closing the friendly unfriendly file

CLOSING THE FRIENDLY&

UNFRIENDLY FILE

KELLY AUSLEY-FLORES, AttorneyAusley, Algert, Robertson & Flores

3307 Northland Drive, Suite 420Austin, Texas 78731

(512) 454-8791(512) 454-9091 Facsimile

E-mail address: [email protected]

ANN G. YOUNG, Legal AssistantE-mail address: [email protected]

State Bar of TexasADVANCED FAMILY LAW DRAFTING COURSE

December 8-9, 2005San Antonio

CHAPTER 19

KELLY AUSLEY-FLORESAUSLEY, ALGERT, ROBERTSON & FLORES, L.L.P.

Attorney at Law3307 Northland Drive, Suite 420

Austin, Texas 78731(512) 454-8791

(512) 454-9091 Facsimilee-mail address: [email protected]

EDUCATION

Texas Tech University, B.B.A. in 1987, cum laudeTexas Tech School of Law, J.D., 1995, cum laude

PROFESSIONAL ASSOCIATIONS AND HONORS

Board Certified by Texas Board of Legal Specialization, Family LawTexas Academy of Family Law SpecialistsMember, Collaborative Law Institute of TexasMember, International Academy of Collaborative ProfessionalsMember, State Bar of Texas (Family Law Section)American Bar AssociationCollege, State Bar of TexasTravis County Bar Association (Family Law Section)Texas Young Lawyers AssociationTexas Bar FoundationPro Bono College of the State Bar of Texas (1999 through the present)1998 and 1999 Pro Bono Award, Volunteer Legal Services of Central TexasTexas Super Lawyers® - Rising Stars® Edition (Texas Monthly, 2004 and 2005)

CAREER PROFILE

Nursing home administrator in Bangs, Texas for two years before returning to law school.Practiced family law with Ausley, Algert, Robertson & Flores, L.L.P. since August, 1995

and became a partner in December, 2001.Trained in Collaborative Law and trained as a family law mediator.Volunteer, Volunteer Legal Services of Central Texas (1996 - present) as a mentor and

lawyer.Volunteer, Women’s Advocacy Project (2004 - present) as a lawyer. Obtained certification as a specialist in the area of family law through the Texas Board ofLegal Specialization (December, 2000).

PERSONAL

Born February 23, 1965, in Lubbock, Texas and raised in Austin.Married to Joe Flores - two children.Member of the First United Methodist Church, Austin.

AUTHOR and LECTURER

“Closing the File,” Advanced Family Law Seminar - Boot Camp, State Bar of Texas, August 17,2003.

“Post Trial Basics & Closing the File,” Advanced Family Law Seminar - Boot Camp, State Bar ofTexas, August 8, 2004.

“Effective Use of ADR in Family Law Cases,” 2005 Poverty Law Conference, Texas Lawyers Care,March 30 - April 1, 2005.

LECTURER

“How to Study for and Pass the Board Certification Exam,” Advanced Family Law Course, StateBar of Texas, August 10, 2005.

“Closing Out Your File,” Williamson County Family Law Seminar, October 29, 2004.

“Post Trial Basics & Closing a File,” State Bar Convention - Boot Camp, June 25, 2004.

“Creative Discovery,” Family Law Essentials, Family Law Council, Nacogdoches, Texas, June 4,2004.

Closing the Friendly & Unfriendly File Chapter 19

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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. START AT THE BEGINNING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. TIE UP THOSE LOOSE ENDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Decrees and Orders (Getting Them Entered) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1. Take Good Notes and Prepare Your Drafts as Quickly as Possible . . . . . . . . . . . . . . . . . . . . . . . . . . . 22. Order a Transcript . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23. Set a Hearing on a Motion To Enter Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Decrees and Orders after Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2C. Child Support Accounts and Wage Withholding Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3D. Qualified Domestic Relations Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3E. Real Estate Transfer Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Special Warranty Deeds and Deeds without Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42. Deed of Trust To Secure Assumption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53. Deeds of Trust and Real Estate Lien Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54. Special Warranty Deed with Encumbrance for Owelty of Partition . . . . . . . . . . . . . . . . . . . . . . . . . . 55. Filing the Decree in Lieu of Real Estate Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56. Protecting the Interests of the Unfriendly Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

F. Other Transfer Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61. Vehicle and Boat Titles or Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62. Stocks, Closely-Held Business Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63. Life, Homeowners, and Auto Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74. Health Insurance and COBRA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

IV. CLOSING OUT CASE CHECKLIST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

V. OTHER MEANS OF CLOSING THE UNFRIENDLY CLIENT’S FILE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8A. Dismissal by Your Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8B. Your Dismissal of a Client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9C. Dismissals or Non-Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI. STORAGE AND MAINTENANCE OF CLOSED FILES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9A. The FACTA Disposal Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1. What Is “Consumer Information”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102. What Are “Reasonable Measures”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Non-Compliance with the Disposal Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

VII. OTHER HELPFUL ARTICLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


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CLOSING THE FRIENDLY ANDUNFRIENDLY FILE

I. INTRODUCTIONOnce you leave the Courthouse, having just

concluded a trial or having proved up an agreed decree ororder, your work as the attorney is far from finished. Inorder to assure your client that the Judge’s orders will becarried out, or that all parties will comply with the termsof a settlement agreement, you must pay close attentionto the details of closing a file. Often, the most time-consuming drafting work in a case occurs at the end, andthoroughness and attention to detail can maintain the“friendly” client’s good will toward you and your firmand, may protect you and your firm from the“unfriendly” client.

This paper will provide helpful hints and a “closingthe file checklist” for the attorney to follow. While myfirm’s checklist is designed for use with divorce files, itcan be simplified and adapted easily for modification andenforcement suits.

II. START AT THE BEGINNINGAt the time a client retains you to represent her in a

family law matter, you should be clear with her that thecase has a beginning, boundaries, and a definite ending.The simplest way to spell out the parameters of yourrepresentation is in your initial fee letter or contract.Each new matter should have its own fee letter, which issigned by the client and the attorney. Even if you arerepresenting a client in more than one legal matter, aseparate fee agreement should be generated for eachmatter and should apply only to that specific cause ofaction. When you write your time tickets or post yourtime to a computer billing program, the work performedshould be attributed to the specific case; otherwise, it willbe difficult to plead for your attorney’s fees and tocounter your client’s arguments if a fee dispute arises.

In my firm’s fee letters, we state clearly at the outsetthat the representation is for a limited and specific matteror purpose. The letter also sets out that “it is impossibleto determine in advance the amount of time that will beneeded to complete your case.” Unless you take casesfor a set fee, it is important to make this clear to a newclient. Often, clients assume that their cases will end astrials do on television - with a hug or a handshakebetween the winning attorney and the innocent client asthey walk out of the courtroom and into the sunset, neverto see each other again! As you know, this is far fromthe truth. If a case is particularly complicated, as in adivorce suit involving children and a substantial numberof assets and debts, the attorney often faces almost asmuch work after judgment is rendered as before. Myfirm’s fee letters and our Family Law Handbook, whichwe prepare in-house and give to each new client,

emphasize that the case will not be concluded at the timethe decree or order is rendered. We begin to prepare theclient at the outset for the fact that a significant part ofgood legal representation occurs at the end of the case.A copy of our firm’s fee letter, along with theCollaborative Law Addendum to our fee letter is attachedas Appendix A.

III. TIE UP THOSE LOOSE ENDSOnce the Judge has ruled or the parties have reached

an agreed settlement (which, we hope, is memorializedby a signed mediated settlement agreement or Rule 11agreement), there are orders and decrees to draft (if notprepared and agreed to prior to the final hearing), childsupport accounts to open, transfer documents (such asdeeds, vehicle powers of attorney, stock transfers,corporate resignations, etc.) to draft and file or submit tothe proper entities, accounts to close or a signatory to beremoved, settlement funds to secure, beneficiarydesignations to change, and retirement funds or stockoptions to divide. Some of these tasks, such as accounttransfers, beneficiary designations, and changes tohomeowner’s and auto insurance policies must beinitiated and completed by the clients themselves.However, some clients are naive and unaware that thesethings do not happen “automatically” once the Judgepronounces the divorce. You must direct the client totake the steps she needs to take in order to fulfill heragreement and to protect the funds and assets awarded toher. Some unsophisticated clients may have no idea ofwhere or how to get a car title transferred into her ownname, for instance.

Other actions, such as drafting and filing real estatetransfer documents or preparing qualified domesticrelations orders (“QDRO’s”) should be handled by theattorney. The moment the Judge rules or rendersjudgment on an agreed settlement, the attorney shouldbegin the process of tying up the loose ends and movingthe file toward closure.

A. Decrees and Orders (Getting Them Entered) In this paper, we will not attempt to give specific

drafting advice for decrees and orders, as you have heardin-depth topics presented in the other Advanced FamilyLaw Drafting Course talks and papers which address allmanner of drafting issues. However, we do emphasizespeediness and timeliness in preparing your drafts andsubmitting them for approval by, first, your own clientand then by opposing counsel. Following are some tipson speeding your paperwork through the sometimestedious process of drafting, revising, signing, andpresenting the finished product to the Judge:


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1. Take Good Notes and Prepare Your Drafts asQuickly as PossibleTake good notes at your settlement conference,

mediation, or final hearing; or, if you cannot take notesand concentrate at the same time, you should assign thatresponsibility to another person, such as your legalassistant, clerk, or co-counsel. Once I return from aconference or hearing, I type up my notes and email themto the legal assistant who will be drafting the document.I also give the legal assistant any exhibits or spreadsheetsthat were stipulated to or used to define portions of theagreement or ruling. This information is enormouslyhelpful to the drafter, and will be more accurate andcomplete the more quickly you can put down yourthoughts into written notes. Some attorneys may find iteasier to dictate the outline or instructions into a recorderfor the drafter to transcribe later.

If you allow even a few days to pass before yourecord your notes, you may forget important points thatshould be included in the decree or order. Do not relysolely on your memory!

2. Order a TranscriptIf I am reading a complicated settlement agreement

into the record, or if the Judge rules from the bench at theend of a contentious hearing, I often immediately ordera transcript from the Court Reporter before leaving thecourtroom. As you know, we often have cases where weknow, right off the bat, that there will be trouble ahead intrying to get the final documents signed and entered.You will encounter opposing parties (and sometimesyour own clients) who, you just know, will wantnumerous revisions, will reject your drafts, and/or willrefuse to sign off on the final paperwork.

Even though a transcript costs money, that cost canbe insignificant if it cuts down on the back-and-forth anddrafting arguments between the attorneys. The legalassistants in my firm who do our drafting worksometimes use the Judge’s or parties’ exact words whendrafting provisions that address particularly complicatedor controversial issues. It then becomes difficult to argueover the intent or accuracy of a provision when you canshow the testimony or ruling in black and white to yourclient or your opposing counsel.

3. Set a Hearing on a Motion To Enter JudgmentAll of you have encountered opposing attorneys

who take months and even up to a year or more after ahearing, or after a settlement conference or mediation, toget the final paperwork entered. Perhaps the opposingattorney won’t review and respond to your drafts of theclosing papers, or refuses to make revisions you haverequested, or will not finish the drafting work assigned tohim. In these instances, you must protect your clientfrom any harm that these delays can cause and from the

additional, unnecessary legal fees that are almost certainto result.

First, you do not want the dilatory attorney to be incharge of the drafting. It simply will be better to do ityourself! You can rely on your own thorough notes andthe Court Reporter’s transcript to prepare an accurate andwell-drafted document. Additionally, if you are upagainst opposing counsel or an uncooperative orunreasonable opposing party, you should build indeadlines to protect yourself and your client. If you haveproved up an agreement in open Court or the matter wastried, have the Judge order specific deadlines (the draftmust go to opposing counsel by “X1” date, opposingcounsel must give written objections/revisions back toyou by “X2” date, and the final decree or order must bedelivered to the Judge by “X3" date). And, if youanticipate or encounter an impasse over drafting issues,or simple refusal to sign by the opposing attorney orclient, then immediately set a hearing with the Judge ona Motion To Sign or a Motion To Enter Judgment. Theprospect of a hearing often is the incentive an opposingparty needs to generate a response or willingness to sign;and, if not, then you at least have ensured your client thatthere will be closure by a date certain.

In some extreme cases where significant time haspassed with no response, we even have sent our draft ofthe decree or order directly to the Judge who heard thematter, with a copy to opposing counsel, stating that wehave heard no objection to the draft and that, unless theJudge hears otherwise by a certain date, we ask him orher to sign our draft.

It is not reasonable to punish your own clientbecause of the opposing party’s or attorney’s non-responsiveness, uncooperativeness, or inefficiency.Bring the matter to closure!

B. Decrees and Orders after EntryWhen you appear before the Judge with an agreed

order or decree, make certain that you do not leave theCourthouse without a certified copy of the decree/order,a certified copy of any QDRO’s, and copies of any otherorders or ancillary documents that were signed. I havefound that, while certified copies are expensive, yourclients almost always will need at least one certified copyof a divorce decree. If the decree provides for a namechange, the client must present a certified copy to theSocial Security Administration if she wants a new SocialSecurity card issued in her new name. Many PlanAdministrators of retirement, pension, and stock optionsplans require not only a certified copy of the QDRO, butof the Decree itself (the Teacher Retirement System ofTexas and the Employees Retirement System of Texas,for example, require certified copies both of the divorcedecree and of the QDRO).


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A bonus to obtaining the certified copy is that youcan take it back to your office and use it to make copiesfor your file, your client, and opposing counsel. Bydoing so, all involved will have a complete and accuratecopy of everything exactly as the documents were filedwith the Court and showing all signatures affixed.

You again save yourself time and your client moneyby taking the time to get these copies while you are at theCourthouse. In Travis County, we have learned to ourunhappy surprise that if you fail to get your certifiedcopy the day the Judge signs your order, the order goesaway to “micro-fiche land,” not to be seen again forseveral days. That mysterious gap between the day ofyour court appearance and the day the order resurfacescan be a time of unhappiness for you as you face yourlegal assistant and your client, both of whom need thosecopies in order to close the file!

In many other counties, you are not permitted to getyour certified copies on the day of your courtappearance; therefore, you must have a reminder systemin place that prompts you to return for the necessary file-marked and certified copies before you close your file.

C. Child Support Accounts and Wage WithholdingOrdersIf child support is awarded, you also want to take

care of any paperwork required to set up the childsupport collection account and to have the wagewithholding order served (unless the parties have agreednot to have the order served on the Obligor’s employer).There will be lag time between the date you completeand submit the forms to open the child support collectionaccount and the date the account becomes active and theObligor can begin paying support through the agency.

Most child support collection agencies charge anannual fee, and many orders recite who is to beresponsible for that fee. In my firm’s drafting, we havebegun to use the following phrase in all of ourorders/decrees:

IT IS ORDERED AND DECREED that allpayments shall be made through the [name andaddress of child support collection agency],and then remitted by that agency to Jane AnnDoe for the support of the children. IT ISORDERED that John Doe and Jane Ann Doeshall pay, when due, all fees billed to thatparty by that agency.

Rather than ordering one party or the other to pay thecollection agency’s fees, the order states that a party mustpay any fee billed to that party by the agency. TravisCounty Domestic Relations, for example, bills an annualfee to both parties. The argument over who has to paythe child support collection fee (usually around $12.00)

is silly and a waste of attorney’s fees, especially wheneach agency may have its own procedure for billing thefees.

Texas Family Code §158.001 states that in anyproceeding in which periodic payments of child supportare ordered, modified, or enforced, the court of the TitleIV-D agency shall order that income be withheld fromthe disposable earnings of the obligor (emphasisadded). Parties no longer have a choice as to whether ornot a wage withholding order is entered; however, theydo have the right to elect that the order not be served onthe Obligor’s employer. If the parties so choose, then theorder or decree must recite their decision. The followingparagraph can serve this purpose:

On this date the Court signed an “Employer’sOrder to Withhold from Earnings for ChildSupport." However, the Court finds that goodcause exists or the parties have agreed that nosuch order be delivered to any employer ofJohn Doe as long as no delinquency or otherviolation of this child-support order occurs. Ifa delinquency or other violation occurs, theclerk shall deliver the Order as provided inthis Decree.

If the wage withholding order is to be served, then youshould make arrangements for its service at the time youfile the paperwork to open the child support collectionagency account. Be sure to fill out your particularagency’s forms for service on the employer and pay thenominal fee, usually around $15.00, if any (WilliamsonCounty, for example, does not require a fee for service onthe employer). Especially in cases in which your clienthas had difficulty collecting child support, or if theObligor habitually is late or routinely withholdspayments for various reasons, service of a wagewithholding order is one of the most valuable servicesyou can perform for your client.

D. Qualified Domestic Relations OrdersFew issues in family law property cases are more

difficult to address than the division of retirement,pension, stock options, and other employee benefit plans.Each employer may have its own rules and requirementsrelated to division of these plans and benefits on divorce,and all are subject to federal regulations and taxconsequences for the unwary. Some employers willallow the parties to divide stock options to the non-employee spouse via a QDRO, while others will not (thusrequiring the employee spouse to act as constructivetrustee for the non-employee spouse until all optionshave been exercised per the non-employee spouse’sinstructions).


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Failure to submit the forms or QDRO’s necessary tosecure these benefits awarded to your client can causeirreparable damage to your client. And, if you haveconcerns about the opposing party’s intent to withdrawfunds or borrow against these benefits (especially easy todo with certain plans, such as 401k’s), then timeliness iseven more important to protect your client’s interests.

The ideal scenario is one in which you obtained theplan booklets and a model QDRO (if one exists - not allemployers have one) early in the case, prepared a roughdraft of the QDRO pursuant to the employer’sinstructions, and submitted it for “pre-approval” prior tothe time you obtained the Judge’s signature. Bysubmitting the draft for pre-approval, your job is mucheasier if the Plan Administrator requires you to makerevisions before the QDRO is approved or “qualified.”Once a Judge’s signature is affixed to the QDRO,correcting it requires another trip to the Courthouse to getthe Judge’s signature on an amended QDRO (once againwasting time and your client’s money). Most PlanAdministrators insist upon or prefer that allcommunications regarding the QDRO be sent to allparties and attorneys, and I agree. Furthermore, itusually is a good idea for the non-employee spouse’sattorney to be responsible for drafting the QDRO. If yourepresent the employee spouse, you should not bedrafting orders that are designed to protect the opposingparty’s interests.

In fact, I recommend that in most instances, you donot attempt to draft a QDRO yourself. Unless you canfollow a specific form or model, such as the modelspublished by the Teacher Retirement System of Texas orthe Employees Retirement System of Texas, it is morecost-effective and better for your client to enlist theservices of a QDRO expert to draft the order and see itthrough the approval process. There are a number ofcompetent attorneys who do this kind of work, and whooften charge a flat fee to prepare and process QDRO’srelated to many of the major corporations orgovernmental entities. These QDRO experts haveamassed a library of model QDRO’s, approved forms,and names and addresses of Plan Administrators forsubmission of the QDRO’s through proper channels. Ifyou are not experienced in the area of retirement benefits,you should not attempt to tackle this work - it is tooimportant to your client’s future to handle in a hit or missfashion.

The work required to process a QDRO through theapproval process most often occurs at the end of the case.By this time, you may have the “unfriendly” client - onewho is unhappy with the outcome of the case, dissatisfiedwith your representation, or simply tapped out as far asthe ability to pay any additional legal fees. If your ownclient does not cooperate with you to see the QDROprocess through to a conclusion, or informs you that he

or she will not pay the fee required to draft the QDRO,then you should make it abundantly clear to your client,in writing, that more work is required to transfer theshare of benefits awarded to your client; and, if possible,you should enumerate exactly the steps that should betaken to conclude the QDRO or transfer process. ThePlan Administrator and opposing counsel should benotified that they should communicate directly with yourclient, if that is your client’s wish. Furthermore, if theclient informs you that he or she intends to complete theQDRO process without your assistance, you shouldwithdraw formally from representing the client, by filinga Motion for Withdrawal of Counsel and obtaining anOrder approving your withdrawal.

Never close a file unless you either have writtenconfirmation from the Plan Administrator that a QDROhas been approved or qualified; or, that you haveinformed your client, in writing, of any problems thathave resulted in a rejection of the QDRO or steps thathave not been taken to prepare and process a QDRO (ifyour client has refused to authorize you to proceed withthe necessary steps).

E. Real Estate Transfer DocumentsThere are a number of real estate documents that

may be a part of the closing papers required in a divorcesuit. Just as it is important to see a QDRO through to itsapproval by the Plan Administrator, preparing and filingthe necessary real estate documents are critical steps youmust take to assure that all third parties know that thereal property belongs to your client. Recording a deed ora deed of trust in the real property records of theappropriate county is a simple, inexpensive procedure.And, I believe the attorney should take responsibility forit and not leave it to the client - who may forget, or failto recognize the importance of this step.

Some of the commonly-used real estate documentsare described in the following paragraphs, and the TexasFamily Law Practice Manual contains numerous, usefulforms for these:

1. Special Warranty Deeds and Deeds withoutWarrantyIf your client is awarded real property in a divorce

suit, then a deed will be required to transfer that propertyinto your client’s (the “Grantee’s”) sole name. Usually,if this is a simple award of property, the proper documentis a Special Warranty Deed, if the property isunencumbered by a mortgage; or, if encumbered by amortgage, a Special Assumption Warranty Deed, inwhich you recite that the conveyance is subject to theGrantee’s promise and obligation to pay any existingliens on which the former spouse (the “Grantor”) may bea co-signor.


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Sometimes, the party who is awarded the realproperty may refinance the property, thus removing theformer spouse entirely from any obligation on the newly-refinanced loan or mortgage. If your client is the spousewho no longer owns an interest in the property, then thisis a desirable outcome. And, if the refinancing isperformed for the purpose of generating cash in which tobuy out the former spouse’s interest in the communityproperty, the title company handling the closing mayhave its own preferred instrument or deed to be signed atthe time the new loan is funded. If you know thatrefinancing is to occur as a part of the obligations relatedto the property agreement, it is a good idea tocommunicate with the title company before attempting todraft the real estate documents yourself. That job may betaken care of as a part of the loan closing.

Even if your client owns real property as herseparate property, and the other spouse’s name neverappears on any of the title documents, I recommend thatyou prepare a Special Warranty Deed or a general “Deedwithout Warranty” for the opposing spouse to sign inconjunction with all the other closing documents. In acommunity property state, this seems to be a prudent stepto take so that there is no mistake as to your client’s rightto sole ownership of that property. A real estate attorneywho advises my firm from time-to-time prefers the use ofthe “Deed without Warranty,” as opposed to a QuitclaimDeed for this purpose. We believe the Deed withoutWarranty confirms that there never was any ownershipinterest by the other spouse in our client’s separateproperty, regardless of whether or not the property wasoccupied by the couple as their primary residence. Theform for the Deed without Warranty is attached to thispaper for your convenience. A sample form is attachedas Appendix B.

2. Deed of Trust To Secure AssumptionThe Courts usually do not order a party to refinance

a mortgage merely for the purpose of removing theopposing party’s name from liability on the mortgage. Inthat event, the client who is divested of his or her interestin the real property should have some protection in theevent the owner spouse defaults on the mortgage. Whileit would be a rare occurrence for a former spouse to findhimself or herself liable in the event of the other party’sdefault on a mortgage, this scenario could occur. Theexecution and filing of a proper Deed of Trust To SecureAssumption will give the former spouse a measure ofprotection in the unlikely event that the lender ever triesto foreclose on the property in the future. If foreclosureoccurs, the recorded Deed of Trust To SecureAssumption should alert the lender to notify the formerspouse of the intent to foreclose, thus giving the formerspouse the right to enter the picture, cure the default, and

take back title to the property. A sample form is attachedas Appendix C.

3. Deeds of Trust and Real Estate Lien NotesIf your client has been awarded funds or a money

judgment in the property division, and unless the entiretyof the funds are to be transferred to your client on thedate the Judge signs the Decree, you will want securityfor your client. The most common form of security is apromissory note secured by real property owned by thepaying party, further evidenced by a Deed of Trust thatis recorded in the county where the property is located.With the Deed of Trust filed of record, the paying partycannot sell, transfer, or dispose of the property securingthe obligation without paying your client in full.

4. Special Warranty Deed with Encumbrance forOwelty of PartitionIf one client is to pay settlement funds to the other

as a part of the property division, and the paymentobligation is to be secured by real property awarded tothe paying party, then instead of the simple SpecialWarranty Deed, you will want to use the SpecialWarranty Deed with Encumbrance for Owelty ofPartition (form available in the Texas Family LawPractice Manual). This particular type of deed recitesnot only the mortgage obligation the paying party mustpay (and protect the other party from), but it also recitesthe payment obligation owed to the other party. Bothparties actually sign the Special Warranty Deed withEncumbrance for Owelty of Partition, with the payingparty’s signature confirming that he or she acknowledgesthe payment obligation to the other party.

5. Filing the Decree in Lieu of Real Estate DocumentsEvery so often, you will encounter the difficult

opposing client who refuses to sign any closingdocuments post-divorce. You sometimes can anticipatesuch an event and have the deeds and other transferdocuments ready at the time of the final hearing or courtappearance to prove up an agreement. If you can be thatfar ahead in your planning, you can ask the Court toorder the opposing spouse to sign the documents rightthere, in the Judge’s presence.

The difficult opposing spouses often are pro se, orhave dismissed their own attorneys out of dissatisfactionwith the outcome of the case. This leaves you to chasedown the difficult opposing spouse after the divorce andtry to get those documents signed. Sometimes it simplycannot be done. In that event, you can obtain a certifiedcopy of the Decree of Divorce and file it of record withthe County Clerk, just as you would file a deed. It ismore expensive per page than filing a deed, but it isvaluable protection for your client. All of our Decreedrafts now include the following provision:


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Notwithstanding any other provisions of thisDecree, this judgment shall operate as aconveyance to the parties so named of the realproperty described herein and title to such realproperty passes as ordered herein, without thenecessity of any further action by the partybeing divested of title.

This Decree shall serve as a muniment of titleto transfer ownership of all property awardedto either party in this Final Decree of Divorce.

6. Protecting the Interests of the Unfriendly ClientWhat creates an unfriendly client? Perhaps your

client was unhappy with the Judge’s ruling, or had“buyer’s remorse” after agreeing to a property settlementin mediation. Perhaps your client tired of payingattorney’s fees and decided the case was over (regardlessof the loose ends remaining) and informed you that he nolonger needed your services and would take care of allremaining loose ends. In these unhappy circumstances,as in the QDRO process, I believe that you, as theattorney, not only continue to have an obligation toprotect the unfriendly client, but also must protectyourself against a potential fee dispute or malpracticeclaim. I recommend that you file in the appropriate realproperty records any real estate documents that havebeen signed (or, if that is not possible, file the Decree inlieu of filing real estate documents), regardless ofwhether or not you have any expectation that you will bepaid. The filing fees are nominal, even if you must paythem with no hope of being reimbursed. You do notwant the unfriendly client back in your office a year laterwhen he or she tries to sell the real property, only to learnthat the property records do not reflect your former clientas the rightful owner of the property!

F. Other Transfer InstrumentsIn addition to real estate and retirement benefits, the

many other assets awarded in a divorce case may requirepaperwork to transfer ownership from one spouse to theother. All of these documents should be prepared at thetime the Decree is drafted, and in an ideal situation, all ofthese documents would be signed at the time the Decree,QDRO, and real estate documents are signed. Somecommonly-required transfer documents are:

1. Vehicle and Boat Titles or Powers of AttorneyIf a vehicle or boat is owned free and clear of any

debt, then the parties should have possession of anegotiable Texas Certificate of Title. Parties who owemoney on the asset usually will have a “non-negotiable”Certificate of Title. The title document reflects thedescription of the vehicle or boat, the name(s) in which

the asset is titled, and the vehicle identification or serialnumber.

The attorney or legal assistant should look at theclient’s title documents to confirm how ownership islisted - is it in the sole name of one party or the other, oris it titled in the parties’ joint names? If the title showsonly your client’s name as owner and the vehicle or boathas been awarded to your client, then no additionalpaperwork is required. However, if the asset is awardedto one party, and the title shows both parties’ names asowners or the other party’s name only as owner, then theother party must sign the back of the negotiable title sothat title can be transferred properly.

If the title is a non-negotiable title, then the attorneycan prepare a “Power of Attorney To Transfer MotorVehicle,” which will allow the spouse receiving the assetto sell, transfer, refinance, or own the asset in his or hersole name. When preparing a Power of Attorney ToTransfer Motor Vehicle, it is important to state theparties’ names exactly as they appear on the existing title,and to make certain the vehicle identification or serialnumber matches the one shown on the original title.

2. Stocks, Closely-Held Business EntitiesMost stocks, bonds, and securities today are held in

brokerage or investment firm accounts. Transferringownership of those securities can be achieved bytransferring ownership of the account into a party’s solename; or, by instructing the parties’ broker to transfercertain assets into another account designated for thispurpose by the receiving party. If individual stocks,bonds, or securities (not held in brokerage accounts) areawarded to one of the parties, then the certificates mustbe endorsed so that the shares can be transferred to theparty awarded those shares. Bear in mind that transfersof securities often require a “guaranteed” signature,which is not the same as a notarized signature. You canhave a signature “guaranteed” only by officers of certainfinancial institutions, such as banks and savingsinstitutions, and the party must sign the appropriateinstrument in the presence of the financial institutionofficer. Transfers of brokerage and investment accounts,and transfers of securities must be handled personally bythe clients; however, your clients may not know whom tocontact to start the ball rolling on these processes, or theymay not have understood that they need to take action.Another of your duties in closing the file is to point outall of the things the client needs to attend to, and to pointhim in the right direction to get these things done.

If the stock shares represent ownership in a closely-held corporation, the party who is divested of ownershipin the corporation should resign formally from anyofficer’s or director’s position. Most clients have anattorney-client relationship with a business or generalpractice attorney who prepared and maintains the


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corporate records. It is a good idea to have that attorneyprepare the documents required to keep the corporaterecords in good order, reflecting any changes broughtabout by the division of property. If you do not haveexpertise in general business law, then it is wise to deferthis drafting work to someone well-versed in this area.

3. Life, Homeowners, and Auto Insurance PoliciesYou always should remind your clients to contact

their various insurance carriers just as soon as you cananticipate when the date of divorce may occur. Theclient should ask his insurance agent to determine whatthe costs of the various insurance coverages will be oncethe divorce is granted and assets are divided between theparties. Auto and homeowners insurance, for example,will have to be billed separately to each party post-divorce.

In divorce suits involving children or orders forspousal support, the party ordered to pay child support oralimony often is ordered also to maintain life insuranceto protect that child support obligation. That client mustcontact his life insurance agent to notify the carrier ofthis obligation, to make the correct beneficiarydesignation, and if required, to request that third-partyconfirmation be sent to the receiving party.

Be aware that a divorce renders null and void thedesignation of a former spouse as beneficiary of yourclient’s life insurance coverage. If your client intends tocontinue to designate the former spouse as thebeneficiary (whether as part of a settlement agreement orordered by the court to protect child support or alimonyobligations), your client must re-designate the formerspouse as the beneficiary after the date of divorce.

4. Health Insurance and COBRAThe granting of a divorce makes the non-employee

spouse ineligible for group health insurance coveragethat may have been available previously to all of thefamily members. The Consolidated Omnibus BudgetReconciliation Act (a federal statute referred tocommonly as “COBRA”) provides for conversion andcontinuation of the non-employee spouse’s group healthinsurance coverage for a limited period from the date ofthe “terminating event” (which, in Texas, is the date ofdivorce). While the non-employee spouse is notguaranteed the same group premium rates he or sheenjoyed previously, the non-employee spouse will haveuninterrupted health insurance coverage for a specifiedtime, so that he or she can obtain other coverage throughthat party’s own employment or private carrier and canterminate the COBRA coverage. If representing the non-employee spouse, you should advise your client of therequirement that he or she must file the appropriaterequest forms with the employee spouse’s group healthinsurance carrier, indicating the non-employee spouse’s

desire for continuation coverage under COBRA. Therequest must be filed within 60 days of the terminatingevent (the date of divorce). Your decree should containa provision expressly ordering the employee spouse tocooperate with your client by contacting the employer’shuman resources or benefits office and obtaining andsigning any COBRA forms.

Unless ordered otherwise by the court or agreed bythe parties as part of a spousal support package, theindividual premiums on the COBRA coverage will bebilled to and paid by the non-employee spouse post-divorce.

There are numerous statutory requirements relatedto children’s health insurance coverage post-divorce.The parent ordered to carry the children’s healthinsurance coverage is required to notify the clerk or thechild support collection agency of the followinginformation no later than the thirtieth day after the datethe notice of the rendition of the Decree is received:

The Social Security number of the partyproviding insurance;

The name and address of the employer of theparty providing insurance;

Whether the employer is self-insured or hashealth insurance available;

Proof that health insurance has been providedfor the children; and,

The name of the health insurance carrier andthe number of the policy.

The party ordered to provide the children’s healthinsurance coverage must provide copies of the policy,explanations of benefits, insurance cards, and list ofproviders (if applicable) to the other parent. The decreeor order also should spell out the time-frames fornotifying the other parent of any change or terminationof coverage, deadlines for submitting claims to the healthinsurance carrier, and procedures and deadlines forsubmitting requests to the other party for reimbursementof uninsured healthcare expenses. All of these manydates and deadlines can be confusing to the clients, andit is a good idea to list these obligations and deadlines ina letter or written memo to your client as you close a file.I will describe our “Closing Out Case” checklist and“closing file” letters in more detail below.

IV. CLOSING OUT CASE CHECKLISTAll of the closing steps and procedures described

above are listed in a concise checklist that my firm useswhen the attorney closes a file. Responsibility for


8

completing the checklist is delegated to the legal assistantassigned to that file. A copy of my firm’s “Closing OutCase” checklist is attached to this paper as Appendix D.

Note that the very first step the legal assistant takesto complete the checklist is to read the Decree onceagain, noting all relevant obligations and deadlines. Inconnection with completing the Closing Out Casechecklist, the legal assistant also begins a draft of the“closing file” letter to the client. A sample “closing file”letter to a friendly client is attached to this paper asAppendix E. In the closing file letter, the attorneyinforms the client of all deadlines and obligations,including:

C Date(s) any settlement payments are due. C Deadlines and obligations related to the non-

employee spouse’s health insurance coverage underCOBRA.

C Deadlines and obligations for changing lifeinsurance beneficiary designations and providingproof of coverage.

C Obligation to comply with instructions from thechild support collection agency.

C Notice dates required by the possession order andany other significant dates related to possession ofthe children.

C Obligation and deadlines for notifying the formerspouse, the court, and the child support collectionagency of any changes of employer, employer’saddress, and client’s address.

In the closing file letter, you also should send the clientany of the following items that you have not given theclient previously:

C Certified copy of decree or order.C Conformed copies of any wage withholding orders,

QDRO’s, Qualified Medical Child Support Orders,and any other ancillary orders rendered as a part ofthe final hearing.

C The client’s original real estate documents (afterthey have been recorded properly, file-stamped, andreturned to you).

C Executed vehicle titles and/or powers of attorney.C Any original financial records, insurance policies,

diaries, photographs, and audio- or video-tapesprovided to you by the client during the course ofthe case.

If you have made recommendations to your clientregarding actions he or she should take to close thematter, reiterate your advice in writing in the closing fileletter, particularly if the client insists upon handlingpersonally those tasks that you normally would handle inthe course of closing a file.

In a closing file letter to an unfriendly client, theattorney still would set out all of the differentrecommendations and information set out above, andwould enclose the same kinds of paperwork describedabove, but he or she also would set out at length all“loose ends” that have not been addressed because of thetermination of the attorney/client relationship, or becausethe client specifically requested that “I do not want youto do any additional legal work for me.” If documentsremain unsigned; if QDRO’s have not been processed; orif real estate transfer documents have not been exchangedor recorded, set out all of those in writing and warnyour client of the consequences of leaving them undone.You probably should send copies of the letter viacertified mail and regular mail.

Once the Closing Out Case checklist has beencompleted, there are no unfinished tasks, you havewritten confirmation of approval from any retirementplans, and the “friendly” or “unfriendly” closing fileletter has been sent to the client, then you can close thefile.

V. OTHER MEANS OF CLOSING THEUNFRIENDLY CLIENT’S FILEThere may be times when a file is closed for reasons

other than the logical conclusion of the case. A clientmay dismiss you, you might withdraw from a case, theclient might choose not to pursue the case, or on rareoccasions, the client may cease communicating with youaltogether. If any of these events occur, you should takethe proper legal steps to protect yourself from liabilityand to fulfill your remaining obligations to the client. Donot allow the matter simply to languish, unresolved, inyour drawer.

A. Dismissal by Your ClientIf you have not yet been fired by a client, you will

be at some point in the not-too-distant future. Uponfacing that outcome, the attorney should prepare aMotion and Order for Withdrawal of Counsel and obtainthe client’s and opposing counsel’s signatures beforepresenting the agreed Order for approval by the Court.If the client already has notified you that new counsel hasbeen retained, ask the new attorney to prepare a Motionand Order for Substitution of Counsel, and see that theseare signed and entered quickly. Cooperate with yourclient and her new attorney by promptly providing copiesof your file and transferring to the new attorney anyfinancial records and other materials your client hasdelivered to you during your representation.

The Motion and Order should state the client’s lastknown mailing address (and, if new counsel is beingsubstituted, the identity and address of new counsel), andshould list in detail any filing deadlines, discoverydeadlines, and court settings known to you at that time.


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B. Your Dismissal of a ClientIf you want to withdraw from representing a client,

you should follow the steps similar to those followedwhen the client dismisses you. The difference may bethat you want to withdraw, but your client does notagree. In that event, the client should be notified inwriting of the request to withdraw and given theopportunity to agree to your withdrawal by signing anagreed Order. As a safety net in the event the client willnot voluntarily sign an agreed Order, you shouldschedule a hearing on your Motion for Withdrawal ofCounsel and notify the client of her right to object toyour withdrawal and to be present at the hearing.

In the written communication, assure the client thatyou will assist her by making her file available to newcounsel. Clearly state the reasons for your request towithdraw (the client’s refusal to pay fees, the client’sviolation of a court order, non-responsiveness by theclient, a client’s unrealistic expectations or unwillingnessto follow advice, etc.), but do not become accusatory, donot denigrate the client personally, and avoidinflammatory terms and phrases.

Additionally, you should withdraw formally if acase has been concluded, but you know that you do notwant to represent that difficult or unfriendly client in thefuture. If you believe that disputes between the partieswill be on-going, particularly if you believe it is simplya matter of time before additional litigation is initiated byone party or the other, you should go through thisprocedure. Our firm’s fee letter states clearly that oncethe order/decree is rendered and the related paperwork iscompleted, we consider that the case is finished andanything else (enforcement, modification, etc.) will betreated as an entirely new matter. Sometimes, a clientdoes not “get” that, and perceives her matter as onecontinuous lawsuit. Filing a Motion for Withdrawal ofCounsel and having an Order entered allowing yourwithdrawal provides a clear demarcation and proof toyour client and to the opposing party that a conclusionhas been reached, at least as far as your involvement inthe case is concerned! (This action also can protect theclient, as the opposing party cannot claim to havenotified or “served” your client by faxing some pleadingor hearing notice to you at 4:30 p.m. on a Friday.)

C. Dismissals or Non-SuitsIf a client informs you that he or she does not wish

to pursue the legal matter, do not close the file withouttaking some specific action, such as obtaining an Orderdismissing or non-suiting the case. When the client asksthat her file be closed while the case is unresolved, youshould inform her (again, in writing) of her options atthat time and ask for further instructions: Are you todismiss or non-suit the case? Does she want to allow thecase to remain on file, but with no action taken for a

period of time? If the latter, then you also need to informthe client of the possibility that the case could be placedon the dismissal docket in the future (in which event, shewill be faced with the decision to dismiss or proceed atsome time in the future). If the client wants the case toremain on file, then you either should follow theprocedure to withdraw as attorney of record or youshould not close your file.

If the client chooses to dismiss or non-suit the case,then you can close your file once you have obtained theJudge’s signature on the Order granting the dismissal ornon-suit.

VI. STORAGE AND MAINTENANCE OFCLOSED FILESPer State Bar of Texas guidelines, our firm stores all

closed files for a period of time following the date thefile is closed or retired. Divorce files and other filesinvolving child-related matters are held for 10 yearsfollowing the date the file is closed or retired, at whichtime they are removed from storage. The partnersconduct an annual audit of closed files that are 10 yearsold or older, and decide at that time whether or not a fileis to be destroyed. Files pertaining to pre-nuptial, post-marital, and partition agreements are held indefinitely.The most recently-closed files are stored in the office fora period of one to two years, as space allows, and thenare moved to an off-site storage facility for safekeeping.

Because of security concerns and the increase inincidences of identity theft, we recently have moved ourentire inventory of retired files to a more secure, bondedstorage facility and have contracted with a vendor whoprovides moving and storage services, and who has thecapability to shred voluminous amounts of documentseach year when we perform our retired file audit.

In December, 2003, a federal law was passed whichis entitled the “Fair and Accurate Credit Transactions Actof 2003" (“FACTA”). This law was passed to addressvarious issues related to consumer credit and identitytheft, so you may not believe this has much to do withthe practice of family law. However, I believe FACTAhas an immediate impact on lawyers’ policies for storingand protecting client files.

A. The FACTA Disposal RuleFACTA required that certain federal agencies must

create rules to minimize identity theft and consumerfraud, including the proper destruction of documents.The Federal Trade Commission issued the “disposal rule”in November, 2004, and the Securities and ExchangeCommission and federal banking agencies also adoptedthe rule for all organizations under their authority.

The Disposal Rule became effective as of June 1,2005 and states that “any person who maintains orotherwise possesses consumer information for a business


10

purpose” must properly dispose of the information by“taking reasonable measures to protect againstunauthorized access to or use of the information inconnection with its disposal.” To read the entire rule, goto www.ftc.gov/os/2004/11/041118disposalfrn.pdf.

1. What Is “Consumer Information”?Consumer information is defined in the rule as any

record about an individual that is a consumer report, oris derived from a consumer report, includingcompilations of such records. In a family law practice,the Inventories and Appraisements, budgets, anddocuments produced in response to discovery requests allcould be defined as “consumer information” under thisdefinition. In addition to these documents, a FinalDecree of Divorce contains a wealth of “consumerinformation,” virtually the entire financial identity of acouple, in its pages.

2. What Are “Reasonable Measures”?Reasonable measures that can be taken to protect

consumer information under the Disposal Rule aredefined as follows:

• Shredding, burning, or pulverizing of paperscontaining consumer information so that theinformation cannot be easily read or reconstructed.

• Destroying or erasing electronic media containingconsumer information so that the informationcannot be easily read or reconstructed.

• Contracting with an entity engaged in the businessof records destruction to dispose of consumerinformation in a manner consistent with the rule.(Due diligence must be used when contracting withthe outside entity.)

I believe the Disposal Rule applies not only to the retiredfiles we send to storage, but also to the throw-away itemsa law firm generates on a daily basis. My firm purchaseda shredder several years ago, but prior to theimplementation of the Disposal Rule, we did not use itconsistently. We now have put a new policy in placewhich requires the employees to shred every documentthat contains any specific client information (such asfinancial information, addresses and phone numbers,Social Security numbers, federal income tax information,and information about their children), rather than todispose of it in the trash.

B. Non-Compliance with the Disposal RuleThe Disposal Rule provides that a consumer can

bring a claim against a person or business who violatesthe rule within two years from the date the consumerdiscovers the violation or within five years from the dateof the violation. In addition to whatever federal fines and

penalties might be imposed against a law firm foundguilty of such a violation, you can imagine the adversepublicity your firm would receive after such a breachbecame public.

Give careful consideration to your file maintenanceand storage policies, and make certain you have in placeprocedures that safeguard your clients’ files and protectyou from liability.

VII. OTHER HELPFUL ARTICLESIn addition to my article, I recommend the following

articles for additional information about diligence andprotecting your practice from unfavorable outcomes to anunfriendly client’s grievance or malpractice claims:

• King, J. Steven and Heather L. King, AdvancedCYA for the Family Law Attorney, The UltimateTrial Notebook: Family Law, 2004 (Dallas).

• Vick, Thomas G., Jr. And Paul Saucy, Dealing withthe Client from Hell (Representing the QuestionablyCompetent Client in a Dissolution Proceeding, 29th

Annual Advanced Family Law Course, 2003 (SanAntonio).

• Bain, Angeline Lindley and Kathryn LaniganWieser, Dealing with the Difficult Lawyer, 30th

Annual Advanced Family Law Course, 2004 (SanAntonio).

• Ausley, Thomas L. and Ann G. Young,Professionalism in Family Law, 30th AnnualAdvanced Family Law Course, 2004 (San Antonio).

• Ausley, Thomas L. and Jerry D. Porter, TheImpaired Client - Ethical Issues and Advocacy,Family Law on the Frontlines, 2005 (Galveston).

• Robertson, Eric, Securing and CollectingJudgments, Family Law on the Front Lines, 2005(Galveston).

• Ausley, Thomas L. and Ann G. Young, Ethics andthe Enhancement of the Attorney/ClientRelationship, Advanced Family Law Course , 2005(Dallas).

VIII. CONCLUSIONAs stated in my firm’s fee letter, much of the

valuable work performed in a case comes after settlementis reached or after you leave the courtroom. Gooddrafting, thorough follow-through, and attention todetails and deadlines will help you improve the quality ofyour work and leave you with friendly, satisfied clientswho will recommend you to others.

And, in those instances when you part with theunfriendly client, these same good practices can protectand help you defend yourself and your firm in the eventa grievance or lawsuit is filed against you.


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Closing a file properly, maintaining your closedfiles, and protecting your clients’ confidentialinformation require considerable time and effort, butdiligence in these areas can be some of the mostimportant steps in the process.

APPENDIX A

APPENDIX A

[Date]

[Client and Address].

RE: Cause No. ; In the Matter of and ; andIn the Interest of , Children.

Dear [Client]:

This letter sets forth the agreement concerning your representation in the above-referenced

matter by the firm of Ausley, Algert, Robertson & Flores, L.L.P. The firm's representation of youbecomes effective upon our receipt of a countersigned copy of this letter and the initial retainerrequested in this Agreement.

You are advised to read this Agreement carefully or have an attorney of your choice read theAgreement and advise you regarding its contents. You should sign this Agreement only after youhave a complete understanding of its intent, meaning, force and effect.

1. You have requested that this firm handle the above-referenced legal matter. If you haverequested that this firm represent you in a collaborative family law matter, then you have read andagreed to all of the provisions stated in the Addendum to this Agreement, which is attached andincorporated herein for all purposes, the same as if fully set forth at length.

2. You hereby agree to pay and have paid to the firm of Ausley, Algert, Robertson & Flores,L.L.P., an initial retainer fee of $ . This initial retainer fee is the amount werequire to begin work on your specific case; it is not this firm’s estimate of the total amountyou will spend on attorney’s fees for this firm to see your case to its conclusion. This fee is paidfor the purpose of assuring the firm's availability in this matter. The firm may require you toincrease your retainer as needed. This retainer fee is placed in an interest-bearing account with theinterest being forwarded to a fund of the State Bar of Texas to help pay for legal costs of indigents,as required by Texas statute.

3. Billing is based on an hourly rate of $ for services rendered by Thomas L. Ausley,$ for services rendered by Eric Robertson, $ for services rendered by Kristen A.Algert, and $ for services rendered by Kelly Ausley-Flores. It is impossible to determine

APPENDIX A

in advance the amount of time that will be needed to complete your case. We will not and donot predict the amount of time required to complete your case, and we will not and do not predictthe final cost to you to complete your case. You will be kept fully informed of time used forconferences, telephone calls, drafting documents, research, court time, and necessary travel time.Some of the work on your case can and will be done by the firm's legal assistants, whose billablerates are lower than the attorney's rates. To the extent that their time is utilized, the overall fee willbe lower. The hourly rate for legal assistant services performed by Ann G. Young, CharlyneRagsdale, Sherry McMillin and Martha Jones is $ .

4. You will be billed monthly on a time-expended basis with the billing cutoff date the 20th ofeach month. Your retainer will be credited against the monthly billings until your retainer reachesfifty percent of its original amount. Because the remaining one-half of your retainer will be kept forthe final phase of your matter, the firm may require you to pay an additional retainer amount oncethe retainer balance is below fifty percent. Once your retainer balance reaches zero, your paymentwill be due in full by the tenth of the month following receipt of the statement, unless specialarrangements have been made in advance. Any sums due and owing for legal fees and costs, whichare not paid within thirty (30) days from the date of the bill, will accrue interest on the outstandingbalance at the rate of ten percent (10%) per annum, compounded monthly. The firm reserves theright to terminate the attorney-client relationship for nonpayment of fees or costs. In the event thatthis matter proceeds to a hearing before the Court, or to jury trial, your account must be current twoweeks prior to the hearing date.

5. "Costs" are out-of-pocket expenses, such as filing fees, recording fees, deposition andtranscript fees, copying charges, facsimile transmissions, extra-ordinary postage costs, and longdistance telephone calls. Some of these costs exceed $100.00. Costs will be itemized and billed ona monthly basis. Any additional costs exceeding the sum of $100.00 will not be incurred withoutdiscussion and your prior approval. The firm reserves the right to direct you to pay any costsdirectly to the service provider upon receipt of the service provider’s invoice.

6. You promise to review your bill each month within five (5) days of receipt and to discussany questions about the bill with the office manager or attorney. If no questions are raised prior tothe time of your receipt of your next bill, then this constitutes acceptance by you that the billpreviously received is reasonable and the services and costs were necessarily incurred.

7. The firm of Ausley, Algert, Robertson & Flores, L.L.P., does not represent that its attorneysor employees are experts in the field of tax law or real estate property appraisals or other areas ofvaluation. Therefore, if necessary, such tax advice or appraisals will be sought from experts in thoserespective fields. The employment of tax counsel or appraisers will not be undertaken withoutdiscussion with you and your express approval. These experts usually will send their bills to thefirm, and the firm will forward the bills to you for immediate payment. These bills also must be keptcurrent or we reserve the right to discontinue work on your case until the bills are made current. Ifyou have retained this firm to represent you in a collaborative family law matter, then the provisionsrelated to experts set forth in the Addendum to this Agreement also apply.

APPENDIX A

8. You will be informed as to the progress of the case. You will receive copies of all paperscoming in and going out of the office, including correspondence, pleadings, and other courtdocuments. A legal assistant will be assigned to your case, and she will be well acquainted withyour case’s progress and can, on most occasions, assist you in the attorney's absence. If the attorneyis not available when you telephone, the legal assistant will advise him or her promptly of yourrequest or problem, and you will be contacted at the earliest possible time. The file and its progressare open to your inspection at any reasonable time, during regular office hours.

9. Ausley, Algert, Robertson & Flores, L.L.P. reserves the right to assign your case to anotherattorney in the firm if it is deemed to be in the best interest of the case to do so.

10. No promises or guarantees can be made or will be made regarding the outcome of anylawsuit, including your specific lawsuit.

11. Every effort will be made to expedite your case promptly and efficiently according to legaland ethical standards. We are bound by strict rules which require us to serve you and the Courtshonestly and faithfully. We cannot, under any circumstances, break these rules. If a client insiststhat we break any of the rules or canons of ethics, such as performing some act which is dishonestor calling a witness to testify whom we know will not tell the truth, we are required to withdrawfrom the case.

If a client takes a position in a case which, in the attorney's opinion, is destructive to the bestinterests of the client, the attorney is not required to follow the client's instructions and maywithdraw. In our experience, these last few considerations seldom cause a problem, but themembers of this firm believe it is best to mention these concerns at the beginning of the attorney-client relationship.

In addition, this firm may withdraw from the case at any time in the event that the attorney-client relationship has been damaged to the extent the attorney, in the attorney’s sole judgment, canno longer be an effective advocate for the client.

12. When a settlement is reached or the court renders a judgment, various written closingdocuments may be required to divide assets and to memorialize the terms of the court order oragreed order. This may require additional drafting and discussions with opposing counsel.Therefore, the judge's ruling or your agreement with the opposing party may not bring an end to allwork that is necessary and required. The attorney will advise you of the additional work that willbe required to complete your matter.

13. This Agreement sets out the entire agreement and no oral agreements or promises betweenyou and this firm exist. This Agreement cannot be changed or modified except in a separate writingsigned by a representative of this law firm and you.

14. When your case is completed, a judgment is entered, and all required documents arecompleted, this firm's employment will be at an end. Any unused portion of your retainer will be

APPENDIX A

refunded to you 30 days after all work has been completed. Excluding the work necessary to obtainentry of the judgment, any new matters that arise after a judgment, any enforcement of the judgment,and any appeal or answering of an appeal will require you and the firm to negotiate another contractfor the subsequent handling of your work.

By your signature hereon the firm is granted power of attorney and appointed as your lawfulattorney-in-fact with power and authority to represent you, including the power to negotiate and acton your behalf. However, the ultimate decision about the disposition of your case is reserved byyou.

If you have a complete understanding of this Agreement’s intent, meaning, force and effect,please countersign the enclosed copy of this contract and return it in the enclosed envelope so thatthere will be a mutual memorandum of this Agreement.

Very truly yours,

AUSLEY, ALGERT, ROBERTSON & FLORES, L.L.P.

By: ____________________________KELLY AUSLEY-FLORES

AGREED:

____________________________ DATE: _______________________[Client’s Name]

APPENDIX A

Addendum to Fee Agreement for Clients in the Collaborative Process

This Addendum to Fee Agreement for Clients in the Collaborative Process isincorporated into the Fee Agreement to which it is attached for all purposes.

You have requested that this firm advise you in connection with your collaborativefamily law matter in which you and your spouse each has retained an attorney, and all have ashared commitment to avoid litigation and to arrive at a fair and equitable settlement of yourfamily law matter. You have requested that we use our best efforts to negotiate a settlement ofyour case that is satisfactory to you and to handle your case in an efficient, cooperative mannerinstead of using the Court to settle your differences. The collaborative process primarily entailsinformal discussions and conferences for purposes of settling all issues. Each party and his orher attorney agrees to adhere to honesty and mutual respect for the process. This firm will keepyou informed of all developments in your case and will give you advice in advance when youhave important decisions to make. You will let us know if you have any questions or do notunderstand any matter in connection with your case. You also will give us your honest input asto your needs.

We have explained the collaborative process to you. You understand how it works, andyou understand the advantages and disadvantages. This firm will represent your intereststhrough the final settlement and filing of a final judgment, subject to the following:

1. This firm will represent you only in the context of a collaborative family lawmatter.

2. This firm will not represent you in any litigation except to the extent that theparties agree to submit selected issues to a private judge or arbitrator. This firm’srepresentation is terminated by any party’s decision to litigate, whether or not itwas your decision. As part of the collaborative process, you understand and agreethat this firm will not go to court. If your case cannot be settled on termssatisfactory to you, then this firm will withdraw from your case, and yourspouse’s lawyer will withdraw from this case.

3. This firm will not represent you in any family law litigation against your spouseshould the collaborative process end before settlement, or if, in the opinion of youor this firm, the matter is moving or needs to move to an adversarial court posture. This firm will cooperate with you in transferring your file to new counsel.

This firm will keep you informed of the settlement process and will not agree to asettlement of any issue without your consent. We will respond promptly to your inquiries.

You acknowledge and agree that for so long as you participate in the collaborativeprocess, you are giving up your right to have your own experts, your access to the court system

APPENDIX A

and your right to object formally to producing any documents or to providing any information tothe other side that we determine is appropriate.

You agree to make full disclosure of the nature, extent, value of, and all developmentsaffecting, your income, assets and liabilities. You authorize this firm to disclose fully allinformation which in our discretion must be provided to your spouse and his or her attorney.

You and this firm retain the right to withdraw from this contract if either feels we cannotabide by the principles of collaborative law by notifying the other in writing. This firm agrees togive you fifteen (15) days notice of an intention to withdraw. You still will owe this firm anymoney due at the time that decision is made.

Please countersign this Addendum and return it with the attached Fee Agreement in theenclosed envelope so that there will be a mutual memorandum of our agreement.

Very truly yours,

AUSLEY, ALGERT, ROBERTSON & FLORES, L.L.P.

By: ____________________________KELLY AUSLEY-FLORES

AGREED:

____________________________ DATE: _______________________[Client’s name]

Special Assumption Warranty DeedPage 1

APPENDIX B

SPECIAL ASSUMPTION WARRANTY DEED

THE STATE OF TEXAS §§ KNOW ALL MEN BY THESE PRESENTS:

COUNTY OF *** §

That I, *****, of the County of ****, State of Texas, for goodand valuable consideration to the undersigned paid by *****, theGrantee herein named, the receipt of which is hereby acknowledged,and in consideration of the division of property contained in thatcertain Agreed Final Decree of Divorce entered in Cause No. **** inthe ***** Judicial District Court of **** County, Texas, whichcause is entitled "In the Matter of the Marriage of **** and *****;and in the Interest of **** and ****, Children"; and in furtherconsideration of Grantee's assumption and promise to pay, accordingto the terms thereof, all principal and interest now remainingunpaid on the note executed by ***** and wife, *****, dated *****,payable to ***** , in the original principal sum of ***** andno/100 DOLLARS (***** ), and secured by a Deed of Trust of evendate therewith to *****, Trustee; have GRANTED, TRANSFERRED, ANDCONVEYED, and by these presents do GRANT, TRANSFER, AND CONVEY untothe said *****, all of my right, title, and interest in and to thefollowing described real property and improvements located in ****County, Texas, to-wit:

[INSERT FULL AND COMPLETE LEGAL DESCRIPTION]

TO HAVE AND TO HOLD the above-described premises, togetherwith all and singular the rights and appurtenances thereto inotherwise belonging unto the said Grantee, his/her heirs andassigns forever; and I do hereby bind myself, my heirs, executors,administrators, and assigns to WARRANT AND FOREVER DEFEND all andsingular the said premises unto the said Grantee, his/her heirs andassigns, against every person whomsoever lawfully claiming or toclaim the same or any part thereof, by, through, or under me, butnot otherwise.

The Note and Deed of Trust assumed by Grantee and describedabove is secured by a vendor’s lien herein retained by Grantor.Superior title to the real property conveyed to Grantee is retaineduntil the Note has been fully paid, at which time this Deed shallbecome absolute.

Grantor assigns to Grantee the casualty insurance policy onthe property, any funds on deposit for payment of taxes and

Special Assumption Warranty DeedPage 2

insurance premiums, and all utility deposits held in connectionwith the property, and Grantee assumes all ad valorem taxes tobecome due on the property for the year **** and all subsequentyears.

This deed is subject to all easements, restrictions, condi-tions, covenants, and other instruments of record.

EXECUTED this _____ day of _________, 20**.

________________________________******

This instrument was prepared solely from information and on instructions given to us by our client. No titleopinion or other information has been furnished to us or given to us in connection with its preparation.

*****, Attorney

Mailing Address of Each Grantee:

[Name and Address of Grantee]

THE STATE OF TEXAS §§

COUNTY OF ***** §

BEFORE ME, the undersigned authority, on this day personallyappeared *****, known to me to be the person who executed theforegoing instrument, and who acknowledged to me that he/sheexecuted the same for the purposes and consideration thereinexpressed.

GIVEN UNDER MY HAND AND SEAL OF OFFICE this ____ day of_________, 20**.

________________________________Notary Public, State of Texas

PREPARED IN THE LAW OFFICE OF: AFTER RECORDING, RETURN TO:

[Name and Address of Attorney] [Name and Address of Attorney]

Deed of Trust To Secure AssumptionPage 1

APPENDIX C

DEED OF TRUST TO SECURE ASSUMPTION

Date: *******

Grantor: *******

Grantor's Mailing Address: *******

Trustee: *******

Trustee's Mailing Address: *******

Beneficiary: *******

Beneficiary's Mailing Address: *******

Note and Deed of Trust Assumed:

Date: *******

Amount: ******* and no/100 Dollars ($*******)

Maker and Grantor: *******

Payee and Beneficiary: *******Recording Information:

Property (including any improvements):

[INSERT THE LEGAL DESCRIPTION]

Prior Lien: All those of record.

Other Exceptions to Conveyance and Warranty: None known

By deed dated the same as this instrument, Beneficiaryconveyed the property to Grantor, who as part of the considerationpromised to pay the note assumed and to be bound by the deed oftrust assumed. Beneficiary has retained a vendor's lien.

For value received and to secure Grantor's assumption, Grantorconveys the property to Trustee in trust. Grantor warrants andagrees to defend the title to the property. If Grantor performsall the covenants of note and deed of trust assumed and if Benefi-ciary has not filed a notice of advancement, a release of the deedof trust assumed shall release this deed of trust to secure assump-tion and Beneficiary's vendor's lien.

Beneficiary's Rights


1. Beneficiary may appoint in writing a substitute orsuccessor trustee, succeeding to all rights and responsibilities ofTrustee.

2. If Grantor fails to perform any of Grantor's obligationsunder the note or deed of trust assumed, Beneficiary may performthose obligations, advance funds required, and then be reimbursedby Grantor on demand for any sums so advanced, including attorney'sfees, plus interest on those sums from the dates of payment at thehighest legal rate. The sum to be reimbursed shall be secured bythis deed of trust to secure assumption.

3. Beneficiary may file a sworn notice of such advancementin the office of the county clerk where the property is located.The notice shall detail the dates, amounts, and purposes of thesums advanced and the legal description of the property.

4. If grantor fails on demand to reimburse Beneficiary forthe sums advanced, and such failure continues after Beneficiary hasgiven Grantor notice of the failure and the time within which itmust be cured, as may be required by law or by written agreement,then Beneficiary may:

a. request Trustee to foreclose this lien, in whichcase Beneficiary or Beneficiary's agent shall givenotice of the foreclosure sale as provided by theTexas Property Code as then amended; and

b. purchase the property at any foreclosure sale byoffering the highest bid and then have the bidcredited to the reimbursement of Beneficiary.

Trustee's Duties

If requested by Beneficiary to foreclose this lien, Trustee shall:

1. either personally or by agent give notice of theforeclosure sale as required by the Texas Property Code as thenamended;

2. sell and convey all or part of the property to thehighest bidder for cash with a general warranty binding Grantor,subject to prior liens and to other exceptions to conveyance andwarranty; and

3. from the proceeds of the sale, pay, in this order:

a. expenses of foreclosure, including a commission toTrustee of 5% of the bid;

b. to Beneficiary, the full amount advanced, attorney'sfees, and other charges due and unpaid;


c. any amounts required by law to be paid beforepayment to Grantor; and

d. to Grantor, any balance.

General Provisions

1. If any of the property is sold under this deed of trust,Grantor shall immediately surrender possession to the purchaser.If Grantor fails to do so, Grantor shall become a tenant atsufferance of the purchaser, subject to an action for forcibledetainer.

2. Recitals in any Trustee's deed conveying the propertywill be presumed to be true.

3. Proceeding under the deed of trust to secure assumption,filing suit for foreclosure, or pursuing any other remedy will notconstitute an election of remedies.

4. This lien shall be superior to liens later created evenif Beneficiary has made no advancements when later liens arecreated.

5. If any portion of the advancements cannot be lawfullysecured by this deed of trust to secure assumption, payments shallbe applied first to discharge that portion.

6. No sale under this deed of trust to secure assumptionshall extinguish the lien created by this instrument.

7. Grantor assigns to Beneficiary absolutely, not only ascollateral, all present and future rent and other income andreceipts from the property. Leases are not assigned. Grantorwarrants the validity and enforceability of the assignment.Grantor may as Beneficiary's licensee collect rent and other incomeand receipts as long as Grantor is not in default under the note orthe deed of trust assumed. Grantor will apply all rent and otherincome and receipts to payment of the note and performance of thedeed of trust assumed, but if the rent and other income andreceipts exceed the amount due under the note and deed of trustassumed, Grantor may retain the excess. If Grantor defaults inpayment of the note or performance of the deed of trust assumed,Beneficiary may terminate Grantor's license to collect and then asGrantor's agent may rent the property if it is vacant and collectall rent and other income and receipts. Beneficiary neither hasnor assumes any obligations as lessor landlord with respect to anyoccupant of the property. Beneficiary may exercise Beneficiary'srights and remedies and then to Grantor's obligations under thenote and deed of trust assumed in the order determined byBeneficiary. Beneficiary is not required to act under thisparagraph, and acting under this paragraph does not waive any ofBeneficiary's other rights or remedies. If Grantor becomes avoluntary or involuntary bankrupt, Beneficiary's filing a proof of


claim in bankruptcy will be tantamount to the appointment of areceiver under Texas law.

8. Interest on the debt secured by this deed of trust tosecure assumption shall not exceed the maximum amount of non-usurious interest that may be contracted for, taken, reserved,charged, or received under law; any interest in excess of thatmaximum amount shall be credited on the principal of the debt or,if that has been paid, refunded. On any acceleration or requiredor permitted prepayment, any such excess shall be canceled auto-matically as of the acceleration or prepayment or, if already paid,credited on the principal of the debt or, if the principal of thedebt has been paid, refunded. This provision overrides otherprovisions in this and all other instruments concerning the debt.

9. When the context requires, singular nouns and pronounsinclude the plural.

10. This deed of trust to secure assumption shall bind, inureto the benefit of, and be exercised by successors in interest ofall parties.

11. This deed of trust to secure assumption is furtherexecuted in accordance with the division of property contained inthe Final Agreed Decree of Divorce, entered in Cause No. *******,in the ******* Judicial District Court of ******* County, Texas,which cause is entitled "In the Matter of the Marriage of *******and *******; and in the Interest of ******* and *******, Children."

*******

This instrument was prepared solely from information and on instructions given to us by our client. No titleopinion or other information has been furnished to us or given to us in connection with its preparation.

*******, Attorney

STATE OF TEXAS §

COUNTY OF ******* §

This instrument was acknowledged before me on the day of , 20**, by *******.

________________________________Notary Public, State of Texas

PREPARED IN THE LAW OFFICE OF: AFTER RECORDING, RETURN TO:

[Name and Address of Attorney] [Name and Address of Attorney]

APPENDIX D

CLOSING OUT CASE

DateCompleted Initials

1. Read decree, earmark provisions requiringfollow up action. _____________________

2. File-marked and/or certified copy provided to client, copy to file, and copy to other side, if applicable. _____________________

3. Wage Withholding Order signed and filed with court. _____________________

4. Domestic Relations child support account/form set up,and withholding order served and fee paid, if applicable. _____________________

5. Notify any necessary persons of permanent injunctionsand/or notify client to handle this. _____________________

6. Real estate transfer forms, instruments, perfecting of:

a. Executed _____________________

b. Exchanged _____________________

c. Filed of record with county clerk _____________________

d. Original (recorded) to client _____________________

7. Execute, exchange certificate of title to autos,boats, and/or other vehicles or power of attorneys. _____________________

8. Stock transfer documents:

a. Endorsed _____________________

b. Delivered _____________________

c. Forwarded to transfer agent _____________________

DateCompleted Initials

9. Insurance policies:

a. Ownership transferred (homeowners, auto, lifeinsurance policies) _____________________

b. Beneficiaries designated or changed (whereapplicable) ____________________

c. Group health insurance carrier notified of exerciseof option to continue benefits under state law or COBRA _____________________

NOTE: Letter to client on these issues acceptable.

10. Qualified Domestic Relations Order

a. Certified copy of decree to employer for approvalof domestic relations order. _____________________

b. Calendar for follow-up (180 days) _____________________

c. QDRO qualified (approval letter) _____________________

11. Personal property exchanged (NOTE letter to client acceptable)._____________________

12. Special Provisions for Children

Where injunctions order - send certified copy of decree to school/day-careNOTE: Letter to client on these issues acceptable. _____________________

13. Closing letter to client - outline all aspects of decree that must comply with specific time frames. ____________________

APPENDIX E: Closing File Letter

APPENDIX E

AUSLEY, ALGERT, ROBERTSON & FLORES, L.L.P.ATTORNEYS AT LAW

g Thomas L. Ausley i Martha Jones, CLA i Kristen A. Algert 3307 NORTHLAND DRIVE, SUITE 420 i Sherry McMillin i Eric Robertson MOPAC AT NORTHLAND i Charlyne Ragsdale i Kelly Ausley-Flores AUSTIN, TEXAS 78731 i Ann Young Kelly J. Capps (512)454-8791

FAX (512) 454-9091g Board Certified - Family Law & Civil Trial Law www.ausley-algert.com Legal Assistants i Board Certified - Family Law i Board Certified - Texas Board of Legal Specialization Family Law g Fellow - American Academy of Texas Board of Matrimonial Lawyers Legal Specialization

November 1, 2005

Mr. John R. Doe1000 Elm StreetAustin, Texas 78700

Re: Cause No. FM3-000000; In the Matter of the Marriage of Jane Ann Doe and JohnR. Doe.

Dear Mr. Doe:

As we prepare to close your file, I wanted to send this letter for your use as a checklist and quickreference to remind you of various deadlines and continuing obligations you have under the termsof your Agreed Final Decree of Divorce. Please keep this letter and a copy of your Decree close athand, as you will need to refer to them from time to time to answer questions and remind yourselfof notice requirements and the like.

Child-Related Obligations and Deadlines

1. First, you will need to refer to your Decree frequently because of your possession schedule.Note the even-year/odd-year schedules for the major school holidays of Thanksgiving,Christmas, and spring break, and the applicable pick-up and return times.

2. Remember that you must give Ms. Doe written notice of your choice of summer vacationdates by April 1 each year. Email notice would be acceptable; however, I recommend thatyou send written notice via certified mail, return receipt requested. If you do send emailnotice, ask Ms. Doe to respond with an email acknowledgment that she received the notice.If you do not give written notice, the presumption is that you will have your children withyou from 6:00 p.m. on July 1 until 6:00 p.m. on July 31.

Mr. John R. DoeAugust 8, 2004Page 2


Likewise, Ms. Doe is to notify you by April 15 of each year of her choices of summerpossession dates.

3. Be aware of the “step-down” dates for your child support payments. More than likely, thestep-downs will occur as each child reaches age 18; or, if a child turns 18 while still in highschool, as the child graduates from high school. You use the trigger date that occurs last.You are entitled to begin paying the next lower amount on the first day of the month thatfollows the month in which the triggering event occurs. There is no pro-rating of childsupport in the event a child’s birthday or high school graduation occurs early in the month -the full amount is due for that month. When the last child reaches age 18 or graduates fromsecondary school, you are entitled to stop paying child support (provided no arrearages haveaccrued). I recommend that you send written notice to the child support collection agencythat you intend to cease child support payments as of “X” date; thus, if there is anydiscrepancy between its records and yours, the problem can be addressed early andcorrected. If your child support is being paid via means of a wage withholding Order servedon your employer, then you must give satisfactory proof (such as a letter from your child’sschool), indicating that the child has graduated. Your withholding Order states the date thateach of your children will reach age 18. To be on the safe side, however, I recommend thatnear the time you believe your child support obligation will terminate, you should contactmy firm or another attorney and have a simple Order prepared which authorizes theemployer to stop the withholding. I believe this is prudent and easier than trying to recoverfunds that were withheld and paid incorrectly to your former spouse.

By now, you should have received information from the child support collection agencyregarding your child support payments, including an assigned account number. Be sure toacknowledge and/or comply with all payment instructions and requests for information thatyou receive from the child support collection agency. Regardless of any requests to thecontrary from your former spouse, be sure to send your payments through the collectionagency. Do not send the payments directly to your spouse, unless some arrangement forelectronic transfer has been made by or approved by the collection agency. Failure to makethe payments through the collection agency may result in a presumption by the Court or theAttorney General’s Office that you are delinquent in your payments. Also, remember thatif a delinquency does occur, your former wife is authorized to ask the District Clerk to servethe Employer’s Order To Withhold from Earnings for Child Support on your employer.

In addition to your monthly child support checks, you also are obligated to pay the children’sprivate school tuition, their extra-curricular expenses as defined in your Decree (up to a totalexpenditure of $400.00 per month), and the children’s deposits, tuition, and related fees forsummer camps. All of these obligations are to be paid directly to the providers, so makecertain you have all the information you need to determine payment amounts, deadlines, andcorrect addresses for payment. As a Joint Managing Conservator, you are entitled to contactand deal with these providers directly. Just as with the child support payments, yourobligation to pay these expenses for a child end when that child reaches age 18/graduates



from secondary school. Additionally, remember that, as Joint Managing Conservators, youand Ms. Doe must make jointly the decisions related to the children’s private schooling,participation in extra-curricular activities, and choices of summer camps. If Ms. Doe makesa unilateral decision on any of these matters, you are not required to pay for the resultingexpense.

4. For as long as you have a child under age 18 or still attending secondary school (providedthe child is unmarried), you are obligated to provide written notice to your former wife, theCourt, and the child support collection agency of any change of your address or change inyour employment. A simple one-paragraph letter, sent via certified mail to your formerspouse (at her then-current address), and to the others at the following addresses, should besufficient:

[For the Court] District Clerk’s Office[address][city, state, zip]

[For the child support] Texas State Child Support Disbursement UnitP. O. Box 659791San Antonio, Texas 78265-9791

[State Case Registry] State Case RegistryCentral File MaintenanceP. O. Box 12048Austin, Texas 78711-2048

Be sure to reference the cause number of your divorce suit (the number shown at the top ofthis letter) on the correspondence to the District Clerk, and the cause number and anyassigned account number on the correspondence to the child support collection agency.

5. You are under a continuing obligation either to provide health insurance coverage for yourchildren or, if the coverage is provided by your former spouse, to pay for your children’shealth insurance coverage. This obligation extends to each child for as long as you mustmake child support payments for that child. The assumption is that you will provide theinsurance through your employment-related group health carrier. However, if that coverageever becomes unavailable to you, you either must provide coverage through a private carrier;or, if your former spouse is entitled to dependent coverage through her employment, thenshe must pick up the coverage, but you must reimburse her for the cost of the children’sportion of the coverage. Following are deadlines pertaining to your children’s healthinsurance coverage:



a. Within 14 days from the date you were divorced, you were required to give Ms. Doea copy of the children’s health insurance policy or certificate, a schedule of benefits,and their identification cards. I assume you already have done this (and, in fact, Ms.Doe probably had this information even before the date of divorce). If this has notoccurred, you must take care of this immediately.

b. If you leave your employment or lose/change the health insurance coverage for anyreason, you have 10 days in which to notify your former spouse and to convert thechildren’s health insurance from group to individual coverage or to have your formerspouse enroll the children under her group coverage (if available).

c. Ms. Doe is ordered to submit to you within 10 days of receipt any statements andbills she receives for the children’s healthcare expenses, and for which she expectsreimbursement. Upon receipt of those statements and bills, you have another 10 daysin which to submit them to your insurance carrier. According to state law, Ms. Doeis entitled to submit the statements directly to the insurance carrier for payment, butyou should make certain she has the necessary forms if she chooses to handle thisherself. You are obligated to pay 50% and Ms. Doe is obligated to pay 50% of allhealthcare expenses not covered by insurance, and each of you must reimburse theother directly for your respective shares of any out-of-pocket expenses which are notreimbursed by the health insurance carrier. The exception to this obligation is thata party must pay 100% of any non-emergency healthcare expense that party incursif one goes “out of network” without first consulting the other parent and obtaininghis/her approval, and incurs a healthcare expense from a provider not approved bythe plan currently in effect.

d. If you receive reimbursement from the insurance carrier for a healthcare expense thatMs. Doe previously paid, you must forward her share of the reimbursement to herwithin three days from the date you receive the payment.

As a practical matter, we recommend that you set up some type of notebook or filing systemthat helps you keep track of the expenses submitted to the carrier, the reimbursementsreceived, and the uninsured expenses and documentation of who has paid what. Do not letthis paperwork pile up, as it can become increasingly difficult to sort things out if you findyourself under a year-old pile of medical and dental bills.

Property-Related Issues

Your Decree provided that you were to transfer various funds in accounts in order to accomplish theproperty division. Having not heard anything from opposing counsel to the contrary, I assume allof the funds and accounts were transferred successfully. In addition to transferring funds, you havethe following obligations or need to take the following steps related to the property division:



1. Remember to contact your auto insurance and homeowners’ insurance carriers to makecertain all coverage now is in your individual names and that the carriers have correctaddresses and information regarding the properties, vehicles, personal property owned byeach spouse.

2. Within 30 days from the date your Decree was signed, you and Ms. Doe were to contact yourairline mileage accounts to have 50% of each account transferred to the other spouse. Ireceived the letter of authorization and instruction signed by you and sent it to opposingcounsel.

3. Make certain your vehicle titles correctly reflect who owns the vehicle. If your formerwife’s name is on a title, you will need to apply for a new Texas Certificate of Title throughthe local County Tax Office’s motor vehicle division. If you need assistance with this,please contact me.

4. If you receive any form of communication from a lender, subsequent owner, or insurerrelated to property that was awarded to Ms. Doe in the divorce, you are obligated to forwardsuch communication to her immediately. Likewise, you are to forward any communicationyou receive from the Internal Revenue Service in connection with federal income taxes orrefunds related to any year of your marriage through December 31, 20___.

Finally, I remind you of the permanent injunctions that are set out in detail on pages 7 and 8 of yourDecree. These injunctions are permanent, and extend for as long as you have a child of the marriagewho is still a minor. I know that you will honor these prohibitions against discussing the divorcewith the children.

I understand that this information may seem overwhelming, but with this letter I hope to condensethe information and provide a memo that you can refer to in the future, without having to huntthrough your lengthier Decree for the information.

We now are ready to close and retire your file. However, that does not mean that I am not willingto answer questions or provide information to you from your file. It has been a pleasure to representyou in this matter, and I hope that you will contact me in the future if I can be of assistance to you.

Very truly yours,

Kelly Ausley-Flores

KAF/agy