The Role of the Paralegal in the Law Firm

The paralegal provides invaluable aid to the attorney in the legal process. Paralegals are the backbone of the trial team, coordinating thousands of details that must be accomplished from the beginning of the first client interview through the trial process and post-trial procedures. The paralegal is also important to the client as they utilize time efficiently and provide the client necessary legal assistant services at a much lower rate than that of the attorney. This enables the attorney to focus on the major aspects of the case, while the paralegal gathers and collates important and necessary data.

Paralegals should in most instances utilize critical thinking skills, business managerial skills, organizational skills, general communication skills, general office skills, computer skills, and research and writing skills.

From the beginning of the client interview, under the supervision of the attorney, the paralegal will begin gathering information to assist the attorney in analyzing the client’s specific legal issues through interviews with clients, witnesses and experts. The paralegal, under the attorney’s direction, will also identify and evaluate alternative legal solutions; formulate logical solutions to specific problems of the case; construct logical arguments in support of the client’s position; suggest potential solutions; determine which areas of law are relevant to the client’s particular issues; identify interrelationships among cases, statutes, regulations, and other legal authorities; apply recognized legal authority to a specific factual situation; analyze factual situations to determine when it is appropriate to apply exceptions to general legal rules; distinguish evidentiary facts from other material and/or controlling facts; and identify factual omissions and inconsistencies.

Using organizational skills the paralegal will sort information by category and prioritize assignments according to the client’s needs, manage information manually and through computerized databases.

It is the job of the paralegal to interact effectively with clients, witnesses, experts, counsel of record, courts and other legal and business professionals. They must adapt to situations as they arise and keep the attorney informed of all new developments in the case. They must be able to adapt to situations as they arise, and understand the need to ask questions and seek guidance form the attorney.

Legal research involves the application of critical thinking, organizational skills, and effective communication skills. The paralegal must be able to carry out legal research and analyze and categorize key facts in each legal situation. They must read, evaluate and analyze both printed and electronic sources of law and with supervision of the attorney apply that law to the facts of each case. They must not only properly cite sources, but must check the cited sources of other legal professionals to locate and formulate proper legal concepts.

One of the most important and difficult jobs of the paralegal is the drafting of legal documents. This involves understanding and application of principles of writing and rules of English grammar. The writing must be done in a way that conveys legal theory in a clear and concise manner and conforms with local, state and federal court rules. They must further locate, modify and/or customize standardized forms found in formbooks, pleadings files, form files, or on computer data banks according to the facts of each potential case.

The paralegal must have a well rounded knowledge of the legal system, the various court procedures and the law and how it applies to the various legal matters at issue for each client. They are a critical member of the legal support team and used effectively assist in providing the client with the appropriate legal representation at a more efficient price.

A Father’s Rights

Courts, legislatures and juries are becoming more aware of the necessity of father’s being involved in the lives of their children. Children with positive father involvement have fewer behavior problems, higher levels of sociability, and perform better in school.

Recent research suggests that father involvement during pregnancy affects multiple areas of child and family well- being, from prenatal care initiation and mother and child health outcomes, to the likelihood that the father will provide ongoing financial and emotional support. This body of research is gaining momentum. Local and regional governmental agencies are focusing more and more on parental father involvement in the lives of children.

As a result of the changes taking place in society today, the Courts are now recognizing a father’s ability to care for his children as becoming equal to that of the mother. Starting out on an equal plane, the Court may look to which parent is more stable, has a superior income, has a parenting plan in place for the child and is capable of providing proper child care and spending more quality time with the child.

If a father ignorantly gives up rights to his children based on prejudices of the past in the Court system he can feed a mother’s confidence and sponsor unnecessary ongoing litigation. The number one mistake made by father’s in the court system today is a failure to take the time to learn how the system works. Failing to learn how the family law system works may doom your case. Once you have learned the ins and outs of the family law system you will need to form a plan, set goals and never relent in enforcing your rights as a father.

Five of the biggest mistakes men make in a legal action are: 1) failing to respond to the legal action itself; 2) obtaining incorrect legal advice (from friends and family rather than a legal expert); 3) signing a settlement agreement they are not in agreement with and later deeply regretting it; 4) failing to perform under the actual settlement agreement signed; and 5) getting frustrated and/or acquiescing to unreasonable orders.

Some of the things you may want to consider as you prepare for the custody battle are as follows:

1. Who has the financial ability to best care for the child(ren)? Be sure to have income tax verification, W-2 Forms and other financial information available.
2. Form a parenting plan (child care, after school care, transportation, pediatrician, etc.).
3. Who is more stable and/or can provide the best home for the child(ren)?
4. Where has the child(ren) been attending school? Is it possible to keep the child in the same school district?
5. Prepare a chronology of events leading up to the divorce including treatment of the child(ren), time spent with the child(ren), activities with the child(ren), the child(ren)’s schedule.
6. Consider if a home study should be prepared regarding each home of the child.
7. Consider whether a psychological evaluation should be done on the mother?
8. Is drug testing necessary? (Be sure to request hair follicle drug testing.)
9. Is there an alcohol or other addiction problem in the home?
10. Who can provide the best moral upbringing for the children?
11. Is there evidence such as pictures, video tapes, etc. that may help your case?
12. Avoid unnecessary compromising photos or data on Facebook or other social networking sites.

List any other relevant issues you feel may be important to your case before you meet with an attorney.

The most important thing to remember is that your failure, if based on dated concepts and inapplicable worn out prejudices, will be her victory and your parental failure.

The Uniform Interstate Family Support Act

If a child and one of the child’s parents live in Texas, a child support order or paternity determination may be established without the assistance of another state. If the parents have already had sufficient contact with Texas, the Attorney General of Texas may be able to enter an order even if the parents do not currently reside here. If another state’s assistance is needed the Uniform Interstate Family Support Act enables Texas and other states to cooperate to establish a child support order.

The Uniform Interstate Family Support Act permits only one active support order for a case at a time. This cuts down on delays and confusion. If several orders exist, the Uniform Interstate Family Support Act has rules to determine which order should be followed (the “Controlling Order”).

Orders may be registered in different states for enforcement and modification purposes. Orders registered from another state are enforced as an order issued by the responding state.

States now have more power to collect payments from child support obligors who live in other states. The Uniform Interstate Family Support Act allows states to enforce their orders without the assistance of the state where the obligor lives. In many cases, a withholding order can be sent directly to an out-of-state non-custodial parent’s employer, requiring that child support be deducted from the parent’s wages.

The order can be registered by the other (responding) state for enforcement, but it cannot be changed by that state. The responding state has the authority to pursue collection using enforcement hearings, license suspension and incarceration of the delinquent non-custodial parent if necessary.

Changes in circumstances, such as job promotions, prolonged unemployment or disability, may affect the noncustodial parent’s payment status in the years following the establishment of the support order. Such changes may justify a modification in the support order.

The Uniform Interstate Family Support Act sets the ground rules for modification based on the state issuing the order, the states of residence of the parents and children, and the controlling order. If either of the parents or the child still lives in the state that issued the controlling order, any change in the support amount must occur in that state.

If all parties involved have left the state that issued the controlling order, that state may not be able to change the support amount. To change support, the order must be registered for modification in the state of residence of the parent who is not seeking the modification. If more than one state has issued an order, and none of the parties lives in those states, none of the orders is controlling.

All of the orders should be registered in the state that has jurisdiction over both parties. That state will calculate the amount of support to be paid and will issue a new controlling order.

The Uniform Interstate Family Support Act also allows both parents to agree in writing that a state where one parent resides may modify the order and take control of the case.

Once a state properly modifies another state’s order, the new amount of support is the amount to be collected by all states.

The Legal Befuddlement of Legal Same Sex Unions

Only in the states of Iowa, Massachusetts, Connecticut, New Hampshire (effective January 1st, 2010), Maine, Vermont (effective September 1, 2009) and California (between June 17, 2008 and November 4, 2008) can same sex couples legally get married. The U.S. Constitutional protections under the Full Faith and Credit Clause provides little solace in the remaining states, unless the marriage has somehow been declared or ordered in an actual judgment of a court with Jurisdiction in the marrying state. The idea that each state will honor and enforce each other state’s judgments does not generally extend to policies contra to the policies of the other state. Although the question is not finally settled by the United States Supreme Court to a certainty, full faith and credit will not generally require a state to recognize or enforce a policy forbidden in the resident state. This places same sex married couples from states in which same sex marriages are valid in a befuddling and precarious situation should they migrate to a different state for employment, family, or other personal reasons.

Some states such as New York, New Jersey, California, Nevada, Oregon and Washington state have recognized legal domestic partnership or domestic civil unions. Texas is not such a state so obtaining a divorce, separation or division of assets in a same sex relationship (whether originally legally married or not) in the state of Texas requires manipulation and application of Texas partnership and property codes, probate considerations along with various other contractual considerations.

Texas family law considerations for same sex couples in adoption situations becomes even more complicated requiring careful compliance with Texas state law and the adoption process to avoid donor issues, limitations, judicial estoppel and case law precedent in Texas which does not recognize or enforce same sex couple marriages.

If a co-parent adoption is properly followed, it is possible in Texas to have two moms or two dads which will be recognized under the Texas Family Code. In such cases a suit affecting the parent child relationship (SAPCR Action) is the appropriate remedy for recognition of and consideration of the minor children of the same sex union by adoption. Child support, health care insurance, visitation, possession and access rights of the parties, transportation costs, and injunctions that preserve the status quo and peace of all parties concerned are all subject to proper litigation and judgment under the Texas Family Code.

Regrettably, under the current Texas law, same sex unions or marriages validly performed and recognized in a state authorizing and providing jurisdiction for such legal relationships will not help the parties in the state of Texas, where it often counts most: health insurance, social security, disability insurance, child support, alimony, etc. The current state of law in Texas further ignores the underlying policy recognized in all states to always consider the best interest of the children. Regardless of policy considerations and decisions with regard to same sex unions, children are never at fault and making their children illegal citizens or citizens unworthy of protection cannot be in their best interest under any interpretation of state policy. Absent legal hoop jumping and manipulation, they are practically children without legal rights in the state of Texas.

Divorce: What is separate property and what is community property?

Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate. Inception of title occurs when a party first has a right of claim to the property.

Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.

In 1917 the Legislature defined and income from separate property to be the separate property of the owner spouse. In Arnold v. Leonard, 114 Tex. 535,273 S.W. 799 (1925), the Supreme Court held that the Legislature did not have the constitutional authority to characterize the income from separate property as the owner’s separate property. The court explained that the Legislature’s authority was limited to enacting laws regulating the management and liability of marital property, not its separate or community character. This decision strengthened the constitutional principal that the Legislature may not define what is community and separate property in a manner inconsistent with Article 16, Section 15 of the Texas Constitution.

There are numerous means by which separate property may be acquired in defiance of Article 16, Section 15, a partial list includes mutations of separate property, increases in value of separate land and personality, recovery for personal injury not measured by loss of earning power, improvements of separate land with an unascertainable amount of community funds, and United States Securities purchased with community funds.

Although such property may undergo changes or mutations, as long as it is traced and properly identified it will remain separate property.

The Texas Family Code defines community property as follows: “community property consists of the property, other than separate property, acquired by either spouse during marriage.”

Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence. Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. If property cannot be proved to be separate property, then it is deemed to be community property.

The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.