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Frequently Asked Questions
Q.
I am getting divorced. Do I need an attorney?
A:
If you have kids or property, definitely. If it is just your pots and pans, then no.
But seeking legal advice is always best. There may be things about your situation that can be more significant legally than you think.
Q.
Who determines how assets are divided in a divorce?
A:
It is up to the Court to divide the marital estate in a manner that is "just and right". As a general rule, most judges try to do a 50-50 split, but it can vary depending on circumstances.
Q.
How do courts determine who gets custody of children in a divorce?
A:
In most cases, it is the judge. But, you can ask for a jury, and the jury can make that call. This does not happen too often, but you do have a right to a jury.
Q.
What is joint custody?
A:
Joint custody is where both parents have relatively equal say in the upbringing of the children. However, the Court can allow one parent more control than the other if the judge finds that it is in the best interest of the child to do so.
Q.
How is child support determined in a divorce or child support case?
A:
For the most part, it is math. The law provides that the parent paying support pay a specific percentage of "net resources", that is income less taxes. For a W-2 employee it is pretty simple. For a self employed person this can get more complicated, as you can take expenses for purposes of taxes that are not counted for purposes of child support.
Q.
How does a civil lawsuit get started?
A:
Simple, file a suit. In Texas state practice this is called a "Petition", in federal practice it is called a Complaint".
Q.
What happens after I file my complaint?
A:
The defendant gets served. Then, it has a set time to file a response.
Q.
Is there a deadline for filing a lawsuit in civil court?
A:
Yes. In Texas, the Answer is due on the Monday following the expiration of 20 days after service.
Q.
How long will it take to resolve my civil lawsuit?
A:
There is no way to say. I have seen suits resolve in a matter of days. Sometimes it is 2-3 years. This depends on the court calendar appeals, and things like pandemics can also get in the way.
Q.
How can I make the defendant provide me with the necessary documents and information to support my claim?
A:
There is a process called "Discovery". The rules allow both sides to get from the other documents and information about all of the claims and defenses. What is good for the goose is good for the gander.
Q.
Will my civil lawsuit go to trial?
A:
How do I know? Most cases settle. If it settles then no, and if not, then yes.
Q.
What happens after a person is arrested?
A:
After calling your mother or best friend, you try to get bonded out. You'll be taken before a magistrate who will set the bond. Then you get a lawyer and start planning on your defense.
Q.
Does a person have to speak to the police after arrested?
A:
No!
Q.
What is an arraignment?
A:
You are advised of the charges against you. In some jurisdictions you will be asked to enter a plea.
Q.
What is the process after criminal charges are filed in court?
A:
The end can always be a jury trial. But, most cases end up in a plea bargain. Your lawyer will get "discovery" from the prosecutor. That is, copies of the offense report, witness statements, videos, etc. then, there will be discussions about how to resolve the case without a trial. As the accused, it is your call as to whether to accept a plea deal or not.
Q.
What is a pretrial conference or pretrial hearing in a criminal case?
A:
This is where the judge and the lawyers discuss the handling of the upcoming trial. Preliminary motions will be heard and determined, and sometimes the jury instructions will be hashed out.
Q.
If the person who called the police or who put the criminal charges does not want to go to court or continue with the case, will the charges be taken away?
A:
That depends. The DA can subpoena the complaining witness and make him/her appear. Or, it may be that the case can be proven without that witness.
Q.
If I plan on pleading guilty, do I still need a lawyer?
A:
Yes!!! You always need a lawyer if you are charged with a crime.
Q.
If I get offered a plea bargain, should I take it?
A:
Depends. What is the offer? What is your exposure if you are found guilty? How strong is the case against you? What is your stomach for the fight and uncertainty?
Q.
What is bankruptcy, and will the process wipe out all of my debts?
A:
Bankruptcy is a process where you can possibly be relieved of all of your debt. There are different "flavors" and the right one for you depends on your situation.
Q.
What are the main differences between Chapter 7 and Chapter 13 bankruptcy?
A:
Chapter 7 will eliminate most if not all of your unsecured debt (credit cards, medical bill, and the like). Chapter 13 is a sort of reorganization, where you pay money each month to the trustee, who then passes money on to your creditors. This is often used where you are behind on house payments and the mortgage company is threatening to foreclose.
Q.
Which bankruptcy option will allow me to keep my property?
A:
Your homestead will be protected, so that as long as you are current and able to keep making payments you can keep your house, or car. But, if you are behind, then the Chapter 13 is the way to go. With this, you can take the past due payments and pay it out over a period of up to 5 years. But, you will still need to make your regular payments.
Q.
Can I choose which type of bankruptcy to file? How do I choose the right one?
A:
Generally, yes. There are a few wrinkles, and it is possible that you may not be allowed to file a Chapter 7 if your income is above a certain leve.
Q.
What is the foreclosure legal process in the State of Texas?
A:
In most instances, it is called, "Non-judicial". The lender has to send first a "Notice of Default", and then a "Notice of Acceleration". At that point it can post your property for foreclosure. The foreclosures take place on the 1st Tuesday of the month, usually at the county courthouse.
Q.
When is a mortgage payment considered past due allowing the financial institution to bring a foreclosure proceeding?
A:
It is "past due" when it is late. As a general rule, you are allowed a grace period before late charges accrue. Then, mortgage companies will not consider you to be really late till you go 30 days past due.
Q.
If served with a foreclosure summons, what do I do?
A:
Assuming you are not able to come up with the money to catch up, then either call a lawyer, see if you can make a deal with the mortgage company, or figure on packing.
Q.
Are there ways of avoiding foreclosure
A:
Sure, (1) bankruptcy, (2) a civil suit with a restraining order (3) a negotiated resolution
Q.
Can I delay the foreclosure from going forward?
A:
Yes, (1) bankruptcy, (2) a civil suit with a restraining order (3) a negotiated resolution
Q.
Can debt collectors contact me any time or any place?
A:
No there are some restrictions under state and federal law.
Q.
How can a debt collector contact me?
A:
They'll be happy to call you
Q.
How can I stop a debt collector from contacting me?
A:
Yes, send a cease and desist letter.
Q.
Can a debt collector contact anyone else about my debt?
A:
No
Q.
What does the debt collector have to tell me about the debt?
A:
Who owns the debit, how much is owed.
Q.
What are debt collectors not allowed to do?
A:
They can't threaten you with criminal prosecution, harass you, or call you at work
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