COVID-19 UpdatesCall us today for help at 1-888-981-7509

Discovery (Series of Divorce, Part 3/5)

 

Episode 15 - Discovery (Series of Divorce, Part 3/5)

Welcome to the top Texas Lawyers podcast. This podcast is brought to you by the law firm Abercrombie and Sanchez PLLC.

Your hosts are Brian Abercrombie and Samuel Sanchez. Brian has been practicing law for 18 years and his board certified that sort of legal specialization in the area of family law. Sam has been practicing for 13 years, is licensed in both Texas and Florida, and is a certified mediator. This podcast is for informational purposes only and all views are the opinion of the hosts. It's not designed to provide legal advice for your particular legal matter, and it should not replace the advice of competent counsel. Welcome. And we hope you enjoy the top Texas Lawyers podcast..

Hello, hello and welcome to the top Texas Lawyers podcast. I am your host, Brian Abercrombie. With me, as always, is my back holiday, Sam Sanchez. Sam, how you doing?

I'm not doing too bad. Jack in your Coke.

That's right. The straw that stirs the drink. Right. Right. So we are here today to talk about A Very Cavallari divorce, right? No. We got some recent happenings, which we'll talk about. But we also wanted to talk part. This is part three of our five part series dealing with a divorce process. But we thought we could talk a little bit about the Kristin Cavallari Jay Cutler impending divorce and kind of work that in maybe as our example and how all this stuff may tie in to a divorce case so that it makes a little it makes it a little bit more entertaining. And I think a little bit more interesting for the listener. Don't you think?

I think that's a great way to kind of we can put thoughts on some complicated subjects, you know, that maybe don't exist in every divorce, but can obviously exist in us.

You know, I know that the very Cavallari show is extremely popular in my home with my wife. She's. What I would call a superfan. And she does like the products and she does like the store. And she does. You know, she's bought into all of that. So this is obviously a shock to her as it is and maybe a shock in your home as well. I'm not sure.

No, I agree. I definitely have some. You were you were still happening at my house. And you're both of them are extremely popular individuals and have, you know, really stardom in their own right.

So it's so so just to kind of live the star couples, just to kind of give a recap is a Jay Cutler and Kristen Cavallari. Kristen Cavallari is of the Hills fame. And then she started her own brand line and then a store called Uncommon James. But at and Jay Cutler is the all star quarterback for the Chicago Bears. And then later, I believe, of the Miami Dolphins. They've been married for about 10 years. They have three children and they are both of the stars of this hit TV show on E! I believe, called Very Cavallari, which goes kind of chronicles their life, goes through what? All this, all the things that they do. And then obviously it goes to the launch of her store and, you know, her products are brand and kind of her, you know, her life, really. And so they announced yesterday via Instagram release, Kristen Cavallari, about social media. Right. The social media aspect in this sector, too. So Kristin Cavallari announces in her Instagram yesterday that she is a you know, that they are filing for divorce and they believe it to be amicable. But then obviously, as tabloids do, the tabloids and then and everything from people to CBS, NBC to CNN to FOX News to TMZ is covering this thing now. You know, there's there's court filings. There's a I think Kristen's accusing Jay of misconduct and asking for custody. And, you know, Jay's got his own filing out there, too. So it looks like we've got the makings of quite a quite a dilemma.

Absolutely, Brian. You know, everybody kind of go through things and the relationship, I know that for a long time they'd they'd been together, you know, put out this public facade of being extremely happy. And so it's really kind of comes out of left field for a lot of people, especially their fans.

And so let's talk a little bit about, you know, our three part series. Obviously, part three is we're in the middle of this process. So, you know, as an example, they've already gone through the planning stages. They've already gone through the filing stages, you know. Now, what happens now? We've got you know, the fray has begun. Where do we go from here?

Well, we've got in this particular instance, we've got property. We've got she's got a business that she launched, I believe, from their kitchen table inside the home. And she launched that it obviously during the marriage. And then he's obviously got, I guess I would assume, a fairly lucrative NFL contract that he got paid on during the marriage. And so we're assuming, of course, that they don't have any prenuptial or premarital agreements in this thing. And, you know, we'll be talking about Texas law, but they're obviously going to be getting a divorce in the state of Tennessee, which has completely different divorce law than we have here in Texas. But I think with just with the property and the custody issues, I think involved in this thing, I think we can probably tie it into what a lot of people might face in their own particular divorce situation.

Without a doubt. So let's take it from Jay's perspective. First, I would tell you that obviously, you know, at this point in Texas and in Florida, you're going to want to have what's called the discovery period. And the reason this is and when people hear that it really is self descriptive, discovery is a party's opportunity to figure out what exists in the estate. And not only that, but to really fish out people's claims. So looking at it from Jay's perspective, you know, obviously the rumors are that Kristen has been alleging for quite some time that he was involved in a adulterous affair with her best friend. And that went to the tabloids, that went to social media, that went to a TV show, all kinds of things that were out there that both parties, all parties vehemently denied. Obviously, Kristen wasn't she was one who was asserting it and even asserting it in her pleadings. I think that's Tennessee's version of misconduct is like Texas, his version of infidelity, meaning that somebody has gone outside of the marriage and done some things that should correct. So discovery is your opportunity in Texas and in Florida to issue formal requests for information. So you want to know from Jane's perspective, hey, how much is your business worth? Kristin, how far does it go? How is it super in debt? Is it not? Is it? You know, there's a lot of liquid capital, you know, in our personal and state, you know, what have you done with all my stuff? Well, my football trophies that you stole from, you know, the you know, the house when you got so mad, you don't. What are your assertions in relation to the children? Are you wanting to go out and say that you're a better parent and that that should be denied access? Or are you wanting to make all the decisions because you're super controlling? Discovery is really a formal process to allow a party to go out there and say, let me see exactly what is at issue in this case so that I know how best to work with my counsel to prepare.

Yes. And then then the discovery, you know, really comes in kind of I look at it as kind of two elements. There's the element of the child, the children and parent parental issues portion of it. And then there's the property portion of it. So the property portion of it, you know, from Kristen's side, she's going to be looking at, OK, how much did you make on those, you know, NFL contracts? How much is it worth? We have a farm outside of Nashville. How much is it worth? You know, whose name is it titled in. And she probably knows the answers to the majority of these questions. But you're going to want to find out more formally. You know what else there? How much of that signing bonus do we. Do we still have left? Know how much was spent on gambling. How much, if any, was spent on this, you know, on this affair? You know, all of these kinds of things. She's going to want to find out information. Also, what's your plan with the kids? Where are you planning to live? What do you want your visitation schedule to be? What do you think my visitation schedule should be? All of those kinds of things are all stuff that you can ferret out and learn and discovery. I mean, in Texas, each party is required to submit what's called a Florida inventory and appraisal it, which is basically my side is going to say this is everything that I think separate and community property is in our divorce. And these are the debts. These are the property. This is everything. And I'm swearing to the court that this is what it is and both sides have to have to. Have to prepare and submit one so that the judge knows what each party is swearing. The property is now. Does that keep people from hiding stuff? No. Does it keep people from, you know, being being ornery? No. But it does get you on record so that the penalties can be fairly harsh. If you are not disclosing everything or you are lying to the court.

Absolutely. And, Brian, you know, in that the discovery process, what everybody should understand, whether your estate is small or extremely large, like a gambling or the Cutlers, I should say. Cutler clearly, I don't know where he took his name or not. But I would tell you, like, look, if your estate is small or estate is large, it doesn't matter.

But the importance of these questions and the answers you provide to your point, Brian, is dramatic.

If you try to withhold information in a court or you tried to like, you know, minimize the size of an estate or you don't fully disclose your intentions in relation to how you want a possession and access scheduled to go or rights and duties associated with children. Why? Because formal discovery serves as a basis for trial preparation. This is really what I tell clients. It's where the rubber meets the road, because you will know everybody is going to get down to brass tacks.

And I'll give you a perfect example. Let's say the marital estate for the Cutlers in Tennessee is worth 2.5 million dollars estimated. And so in the in preparing this inventory and arrangement or discovery responses, whatever they may be in that state, let's say Jay sits down there and says, well, you know what? It's a depressed market. The Corona virus has people going crazy. I don't know that we could sell in a state this large. It's really only worth one point nine million. And Kristen comes back in and says, no way, man. This is like prime time real estate. Everybody wants to move to Nashville. It's like super hot property. They got a great hockey team. The weather's great and they have great hot chicken. And so do you know. Yeah, they do. Right. So it's you know, I'm going to I'm going to say that she says it's worth two point nine million. OK. So clearly everybody knows that we own this estate. It's very likely go into this real property. It's very likely going to be community in the state of Texas, meaning that it was purchased during the marriage. And if they don't have a prenuptial agreement or partition agreement, that would create separate property interest, which is a totally separate and more complicated conversation for the purposes of our illustration, it's community. They own it together, but they can't agree on the value. We know that the brass tacks of that is that somebody is going to want to stay with that or sell that or get the value of that. And so discovery really helps you identify where we don't have a meeting of the minds, where lawyers or your competent counsel need to spend time and energy to help work out a solution to the differences.

Yep, that is absolutely spot on.

Well, the other thing about that, Bryan, so like let's say you have differences and you know what people always ask. We'll talk about this in later podcast. But, you know, so what? One, why is Discovery so expensive? Well, because it takes a lot of work, lawyer work, legal work. But too, like, why do we do this and what does it really serve? What's its purpose when you get to mediation or trial? When I say that it serves as a basis for a foundation for a decision. What I mean by that is everything will play off of that. And so, as an example, if I'm Jay and I say, wow, you think it's worth two point nine million dollars, I'm saying it's worth one point nine. So we've got a lot of distance between us. But I tell you what, I'll let you put it on your side of the ledger, because I just got a nice fat property appraisal that came in pretty much at my number. I'll let you take it on your side of the ledger for two point nine million, and I'll take the other value in assets to my side of the ledger to offset it.

So that's where the big horse trade comes on in.

And then, of course, you get into terrible situations if you don't do your due diligence or have competent counsel assisting.

Yes, I think that's that happens, although that happens a lot. And the value of this thing, you know, when you have disagreements, you know, a value to that could that could mean big swings. And the other thing that I would caution you on is four A one K dollars don't equal the same as dollars in your bank account and dollars and house equity don't equal the same as dollars in your bank account. So that's something that that you very, very you need to have a very long discussion with your attorney about. And what I mean by that is, yes, they're all dollars but home.

And we saw an Uncle Sam thinks it sounds like you're trying to say that the federal government is going to have a hand in your divorce.

I am. I'm saying that a four one K dollar is worth about 70 cents of an actual dollar, whereas a dollar in your bank account is worth a dollar. So if you're trading your for a one K for cash in a bank account, you have to be aware of the differences and the apples and the oranges because that can cost you a lot of money.

I agree with you wholeheartedly. Not only that, but let's even take a step further. We know Christine has her own business. Right? Right. Business that she created during the marriage. But let's say Christine says that that business is really just her name, minus the Cavallari, you name it, then it's not worth anything. Well, you know that there's inventory, there's employees, there's brands is marketing. There may be copyrights or patents associated with the products that she's developed. All those potentially have value to. Who's going to create the value for that?

Do you think she knows a scientist or an appraiser? Not to play devil's advocate, but at the same time, her name also creates a value for that business as well. So there's there is a personal and professional goodwill that goes along with with her name that a lot of people know and love and and the whole nine yards. So in addition to everything you're saying with it, with respect to inventory patterns, potentially all types of intellectual property or whatever, with respect to her product line and her stores, you've also got the potential for her professional goodwill. That is also got to be factored into this, which is not easy for sure, because Jay's not going to run her business.

It's not like Cutler Cosmetics is going to do as well as Kevin Cavallari customer. Absolutely. So, you know, and so these are things that, you know, are very complex. Discovery is one of those things where really you're going to really understand how valuable your lawyer is when you go through the discovery process, because it's extremely complex. The applications of it are very far reaching both to your finances and to your family, because let's just talk about. OK, so we've talked a little bit on the financial pieces of it, Brian, but what about the family? Like they have children. What's going to come up in the discovery?

Let's talk a little bit about the separate property element, too. I mean, I if I if I remember correctly, correct me if I'm wrong, but I think Jay Cutler was a popular NFL quarterback prior to his marriage. Was he not? Or was it was he. It was.

No, I think you I believe you're correct. I think he played ball for a couple of years before she decided that she wanted to marry an NFL player.

Okay. So potentially his first contract coming out, the money that he earned off of his first contract could potentially be at least from the eyes of a Texas court, potentially some separate property issues, which means this is where your big your big time, your competent attorney, your needed attorney is gonna come into play. Because when you've got approved, you know, a couple of million dollars worth of separate property, the burden in Texas is all on you to prove that. So that's where it coming in and giving getting gathering the appropriate documents from the appropriate time are going to be crucial to proving your claim. You can't just prove your claim by getting up there and saying, I owned it before I got married. Yeah. Look, look, I was in the paper. I was a NFL quarterback. I was the number one draft choice. Look look at where I signed. Look at what? That's not good enough. You're going to have to have somebody come in there with the proper financial documentation and say, here's what we did. We looked back at all of this and we can conclusively say that this property originated from this check that went into his bank account. And it shows that it is his separate property owned before marriage. That is a high burden to to fill, but it's sometimes is a necessary burden when you're talking about a lot of money.

Oh, you know, financial tracing is one of the most expensive things that you will do to the discovery process. But it's also definitely one of the most valuable in relation to maintaining the portion of the estate that belongs to you separately. When we say separate property and spend a little more a minute on that, we've touched on this in a couple of different podcasts. But it's important to kind of touch back or go back over separate property and a community property state understanding in the state of Texas. Obviously, community property is the presumption. What we mean by that is that if you're married and property comes into being, whether it's personal property, real property or intellectual property, the overwhelming presumption is that you both own it 100 percent. That's what community property means, really.

But boiled down in a nutshell, but separate property, you have the burden of coming in and say, no, I have a clear and convincing standard of proof that will show you that this existed either prior to marriage or during marriage. We did some type of lingual legal wrangling that created separate property. That was there was a gift by inheritance. There's a couple different facets to that that you're going to want to talk to council about that would Crete's and property. But if you can prove it to financial tracing, you can carve that property out. And it's not even considered in the divorce. Other than to say the court order is going to issue an order that says this is yours. It's not dealt with at all. It doesn't go into the division. It really can do substantial things to an estate, especially a sizable state.

Like what you're talking about a blended family where you owned property prior to marriage, even if it was a four or one K or a retirement account. There may be a substantial I mean, a substantial amount of separate property that you might want to try to protect, because like Sam said, if it's not on the table in the divorce, it's not on the table to be divided, which means the marital property is all that gets divided, which is really, really saves you a lot of dollars in the long run. And grant tracing experts are very expensive because a lot of times they are forensic accountants and they require a lot of documentation and they do a lot of work. But if it saves you a couple hundred thousand dollars, the 5000 and 10000 dollars you spent on this tracing expert may be well worth it in the end.

Absolutely. So let's talk to an example, because people might listen. Listeners might be saying, well, when do I need a tracing expert? So let me give you this as an example. Let's say that Jay got his you know, I think he was a first round draft pick. So let's say he takes his signing bonus and goes out and buys real property in Nashville, anticipating that this is where he wants to settle down. A few years later, he meets Christine. They get married. Now they build a house. And she wants a very specific style house. He only parties double wide trailer out there because he's a country boy. And so they build this house.

Well, then they decide, you know, no, we want to change the house and make it bigger, add some additions, whatever it is, a tracing expert is going to be able to go back in and say, OK, I can see to Brian's point, here's where that signing bonus check we got deposited into his account use all the multitude of checks that came out from those resources. And where they went to it became foundations, it became contract expenses. It became whatever it is, the court will be able to use that information via testimony from that that expert to be able to say, OK, here's the line of demarcation. What portion of it would be potentially, you know, can community and what would be separate? Because Kristin may have brought money into this equation as well. I mean, we don't know what you know, maybe she comes from a wealthy family, but is to jack up at Hildes money that she's looking at money from the hills.

Yeah. There you go.

So she's bringing her heels, money and saying, hey, you know what? Let's build this house on your land. Whose house is it? Who stays with it? How do we determine that? That is the importance and the crux of what a financial expert, a tracing expert can do. But also the difficulty and the consideration of that evidence that's going to be gathered due. The discovery process will lose.

And if you can trace it out of there, you could save yourself a considerable amount of money. And then there's also not to get too far in the weeds, but you have to also potentially prove a reimbursement claim. So if Kristen used her Hills money, let's say add a bunch of improvement to improvements to Jay's ranch property, then you're talking about her potentially being able to get that money back out of that property.

Agreed. And then you layer on top of this. She's like she's asserting, Brian, that, hey, you know what? He acted. There was misconduct. OK, now we're making some assumptions. Neither one of us are licensed in the state of Tennessee. But let's then say that misconduct, which is based on her social media obligations. Is this infidelity? Can you gather or exchange or find information to the discovery process about infidelity and how can it affect property?

That will happen in discovery. Well, you can take depositions are one form of evidence. You could call the paramour of the boyfriend or the girlfriend and have them give a deposition about what exactly, you know, all the pillow talk and all the all the things that went on in the relationship. You could find out. You know, some of the sordid details. And in Texas at least, I mean, that could have an influence on the property division if if a judge is in a mood, so to speak.

Because one of the most powerful things that an attorney will have, and this is really across the United States typically is the subpoena power and the subpoena can be issued by counsel, you know, with live pleadings in place like a divorce to gather information. So what do I mean by that? You can issue a subpoena to, let's say, to get hotel records ranking, get a credit card, everything you can get in a restaurant.

You can get security footage. I mean, you name it.

Exactly. Yeah, should issue a subpoena that says, hey, you know what? You know Kristen's best friend. I want you to show up on this day and time, and I want you to bring your cell phone and your phone records. So let's just see what's out there. You know, I mean, these are things that, you know, are extremely powerful, digging tools to try to ferret out claims to prove them or disprove them. Doesn't mean people aren't going to act shady. But, you know, a lot of times you get somebody on the record and, you know, there's the power of perjury. Right. You know, trying to get there's also social media records.

You can go back and dig through somebody's Facebook history or their Instagram history or whatever else is out there on social media that you feel like will add credence to your case. Now, all that said, sometimes that doesn't matter. A hill of beans is worth the difference. Do it. It depends on who your judges. But in a in a in a divorce case, like the capital areas where you've got, you know, a public eye on this thing, I mean, I think every bit of salacious gossip is probably going to be food for the tabloids. Right.

Well, without a doubt, when you're talking about preserving a brand. You know, when we talk about stars or, you know, high profile individuals, they have a personal brand. And so, you know you know, the fan of public opinion is fickle and it can blow in any direction. And so if your company is on the rise, but all of a sudden you're going to go through a nasty divorce and they're going to paint you out as a half later, you know, this terrible guy who's abusive, having multiple affairs. It can kill a business. They can kill a brand. And so, you know, most of this typically public record, you know, when you're going through a divorce process, and that's how come everybody's so intrigued by these types of situations. Now, if you're going through divorce, you may not be, you know, Jay Cutler and Kristin Cavallari and you're not going to have a whole lot of press, but sometimes you can. And sometimes it's just your family members. Sometimes it's new new paramours. It's things that can hurt your life very difficult.

They are trying to get into a new editor on the deacon board of New Church or, you know, something like that. I mean, some sometimes in your social circle, that can be a that can be a big deal. I mean, if somebody is making adultery allegations about who are other wives going to want their husbands to hang around you or or other women going to let their husbands around you or, you know, if you're if you're on the female side. I mean, all of those kinds of things, all this kind of salacious stuff can really have an impact on you personally. But absolutely, you're absolutely right. It can really have an impact within your own family. But let's not jump over to the F to the custody and selling.

Yes. So when you think about, you know, discovery, this is your opportunity to really figure out and help the other party sometimes figure out what it is that they really anticipate, an order or a form of final outcome will look like post divorce. Right. What is life going to look like in the future where it's find that out with Kovik so strong.

It says, you know what? I got this TV show. I got my brand. I got my stores. I want to move to L.A.. Jay, I know you're a country boy and you like your farm. And I don't really I'm not really a farming girl, so maybe I'm just going to move to L.A. and take the kids. And you stay here in Nashville on the farm. Well, discovery is your chance to find out what the plan is, what you're her plan is and what your plan is.

Yeah, it absolutely forces people to make decisions because, you know, a lot of times people will walk through this process because it's difficult. They don't want to make a decision. They're just kind of like, we'll figure it out. Well, what does that mean? Right. You got to tell me what it means. What time are you proposing? You're going to allow me? Are you thinking you're going to give me?

Because that's going to tell us if we're going to be able to work out an agreement. If you tell me, I'm going to get to see my kids two days a month.

Because you're going to you're going to make me buy a plane ticket for them to fly from L.A. to Nashville. Now, I'm not liking that that scenario. And so it allows me and my counsel to prepare a response that says that's absolutely not what I want. Here's what I'm looking at it because that is not what's in the best interests of my children. This is what's in the best interests of my children. And so once people are forced to identify their positions, truly declare what their intentions are. It allows you and your counsel to sit down and really circle the wagons and decide how are we going to have to approach this case? Does it look like we're going to have to litigate this matter? Do we need to bring in additional experts to help support my position that that's not in my children's best interest? These are all.

The other thing is, if I'm a dad, let's say, for example, and I'm going for custody, but I'm a traveling salesman and I'm gone, you know, 14, 15 days a month. How am I going to manage to be in the primary caretaker and how am I going to manage, you know, how am I going to manage all of this? And what what what discovery allows you to do is allows and allows the wife to go in and say, subpoena all of his work records to show, hey, for the last two years he's traveled, you know, 300 days out of the year. And how can the kids how can you be primary caretaker of the kids when he's on the road 300 days out of the year? And then at the same time, if you're at home, but you're spending all of your time on social media and not really taking care of the kids, that allows the other parent to go in there and say, hey, look, you know, look at all these phone messages. Look at all this time spent on social media. Look at all this other stuff that my wife, my wife claims she's a stay at home mom. But look at all this other stuff that she was doing, you know, that shows that she wasn't exactly taking care of the kids when she was at her in her, quote unquote, stay at home mom role.

So so it allows you to kind of drill down on. And I don't mean to imply that stay at home moms can't be on social media. Don't don't don't take that the wrong way. But what I am saying is it really allows you to drill down and say, OK, if I'm if I'm trying to be the primary parent, how do I prove that I take the majority of the primary care-taking responsibilities? Well, if I'm worried, if I'm traveling 300 days out of the year and my wife's taking care of the children, there's no possible way that I have the primary care-taking role, maybe financially speaking, but not in the home first. And if I were let's say we're both at home, but one person is check down on social media all the time. Well, you can use that to show, hey, look, there's one of us in this relationship that's taking the primary care-taking role within the home. And there's one person that isn't. And social and discovery allows you to get the information that potentially proves those points.

Absolutely, Brian. And look, we you and I both know that trial is it's it's it's a story. It's the ability of a lawyer to get in there and storyteller, whoever tells the best story wins. OK. And so discovery is your opportunity to really ferret out the story. And so in this situation, if Kristen's out there saying, hey, you know what? I want to be primary parent. But guess who's going to raise my kids in L.A.? Two nannies, because I'm working all the time. I'm constantly at meetings. I'm always doing these TV shows. And Jay's back there saying, hey, I'm a retired NFL football player who has a ton of money. All I do is run around the forum and spend time with the children. Guess what? This is really going to put it in context for a judge to be able to make that determination. Two different styles of life, two different levels of involvement from parents. And how do you figure that out?

Discovery. I mean, and they say that I always tell clients that building a case in a divorce case is a lot like building a house. You have to do it brick by brick. And it is not just about pointing out why the other person's bad. You also have to show why you're better. So Jay would have to get up there and say, not only is she spending all this time on the show and not with the kids, here's the things that I'm able to provide. I'm able to do the pickup and drop offs at school. I'm able to help with the homework and provide the transportation. And Kristen maybe coming over there saying, well, no, he was completely checked out and I was doing all of that, in addition, demanding a full, you know, a full time job and running a company. And so this would give her the opportunity to say, OK, this is what Jay was doing and this is how I provide better. This is how these are the things that I do. I was the one actually making maybe I was having the nanny take the kids to school, but I'm the one who had to coordinate the nanny because I had to be at work. And Jay wasn't doing anything. So those are all of the kinds of questions that get answered when you're doing this discovery. And let's talk a little bit about custody evaluation. Let's get right to it. Go ahead. Make your points.

Oh, yeah. I was just gonna say, yeah, absolutely. Great, their brand, because if Jay spent and all of his time at the country club, you know, he's wining and dining with friends and playing, you know, three rounds of golf and getting home at eight o'clock at night, you know, to kiss the kids goodnight and then going back down to pour himself a jack and Coke. Well, guess what? Doesn't matter how much Kristen's working you, she needs the help of a nanny. And, you know, that's a lifestyle that's already in place. Because to your point, this is where clients I try to tell them. Right. Like, you know, judges are like water in a river. Water has been flowing the way for a long time. And so what you're doing in the discovery process is you're really creating a cartography of life of that river.

How is it been flowing so that a judge can look at that? Because judges are like water. They follow the path of least resistance a lot of time. If something is working in the lives of children and you can prove it, then they're going to follow it.

So the same reason that parsers, vitality and consistency, and that's what judges are looking for, to place kids in environments with the same stability and the same consistency that they've always had. Well, let's talk about custody evaluators, because this is this is an important part of the discovery discovery process. One or both parties can can ask for a court to potentially appoint a custody evaluator. And those can come in the form of, you know, a psychiatrist. Sometimes that's an ad litem attorney. Sometimes, you know, it's a dynamic, it's attorney. But these these this attorney or this or this custody evaluator is going to take a look at both homes, both sets of parents, probably extended family, probably some close relations. You're gonna have to provide documentation. You're gonna have to provide references. You're gonna have to fill out paperwork that says what your plans are for the kids. And this person takes all of this information, interviews the children's and children are a lot of patients cases, and then makes a determination and recommends to the court that either mom or dad gets primary custody of these children. And that's important because if you come out on the wrong side of that in Texas, we have the opportunity for jury trials. So if you come out on the wrong side of that, you're going to have to get M.E. ammunition and then and evidence to show maybe why this custody evaluators opinion was biased or why this opinion wasn't, you know, wasn't the correct opinion. I'm gonna have to potentially get a rebuttal expert, things like that. So you really want to know that information early on?

Yeah, without without question, they are valuable pieces of the discovery process because to a judge from a judge's perspective, look, a judge is never going to build your house. You're never gonna come in and interview people. You know, they're going to get to hear various small snippets, snippets of people's impressions on the stand. What a child custody evaluator has the opportunity to do is spend hours, hours and hours of time. They can fly all across the country. They can see, you know, different, you know, different environments. And they get to see the children in each of those environments before writing these reports. These reports, you know, can can go upwards of 300 pages and they can be very detailed and take on very complicated issues and lifestyles and perspectives to put together a a a very cohesive statement to the court that says, I've been there, I've done this. I've seen these people, I've talked to them. And based on all that information, here is what I believe could be in the best interests of these children.

And they are worth their weight and plan about above. That being said, I mean, sometimes if you come in on the wrong side of one of these, you know, it doesn't necessarily mean they're created by people and people are fallible. So, you know, you really have to evaluate that report and see where potentially you could poke holes in it. And, you know, that sometimes takes a lot of effort, a lot of review. I mean, like like you said, if you have the if you're in the case of a three hundred, the biggest one I ever saw was over a thousand pages. And that included and included, you know, exhibit after exhibit and thousands of pages of supporting documentation. So, you know, people there there are good custody evaluators and there are bad ones. So it's one of those things where you have to be you have to know that the playing field that you have to have you have to you have to really look at and review the information that's provided. And you know what they're basing that opinion on, because they may be painting an opinion on information that one spouse or the other spouse provided. That is not accurate. And you may have the documentation that proves that it's not accurate. So you want to be able to go to that custody evaluator and say, hey, look, I know they told you this. I know Jay said he never played three rounds of golf. But here's a country club records from the last two years. And he played three three rounds of golf three times a week. So, you know, those are those are very critical pieces of information. And it's it's a it's like one of those public service announcements back when we were kids. You know, it's the more you know, the more you know, in in your divorce case, the better off you're going to be.

Now, with out a doubt, right? And you just you made the perfect point about a true litigator. Right. To competent counsel that feels comfortable in the courtroom or out of the courtroom. They're going to spend a tremendous amount of time and energy dissecting those reports, making sure that the person who was responsible and tasked with those reports did their due diligence and actually has the proper foundation to make any type of recommendation to the court. And if they don't, this is the value of competent counsel. This is the time when I told you before, you're going to really learn to appreciate your lawyer through the discovery process, because if they do what they're supposed to do at a very high level, you're going to come out on the other end fully prepared to either settle this case, you know, informally or remediation or absolutely be prepared.

And let's say you get to the end of this and you're looking at your bill and you say, look, I spent thirty thousand dollars on just the discovery phase of this of this case that at all. But suppose that attorney saves you a hundred fifty thousand separate property, plus an additional 250 to two hundred thousand dollars by getting the right valuations on your property. Then you're gonna say, well, that thirty thousand dollar investment wasn't wasn't wasn't badly spent because he saved me four hundred thousand. So.

Or yeah, or that lawyer helped you, you know, maintain primary conservatorship and keep your children from moving across the country to where you'd only see them one time a month, if that. I mean, what are your children worth to you? What's the lifestyle of maintaining the relationship with your children and being an active and involved parent? What what dollar amount is that worth to most parents? You could put a dollar value on that. Now, I'm not saying that everybody has 30, 50, 100 thousand dollars spent on the discovery process because they can get up there. But you can work with your your counsel to really strategize and formulate a plan of what of these elements you can use through the discovery process to maximize your dollars and maximize the potential for you to get a positive outcome if you have mediation or just as important.

Having all of the documentation and having as much knowledge as you can walking into a mediation session can be just as important as having enough knowledge walking into a trial setting. So the last I mean, the last two parts to our five part series are going to talk about mediation and then trial specifically. So we'll touch on those, you know, we'll touch on those in later episodes. But this discovery process, I mean, how long can the discovery process go? It can go nine months. It can go a year. Sometimes it can go less time than that. So you want to you want to start gathering all of this stuff, as much stuff, as much documentation related to your claims as early as possible. Because the more stuff you have, the leaves, the faster it's your attorney is going to be able to go through it and the faster you know, you could potentially get an outcome. So you don't want your discovery. How your attorney having to redo review discovery at the last possible minute. So I would tell you that, you know, early is better in this type of situation.

Yep, I always tell clients, you know, if you drink, get an adult beverage, if you don't get a nice glass of iced tea. Spend some quality time with your discovery because it's going to be it if there is going to be time or energy.

Because here's the deal is just going to say, you know, here's the thing that's most important in my mind is that discovery takes people from being unrealistic to being realistic really quickly.

It doesn't it doesn't fix crazy. You and I both know, Brian, there's there's crazy out there that you can't fix with, you know, the most amount of discovery you could possibly imagine. If it's crazy on the other side, discovery is not going to help you convince them to settle. But if they're saying sanity on the other side, it does because it helps people understand where they are being unrealistic in their expectations. Brings realism into the conversation. And once people are realistic, they a lot of times can come to a happy meal.

I was just going to say, let's touch briefly on the documentation that you're required to provide. In a lot of instances, you're going to be required to fill out at least a preliminary inventory and probably a financial information statement. And let's talk about how much time you're supposed to spend on those things. And what I would say is, do you spend five minutes doing your taxes? Do you check a couple of boxes on the Turbo Tax for the Turbo Tax forms? Sign your name to it and send it off to old Uncle Sam. No. You spend hours and hours compiling records and reviewing your your pay stubs and reviewing all of your stuff before you file your taxes because you don't want to. You don't want to end up in an audit situation. What I would tell you to do.

You know, somebody is going to audit that. You think that. You think how many? How many times do you think the IRS audits the IRS forms? A lot of you had to guess. Maybe one out of every hundred. Maybe. Maybe more. Maybe less. But it's it's a big number. But I guarantee to your point, Brian, every time somebody issues a discovery and somebody and it's going to get audited, the other side is auditing.

Don't don't be casual about answering these questions. But I would tell you is take the time necessary, spend the time that you think you need to make sure it's right and that's the way you want it. Because when you're talking about things like sworn interrogatory or things like that, you're talking about answers that they are potentially going to hold you to later on in the process. So you want to make sure you put some thought and some effort into this discovery process so that you are the best prepared possible when you go into that trial or that mediation.

You have one wrong move in the discovery process can cost you thousands, can hurt your family, can be devastated. No trial or mediation. So it's already gone about it.

Take the time necessary. And do you have any party thoughts?

All I can tell you, Brian, is that I hope Jay and Kristen work it out. You know, I hope they reconcile. I know that didn't make my household happy to know that the superstar couple hangs out together because it gives people for the future. But if not, I do hope that, you know, they're sensible and don't spend a lot of time and money fighting about things that they don't need to, but that they're very clear about their expectations through the discovery process. Because to our point here, if you're not, you just mean massive problems. But we'll read about it in the news. It'll be.

Yes. Would I would say the same sentiment. I mean, for you hope for you know, they have three very three very beautiful, very young children. And you want to make sure, you know, couples a lot of time staying together. And if they're able to reconcile marriages, a lot of times that's better for the children than going back and forth between houses. But, you know, sometimes that's possible and sometimes that's not possible. But let's hope that cooler heads will prevail in this Cavallari-Cutler divorce and that they both, you know, decide that, hey, the children are important. They need to have both parents in their lives. And we're going to you know, we're gonna each take the high road in our own respective way and try to do what's best for our children. So, you know, you hope for a reconciliation, but at the same time, if they can't reconcile, then you hope that they have their good CO parents know on down the road. A change, sir, all right. I appreciate your time and like I said, our next podcast will be to discuss the mediation phase of the divorce process in Texas. And if you need to reach out to one of us, you can reach me at 281-374-4741 or babercrombie@astxlegal.com. And Sam, we're going to find you.

You can hit me up at 469-844-7181. And you can hit me. at ssanchez@astxlegal.com

All right. Thank you. Thank you much. Thank you for listening. And we will talk to you soon.

Thank you for listening, and we hope you enjoyed the Top Texas Lawyers Podcast. If you'd like to schedule a consultation with either Bryan or Sam, please call 1-888-981-7509. Or visit us on the web at astxlegal.com. Once again, that's astxlegal.com. Thank you very much.

Scroll To Top