Family law encompasses a variety of issues regarding domestic relations and the family. These issues include divorce, custody, support, visitation rights, adoption, and child neglect.
In addition to developing a knowledge base for these substantive issues, family law attorneys must be well versed in procedure and should develop familiarity with several dispute resolution processes. They must also develop court-related and transactional drafting skills.
In addition to these core substantive issues and skill sets, family law attorneys stand to benefit from an understanding of several subject matters that often intersect with family law, including estate planning, probate, corporate law, non-corporate business entities, and tax law. An ability to identify and value sources of assets and liabilities is particularly important.
Finally, when deciding whether to become a family law attorney, students should take into account the types of clients who may obtain the services of family law attorneys. Each of these points will now be discussed in turn.
Main Areas of Practice
The core practice topics in family law revolve around making or breaking the legal ties that bind people together, as well as creating, untangling, and characterizing individual and communal property interests and financial obligations. In addition to stewarding clients through the legal requirements of divorce, family law attorneys must address how to find, value, and divide assets and liabilities between the divorcing spouses and issues regarding ongoing spousal support (which is hard to obtain in Texas). If there are children involved, then the attorney must address child support and custody matters, which include an allocation of parenting time and agreements about the decision-making process for children.
Aside from the initial court decree, family law attorneys regularly handle modification and enforcement actions. Parties do not always abide by the terms of the decree, or they are perceived to breach it based on their prior understanding of a long and technical document. As a consequence, family law attorneys must file motions for enforcement or contempt that seek to have the court enforce its terms.
While divorce and its accompanying consequences can be a central practice area for many family law attorneys, there are many other topics that family law attorneys might find themselves having to address (or focusing on exclusively). These include adoption, paternity, termination of parental rights, guardianship, grandparent visitation rights, child abuse and neglect, and issues concerning reproductive technologies, alternate methods of conception, and surrogates. Additionally, an emerging issue in recent years encompasses the evolving law concerning civil unions and same-sex marriage.
Central Required Skills
General Dispute Resolution Processes
Family law attorneys must be familiar with many dispute resolutions processes. Since disputes may involve frequent court appearances, family law attorneys must be well versed in both pretrial litigation and in-court advocacy. A substantive understanding of pretrial and trial procedure is particularly important. Students who wish to pursue careers in family law would strongly benefit from coursework that emphasizes the procedural aspects of practice because the success of many cases rises and falls on attorneys’ understanding of procedure.
For this reason, the attached pathway lists as core courses both Texas Pretrial Procedure and Texas Trial & Appellate Procedure. Students can hone their litigation skills in Civil Pretrial Advocacy, Civil Trial Advocacy, and Deposition Skills. South Texas College of Law Houston also offers Family Law Trial Advocacy, which is designed to simulate the resolution of a family law case.
In family law, courts often require that the parties first try to resolve their issues through mediation. Accordingly, family law attorneys must be able to represent the interests of the client in front of a mediator, who is tasked with helping the two sides come to an agreement out of court.
South Texas College of Law Houston offers a class specifically geared toward this setting: Representation in Mediation. However, students can also acquire the requisite skills in Mediation Theory & Practice and Mediation Practice. The Alternative Dispute Resolution survey course also touches on many of the needed skills. Students do not need to take more than one of the above-mentioned mediation courses.
The extent to which any one of these processes applies to a given case can vary. Because attorneys cannot typically choose their clients, they must be ready to address the needs and wishes of their clients through any or all of these dispute resolution processes.
Collaborative law is a structured process used in family law to help resolve divorce-related matters outside of the litigation process. Participating divorcing parties enter into the collaborative process with the mindset that working together can foster a result that is in the best interests of both parties as well as any children.
To facilitate this collaboration, attorneys agreeing to take part in the process agree that they will not represent their clients in litigation if the collaborative process is unsuccessful. That way, both the parties and the attorneys approach the dispute resolution process from a comparable vantage point and without any possible incentives to avoid a resolution.
The collaborative process may involve a team of professionals working together. In addition to the attorneys, psychologists may be involved to help the parties or the children address any outstanding mental health concerns brought on by the divorce itself or indirectly related to the divorce. Attorneys may also bring on financial experts or planners. Thus, attorneys involved in collaborative law are members of a team that is trying to address holistically the needs of the divorcing couple and their family.
Many family law attorneys, particularly those who have spent years litigating contentious cases, welcome the opportunity to help clients resolve their disputes through the collaborative law process. Despite its appeal to many, the collaborative law process is premised on a divorcing couple’s willingness to engage in the process.
While the collaborative process has increased in popularity in recent years in some parts of the country, only a small percentage of divorcing couples decide to use it. Accordingly, attorneys interested in collaborative law should recognize that, especially at first, it will be difficult to develop a family law practice limited to collaborative law. But it does represent another opportunity for would-be family law attorneys, and STCL Houston offers a Collaborative Law course.
Interviewing Clients and Investigative Skills
Regardless of the means used to eventually resolve the dispute, family law attorneys should develop an ability to effectively interview and counsel clients throughout the dispute resolution process. Additionally, attorneys must hone their ability to investigate and discover the pertinent facts of the case. Interviewing, counseling, and investigative skills do not just apply to attorneys’ interactions with their clients; they may also apply to attorneys’ interactions with children and third-party witnesses.
South Texas College of Law Houston offers an Interviewing & Counseling course, and Family Law Trial Advocacy simulates an initial client interview. Additionally, students can further hone these skills in both of the family law clinics. Finally, the subjects discussed below in Subjects Relevant to the Practice of Family Law provide additional useful courses that help family law attorneys understand the significance of the information they might discover throughout their investigations.
A common perception of family law is that it is solely grounded in litigation. This, however, is not entirely accurate. Transactional work can represent a significant amount of a family law practice. Indeed, for students who are interested in a transactional-skills-based practice, family law issues can offer several niche specialties that focus solely on transactional work.
For a number of filings, such as petitions, prenuptial agreements, and postnuptial agreements, attorneys can (or must) use pre-drafted standard forms available through the Texas Family Practice Manual or Pro Doc. For more complicated documents, however, family law attorneys must significantly modify a standard form or draft the document from scratch. Common documents that often require independent drafting include mediated settlement agreements, Rule 11 agreements, and unique provisions in final orders. Other issues where transactional drafting skills are critical include surrogacy and adoption agreements.
Time Management and Organization
Some family law attorneys should anticipate that each day can produce unique and divergent problems and challenges. On a given day, a client may inform an attorney that the other party is not complying with the terms of the agreement or a dispute has emerged about the parties’ interpretation of the agreement. Negotiations might have to take place quickly and motions might have to be filed (or responded to) within a short timeframe.
One could perceive the unpredictability of each day as an exciting aspect of practice or a hindrance to a desire to have each day look more uniform. Either way, this is a consideration that students should take into account. Given the diversity of daily issues you might have to address as a family law practitioner, an ability to effectively manage time is critical, as well as the potential need to juggle multiple problems at once.
Like any area of practice, however, the particular types of family law matters that an attorney chooses to focus on can impact the extent of unpredictability. An attorney focused more heavily on transactional issues would be confronted with a smaller number of unpredicted circumstances.
Subjects Relevant to the Practice of Family Law
There are several practice areas that, to varying degrees, intersect with family law matters. Substantive knowledge in these areas will (or may) be helpful to students wishing to pursue careers in family law (or a niche within family law). These subjects include estate planning, probate, corporate and non-corporate business structures, tax law, immigration, bankruptcy, and civil procedure.
An understanding of estate planning can be important because divorce regularly requires that clients re-evaluate their estate planning strategies or redraft wills or trusts they established before the dissolution of the marriage. Even outside of divorce proceedings, clients may seek advice about estate planning strategies.
An understanding of probate is helpful because there is a strong overlap between conservatorship and guardianship, especially when minors and special needs adults are involved. Probate issues can also pertain to child support and the obligations of a decedent’s estate, such as what should happen when someone dies before he or she fulfills a child support obligation.
The importance of a family law attorney being able to “find the money” cannot be overemphasized, and coursework that helps to foster a prospective attorney’s ability to do so is very useful. For example, an understanding of business structures can be important because the assets and liabilities of one or more of the divorcing spouses may be tied up in a business. The parties’ assets and liabilities are critical to assessing the proper distribution of assets after a divorce, as well as the proper levels of spousal and child support your client may be entitled to receive (or on the hook to provide). Without an understanding of how business entities are structured, a family law attorney might overlook sources of income that the family code deems relevant to assessing party assets and income.
Familiarity with property and secured transactions can help you protect a client’s lien-holder interest in property or perfect a lien on an asset. Indeed, some attorneys have carved out such property and asset issues as a niche specialty.
Knowledge of tax law can be important because tax documents often permit attorneys to gain greater insight into the opposing party’s financial status. For example, an understanding of tax forms may permit an attorney to locate a significant disconnect between a person’s stated income and the earnings of his or her company. While the allocation of such funds may be for legitimate business purposes, an attorney who lacks the knowledge to assess the tax records will not even be able to raise these questions. Experts in ERISA could also market their expertise in the family law context.
Immigration law can overlap with family law when one or more of the parties involved is not a citizen. Divorce, legal custody, legitimacy, adoption, and domestic abuse are among the issues that can create immigration consequences (or benefits, perhaps) for non-citizens.
A background in bankruptcy law can be helpful in circumstances where one of the divorcing spouses has recently declared bankruptcy or plans to declare bankruptcy. An understanding of the rights of creditors vis-à-vis the divorcing party who did not declare bankruptcy can help an attorney navigate the process as effectively as possible.
Finally, family law attorneys would be well served by becoming familiar with the choice-of-law and jurisdictional issues that can emerge in family law. One can easily picture the issues that might arise between parties with residences and assets in multiple states.
Students should realize that few attorneys, let alone new attorneys, can become experts in all of the previously discussed subject matters. Your goal should be to develop a core competency around issues that interest you—and that you are most likely to confront in practice—and continue to expand your knowledge base as you progress throughout your career. Many of the courses listed in Stage 3 of the accompanying pathway cover the subjects discussed in this section.
Family Law as an Emotionally Charged Subject-Area
Counseling Considerations of a Family Law Attorney
Family law attorneys’ counseling responsibilities require that you take into account the various dispute resolution techniques that are available, the emotionally charged nature of many of the issues, and the financial resources of the parties. Emotions might cloud clients’ choices about the best dispute resolution techniques to employ and the optimal result they wish to obtain. Additionally, clients’ desire to get affirmation of a perceived injustice might initially overshadow their perspective on how different courses of action might affect them—either emotionally or financially.
Family law attorneys must often counsel clients about the emotional and financial toll of different forms of dispute resolution and recovery so that the client is fully informed of the true consequences (to themselves and others) of the ultimate course of action they choose to take. While attorneys practicing in any field should ensure their clients make informed decisions, it is particularly important for family law attorneys to reaffirm the client’s decisions during the case pendency. Thus, as mentioned previously, students seeking to practice in the field of family law might benefit from taking classes in client counseling.
Family Law Attorney Disposition Considerations
As a product of the issues involved and the above list of dispute resolution processes that could be employed, it is not surprising that family law attorneys may find themselves dealing with clients who experience a wide array of emotions—from anger and hostility to resentment and depression. The family court system is neither equipped nor designed to handle the emotional underpinnings of these cases. Attorneys, of course, are not psychologists, but a law student who does not have the ability or desire to consider the clients’ emotional needs during the legal process might not be suited for certain types of matters that can arise in the practice of family law.
As the above discussion illustrates, family law encompasses a wide array of topics and sub-specialties, and many do not require an attorney to confront clients who are uniquely emotional. But under those circumstances, when a family law attorney does confront such clients, they would be well served to demonstrate empathy while maintaining objectivity. Equally important, family law attorneys must be able to set clear and unequivocal professional boundaries with clients.Top