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How not to get divorced -- that type of advice is strange coming from a Dallas Divorce Lawyer.  But, really I'd love nothing more than to be out of business and into some other line of work, all because people stayed married.  Marriage is a great thing if you are with the right person.  Unfortunately, divorce is necessary in many circumstances.  But, I seriously doubt that anyone enters marriage with the idea that they want to get divorced.  So, for those out there trying to hold it together, here's some advice:

"February 15 is one of the busiest days in a divorce lawyer's calendar," says Dan Couvrette, CEO & Publisher of Divorce Magazine and www.DivorceMagazine.com. "Maybe some of these tips will help improve our readers' current relationships to the point where they're willing to try to work things out -- or perhaps the tips will help ensure that their future relationships will be happy and fulfilling."

1. Make time to connect lovingly with your spouse every day.

A couple can significantly improve their chances of marital success by devoting as little as 15 minutes a day exclusively to each other. For instance, choose to go to bed a little earlier and wake up a little earlier, and spend the extra time in bed cuddling, making love, and reaffirming your love for each other. Take time every day to have meaningful conversations with each other; to listen with the same intensity as when you were dating; to touch, hug, and show affection; to tell each other how you feel about your marriage; and to talk about your goals for the marriage and your lives.

2. Compliment your spouse regularly -- both in private and in front of others.

Even if your partner seems embarrassed or shrugs it off at first, the glow from sincere praise lasts a long time.

3. Love your spouse in the way he/she wants to be loved.
 

We often make the mistake of assuming that the things that touch our hearts the most deeply will affect our partner in the same way. For instance, you may think red roses are the perfect Valentine's Day gift, but to your spouse, they represent a waste of money and an allergy attack. If you don't already know, find out what your spouse yearns for, and then deliver it with love -- and no comments about how "stupid" it is to want a cordless drill/a picnic on the living room floor/a tuna casserole, etc. Remember: the best gift is something your spouse wants -- not merely something you want him/her to have.

4. Take care of your appearance.
 

Look your best for your spouse: he/she deserves it. Lose the ratty sweat pants or frayed sweater he/she hates so much; you can find other comfortable clothing that aren't a complete turn-off for your partner. This also means taking care of your health .

5. Remain faithful.

Dr. Finnegan Alford-Cooper studied 576 couples who had been married for 50 years or more; she released her findings in a book entitled For Keeps: Marriages that Last a Lifetime. In her study, she found that 95% of the spouses agreed that fidelity was essential to a successful marriage, and 94% agreed or strongly agreed that marriage is a long-term commitment to one person. And these "lifers" weren't making the best of a bad lot: a whopping 90% of the couples she surveyed said that they were happily married after 50+ years.

6. Do things together.

Another common factor of long-term happy marriages is that the spouses regularly do things together that they find fun and exciting. Whether that's ballroom dancing, bowling, playing cards, SCUBA diving, or skiing, participate in at least one activity that you both enjoy every week. If you have kids, make sure at least half of these activities are for you and your spouse only.

7. Spend time apart.
 

You take a pottery course while your spouse plays hockey; you play bridge and your partner collects stamps. You don't have to love everything your partner loves, but you do have to allow him/her the freedom to pursue cherished hobbies. An added bonus is that separate interests can generate interest between you.

8. Be friends with your partner.

According to John Gottman -- a psychology professor who claims his research will predict with 91% accuracy whether a couple will stay together -- the key to marital happiness and success is friendship. Some of the most important aspects of this type of friendship are knowing each other intimately, demonstrating affection and respect for each other on a daily basis, and genuinely enjoying each other's company. Gottman based his findings on 25 years of marital research, which he presented in his book The Seven Principles for Making Marriage Work.

9. The Terms of Endearment.

Top Los Angeles divorce attorney Stacy D. Phillips says flowers, candy, cards, and gifts are all wonderful tokens of love on Valentine's Day, but if you really want your romance to last, you must practice some marriage-saving steps. She advises couples to spell out the basics of their relationship in a yearly contract -- or at least to clarify them. "Most disputes that break up marriages are over sex and money," she says. "Don't let surprises lead to trouble. Marriage is like any other contract: its terms and conditions must be reviewed and updated. Right before an anniversary is a perfect time, and Valentine's Day reminds you to be flexible and that you have to give to receive."

10. Say "I love you" every day.

This is especially important when you're not feeling the sensation of love; at these times, you have to actively generate it. Saying those three little words, and performing loving gestures, will warm both your and your spouse's hearts.
 

Hat tip to Divorce Magazine for the idea for this article. 

This article is featured on avvo.com:  Valentine's Day Tips

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Dallas divorce attorney Michelle May O’Neil and her client prevailed yesterday, February 4, 2010, when the Fifth Court of Appeals issued its opinion in Kee v. Kee, Cause No. 05-08-00013-CV. The appeal in Kee arose from an ex-wife’s appeal of the trial court’s refusal to garnish ex-husband’s wages to satisfy his contractual alimony obligation.  The trial court in this case rightfully found the garnishment that ex-wife requested would violate ex-husband’s constitutional rights. The Dallas Court of Appeals agreed.

The Court of Appeal’s determination turned on whether the alimony payments wife sought to garnish from husband’s wages were ordered pursuant to Chapter 8 of the Texas Family Code, or whether such payments were contractual, as opposed to statutory, alimony. In reaching its decision, the Court of Appeals closely examined the language of the 2006 divorce decree’s alimony provision. The decree lacked the requisite findings for Chapter 8 maintenance; including a finding that wife was disabled and a stated duration of the maintenance obligation, with the specific language of the alimony provision providing in part:

“The Court finds that under the circumstances presented in this case, [Wife] is eligible for maintenance under the provisions of [the] Texas Family Code and the contractual agreement of the parties; and that this alimony obligation is contractual as well as statutory.”

Because the decree omitted the specific findings required by Chapter 8 of the Texas Family Code, the Court of Appeals determined that the “statutory” portion of the maintenance obligation could just as easily be Chapter 7 (the code’s provision for informal settlement agreements between parties) as Chapter 8 maintenance. As the alimony ordered by the 2006 decree was contractual rather than statutory under Chapter 8 of the Texas Family Code, the Court of Appeals determined that husband’s wages were not subject to garnishment, and, therefore the trial court ruled correctly.

The opinion in Kee extends the well-established case law prohibiting the enforcement of contractual alimony by contempt, including In re Green and McCollough v. McCollough, to prohibit enforcement of contractual alimony via garnishment of the obligor spouse’s wages absent a specific provision in the decree allowing for such a remedy. The moral of this case, for parties as well as family law attorneys, is be conscious of your drafting – if you intend for a maintenance obligation to be statutory under Chapter 8 of the Texas Family Code, make sure the decree includes the necessary findings. Also, if you intend for contractual alimony to be enforceable via garnishment of the obligor spouse’s wages, this must also be apparent from the terms of the decree.

Congratulations to Michelle May O’Neil on a notable appellate victory for her client.

For more information on alimony in Texas read our prior blog posts:

Alimony in Texas?!? Well, sort of . . .

Alimony in Texas?!? [Part 2 of 2]

To read articles written by Michelle May O'Neil on the topic of alimony/maintenance in Texas:

Comment: Alimony Versus Maintenance

Alimony/Maintenance Enforcement by Contempt
 

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As a Dallas divorce lawyer, one of the most frequently asked questions I receive is how can a client control the costs of his or her divorce.  Understandably, clients expect top notch service in a cost effective manner.  One of the more costly aspects of any divorce involves dividing up the community estate.  I recently came across a great blog post that offered some practical ways to help keep costs down in dividing the community estate.  Although the focus of the post dealt with dividing personal property contained in the home, a lot of the suggestions are applicable to dividing other parts of the community estate.  Here are the tips:

1.  One spouse makes two lists of the personal property.  The lists should contain property roughly of equal value and the spouse who didn't make the list gets to pick which list of property they want.  Because the spouse who didn't make the list gets to pick first, there is an incentive to make the lists as equal as possible --- otherwise the drafting spouse will get burned in the process. 

2.  Hold a silent auction.  This creative method allows the parties to ensure they get the property that they really want.  In the silent auction approach, each party blindly puts a dollar value next to a piece of property that is listed out on a sheet.  Since the parties don't know what dollar amount the other placed on the property, the process is pretty fair to all involved.  The spouse with the highest "offer" on a certain piece of property gets to keep it.  Once the auction is over, then the parties add up the total winning bids and divide the property accordingly.

3.  Arbitration.  Alternative dispute methods, such as arbitration, are frequently used in divorce cases.  Although there is a cost associated with using alternative dispute methods, couples can use an arbitrator to divide the community estate which is typically less expensive than presenting the matter to a judge.

4.  Rotating lists.  In this method, the parties simply make a master list of all their property and then take turns selecting one item at a time that they want to keep.  Spouses can simply flip a coin to see who gets to go first. 

Bottom line is that there are many creative ways to divide up property fairly, and in a cost effective manner.  Hat tip to the Minnesota Divorce and Family Law Blog for the idea behind this post.

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A Dallas Divorce client raised an important question this week.  She owns a small professional practice that is an S-corporation.  Her business has some cash flow that allows her to pay the business expenses and payroll, but not much extra.  Her husband requested the Dallas Divorce Judge to make the wife turn over the cash she presently had in her business to help pay the husband's marital debts.

In a Texas divorce, a judge may only award shares of corporate stock in a divorce, and may not invade the corporate assets. Moreover, a judge may not divest a spouse of separate property corporate stock and award it to the other spouse. Retained earnings (cash) of a company are a corporate asset and are not marital property, either separate or community. The fact that the corporation is a Subchapter S corporation does not determine who owns the corporation’s earnings. A corporation may, in its discretion, distribute its income to its shareholders, but it is not required to do so. Further, it cannot be compelled to do so by a divorce court that lacks jurisdiction over the corporate entity. The shareholder in a Subchapter S Corporation has no greater rights over corporate property than a shareholder in any other corporation.

See  McKnight v. Mcknight, 543 S.W.2d 863 (Tex. 1976); Thomas v. Thomas, 738 S.W.2d 342, 343 (Tex. App. – Houston [1st Dist.] 1987, writ denied).

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I recently came across an article on Time Magazine's website that was pretty interesting.  According to a study completed by the Pew Research Center, married men have a 60% higher income than they did in 1970, whereas unmarried men only experienced an increase of 16% in income. 

According to the study, one of the reasons that married men experienced a higher increase in income is because the percentage of men marrying women who earn as much, if not more, than they do has also increased since 1970.  Coupled with this is the fact that there has been a dramatic increase in the number of white collar women.

Another interesting point was that there is a decrease in divorce among college educated couples, and an increase in divorce between non-college educated couples.  Apart from the homogamy aspect of the studies, it was interesting to learn about correlation between income and duration of marriage. 

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I wanted to share with our readers a very special song I heard today by the Zac Brown Band called Highway 20 Ride about a father's visitation with his son.  Here's the video and lyrics.  Hope this is as meaningful to you and it was to me:

Highway 20 Ride:

I ride east every other Friday
But if I had it my way
A day would not be wasted on this drive
And I want so bad to hold you
Son, there’s things I haven't told you
Your mom and me couldn't get along

So I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

A day might come you'll realize
That if you see through my eyes
There was no other way to work it out
And a part of you might hate me
But son, please don’t mistake me
For a man that didn’t care at all

And I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

So when you drive
And the years go flying by
I hope you smile
If I ever cross your mind
It was the pleasure of my life
And I cherished every time
And my whole world
It begins and ends with you
On that Highway 20 ride....
 

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In a meeting yesterday with a client, he asked me why we couldn't agree for the attorney for his soon-to-be-ex wife to draft the final divorce decree so she would have to bear the cost of the attorney's time for this activity.  He wants to pinch the pennies and avoid paying me to do this.

I told him the story of "Joe" -- not his real name, obviously -- who chose not to hire an attorney and let his wife's attorney do all the work.  The wife's attorney drafted their agreement and drafted in creatively, even craftily, such that Joe didn't get exactly what he thought he was getting.

An attorney can advocate for a client in just the simple drafting of the wording of a document.  Sometimes this wording can mean the difference in having an enforceable court order or a piece of paper that is virtually meaningless.

Take the example given by Sam Hasler in the Indiana Divorce and Family Law Blog: 

Take this scenario: parties agree that one gets Y unless x happens. Being even more specific, assume that one party agrees to give the other half a pension, unless the other married.

What happens if the other party does not marry but lives with someone? Does the other party get the share of the pension?

Answer: Yes.

You get stuck with the language you put into an agreement. No better reason exists for getting a lawyer to at least read any agreement put together during any case. A lawyer provides to the parties an objective, critical for catching the problems that might arise out of a proposed agreement.

 

Married means married. If the Decree/agreement says married, then
living together does not matter. She gets the pension.

One of the most common examples that most people remember is President Clinton's lawyerly dispute about the meaning of the word "is" during his grand jury testimony.  Consider Timothy Noah's commentary in Slate magazine on September 13, 1998:

Years from now, when we look back on Bill Clinton's presidency, its defining moment may well be Clinton's rationalization to the grand jury about why he wasn't lying when he said to his top aides that with respect to Monica Lewinsky, "there's nothing going on between us." How can this be? Here's what Clinton told the grand jury (according to footnote 1,128 in Starr's report):

"It depends on what the meaning of the word 'is' is. If the--if he--if 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

In other words, President Clinton rationalized that "is" meant in the present moment, and he distinguished it from meaning over the past spanse of time.

I stress to clients the importance of having their lawyer draft the decree so that they know their best foot is put forward and as much of the advocacy of the nuances of small words -- like "is" -- can be avoided or massaged to their favor.

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Businesses can pose special challenges upon divorce. As Dallas divorce attorneys, we deal with these issues in many of our cases, with businesses acquired during the marriage and also businesses owned by one spouse before marriage.

Texas law typically treats corporations, partnerships, and other types of businesses as a separate legal entity – existing apart from shareholders and partners. Because these businesses are separate legal entities, only the spouse’s interest in the corporation, partnership or other business is up for division by the divorce court. This means that specific corporate assets are often off-limits in a divorce action. But, there is an exception to this rule when alter ego can be established.

If the business is found to be the “alter ego” of a spouse, divorce courts can “pierce the corporate veil” to move assets out of the corporation and divide them between the parties as part of the shareholder's community estate. A finding of alter ego sufficient to justify piercing in the divorce context requires the trial court to find:

 (1)       unity between the corporation and the spouse such that the separateness of the corporation has ceased to exist, and

(2)        the spouse's improper use of the corporation damaged the community estate beyond that which might be remedied by a claim for reimbursement.

The concepts of alter ego and piercing are applied in divorce cases to achieve an equitable result, that is, a just and right division of the marital estate. Generally, the divorce court will pierce to avoid leaving the community estate with virtually no property.

Whether you are a business owner, spouse of the business owner, or the attorney representing either party, when a business interest is part of the community estate, or owned by one spouse during the marriage, keep the equitable principles of alter ego and piercing the corporate veil in mind when evaluating the strategy for a divorce proceeding.

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Dallas County is one of several counties that has statutory probate courts.  In addition to statutory probate courts, Dallas County also has dedicated family district courts (some counties, i.e. Collin, have district courts of general jurisdiction).  Dallas divorce lawyers need to know that the jurisdiction between these two courts can sometimes overlap. 

In Dallas county, divorce suits are brought in the family district courts and suits pertaining to guardianship of an individual are brought in the probate court.  If a Dallas divorce case involves issues of guardianship, then under the Texas Probate Code, the probate court has jurisdiction to hear matters "appertaining to" or "incident to" the guardianship proceeding.  The effect of this is that the entire divorce proceeding can be transferred to the Dallas probate courts.

This overlap of jurisdiction can come up when one party to the divorce has been deemed incapacitated by the probate court and is seeking (or responding to) a divorce.  Another instance the overlap of jurisdiction can arise is when an adult disabled child has been declared incapacitated by the probate court and one of the parties to the divorce action is seeking adult disabled child support.  In addition to the Texas Probate Code, a provision of the Texas Family Code provides a probate court jurisdiction in a guardianship proceeding for the person after the person is an adult. 

Jurisdiction is a confusing area of the law, but it can make a huge impact on the outcome of a case.  Knowing which court you can have your matter heard in gives you additional options, and sometimes a more favorable outcome. 

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