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Nobody wants to end up in family court, but if you do, you want an honest, experienced family law attorney by your side to help minimize the stress, mental anguish, and legal costs that divorce and custody matters bring. Welcome to “In Your Best Interest.” Texas divorce attorney and entrepreneur Justin Sisemore of the Sisemore Law Firm and guests share insight on what to expect and how to handle family law matters, the changing landscape of family law, and living the entrepreneur’s life.
Ashley Q&A
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[00:00:00] Justin: So we're coming back to you today within your best interest. I'm here with Ashley Iovine. We are gonna hit the q and as of the frequently asked questions, we're gonna hit summer visitation, which can be kind of boring, but we're gonna kind of spice that up, uh, and knock through that quick, but then really get to the meet, which is all the, the questions that we get online, uh, and through our social media platforms.
[00:00:20] Justin: Yep. So let's kick it off. So first of all, uh, parents who don't really understand what the summer visitation looks like, Ashley, what, uh, based on. Your hundreds and hundreds of cases that you've done right. What do you think about, um, what you see the most in summer visitation schedules?
[00:00:36] Ashley: So most people, for people that don't know the summer visitation is going to be, if you live within 50 to a hundred miles, um, you get typically what we refer to a default of the month of July.
[00:00:48] Ashley: If you don't de designate, um, two other separate periods, no more than what, 14 days each. Is that Right? Um, and so what I've been seeing a trend of is. Most. [00:01:00] Both parents typically work? I feel like at this point, I shouldn't say, I say typically not all the time. Um, and so because of that, I've seen more people wanting to do a week on week off approach in the summertime.
[00:01:11] Ashley: Um, and so that's something that I think a lot more people have been coming to agreements on instead of allowing that default of July 1st to July 31st, you know, from six to 6:00 PM
[00:01:21] Justin: Yeah. And you know, like I was thinking about the, the August timeframe we used to have like this mass flood, if you'll remember, of like modifications Yes.
[00:01:29] Justin: Where. Kids go live with one parent, parent that wasn't the primary. And then everybody wants to go and interview with the court and the courts are like flooded
[00:01:37] Ashley: and they do it because that whole month of July, it's summertime. There's no school. It's fun parent. Yeah. You're having the time of your life to be, we hear
[00:01:44] Justin: Disney mom, Disney dad, all the stuff.
[00:01:46] Justin: So the week on, week off, have you seen from your client's perspective as far as their happiness, uh, throughout the course of that, because there's not such a long period, is that, has that kind of curbed a lot of that?
[00:01:55] Ashley: It is, it, it has curbed, a lot of those modifications that come [00:02:00] simply from, you know, a child maybe expressing a preference to wanna live with the fun Disney dad or Disney mom, um, who has the non-custodial parent in those cases.
[00:02:08] Ashley: Uh, but I also think it's good because it makes it easier, especially if both parents aren't working to not have to find childcare for, you know, a month long period if you're going to work. Unless you have the ability to take the whole month off, which. You know, you gotta call Justin Sizemore so we can get that too.
[00:02:21] Justin: Oh, come on now. Now we don't, we don't like see a lot of parents quote, I don't even know what summering is.
[00:02:26] Ashley: It'd be nice. Uh, it'd
[00:02:27] Justin: be cool, but I don't see a lot of parents summering. No, but you still see like the one that's like, all right, well I don't get along with this person. Um, and therefore I don't want to do week on, week off or deviate.
[00:02:37] Justin: I just wanna go to the standard and kind of make people suffer. Right?
[00:02:40] Ashley: Right. And I think in doing that, you're hurting your kids. You're not hurting the other parent. Totally. You just wanna make the other person suffer. And what it does is it makes it harder for your child.
[00:02:49] Justin: Yeah, and like scheduling. I mean, you, you've got three kids.
[00:02:52] Justin: I do. Obviously not summer camp age yet, but No, but you know, when you get into summer camps and activities as they get older, you know, obviously [00:03:00] your child and where they are and where all their stuff is and where their friends are, if you live further apart, I, I mean, how does that impact?
[00:03:07] Ashley: It's really hard.
[00:03:07] Ashley: I think a lot of people. Take the approach, which is the legal approach, that parenting time trumps extracurriculars, trumps you know, child's interest. But is that really the type of parent you wanna be? Someone who says, no, you're not allowed to go to summer camp 'cause you're gonna stay with me instead.
[00:03:21] Ashley: And also I'm gonna work the whole time. So you're gonna have to stay with, you know, a nanny or a babysitter instead of doing what your kid likes. Um. I see a lot of people take that approach, thinking that again, they're gonna get it back at the other parent, or they're gonna make sure they get what's entitled to them and what's right.
[00:03:38] Ashley: But you're hurting your child from having experiences outside of your home as well with friends, with extracurricular activities, with summer camps, that if you're gonna be that type of person it, I think it's gonna hurt your relationship with your kids in the long run.
[00:03:51] Justin: Yeah, and I don't know if you remember the case we had where like, 'cause we talk a lot about scheduling activities on the other parent's time, but we actually had a case, uh, not too long ago [00:04:00] where the child was like placed in dressage and all this like really expensive horse stuff, right?
[00:04:05] Justin: And that is a pretty rare thing, by the way, for the most part. Would you agree? Like, yes, we're not dealing with clients that always.
[00:04:11] Ashley: How that jump
[00:04:11] Justin: horses over poles. Right. Uh, but, but in that case, there was a lot of shared expenses.
[00:04:17] Ashley: Yes.
[00:04:17] Justin: And they required the, the previous lawyer had written in that they had to split activities.
[00:04:23] Justin: And do you get a lot of requests like to split extracurriculars?
[00:04:26] Ashley: Yes. We, and we have to explain to parents that. Who asked for this in that the judge is not gonna do it. So if the parties don't agree to it, child support is child support. So, um, anything above and beyond that is gonna be considered, you know, no kid needs three ponies kind of Yeah.
[00:04:40] Ashley: Pun with the situation with the horses. Uh, but we see it a lot and I, I like when parents are wanting to share those expenses because you are both. Parents that should be involved in your kids' lives. But practically speaking, um, it's not something that has a, we'd have a lot of leverage on, I guess from the standpoint of if I go in front of a judge and ask for it, [00:05:00] um, they're not as inclined to be sympathetic to somebody needing whatever the horse costs
[00:05:06] Justin: Yeah.
[00:05:06] Justin: Are. Well, and I, you know, I, I love the, i, the, the concept that we can bounce ideas off of each other. And we talked in our previous pod podcast about that. And, and also too, that, you know. I, I don't, I, I, I, I, I feel like you and I can share ideas without like any kind of, oh my gosh, she's stepping on me.
[00:05:23] Ashley: No.
[00:05:24] Justin: And so, like, I, my, my approach to some things may be completely different. Is that fair?
[00:05:28] Ashley: And, uh, I, I feel like actually most of the time I feel like we take totally different approaches. Justin's approach is very much more, um, hit him, hitting 'em hard at the beginning. Whereas I take a little bit of a softer approach, get everybody a little bit.
[00:05:42] Ashley: I don't wanna say lubed up, oiled up.
[00:05:44] Justin: I
[00:05:45] Ashley: couldn't think of another word for it that came out sounding a little bit dirty than I intended. However, I take that approach moving forward and I do think it eases people into it, but I think we have to bounce that idea because based on the personality of the client that we're dealing with, I think it [00:06:00] could switch based on, okay, how is that person gonna take it?
[00:06:03] Ashley: What is their. Lifestyle, right? Mm-hmm. Maybe their lifestyle is different and they need a different kind of approach like that. But we do. I definitely think we disagree without butting heads.
[00:06:12] Justin: Just to summarize Well, and no offense to Pat, your husband, husband and none taken towards me. Our wives are the clearly the primary.
[00:06:17] Justin: So like yeah, sometimes we don't always think about as guys or as dads and I don't like to put people in a bucket
[00:06:24] Ashley: like a gender norm, right? But if
[00:06:25] Justin: you're not the primary parent, you may not think about all of the activities 'cause you just don't know all the scheduling that gets involved.
[00:06:30] Ashley: People, I tell people all the time, you fall into.
[00:06:33] Ashley: A lot of times it ends up being the stereotypical gender roles, but it's not even so much about that. It's that in any group project, somebody is pulling more weight. I don't know how anybody in a partnership there is always someone doing a little bit more. Um, you've referenced my husband, he also works outside the home is a wonderful father, very involved, but.
[00:06:54] Ashley: The first person agreed. That's called the first person called, you know, at the school, the first person [00:07:00] called from the doctor's office is, is me. And that's mostly because we're the ones that are, there's one parent that's typically filling out the forms. You can't both fill out the same forms. So it's hear that push and pull,
[00:07:10] Justin: I hear, yeah.
[00:07:10] Justin: I hear all the time, like somebody will say, well I just let her do that. 'cause that's what her role was while we were together and now we're not. And I'm like, well, you did that for 10 years, right? Like, that's
[00:07:19] Ashley: now the precedence that you have set. So just because you're not together anymore doesn't mean you all of a sudden get to prove yourself to be, you know, this great parent.
[00:07:27] Ashley: Um, and it's not that you're not a good parent, but you weren't the parent that was handling most of those day-to-day tasks. So we see that a lot in. When people, um, break up, whether it be in a divorce or in a situation where they just had a child together and they weren't married, they immediately take the approach of, okay, well now I'm gonna be, you know, this partner that I was supposed to be.
[00:07:47] Ashley: Yeah. Now I'm
[00:07:47] Justin: gonna have an eight pack of abs and all stuff, and I'm gonna,
[00:07:49] Ashley: I'm gonna be the, the dad that's always there and the dad that's going all these activities. And that's great. We always wanna encourage that, but you have to realize that your kids have been used to. One parent [00:08:00] doing most of it.
[00:08:00] Ashley: And Rome
[00:08:00] Justin: doesn't have to be built in a day, does
[00:08:01] Ashley: not have to be built in a day.
[00:08:03] Justin: So with respect to, um, the summer schedule, I think, you know, we talked about kind of the week on, week off approach, um, not having extended periods of time, right. Not being so regimented because the orders stayed. And I'll jump off summer in just a second.
[00:08:17] Justin: Uh, not being so regimented with like, you have to designate by this period, otherwise you get this month, which is what the standard orders say. So
[00:08:24] Ashley: Right. The standard orders is April 1st is the. Is the non-custodial parent, you know, designating it as in Then April 15th is the custodial parent trying to get a buyback weekend in place.
[00:08:36] Ashley: The problem with that is that a lot of summer camps you, you don't know what's happening by April 1st, and so I do think that most parents don't realize that you're hurting your kids by not being flexible and allowing those things to happen after the deadline, legally speaking, is very different than morally speaking, in my opinion.
[00:08:52] Ashley: Sure. So legally speaking, yeah, I guess you could have an enforcement action, but morally speaking, who's winning? In that situation, I
[00:08:59] Justin: think we could both [00:09:00] agree, like regardless of whether it's a softer, more aggressive approach, when you, he who lives by the sword, dies by the sword sometimes, right? Where like if they schedule during your period, then all of a sudden you feel this inclination wanna schedule during their period.
[00:09:12] Justin: And it's kind of that, it's itIt
[00:09:13] Ashley: for tap.
[00:09:14] Justin: All the time stuff. Mm-hmm. And like we do you, I mean, I hate that stuff. I hate that about family. It's frustrating as
[00:09:20] Ashley: at, you know, us as attorneys, it's extremely frustrating for the judge. You're taking up some of the judge's time by coming into court to argue over these things.
[00:09:28] Ashley: Over days, over days and over.
[00:09:29] Justin: Activities.
[00:09:30] Ashley: Activities or, um, extracurriculars. And I mean, I've had a person who's, I've had a. Former client wanna go for 12 hours, like of an enforcement, you know, to get back. And I'm like, you can pay me to do that. And yes, I think you're entitled to it, but I don't think the judge is gonna be thrilled with you.
[00:09:46] Ashley: Yeah. About asking for this. I do think this tit for tat approach very much focuses on your relationship with the other party and maybe bitterness you're still feeling. That petty type of behavior is not gonna go well for you in court and it's definitely not gonna go well for [00:10:00] your kids.
[00:10:00] Justin: Yeah, and I, I think, um, you know, by the same token, there's a lot of listeners out there that are like, we've, I've tried everything.
[00:10:06] Justin: Yeah. This person will disagree if our child wants to play baseball or be a cheerleader, or whatever the situation may be. So. One of the things that I try to do in those situations is think about what other issues are you having. So like if it's something that's what we perceive as somewhat minor, but the, the client may be feeling it as a major impediment to their ability to raise their child.
[00:10:29] Justin: How do, how do we, uh, get the best bang for their buck, I guess without just saying, Hey, that's petty and the ju because that could be like something that really bothers them.
[00:10:38] Ashley: I find that in a lot of my. Consults that are dealing with modifications where they're saying, I don't know how to make this work.
[00:10:44] Ashley: I don't know how to co-parent. I usually tell them it, it is maybe not ripe right now, but there are things coming on the horizon. So rip,
[00:10:51] Justin: like the banana, we say the green banana case is not ready to eat.
[00:10:53] Ashley: Not ready to eat. Um, and it's, you'll get the bigger bang for your buck. And stacking, you know, for an enforcement, for example, I spoke [00:11:00] about modifications, but if there's an enforcement action, someone's not doing something, you know, per the order.
[00:11:05] Ashley: If you wait a little bit to let those enforcements stack up to where there are a few of them, it's you're getting a bigger bang for your buck in that it's the same document, but I have more violations that can be maybe used, um, for a modification approach. There are things that maybe we say, look, we, you probably could go to court and argue this.
[00:11:23] Ashley: I don't know that it would be persuasive. I think there are other facts that maybe could be coming down the pipeline for you that maybe would help your case, or there might be facts that aren't there
[00:11:32] Justin: and you're shooting yourself in the foot, like you got paid a couple hundred bucks. Yes. To do a consult.
[00:11:35] Justin: You're not taking
[00:11:37] Ashley: thousands of dollars. I tell people all the time, I could take your retainer and I could tell you and be your hype person and say, we're gonna get everything you want here. I have to sleep at night as well, and we see
[00:11:45] Justin: that quite a bit playing second fiddle. Is that fair?
[00:11:48] Ashley: Yeah. And it, it's definitely, I think it's, um, we try to tell these prospective clients, we're looking out for you.
[00:11:54] Ashley: We could take your money and run with it. We are telling you what your Achilles heels are or the [00:12:00] likely outcome so that you can make an informed choice of, of, okay, do I pay you and take this risk or do I wait a little bit and see if more things happen? I never want more bad things to happen for a child.
[00:12:10] Ashley: I always say that. I don't want you to have to call me back. I don't. I want you guys to figure it out. But the majority of the time they call back.
[00:12:17] Justin: Alright, well let's bounce into what the internet has perceived as the most frequently asked questions and
[00:12:23] Ashley: pressing questions. You and I
[00:12:24] Justin: do a lot of consults and we do, we've got a lot of cases, so I think, uh, we can both agree that we hear this all the time.
[00:12:30] Justin: Uh, I went to mediation, why isn't my case done yet?
[00:12:34] Ashley: Lot of questions about this. Um, a lot of questions from our own clients. Yeah, I feel like not even in consults, um, there are a couple courts that I know of off the top of my head. In Tarrant County and in Collin County, that will set what's called an entry hearing.
[00:12:47] Ashley: Um, usually it's set a couple months out, uh, from the time that a mediated settlement agreement is put in or filed with the court. Um, and that's a way to have a drop dead to not be terrifying, but a drop dead [00:13:00] date to make sure that the, that there is a proposed final order that is entered with the court.
[00:13:05] Ashley: If we are in a court that doesn't do that, um, on their own, um, then typically we have the ability to file a motion to enter and basically say, okay, here's what we've proposed. Um, especially for the petitioner in the case. Typically they're the ones tasked with drafting. I mean, come on,
[00:13:20] Justin: you're a family lawyer, you get paid by the hour.
[00:13:22] Justin: If you just wanna drag it out and let people, I love it, call you all the time and complain and, ah, I mean, that just sounds great.
[00:13:27] Ashley: The way, um, sure I could get paid more, but the anger that these clients would feel, the weights aren't gonna good for me. You might get one and lose 10. Yeah, that's, that's a hundred percent right.
[00:13:37] Ashley: So, so
[00:13:37] Justin: we're not just trying to drag it out and make people fire, not trying to drag it out. That's crazy.
[00:13:40] Ashley: We do like to have, we have to remind these clients that we do try to extend professional courtesy to, you know, our opposing counsels. So if we're tasked with drafting, we typically get it done within two weeks.
[00:13:50] Ashley: Um, from the point of getting a mediated settlement agreement in place. Our paralegals do great. Turning that around quickly. We send it to the other side, and we usually give them. Two [00:14:00] weeks and people get upset about that. Our clients say, why aren't we moving faster? And it's, we know as attorneys what our caseloads look like, and I assume that the other sides are the same.
[00:14:08] Ashley: We give some people some leeway. So usually if a month has passed and nothing's been done, we're filing something.
[00:14:13] Justin: And I'm presuming that when we. When at least you, and I know I can speak for myself. When we send correspondence across the bow, we just immediately get a response. Oh yeah. And immediately Absolutely.
[00:14:25] Justin: Get our agreements to set a hearing on a motion enter. Is that, is that really the way it works? It is
[00:14:30] Ashley: not the way it works. Um, you have to remember that we're still on opposite sides. So, uh, as far as the, not you and I, but not you and I Yes. The US and opposing counsels, and I think it's important to remember that there are reasons that maybe they're dragging their feet.
[00:14:43] Ashley: There are reasons that maybe they're not getting paid. I don't know. Maybe they're not, uh, maybe their client's being difficult and not wanting to, you know, they're wanting to step back from what they agreed upon in the MSA and they're saying, well, now I don't agree to it. There are a myriad of reasons why they're not responding.
[00:14:57] Ashley: The most likely one is that they're busy.
[00:14:59] Justin: Yeah. [00:15:00]
[00:15:00] Ashley: I mean, they're in court,
[00:15:01] Justin: but we do have checks and balances. Absolutely.
[00:15:03] Ashley: Yeah. Like I said, a motion enter pretrial scheduling order.
[00:15:05] Justin: Oh, yeah. Getting dates set.
[00:15:06] Ashley: Absolutely.
[00:15:07] Justin: Motion to enter to enter orders that mm-hmm. Maybe somebody hasn't even looked at with their client.
[00:15:12] Justin: No. Um, can you think of anything else that like you could do to kind of expedite if somebody's dragging their feet in a case?
[00:15:18] Ashley: There are a couple times in mediated settlement agreements where mediators will include language about if you guys are disagreeing, instead of going right to court for a motion to enter, we can contact the mediator and do a conference, uh, with the attorneys to see what the discrepancy and interpretation might be.
[00:15:34] Ashley: Um, so that's something that. Could be kind of a middle ground. But I have to remind people, especially those courts that have that set their own entry hearings, I can't set a hearing sooner. 'cause the court has already set me, set it for two months out. So I do have to remind people all the time that we are kind of handcuffed,
[00:15:51] Justin: beholden to the courts.
[00:15:52] Justin: Dock To the court. Yeah. Yeah. And then as far as like. Kind of a, an more aggressive approach if you start in on depositions and [00:16:00] discovery and you've got mediation and all that. Oh,
[00:16:02] Ashley: from the front end? Absolutely. From the front end. Yes. And,
[00:16:04] Justin: and just kind of streamlining that timeline, do you feel that helps sometimes in Yes.
[00:16:07] Justin: Okay.
[00:16:07] Ashley: I think holding people's feet to the fire and getting discovery sent out, doing depositions, making sure you file for a pretrial scheduling conference to get those deadlines so that you have a final trial date that's gonna expedite everything exponentially.
[00:16:21] Justin: So, um, obviously we've had default judgements where mm-hmm.
[00:16:25] Justin: To, to the lay person where you just get served, you don't do anything with the lawsuit and it just gets entered. Um, and one of the questions we get is, what do we do in the event that you do get defaulted? And then the other thing I'm gonna throw back at the audience is when we are representing somebody that we defaulted.
[00:16:45] Justin: And, and then somebody else just all of a sudden pops up. What does that look like? So let's, so
[00:16:50] Ashley: there are two different. Ways that this happens, if it's within that 30 day, you know, time period. Um, after a, a judgment is entered, there's a 30 day period where the court still has what we [00:17:00] call plenary power.
[00:17:00] Ashley: That's a fancy way of saying they still have jurisdiction. Mm-hmm. Over the case. Um, the other party that's been defaulted can file a motion for new trial and. Try and appeal to the judge to say, I just, this was a mistake. I didn't mean to, rather than intentionally just bearing your head in the stand.
[00:17:15] Justin: Yeah. They call it, they call it conscious indifference. Yeah. You didn't just neglect your case. Right. Even though nine times outta 10, they completely neglected it and then the judge grants a new trial and we're trying to explain to our client, Hey. Guess what? You spent a bunch of money to go get a default order.
[00:17:30] Justin: Now you get to try it over again.
[00:17:31] Ashley: And we do, I, I, you know, I speak for our firm. We do a great job of telling these people when there are defaults upfront saying, Hey, if the other side comes out within 30 days, you're getting a new trial. Judges do not want, you have to remember, these are elected officials.
[00:17:45] Ashley: They don't wanna go up on appeal over something that could be conscious indifference. Right. Um, so I do think. People need to be prepared for that. It feels like a win. Um, yeah. You know when you get the default and you're like, oh, this is great. I got everything I wanted. [00:18:00] We're sitting on pins and needles for that 30 days to pass.
[00:18:02] Ashley: At least I am. I shouldn't speak for you. I am sitting on pins and needles.
[00:18:05] Justin: No, I think that's important too, because one of the things that I want to remember too is when if you don't do the default judgment mm-hmm. And 'cause the other logic would be, well, why don't you just keep trying to get them to show up and then they just don't, well, the default judgment kind of sets the tone.
[00:18:21] Ashley: Absolutely.
[00:18:22] Justin: So it, it sets the tone and, and I don't think it goes by the wayside specifically with custody situations. No. Um, you know, to open the, open the doors back up and a lot of times, like, you know, I don't think we really push the gas pedal and try to take advantage of somebody just because they get defaulted.
[00:18:38] Justin: No, I see that sometimes where they like, give a hundred percent of the estate or
[00:18:41] Ashley: Right. A
[00:18:41] Justin: bunch of time. And then the courts are like, I don't even know if I really wanna approve this.
[00:18:45] Ashley: We. We take the app appro. I mean we all attorneys are supposed to be held to ethical standards. Um, we do try and advise all of these clients, especially ones that are gonna get a default of, you do need to make this palatable.
[00:18:57] Ashley: Mm-hmm. To the judge. The judge is ultimately gonna [00:19:00] review this and sign off on it. So even if. You know, technically they defaulted. Judges have the discretion to say, no, we're, you're not gonna not pay any child support. You're gonna pay a little bit, or no, you're not gonna get a hundred percent of the estate.
[00:19:10] Ashley: That's not how our, you know, our law works. Um, so I do think, again, we prep them that a default might be coming back like a boomerang situation, but we also prep them in saying we do need to be somewhat fair because we are ethical people. And, um, so I, I do, I would venture to say it's very rare for us. To have put in an order that I don't think would've stood up, gotten approved, or stood up.
[00:19:34] Ashley: Right. In a, in a normal final trial. And that doesn't
[00:19:36] Justin: mean give up any ground, it actually will, will take more ground, but just not go like full a
[00:19:40] Ashley: hundred percent thrown throat kind of thing. Right.
[00:19:42] Justin: Okay. So discovery requests for production, interrogatories, depositions, um, and. Request for disclosure. Mm-hmm.
[00:19:51] Justin: So I know you get to deal with that a lot, uh, in our firm. So talk through why in the hell do I have to answer it? They're not given the [00:20:00] stuff they need to. Yep. How do you approach those conversations and why is it important?
[00:20:04] Ashley: First, I think our firm takes the approach of sending it in the majority of our cases, if not all of our cases.
[00:20:09] Ashley: Why there? Because we want to be proactive in getting documents back. We want to be proactive in being able to tell people. What your estate looks like, so we know what we're dividing. Um, as far as assets and debts, what is going to be said about, you know, the kids and things about you? Um, I actually really like, I think I'm maybe the only person at the firm.
[00:20:29] Ashley: I like doing requests for admissions. I like holding somebody I. That's essentially a method where you ask a question, you know, admit or deny, and they can only say, admit or deny, or, I don't know. Yeah. Or you know, not enough information to ascertain. And I like holding people's feet to the fire because then in a court proceeding, I'm able to say, well, you said yes here.
[00:20:46] Ashley: Why are you changing your tune now? And trying to explain, you know, outside of it. Sure. Like
[00:20:50] Justin: an example would be like admit or deny, you have a retirement account. Mm-hmm. Deny, and then you get an inventory and then a retirement account that has a retirement account account. Now you've caught 'em dead to, right?
[00:20:59] Ashley: Mm-hmm. And, [00:21:00]
[00:21:00] Justin: you know, I want to touch on that too, because to me that's perjury, like, and perjury. It is bad. It sounds bad. It's not great.
[00:21:07] Ashley: Yeah.
[00:21:08] Justin: But what does the court do in the event that that happens in your experience? Typically,
[00:21:11] Ashley: I haven't, um, in my almost 10 years, I've not seen anybody, um,
[00:21:15] Justin: go to jail.
[00:21:16] Ashley: Go to jail, or be held in contempt of court for perjury.
[00:21:19] Ashley: What it does though, is it, it, um, limits the credibility of the person who is testifying. It creates a. I've said it numerous times. Judges are human beings. They like witnesses. They don't like witnesses. They're not gonna like a witness that's lying consistently. And so the discovery gives us the ability to have tools to catch people in those lies or to make sure that everybody is on equal playing field with respect to how we're dividing this estate and how we're dividing up time for the kids.
[00:21:47] Ashley: Um. I think that depositions are something that we really heavily use in defending modifications. Um, so if somebody, an opposing party is coming in and suing our, you know, our client [00:22:00] for, um, trying to get something else that's different than the orders, we wanna hold their feet to the fire and say, well, what do you got?
[00:22:06] Justin: Yeah.
[00:22:06] Ashley: Tell us
[00:22:07] Justin: when. I think too, like, you know, when you're looking at. All of the stuff that comes in IIE exhibits and text messages and valuations and, you know, everything. That's not even an admissible form, meaning you can't get it into court yet unless you have
[00:22:22] Ashley: Right.
[00:22:22] Justin: Uh, that backed up by, uh, custodian records affidavits and, and or subpoena witnesses.
[00:22:27] Justin: When you have all of that information, it's kinda like studying for the bar exam, right? Yeah. Like you get all this stuff and you gotta filter it down and Right. To me, like. I, I feel like that's what we use discovery for is to get this, the issues streamlined and also back up the supporting documentation.
[00:22:43] Justin: But I also see, and I know you've seen, there's many times where the other side just won't give the information. So no, they won't. So we're telling our client, Hey, you've gotta give it. And I, I totally understand that question and that concern, like, why do I have to do it if they don't. But what is your response to, what would your response be for, we want
[00:22:58] Ashley: our hands to be clean.
[00:22:58] Ashley: And
[00:22:59] Justin: what does [00:23:00] that mean?
[00:23:00] Ashley: That means that you do everything that you are supposed to. So you're supposed to answer discovery, you're supposed to provide this. And what happens if you don't? You have to go to a motion, to the other side will do a motion to compel against you. You're brought to the court, you're, the judge says, why the hell aren't you giving this over?
[00:23:13] Ashley: Yep. When it's been asked for, there are a few situations, um, especially like protected information that you can see things in camera, you can, you know, do things in chambers. There are ways to protect, or if you're saying it's not relevant, I mean, if you're asking for. Your shoe
[00:23:29] Justin: size in 1980.
[00:23:30] Ashley: Right. It's, it, it's not necessary for this case.
[00:23:32] Ashley: There are ways to get around it, but the majority of the time, it's all gonna be fair game if it was during your marriage. Um, well,
[00:23:38] Justin: and I know one thing we talk about too is like your ability to prov to provide proof or evidence in a courtroom. One of the great things about discovery that people don't really know is that when they send the documents to us, they're automatically admissible.
[00:23:50] Justin: Yes. So it saves on costs.
[00:23:52] Ashley: Yes.
[00:23:52] Justin: Right. You've got the documentation, they're automatically admissible in a courtroom. And then the other thing that. I think, uh, we see a [00:24:00] lot of is with respect to discovery. You cannot offer evidence that you don't provide in discovery, so,
[00:24:07] Ashley: correct. What do we, people think that like, we can hide the ball.
[00:24:10] Ashley: Yeah. People think that we can say, oh, if, you know, if we don't produce it, um, then they, they're not gonna know about it. We can surprise them at court. No, that is absolutely not allowed. Um, so it is a way, again, to equal the playing field. There are a lot of people, a lot of spouses who don't know everything that the parties might own together.
[00:24:29] Ashley: And um, so I do think that people thinking you can have this element of surprise is somewhat unusual in our setting.
[00:24:36] Justin: Okay, so this question has to do with, um, why am I still paying child support, uh, if the kids now live with me and can I withhold visitation?
[00:24:47] Ashley: You can't withhold visitation. Um, if the kid lives with you, you should be filing a modification with us.
[00:24:52] Ashley: And what
[00:24:52] Justin: happens if you don't?
[00:24:54] Ashley: Then there are no orders that are enforceable. So she could, theoretically, I say she, he or she, the other party could [00:25:00] theoretically come back and say, I am gonna take the child. And there's nothing you can do about it. There are orders that are in place.
[00:25:05] Justin: And so not just that, but like also from a perspective of the modification of child support.
[00:25:10] Justin: If you don't, if you're paying child support and you have a child living with you, you don't get to retroactively go back No. And change the that timetable. So
[00:25:18] Ashley: the sooner you do it, the sooner you'll get your support terminated and hopefully get the other side. Paying you.
[00:25:23] Justin: Yeah. And do you see very often where like we talk about the office of the attorney general, can you just pick up the phone and be like, Hey, I wish I got this child living with me.
[00:25:31] Justin: Or Hey, I lost my job, and they just like jump at it right away.
[00:25:35] Ashley: They don't jump at it right away. Uh, and also I think you're gonna be going to a automated voicemail before you talk to a real person.
[00:25:42] Justin: Okay.
[00:25:42] Ashley: That's why you call us.
[00:25:43] Justin: So, um, this question has to do with, uh, I. If, if husband or wife had the property before marriage, but I paid for the taxes, upkeep, and mortgage, do I get a portion of it?
[00:25:54] Ashley: Yeah. We get this question a lot, um, with people and you know, I don't know the statistics at this point, [00:26:00] but a lot of people are getting married a little bit later in life and so they've had some property that they've accumulated prior to, um, property that is. Accumulated prior to marriage is classified as separate property, but you do have reconstitution or reimbursement claims as a spouse if you've paid down a mortgage to increase, you know, obviously what the value would be at the end of this if you've paid taxes.
[00:26:21] Ashley: So yes, those things are all important. Um, it's, I. We have to some tracing. So reimbursement,
[00:26:25] Justin: like the statute actually says if it enhances the value of the property or you pay the taxes, you can get reimbursement claims. 'cause you know, I get that question a lot and I'm sure you do what when? When somebody buys a house and now it goes up in value.
[00:26:39] Justin: We used to have what's called economic contribution and now it's transferred into straight line reimbursement. So the courts kind of restricted, in my mind some of the ways that they used to get the. The increased value, and I think have clients get confused by that a little bit. They do. Like, I paid for this, I lived in it, it's gone up in value.
[00:26:56] Justin: What do I get?
[00:26:56] Ashley: Most of the time, what I've been seeing at least is judges [00:27:00] take the approach of, and I'm trying to think of the, the legal term they use for it, but essentially they look at what amount of principle has been paid down, the principal
[00:27:09] Justin: reduction. Mm-hmm. Yeah. And then also like the, on the reimbursement side.
[00:27:12] Ashley: Yeah. I mean it's, it's hard. You need a tracing expert. Yeah. I
[00:27:19] Justin: mean, we hate it 'cause we gotta go spend money on somebody. You gotta find somebody
[00:27:21] Ashley: else to do it. Because when you have this dual characterization of properties, like real estate is the biggest one. Mm-hmm. Where it's separate property money was used to as a down payment on a house that you guys bought during your marriage.
[00:27:32] Ashley: You've just created two forms of property that we're now gonna have to have an expert. Come in and trace it for you. Why are we gonna have to have an expert do it? Because it's, he said, she said,
[00:27:41] Justin: yeah. Do you remember the case where they uh, they actually tried to do it themselves on the, and the, the house was on the two lots?
[00:27:47] Justin: No, I do
[00:27:47] Ashley: not.
[00:27:48] Justin: So we had this one where, uh, not too long ago where the. The, it was several million dollars in property and they decided to go do this themselves. And the house was physically sitting on two parcels of [00:28:00] property. Yes. And one was confirmed as the separate property and the other one was, uh, I guess awarded as community estate.
[00:28:06] Justin: And then they awarded the house.
[00:28:08] Ashley: Yes.
[00:28:09] Justin: Do you remember that? Do you remember? Is that ringing a bell?
[00:28:10] Ashley: Yes. And, but I don't, I'm trying to think of, so we, we, well, we came to an agreement on it. I don't think we went to court. We did okay. But
[00:28:16] Justin: we, we didn't represent obviously the underlying case, but we had to go back and not only trace the community in separate property nature, just to show the argument in first, but like where the house physically sat and argue property law.
[00:28:27] Justin: So it's like you,
[00:28:28] Ashley: we have to do, we have to wear two hats. It's not just family law hat, it is property law hat that we have to put on to figure out how to properly divide this.
[00:28:38] Justin: Yeah.
[00:28:39] Ashley: To our client's best interest. Right. And
[00:28:40] Justin: then you've got, like, do you ever see clients that are like, Hey, listen, I want to give, um, this house to my wife and I wanna really beef up or give the actual value of that house?
[00:28:50] Justin: No. In that process,
[00:28:51] Ashley: absolutely not. Tell, absolutely not. Let's talk
[00:28:53] Justin: about that for a second.
[00:28:54] Ashley: Usually we see, so I think what you're referring to as far as if in the sense [00:29:00] of, at the end of a case, right? Mm-hmm. Like when we're dividing assets. Mm-hmm. So. The party that is wanting to keep the house. So the, usually there's a person who has an emotional attachment, so if they wanna keep the house, they're like, okay, well I'm gonna low ball it, because then there's less that I have to give to the other side as far as making sure we're equalizing what is in the assets and debts of the estate.
[00:29:20] Ashley: The other side is obviously saying, no, I'm gonna get an appraisal done because I am entitled to way more, this house is worth way more. Um, and so the idea of I'm gifting it to her and it's worth millions of dollars, so that's why she can't get anything back from me. Yeah, because look at how expensive this is.
[00:29:33] Ashley: So it, based on who we're representing there is going to be a difference in whether or not I'm gonna want an appraisal done, or if I'm gonna base it on like, you know, tad value.
[00:29:43] Justin: So we're not just like. Chopping up, like what it says on tad No. And just like halfing your bank accounts and that's what
[00:29:48] Ashley: uh, you're gonna wanna do.
[00:29:49] Ashley: Will that a cool job? Yeah, it'd be an easier job, that's for sure. A much less emotional job.
[00:29:54] Justin: But to me, like the value add, I wanted to hear your perspective on it. To me, the value add is being able to not only horse trade [00:30:00] assets, but define and think about what's best from a cashflow perspective. Yes. And a balance sheet perspective and property fair.
[00:30:06] Justin: And it, I think you
[00:30:06] Ashley: have to think about your clients too. If you have a client that has not worked mm-hmm. The entirety of your marriage. They're needing cash, they're needing money upfront. They're needing, um, something more than a house that's sitting there that they're probably gonna live in, but they don't have anything to spend money on as far as food.
[00:30:23] Justin: And so why might you give up some speculative value of like, let's say husband or wife went and started some small cap company that hasn't really got off the ground yet? But there's potential. But now you've got cash that's sitting right here. Why? Why might you think about that a little bit? If I'm
[00:30:37] Ashley: representing this person that hasn't worked, they need money up front to live.
[00:30:40] Ashley: Now if I'm representing the other side. I'm gonna want something I, there's gonna be something else that I'm, I'm not gonna wanna agree to that. Right. Um, we have to deal with our legal strategy and how we advise dividing assets based on the circumstances that are presented to us. We can't change the facts of a case, right?
[00:30:57] Ashley: I can't change that. You spent separate property funds [00:31:00] to pay down a house. I can't change that. You didn't work during the course of your marriage, outside of the home. You were the person that was a stay at home parent. And so now you're having to figure out, well, how am I gonna make ends meet at this point?
[00:31:11] Ashley: You know, unless you've been married 10 years or more, and you can prove that spousal maintenance should be involved here. So those people you do maybe take a lower value. You create leverage, I guess is the word choice I wanna use. No, it's in situations where totally agree. You get more money up front to try and figure out what you're gonna do for the rest of your life.
[00:31:30] Justin: Yeah, and I, I, you know, one of the, we've got a bunch more questions, but at times limiting here. So one, one of the questions we get a lot to is like, does it matter if I file first? And what happens when you. Or like dealing with the money grab and the child grab and somebody goes across state lines or across county lines.
[00:31:47] Justin: I know we've got a case where literally tried the last three weeks on this very issue with counties.
[00:31:51] Ashley: So I think what that question is more so referring to is what is the benefit of filing first? Typically, I think the vast majority of the time, there's not [00:32:00] really a difference. Um, being the petitioner or a respondent doesn't change what you get.
[00:32:05] Ashley: But in a situation where we fear that a person may take a kid and run. Go to a different state or a different county. Um, it could affect venue, it could affect who files first so that we can get in front of a judge first to say why this venue makes sense. This forum makes sense. This state makes sense.
[00:32:21] Ashley: Right. And we've
[00:32:21] Justin: got a case going on literally right now where you see two different courts. One in a county not too far away, but a smaller, smaller county.
[00:32:29] Ashley: Yes.
[00:32:29] Justin: And Tarrant County. With a very small child doing completely different things.
[00:32:34] Ashley: The two counties that he's referring to, one county is in, I mean, the child's three months old.
[00:32:39] Ashley: One county is saying that they should do a week on week off parenting plan with a three month old. With a three month old who is a MO with a mother who's breastfeeding, which is important in these cases. I don't wanna be talking about your boobs, but we do have to talk about them sometimes. Um, and then we have another county that.
[00:32:55] Ashley: Is basically siding, I think with our faces [00:33:00] are showing, which is, that's wild. That that makes no sense. And so it does matter what court you kind of can end up in. And so I do think. It is, it puts you on better footing if you're proactive. And the first to file. Does it really change in most of our cases what the outcome is?
[00:33:16] Ashley: I don't think so, but we have these one-offs where it does matter.
[00:33:20] Justin: Yeah. And I mean, just to play devil as advocate for a second, like as far as temporary orders, we're very limited on time in a courtroom. Yes. Right. So yes, usually
[00:33:27] Ashley: most courts do one hour.
[00:33:29] Justin: One of the things that I think about too is like the petitioner gets to go first.
[00:33:32] Justin: So if you've got some adverse facts. Um, to your side, which we talked about. We don't represent Jesus. Uh, but if you've got some adverse facts to your side and, and you're putting them out there first or leading out with all your good facts, and also kind of explaining away some of the bad, mm-hmm. That to me can be somewhat beneficial.
[00:33:50] Justin: What's your take on that? It is
[00:33:51] Ashley: very beneficial. I think in every case I would prefer to be the petitioner. I think you're in the driver's seat. Um, you control the pace a little bit more of the [00:34:00] other side can do stuff, but you kind of hit the ground running and you're starting on first instead of being at home plate, you know, going, trying to get a home run.
[00:34:07] Ashley: I think that opening that door and as the petitioner, meaning you, you put on your facts first. So you put your witnesses on first is what Justin is referring to, and being able to basically say all the bad things. It kind of takes the wind outta the sails Yeah. Of the other side. Agree. Who's saying, oh, you're gonna, I'm gonna really get 'em on this.
[00:34:26] Ashley: And it's like if I say it first, like, yeah, I did have an affair. You know what I mean? I did do that. And you know, I'm not proud of it. It makes it a little bit more palatable than. Not saying anything and then having the other side bring it up first on cross.
[00:34:38] Justin: Yeah. And then as far as the orders are concerned, and you know specifically the orders, um, have you seen, I know you've seen, I know the answer to this, but I know we've seen a lot of, I.
[00:34:49] Justin: I don't wanna knock lawyers, but I've seen, we've seen a lot of really poor draftsman shift ship or they leave things out and you know, all that in an order that was said by a court or they don't add [00:35:00] things that they really need. And so we're having to kind of go back and redraft. Can you kind of explain
[00:35:04] Ashley: We prefer to be the ones that are drafting.
[00:35:07] Ashley: So I've actually had situations even in mediation where I tell my clients, look, normally the petitioner's supposed to draft the final order. I, if you're comfortable with us doing it and paying us to do it, you know, for the hours that it takes, we know we can do it quickly and we know we can do it right the first time.
[00:35:22] Ashley: Um,
[00:35:23] Justin: because of size and scale and just efficiency Absolutely. And,
[00:35:25] Ashley: and process. Yeah. More so than anything else. Um, I think that in a situation with a courtroom, it's. There is a, there are a lot of attorneys who rely very heavily on their paralegals and don't always check their work or what their requested relief is.
[00:35:41] Ashley: And I think that that hurts them in the long run. We, at the end of the day, it's the attorney signing their name to something and so you're the one with egg on your face if you didn't ask for something or didn't ask appropriately. Um, and so we like to be petitioners because we get to, again, be in the driver's seat to control.
[00:35:56] Ashley: Kind of the narrative from the beginning and then we control drafting [00:36:00] typically as well.
[00:36:01] Justin: Alright, I'm gonna put you on the spot. Oh geez. Okay. What is your favorite or best uh, or thing that kind of made your heart go pitter powder when you got the result? I. Fact pattern in a case
[00:36:12] Ashley: as far as Okay. Like, uh, a case that I've experienced.
[00:36:15] Ashley: Mm-hmm. Um, I had a case and it lasted two years and it was a modification case and it was, both parties were from outta the country. So they were citizens in America, but they were originally from somewhere else. And neither of them spoke great English and the client that we represented, the mother in this case, and she didn't know really what was happening, didn't understand the law when they got divorced here in the United States, here in Texas specifically, and the father ended up getting primary custody and she agreed to have a standard possession schedule, pay, child support, all of that.
[00:36:49] Ashley: She didn't really understand the order, she didn't understand what was going on. As time progressed, um, she started noticing that her child was having some needs that maybe weren't being met. Um, she was seeing [00:37:00] signs of autism spectrum disorder that dad wasn't taking any care to. So at the time, this child.
[00:37:06] Ashley: Um, you know, she came to us to see if she could do a modification. I mean, this child was five or six and it had no therapies. Um, which for parents who have children on the spectrum, that's really important to have some early intervention. And so this child from, you know, I think they. When they got divorced, this child was a year old.
[00:37:24] Ashley: So from one all the way up till six or seven, this child had had none of the resources that could have been provided to her. And so we took, it took us two years in a modification suit because we needed experts. I needed a formal diagnosis. Um, we needed confirmation from the school of who was the one that was spearheading a lot of this.
[00:37:42] Ashley: It took a child custody evaluation and it took a couple court cases, actually a couple court hearings, I should say, couple final trial settings. Um. Because we were in a court that, um, I think they, like the recorder broke the first time when we were trying to get a transcript. And so we had to come back a couple [00:38:00] times, which is why this was prolonged.
[00:38:03] Ashley: But we ended up getting mom, primary custody. Dad had a standard possession schedule. Um, actually less than I think is what he ended up actually. Um, the judge ordered an expanded standard and he actually wanted to take away Thursdays, so he couldn't do Thursdays with his work schedule. Um, she got. Um, access to obviously child support at that point to help with services.
[00:38:25] Ashley: 50%, you know, for unreimbursed medical, which included some of these therapies that are covered by insurance and just the idea that this is a person who fought so hard for her child who needed special interventions, and there was ano the other party. Dragged their feet in doing so and was going to be completely complacent with this child being in diapers, not being potty trained for the remainder of this child's life, this child not, um, having any hope of a greater life than what she was given now.
[00:38:56] Ashley: I think that was one that it felt like a really good win when we got that. [00:39:00]
[00:39:00] Justin: We get, you know, we're always, sometimes I say always, a lot of times we're the whipping boys.
[00:39:05] Ashley: Yeah.
[00:39:05] Justin: What was that client's reaction when you got that result?
[00:39:07] Ashley: Hugs, tears. Um, her, her partner at the point, hugs, tears. Her parents had come in from, you know, the place that they lived.
[00:39:15] Ashley: Um, and
[00:39:16] Justin: how'd that make you feel as an attorney?
[00:39:17] Ashley: It's, those are the days that make the clients that. That are mad at what your legal strategy is. Mm-hmm. Those are the days that make it worth it, because you're thinking to yourself, I didn't just switch conservatorship and get what I wanted. Right. I got what I wanted for my client.
[00:39:31] Ashley: I truly believe that this was in the best interest of this child to finally be given a chance to have a diagnosis that came with supported therapies and accommodations and a 5 0 4 plan through school and IEPI mean, this had to deal with psychologists, schools, um, teachers, both parents. Um, so I, I think that.
[00:39:52] Ashley: Those are things that people don't realize that it's not about money. People don't go into family law because you're gonna be, you know, a [00:40:00] corporate attorney that makes all this money. You go in because you do think that at the end of the day, this is a process that breaks apart something that people didn't think was gonna be broken.
[00:40:12] Ashley: And so if they can leave feeling like they had the best shot moving forward, you know, with their families, then you know, it is, it is what it's all about for us.
[00:40:21] Justin: Well, we have many, many, many pages of questions and obviously the consults, I think it's fair to say we both enjoy helping people through the consults even if we can't help through the case.
[00:40:32] Justin: So you can reach us@lawyerdfw.com, 8 1 7 3 3 6 4 4 4 4. Ashley and I do the consults so. If you don't like this or you love this, this is what you're gonna get. Uh, and I can assure you, uh, there's a lot more intricate details, uh, to the questions that we broke down today, and there's many, many more that come with that.
[00:40:52] Justin: So no dumb questions. Let's try to get your help, uh, and answers taken care of. And thank you for [00:41:00] listening.