Here are some frequently asked law questions that our firm is asked regularly.

If we can be of further assistance to you please contact our offices for an appointment today.

Q: What is personal injury?

A: Personal injury is defined as an injury that results from the negligence or intentional act of another person or company. The injury may be physical, psychological, or financial. Personal injury also includes damage to a person’s reputation, in the case of slander or defamation. The most common types of personal injury cases are those involving motor vehicle collisions, defective products, or slip-and-fall accidents.

Q: How do I know if I have a case?

A: If your injury was sustained as a result of someone else’s failure to act responsibly, you may have a case. A personal injury attorney can examine the details of your case and give you a more specific assessment.

Q: What must a plaintiff prove to prevail in court on a personal injury lawsuit?

A: A successful personal injury plaintiff must prove that the defendant had a responsibility and that failure to fulfill that responsibility was the direct cause of the injury sustained by the plaintiff.

Q: How much compensation can I expect in my personal injury lawsuit?

A: The monetary value of any lawsuit depends on several variables. A personal injury lawyer in your area can review your case and tell you how much has been awarded in cases similar to yours, but no one can guarantee an exact figure. Damages commonly awarded in personal injury cases include loss of income, pain and suffering, emotional distress, medical expenses, and replacement or repair of damaged property.

Q: Is there a certain time-frame in which a personal injury lawsuit must be filed?

A: Yes. The amount of time you have to file a lawsuit after sustaining an injury due to someone else’s negligence varies from state to state, but there is always a deadline. If you have been injured and are unsure what to do next, it is important to speak with a lawyer as soon as is possible.

Q: What is negligence?

A: In its most simple definition, it means that someone was careless and as a result of being careless, someone else was injured. Negligence serves as the basis.

Q: What does the term “liable” mean?

A: The term liable generally means that a court has determined individual, company or some other entity caused, and is responsible for, another person’s injury.

Q: What does the term “reasonable person” mean?

A: A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under the same or similar circumstances.

Q: What does “duty” mean in a lawsuit for injuries?

A: When talking about negligence, duty is the legal obligation that the law imposes on us to protect and respect the safety of others around us.

Q: What is contributory negligence?

A: The term “contributory negligence” is used to describe the actions of an injured person that may have also caused or contributed to his injury.

Q: What is comparative negligence?

A: Comparative negligence works on a percentage basis to assign a degree of fault for the injuries suffered. For example, in a broad-side car accident case.

Q: What is the “assumption of the risk” doctrine?

A: If you have knowingly and voluntarily assumed the risk inherent in a particular action that caused an accident, you cannot sue the other person for negligence.

Q: What is strict liability?

A: Some persons or companies may be held “strictly liable” for certain activities or products that harm others, even if it can’t be shown they acted.

Q: What happens in a deposition?

A: If you file a personal injury lawsuit, the attorney for the defendant will likely “depose” you or take your deposition. A deposition is the process.

Q: What is premises liability?

A: The term “premises liability” generally refers to accidents that occur due to the negligent maintenance or unsafe or dangerous conditions upon property owned.

Q: How long does it take to get a divorce?

A: If the spouses have reached an agreement on all of the relevant issues, a divorce may be obtained on the 61st day after the divorce petition was filed. If an agreement is not possible and the case must be tried, the length of time is primarily dependent on the Court’s docket. In Harris County, most divorce cases are set for trial within six to twelve months after the divorce petition is filed.

Q: Do I need a “legal separation” from my spouse?

A: While some states recognize a legal status known as “legal separation,” Texas does not. Under the Texas Family Code spouses are married until the Court grants a divorce.

Q: Where can I file for divorce?

A: You can file for divorce in a county in which either you or your spouse has lived for at least 90 days, as long as that same person has lived in Texas for at least six months.

Q: How is property divided between spouses in a divorce?

A: The Texas Family Code requires that the Court divide the community property of the spouses “in a manner that the Court deems just and right.” This means the Court is not required to divide the property 50-50 and can consider a variety of factors in deciding what is “just and right.” These factors can include fault in the divorce, disparity in earning power, disparity in amount of separate property, etc.

Q: What is the difference between separate and community property?

A: Generally, a spouse’s separate property is property that was either:

• Owned by the spouse before marriage
• Acquired by gift or inheritance, or
• Certain kinds of recoveries for personal injuries
• Community property is all property other than separate property. All property owned by either spouse during the time of marriage is presumed to be community property. The party that is asserting the claim of separate property has the burden of proof on that issue.

Q: How is child support calculated?

A: In most cases, child support is calculated using a formula in the Texas Family Code. The payor’s monthly “net resources” (a term defined by statute) is multiplied by a percentage which is determined by the number of children at issue (e.g., the percentage for one child would be 20%). The payor is entitled to a reduction if he or she is also responsible for the support of another child.

Q: What is “standard” visitation?

A: Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) a “Standard Possession Order” for visitation. The visitation is spelled out in great detail in the statute (Texas Family Code Section 153.312) and should also be spelled out in detail in the Final Decree of Divorce. A very short hand version of a typical visitation order (assuming both spouses reside within 100 miles) is as follows: the 1st, 3rd, and 5th Friday of every month from Friday (beginning at either school dismissal or 6:00 p.m.) until the following Sunday at 6:00 p.m., every Thursday beginning at either school dismissal or 6:00 p.m. and ending either at 8:00 p.m. that night or when school resumes the following morning), as well as 30 days in the Summer, and additional visitation periods for Spring Break, Thanksgiving, and Christmas, depending on whether it an odd or even numbered year. While the Standard Possession Order is the most common visitation schedule, it may be inappropriate depending on the particular case. You should consult with your attorney to determine whether or not a Standard Possession Order should be applied in your case.

Q: How does a court decide which parent will get custody of a child?

A: When the parents cannot agree on a custody arrangement, the court will make the decision for them after considering the totality of the circumstances, with the overriding consideration being the child’s best interests. To make that determination, the court considers:

• The child’s age;
• The child’s gender;
• The child’s physical and mental health;
• The parents’ physical and mental health;
• The parents’ lifestyles;
• Any history of abuse;
• The emotional bonds between the parent and the child;
• The parent’s ability to give the child guidance;
• The parent’s ability to provide the basic necessities, such as food, shelter, clothing, and medical care;
• The child’s routines, including home, school, community, and religious;
• The willingness of the parent to encourage a healthy, on-going relationship between the child and the other parent; and
• If the child is above a certain age, the child’s preference.

In many cases, a consideration of these factors results in awarding custody to the parent who has been the child’s primary caretaker. Although this is often the child’s mother, any preference for the mother strictly on a gender basis is outmoded.

Q: What are temporary orders?

A: Temporary orders are orders issued by a court, after either a hearing or an agreement by the parties, which are designed to last until the divorce is final. Practitioners sometimes refer to them as “band aid” orders. Temporary orders commonly address issues such as child support, custody and visitation of the children, exclusive use of the marital residence, exclusive use of vehicles, alimony, and interim attorneys fees.

Q: If my spouse and I have agreed to all the relevant terms, what is the general procedure for obtaining and finalizing the divorce?

A: It is common for spouses to believe that they have an agreement, but they actually have not addressed all the necessary terms, such as child custody or support, or property division. Assuming all required terms are agreed to in advance of filing, the divorce can be a relatively simple legal procedure. The attorney for the Petitioner (the filing spouse) files the divorce petition and either has the petition served on the other spouse or the other spouse executes a Waiver of Service. The Petitioner’s attorney then drafts an Agreed Final Decree of Divorce and any other necessary documents which are reviewed and signed by the other spouse. The other spouse is free to hire or consult with an attorney of his or her own. After the necessary papers are signed by the parties and attorneys, the Petitioner and his attorney then go to court for a hearing to have the Court enter the Decree and other documents.

Q: Do I have to show fault to get a divorce?

A: Texas is a no-fault divorce state which means that it is not necessary to show that either party was at fault in order to obtain a divorce. It is only necessary to show that there is marital discord and there is no reasonable expectation of reconciliation. However, many fault issues (adultery, cruelty, etc.) are frequently relevant factors in divorce cases because they can have an impact on how the community property is divided, or how custody is decided.

Q: What Is “mediation”?

A: Mediation is a voluntary process which allows both you and your spouse to maintain control over your destiny and the terms of your divorce settlement. Both parties and attorneys attend either a four-hour or eight-hour mediation session, depending on the complexity of your case.

Q: What Is the role Of A mediator?

A: The role of the mediator is to facilitate an agreement between the parties to prevent the necessity for a trial.

Q: Is The Mediator A Lawyer?

A: Although some mediators are social workers, most commonly the mediator is a lawyer who acts as a neutral person to help you settle your case.

Q: How is a mediator get chosen?

A: The mediator is chosen and agreed upon by the attorneys. Every Family Law attorney has a “short list” of competent mediators who specialize in family law with whom we are familiar, whose style we are comfortable with, and who we have found to be effective, particularly considering the individual aspects of your specific case.

Q: What is a “class action”?

A: Class actions are lawsuits filed in civil courts on behalf of large groups of persons who have suffered injury. A class action seeks to remedy injury suffered by a group, or “class,” of persons who were harmed in a similar way. For example, a common class action is a security class action, filed on behalf of defrauded investors in a particular stock, bond, or investment. Another common class action is a consumer class action, filed on behalf of consumers who have been injured or defrauded by defective or malfunctioning products.

Q: Will it cost me anything to participate in a class action lawsuit?

A: No. Class actions are large, complex lawsuits. Your attorneys will pay litigation costs and expenses, which are recouped at the end of the case if the class action is successful and a recovery is achieved.

Q: How do I start a class action lawsuit?

A: The first step is to recognize a wrong, harm or injury suffered by a large group of persons. Common types of classes include patients harmed by dangerous drugs, consumers who purchased defective goods or services, or defrauded investors. Your attorney will then prepare the necessary documents to file the suit as a class action, which has special procedures that must be followed so the suit may proceed as a class action.

Q: Am I permitted to participate in a class action?

A: If you are a “class member,” you may participate in the class action as a “class representative.” You are a class member if you have been harmed or suffered injury in a manner similar to other persons. When a group of persons has been similarly harmed or injured, they may comprise a “class” and may prosecute a class action to recover money or seek other remedies in a court of law.

Q: Why do people file or participate in class action lawsuits?

A: Class action lawsuits provide several advantages. If many persons have been harmed, the class action allows multiple claims to proceed in court together at the same time, saving time and money and ensuring efficient use of the courts. Sometimes consumers and investors are defrauded, but the amount of their individual injury does not justify bringing an individual lawsuit. The class action permits many people with small individual injuries to join forces and combine their damages. The case then proceeds as a class action, allowing them to present a single, unified, economically viable claim on behalf of a class of persons.

Q: How does a class action lawsuit work?

A: Several class representatives, or lead plaintiffs, file a class action lawsuit. During the course of the litigation counsel for the class, and the class representatives, will ask the court to “certify” the litigation as a class action. To certify the case as a class action, the plaintiffs must show, and the court will determine, the following:

• Numerous: whether enough affected persons, or class members, make the class action a more efficient method to handle many claims simultaneously in a single class action
• Commonality: whether each class member has “common issues” of fact and law for each claim
• Adequacy: the class representatives must have claims that are “typical” of all class members’ claims
• Adequate counsel: the attorneys representing the class must have sufficient skill and experience to adequately represent the class’ interests

After a class has been certified, generally the court will order the parties to notify class members about the class action lawsuit. Notification may be done by letter, newspaper and periodical advertisements, news releases, or information made available on the internet, including downloadable claim forms. Class members automatically are a part of the class action, unless they “opt out” of the class and pursue their own, individual litigation against the defendants. Generally, only the lead plaintiffs or class representatives directly participate in the class action litigation.

Q: What award or recovery will I receive in a class action lawsuit?

A: If a recovery is obtained in the class action lawsuit, the court will enter an order dividing the recovery, which may include money, services, replacement of defective items, or a combination to satisfy injured class members. Attorneys for the class are awarded their costs and fees incurred while litigating the class action, which generally is a percentage of the recovery. If the class action is unsuccessful, the attorneys who advanced litigation costs recover nothing.

Q: What is Chapter 7 bankruptcy?

A: Chapter 7 bankruptcy, sometimes called a straight bankruptcy is a liquidation proceeding. The debtor turns over all non-exempt property to the bankruptcy trustee who then converts it to cash for distribution to the creditors. The debtor receives a discharge of all dischargeable debts usually within four months. In the vast majority of cases the debtor has no assets that he would lose so Chapter 7 will give that person a relatively quick “fresh start”. One of the main purposes of Bankruptcy Law is to give a person, who is hopelessly burdened with debt, a fresh start by wiping out his or her debts.

Q: What is Chapter 13 bankruptcy?

A: Chapter 13 Bankruptcy is also known as a reorganization bankruptcy. Chapter 13 bankruptcy is filed by individuals who want to pay off their debts over a period of three to five years. This type of bankruptcy appeals to individuals who have non-exempt property that they want to keep. It is also only an option for individuals who have predictable income and whose income is sufficient to pay their reasonable expenses with some amount left over to pay off their debts. More information on Chapter 13.

Q: How difficult will it be to file Chapter 7 under the new bankruptcy laws?

A: There has been much doom and gloom written about the bankruptcy means test under the new laws and how much more difficult it’s going to be to file Chapter 7. It’s true that there are more hoops to jump through under the new laws and it’s true that the bankruptcy means test will result in some people having to file chapter 13 instead of Chapter 7. However, for the vast majority of filers Chapter 7 is still available with very little extra effort!

Q: Will my creditors stop harassing me?

A: Yes, they will! By law, all actions against a debtor must cease once the documents are filed. Creditors cannot initiate or continue any lawsuits, wage garnishees, or even telephone calls demanding payments. Secured creditors such as banks holding, for example, a lien on a car, will get the stay lifted if you cannot make payments.

Q: Will my spouse be affected?

A: Your wife or husband will not be affected by your bankruptcy if they are not responsible (did not sign an agreement or contract) for any of your debt. If they have a supplemental credit card they are probably responsible for that debt. However, In community property states, either spouse can contract for a debt without the other spouse’s signature on anything, and still obligate the marital community. There are a few exceptions to that rule, such as the purchase or sale of real estate; those few exceptions do require both spouse’s signatures on contracts. But the day to day debts, such as credit cards, do NOT require both spouses to have signed. Community property states are: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Your lawyer will be able to guide you in this regard.

Q: Who will know?

A: Bankruptcy filings are public records. However, under normal circumstances, no one will know you went bankrupt. The Credit Bureaus will record your bankruptcy and it will remain on your credit record for 10 years.

Q: What are the most common reasons for a Chapter 7 bankruptcy?

A: The most common reasons for filing bankruptcy are:

• Unemployment
• Large medical expenses
• Seriously overextended credit
• Marital problems
• Other large unexpected expenses

A Harvard Study reported that half of US bankruptcies were caused by medical Bills (MSNBC). The study was published online in February of 2005 by Health Affairs. The Harvard study concluded that illness and medical bills caused half (50.4 percent) of the 1,458,000 personal bankruptcies in 2001. The study estimates that medical bankruptcies affect about 2 million Americans annually – counting debtors and their dependents, including about 700,000 children.

Q: What don’t I keep?

A: In a bankruptcy, assets in excess of your allowed personal exemption, or non exempt assets such as, real estate, automobiles and boats will be liquidated by the trustee.

Q: I was bankrupt before, when can I file again?

A: A person can file Chapter 7 again if it has been more than 8 years since he or she filed the previous Chapter 7 bankruptcy. Also refer to: Chapter 13.

Q: Can I keep any credit cards?

A: Whether a debtor keeps credit cards after filing bankruptcy is up to the credit card company. If you are discharging a credit card they will cancel the card unless you reaffirm the debt. Even if you have a zero balance the credit card company might cancel the card.

Q: When will I be discharged from bankruptcy?

A: One of the major purposes of bankruptcy legislation is to afford the opportunity to a person hopelessly burdened with debt to erase his or her debt and thereby get a fresh financial start. A bankrupt’s debt is erased when he or she is discharged. The debtor is discharged 3 – 5 months after bankruptcy is filed. At that time all debts (with some exceptions) are written off.

Q: If I use a credit counselor won’t I get a better credit rating than if I go bankrupt?

A: No, you will not. It will cost you less money and you will rebuild your credit rating faster if you file Chapter 7 or Chapter 13. Be cautious if you are considering using a credit counselor. Also read about the problems of unscrupulous companies in the credit counselling industry and the action the IRS has taken against “non-profit” credit counseling groups following widespread abuse.

Q: Will I ever get credit again?

A: Yes! A number of banks now offer “secured” credit cards where a debtor puts up a certain amount of money (as little as $200) in an account at the bank to guarantee payment. Usually the credit limit is equal to the security given and is increased as the debtor proves his or her ability to pay the debt. Two years after a bankruptcy discharge, debtors are eligible for mortgage loans on terms as good as those of others, with the same financial profile, who have not filed bankruptcy. The size of your down payment and the stability of your income will be much more important than the fact you filed bankruptcy in the past. The fact you filed bankruptcy stays on your credit report for 10 years. It becomes less significant the further in the past the bankruptcy is. The truth is, that you are probably a better credit risk after bankruptcy than before.

Q: Can my boss fire me for filing bankruptcy?

A: No. U.S.C. Sec. 525, prohibits any employer from discriminating against you because you filed bankruptcy.

Q: How much am I allowed to keep?

A: You are allowed to keep certain assets, depending on the state in which you reside.

Q: What is Chapter 13 and when can it be used?

A: Individuals may file chapter 13 bankruptcy petitions if they:

• Reside, have a domicile, a place of business, or property in the United States, or a municipality;

• Have a source of regular income; and on the date the petition is filed owe less than $290,525 in unsecured debts and less than $871,550 in secured debts. Note: The amounts given here are 2001 amounts. They are regularly adjusted to keep up with the cost of living.

Corporations and partnerships may not file a chapter 13 bankruptcy petition. If you filed a prior bankruptcy petition and the prior proceeding was dismissed within the last 180 days, you may not be able to file a second petition and should check 11 U.S.C. sec. 109(g).

Q: What debts are erased by bankruptcy?

A: Most unsecured debt is erased in a bankruptcy except for:

• Child support and alimony
• Debts for personal injury or death caused by your drunk driving
• Student Loans
• Income tax debt

Note on Private Student Loans: On June 7, 2007, US Senator Dick Durbin introduced a Bill to make private student loans dischargeable in bankruptcy, as they were before 2005. The 2005 changes to the U.S. Bankruptcy Code made the treatment of private student loans equivalent to the treatment of government-guaranteed student loans, which were not dischargeable. This bill would reverse the 2005 amendment, so that private student loans again would be fully dischargeable in bankruptcy.

The following debts are not erased in both Chapter 7 and Chapter 13. If you file for Chapter 7, these will remain when your case is over. If you file for Chapter 13, these debts will have to be paid in full during your plan. If they are not, the balance will remain at the end of your case:

Debts you forget to list in your bankruptcy papers, unless the creditor learns of your bankruptcy case; Child support and alimony; Debts for personal injury or death caused by your intoxicated driving; Student loans from government organizations, unless it would be an undue hardship for you to repay; Fines and penalties imposed for violating the law, such as traffic tickets and criminal restitution, and Recent income tax debts and all other tax debts.
This is a complicated area of the bankruptcy law and an attorney should be consulted. You can discharge (wipe out) debts for federal income taxes in Chapter 7 bankruptcy only if all of these five conditions are met:

The IRS has not recorded a tax lien against your property. (If all other conditions are met, the taxes may be discharged, but even after your bankruptcy, the lien remains against all property you own, effectively giving the IRS a way to collect.) You didn’t file a 2. fraudulent return or try to evade paying taxes. The liability is for a tax return (not a Substitute or Return) actually filed at least two years before you file for bankruptcy. The tax return was due at least three years ago. 3. The taxes were assessed (you received a notice of assessment of federal taxes from the IRS) at least 240 days (eight months) before you file for bankruptcy. (11 U.S.C. SS 523(a)(1) and (7).)

In addition, the following debts may be declared non-dischargeable by a bankruptcy judge in Chapter 7 if the creditor challenges your request to discharge them. These debts may be discharged in Chapter 13. You can include them in your plan, and at the end of your case, the balance is wiped out:

Debts you incurred on the basis of fraud, such as lying on a credit application; Credit purchases of $1,225 or more for luxury goods or services made within 60 days of filing; Loans or cash advances of $1,225 or more taken within 60 days of filing;

New Bankruptcy Law taking effect on October 17, 2005: Debts you incurred on the basis of fraud, such as lying on a credit application; Credit purchases of $500 or more for luxury goods or services made within 90 days of filing; Loans or cash advances of $750 or more taken within 70 days of filing;

Debts from willful or malicious injury to another person or another person’s property; Debts from embezzlement, larceny or breach of trust, and 4. Debts you owe under a divorce decree or settlement unless after bankruptcy you would still not be able to afford to pay them or the benefit you’d receive by the discharge outweighs any detriment to your ex-spouse (who would have to pay them if you discharge them in bankruptcy).

Q: What does it cost?

A: It costs about $300 to file a Chapter 7 bankruptcy. A bankruptcy lawyer’s fees vary but should be in the range of $1,500 to $3,000. Many bankruptcy lawyers will give you a free initial consultation. You can keep the fees down by being well organized and well prepared. You may also be able to keep the fees down by not requiring the lawyer to attend the meeting of creditors with you. Check this with your lawyer. In some states such as Massachusetts, attorneys must attend the Section 341 meeting with the debtors otherwise attorneys are deemed to have NOT represented the debtors. (The 341 Meeting).