosis, and diagnosis, as well as the treatment plan, should be updated continuously, as long as the client is in treatment. When terminated, the record should record the reason for termination. 3.    The therapist shall keep records for each client of the dates and services, types of services, and billing information. 4.    The therapist shall not disclose any confidential information but will take reasonable action to inform medical and law enforcement personnel if the professional determines that there is a probability of imminent physical injury to the client or others. In general, confidentiality is to be protected. However, when there is an imminent threat to the health or safety of another the therapist must, or sometimes, may, alert the police, a medical facility or the client's family to prevent suicide or great bodily harm. Make sure to consult the statutes in your state and federal HIPAA law to understand both the restrictions and exceptions to the disclosure of protected healthcare information. Practitioners must also keep in mind that the privilege to protect the records belongs to the client. The therapist does not possess the right to refuse to disclose the file if the client and the court determine that it should be made public.

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