Do the 12 divorce myths apply in Texas? (part 1)

Do the 12 divorce myths apply in Texas?

Wooden Blocks with the text: MythsThe Huffington Post ran an article recently about the 12 Top Divorce Myths. The article was written by Daniel Clement, renowned divorce lawyer in New York, and they all hold true in Texas divorces as well. My favorite myth is #8. Read on to learn why.

Myth 1: Visitation can be denied if my ex doesn’t pay child support.

Like in the author’s come state, Texas does not tie possession of children with payment of child support. Enforcing a cchild support oblgation is a separate and distinct process from possession of a child. Denial of possession can result in punishment by jail time, jjust as can failure to pay child support. The two issues are not related and trying to make them related could result in a big problem.

Myth 2: Commit adultery, lose everything.

Adultery is not the big-ticket issue that it used to be. Many, if not most, divorces have issues related to adultery. Keep in mind, adultery is not necessarily the same thing as infidelity. A person can be unfaithful to a marriage without committing adultery. Under Texas case law, adultery requires absolute proof of intercourse outside the marriage. Proof of adultery can be a factor in granting a fault-based divorce and can be used in considering what split of assets would be jjust and right under the circumstances. If a spouse spends money on a paramour, that can definitely be considered in the division of the estate. If a paramour is around the children, adultery can be a factor in determining each parent’s relationship with the children after the divorce. But, just because someone commits adultery does not equate to a huge windfall to the innocent spouse.

Myth 3: Divorce can be denied.

Texas is a no-fault divorce state. This mean that a person can get a divorce without having to prove a reason for the divorce. A judge cannot deny a divorce if one spouse requests it.

Myth 4: Mothers are always given custody of the children.

This is sometimes called the “tender years doctrine” – which presumes that mothers must have custody until the children are a certain age. This law was abolished in Texas in the 1970’s. Now parents are presumed to start on equal footing regardless of gender. Parents now are given joint custody of their children, with equal decision-making authority, unless a parent has a problem that really affects his or her parenting ability. Factors that can affect the judge’s decision can include each parent’s ability to coparent, the best interest of the child, and the circumstances of each family. See my previous blog post No Mommy Presumption in Texas.

Myth 5: You must have a lawyer.

You do not have to have a lawyer in Texas to get a divorce. I strongly advise it. But it isn’t mandatory.

Myth 6: You must get divorced in the state where you married.

Nope. You can get divorced in Texas, regardless of where you got married, if you have lived in Texas for at least 6 months.

 

For discussion of the remaining 6 of 12 divorce myths, read our post next week.

Can I pay my child support in pizza? Creative payment methods of child support not in cash money.

child eating pizzaChild support is ordered to be paid by Texas judges in terms of monetary support. In my 25 years of practicing family law, I have never seen a judge approve a court order for payment of child support in some manner other than cash money.

But, then I saw this article (Italian court rules divorced chef can pay child support in pizza) that made me think outside-the-box about creative alternatives for payment of child support that will still support the child, yet not involve an exchange of cash.

A chef in Italy was ordered to pay about $335 in monthly child support to his ex-wife. But, his business suffered a major financial set back, making cash payments difficult for him. So, he offered the same form of compensation in food from his business. Pizza, calzones, and other menu items were included in the deal. The ex-wife at first refused to accept the food as tender for child support, so the parties went in front of a judge in a contested hearing. The Judge ordered that, in light of Italy’s financial crises in 2008, he could remit payment of child support in the form of food. Unfortunately, the chef had to close his business in 2010 and could no longer pay in food. But the story ends happily because in 2011, the daughter moved in with the father full-time.

The reality is that supporting a child requires cash. Electric companies, mortgages, car payments, and retail clothing businesses all require cash money in exchange for their goods and services. They won’t accept pizza as currency. But, this gives food (pun intended!) for thought about creative solutions in the right set of circumstances for providing child support when cash isn’t available.

5 things you will wish you knew after your divorce

Motivational-Winston-Churchill-QuotesMaking the decision to divorce is one of the hardest, most emotional decisions in a person’s life. Dealing with the heartbreak and disappointment that comes along with divorce can be enough to overwhelm the strongest person. Then, dealing with the legal issues of the breakup can push a person beyond where they thought their limit is. One author posted about the 5 things she wished she had known before filing for divorce in HuffPost.

  1. The divorce will take twice as long as you think it will.

There are many factors that affect the length of time a divorce will take. First, in Texas, a divorce must stay on file for a minimum of 60 days. Usually, only the most agreeable divorces finish in that short time period. Divorces involving contested issues will inevitably take much longer. Plan for it.

  1. It is going to cost twice as much as you think it will.

Abraham Lincoln is credited with saying, “A lawyer’s time and advice are his stock in trade.” Thus, the more time or advice you need from lawyer, the more your divorce will cost. The easiest and least expensive divorces are those where the spouses can agree on all of their issues. In this event, the attorney becomes the draftsman of the legal documents. If the two spouses cannot agree, lawyers will have to advocate through the process to either reach an agreement or ultimately have a contested trial where a judge decides the issue(s).

  1. There will be bad feelings between you and your ex.

The reality is that you will probably have bad feelings between you and your soon-to-be ex during the divorce process. This is normal. However, especially if you have children, it is best to try to suppress those feelings for the most part. After the divorce is over, you can both move on and forgive the hurt. During the divorce is probably too soon for that.

  1. The ex’s family will probably hate you too.

Blood is thicker than water, they say. During a divorce, this proves true. No matter how close you were to his mother during your marriage, getting a divorce now makes you Enemy-Number-1 and there will be hard feelings with his family. Hopefully you will all be able to keep some modicum of peace for the sake of the children. But, still, just accept that you are the common enemy.

  1. You will feel awful during your divorce.

Feel lost? Sad? Like you can’t get out of bed? That’s pretty normal. Many people going through a hard time find that they benefit from a short round of anti-depressants. If meds aren’t your thing, try yoga, or running, or counseling. Take up a new hobby. Try something new that will occupy your mind so you aren’t hyper-focused on your sadness. Make your new thing healthy – you don’t want to wake up from your divorce fog one day with 100-pound weight gain or a new smoking habit or worse. But know that the feeling-like-poo phase will end. You will get through this.

How to act in Texas family court

tell the truthIt is important to remember that a hearing or trial is a very important snapshot of your life and you will be judged either by the judge or jury based on your every move and action or reaction. Smiling at the wrong time or laughing at an inappropriate joke will crush your credibility. Being too stiff can make you seem like you are hiding something. Being too confident can come across as callous. So what are the rules?

Tell the truth.

Above all, tell the truth. Tell the absolute truth. Lying rarely works. Family court judges and lawyers see people lie in family court often and can tell when someone isn’t truthful. Even a “fudge” or “white lie” can make you look bad and damage your credibility.

Appropriate and inappropriate communications

Don’t communicate with the other lawyer. The ethics code prohibits lawyers from talking to parties who are represented by counsel. Further, avoid outbursts in the courtroom. Even if the other side tells the worst lie about you that you can imagine, shouting out “that’s a lie” will only make you look worse and do nothing to help your case. Don’t extend your anger into the hallway. You can’t know when a member of the court staff is in the hallway to observe bad behavior and report back to the judge. Take the proceedings seriously. Funny things happen in court, but you don’t have to laugh at the joke when you are dealing with a serious issue.

Control your emotions.

Family court involves emotional issues. But, even so, it is important for you to keep your emotions under control. Failing to control yourself in court will cause a question as to your ability to control yourself in stressful parenting situations in front of your child. This will cause a judge to question your ability to parent and make your case very difficult.

Know details about your case.

It is important to remember details about important events involved in your life, and your case. Making an allegation that the other party did something wrong but failing to remember the details of the situation will make the judge question your credibility about the entire event. Dates and times are especially important. If you allege that your spouse threw a bowl at you during an argument, you should remember the date and time and details surrounding the event. Otherwise, it will hurt your believability about the importance of the event. If it was that important, you would remember more – that’s how the judge will see it.

Credibility is the most important factor in how you present in court during a hearing or trial. Being believable and likeable is a very important key to getting a good result in court. Having appropriate interactions and reactions is a key to this.

Email and tech dangers in Texas family court

Record-Phone-CallsWord to the wise about technology – communications can be preserved, printed, and used at trial. Be careful what you say and how you say it. Resist the temptation to respond to every communication sent by an angry spouse or co-parent. It is possible these types of communications are being sent as “bait” to lure you fire back an angry, knee-jerk response. This can hurt your case.

Keep all of your emails with your spouse. If your spouse slips up and sends some damaging emails, those will be evidence in your case. But, you cannot just save the emails that are “good” for your case. The doctrine of spoliation prohibits destruction or hiding of any relevant evidence. So, don’t get delete-happy with emails that relate to the custody or divorce issues.

But, evidence doesn’t just stop with emails. Remember that recording devices exist too. Telephone calls can be recorded. Meetings can be videotaped. Even when you think things are private, like in your home, or even your bedroom, your actions can be recorded. Security cameras or nanny-cams can be turned on with a mobile phone at just-the-right time to record that fight where you react and throw something, but it may not catch the other party’s actions leading up to it.

Now speaking of recording phone calls, ONLY record phone calls to which you are a party. Do NOT record a call if you aren’t on the phone. This rule applies even if you own the house, the phone, and the wires that lead to the phone. This most especially applies if your child is on the phone with the other parent. Further, if you illegally record something and provide it to a witness in the court system, that witness’ testimony will be completely stricken, no matter how good it is. Also be cautious about recording statements made to you by a child. You may think that you are preserving how the child feels about something, but if there is the least bit of suggestion or prompting of answers to the child, the recording will be inadmissible and it will call into question your credibility through the rest of your time in front of the judge. Recordings can be a double-edged sword.

Videotaping also carries an additional burden of the possibility of invasion of privacy. What occurs in public may be subject to public videotaping, but recording what someone does in the privacy of their own home or bedroom or using eavesdropping devices can cross the line and subject you to criminal prosecution.

Under federal law, you may record your own conversations. But preserve those recordings exactly as they are made. Any gaps or errors in the recording will diminish or exclude that evidence. Remember the spoliation doctrine above also applies to recordings. You must produce all recordings that you have. Don’t destroy them, even if they are bad for you.

So, the best maneuver is to watch your “p’s and q’s” at all times, most especially once you know that litigation is coming.

Does your Texas county have Standing orders in divorce and family law cases?

Most petitions for divorce or seeking relief in a suit affecting the parent child relationship in Texas include a request for a two-week temporary restraining order. This is intended to maintain the status quo and prevent one spouse from taking any action that harms the other until a hearing may be held.

The temporary restraining order may prevent spouses from hiding money or spending money in abnormal ways. It also may prevent the interference of the use of the marital residence. The temporary restraining order cannot exclude a party from the home without special circumstances, and it prevents the changing of locks or any other type of exclusionary action. The temporary restraining order specifically excepts spending money for reasonable and necessary living expense, including attorneys’ fees, or business expenses of the parties.

Some counties utilize a standard temporary restraining order, called the Standing Order, in every family law case, including divorces, to automatically and mutually prohibit both spouses from taking certain actions upon filing of the case. The Standing Order is effective upon filing of the petition. The enforceability of the Standing Order may be questionable, so some lawyers may elect to request a temporary restraining order in addition to the standing order. Across the state, 76 counties utilize the Standing Order in lieu of the standard temporary restraining order. Of the larger counties, Dallas, Travis, and Bexar have Standing Orders, where Tarrant and Harris do not. Each county’s Standing Order may differ slightly. Be sure to check your county as to their policy on Standing Orders. The appendix contains a table with reference to the Standing Orders of various counties.

If your county does not have a Standing Order that applies automatically to family law cases, you can still be protected. Instead, parties must file a request for temporary restraining order, detailing the specific family law restraining orders that apply to the particular situation. If the requested order is not one of the laundry list of applicable restraining orders set forth in the Texas Family Code, then the party seeking the restraining order must include an affidavit supporting why the order is necessary under the specific circumstances of that particular case. Again, except in very unusual circumstances, the court will not issue an order removing someone from the marital residence until a hearing can be held. A case-specific temporary restraining order in this situation will last for 14 days, with the possibility of one 14-day extension, so a hearing must be held during that 14 day period to resolve the issues raised by the temporary restraining order.

Traditionally, there has been some question among lawyers about the enforceability of Standing Orders as compared to restraining orders. Recently, the Texas Legislature has codified enforcement of Standing Orders to provide greater remedies for enforcement.

STANDING ORDERS BY TEXAS COUNTY

The following information was compiled by Michelle May O’Neil of O’Neil Wysocki, P.C., Dallas, Texas, in January 2016, based on the information available at that time. Before you rely on this information, confirm with the county at issue whether this information remains accurate. Many courts update their policies and orders frequently. If you are a lawyer practicing in one of these counties and have updated information, please send it to me.

Anderson: No* (but see here)

Andrew: No

Angelin: No

Aransas: Yes

Archer: No

Armstrong: No

Atascosa: No

Austin: No

Bailey: No

Bandera: Yes

Bastrop: Yes

Baylor: No

Bee: Yes

Bell: Yes

Bexar: Yes

Blanco: Yes

Borden: No

Bosque: Yes

Bowie: No

Brazoria: No

Brazos: Yes

Brewster: No

Briscoe: No

Brooks: No

Brown: No

Burleson: No

Burnet: Yes

Caldwell: Yes

Calhoun: No

Callahan: No

Cameron: No

Camp: Yes

Carson: No

Cass: No

Castro: No

Chambers: Yes

Cherokee: No* (but see here)

Childress: No

Clay: No

Cochran: No

Coke: Yes

Coleman: No

Collin: Yes

Collingsworth: No

Colorado: Yes

Comal: Yes

Concho: Yes

Cooke: No

Coryell: Yes

Cottle: No

Crane: No

Crockett: No

Crosby: No

Culberson: No

Dallam: No

Dallas: Yes

Dawson: No

Deaf Smith: No

Delta: Yes

Denton: Yes

DeWitt: No

Dickens: No

Donley: No

Eastland: No

Ector: No

Edwards: No

El Paso: No

Ellis: Yes

Erath: Yes

Falls: No

Fannin: Yes

Fayette: No

Fisher: Yes

Floyd: No

Foard: No

Fort Bend: No

Franklin: Yes

Freestone: No* (but see here)

Frio: No

Gaines: No

Galveston: No

Garza: No

Gillespie: Yes

Glasscock: No

Goliad: No

Gonzales: Yes

Gray: No

Grayson: No

Gregg: No

Grimes: 12th and 278th District Courts: Yes; 506th District Court, Yes.

Guadalupe: Yes

Hale: No

Hall: No

Hamilton: No

Hansford: No

Hardeman: No

Hardin: No

Harris: No

Harrison: No

Hartley: No

Haskell: No

Hays: Yes

Henderson: No

Hidalgo: No

Hill: No

Hockley: No

Hood: Yes

Hopkins: Yes

Houston: No

Howard: No

Hudspeth: No

Hunt: No

Hutchinson: Yes

Irion: Yes

Jack: Yes

Jackson: No

Jasper: Yes

Jeff Davis: No

Jefferson: No

Jim Hogg: No

Jim Wells: No

Johnson: No

Jones: No

Karnes: No

Kaufman: Yes

Kendall: Yes

Kenedy: No* (but see here)

Kent: No

Kerr: Yes

Kimble: No

Kinney: No

Kleberg: No* (but see here)

Knox: No

LaSalle: No

Lamar: No* (but see here)

Lamb: No

Lampasas: No* (but see here)

Lavaca: Yes

Lee: No

Leon: Yes

Liberty: Yes

Limestone: No* (but see here)

Lipscomb: No

Live Oak: Yes

Llano: Yes

Lubbock: No

Lynn: No

Madison: Yes

Marion: No

Mason: No

Matagorda: No

Maverick: No

McCulloch: No

McLennan: Yes

McMullen: Yes

Medina: Yes

Menard: No

Midland: No

Milam: No

Mills: No

Mitchell: Yes

Montague: No

Montgomery: Yes

Moore: No

Morris: Yes

Motley: No

Nacogdoches: No

Navarro: Yes

Newton: Yes

Nolan: Yes

Nueces: Yes

Ochiltree: No

Oldham: No

Orange: No

Palo Pinto: No

Panola: No

Parker: No

Parmer: No

Pecos: No

Polk: Yes

Potter: No

Presidio: No

Raines: Yes

Randall: No

Reagan: No

Real: Yes

Red River: No

Refugio: No

Roberts: No

Robertson: No

Rockwall: Yes

Runnels: Yes

Rusk: No

Sabine: Yes

San Augustine: Yes

San Jacinto: No

San Patricio: Yes

San Saba: Yes

Schleicher: Yes

Scurry: No

Shackelford: No

Shelby: No

Sherman: No

Smith: No

Somervell: No

Starr: No

Stephens: Yes

Sterling: Yes

Sutton: No

Swisher: No

Tarrant: No

Taylor: No

Terrell: No

Terry: No

Throckmorton: No

Titus: Yes

Tom Greene: Yes

Travis: Yes

Trinity: No

Tyler: No

Upshur: No

Upton: No

Uvalde: Yes

Val Verde: No

Van Zandt: No

Victoria: No

Walker: Yes

Waller: Yes

Ward: No

Washington: No

Webb: Yes

Wharton: Yes

Wheeler: No

Wichita: No

Wilbarger: No

Willacy: No

Williamson: No

Wilson: No

Winkler: No

Wise: Yes

Wood: No

Yoakum: No

Young: Yes

Zapata: No

Zavala: No

 

HAT TIP to Patricia Orozco Hardy for her help in correcting the Grimes, Leon, Madison, and Walker County listings.

 

 

Small business issues in a Texas divorce

business-valuation-in-divorce-300x259On Monday, February 29, 2016, Attorneys Michelle May O’Neil and Jere Hight presented a webinar on Small Business Issues in a Texas Divorce through the West LegalEdcenter, a Continuing Legal Education resource for attorneys looking for accredited educational opportunities within their given practice area. West LegalEdcenter hosts its webinars for 180 days, allowing lawyers to access the content at their convenience.

 

In the hour-long session, Attorneys O’Neil and Hight discussed the added complications small businesses provide during the Texas divorce process, including the effect of the type of entity on the treatment of the business as marital property, methods used in valuation of the small businesses, and the characterization of the business as either separate or community property.

The attorneys also covered an often ignored topic: the continued operation of a jointly-owned business following the completion of the divorce. When spouses wish to continue to run their business together after their divorce, ongoing operation agreements may be required. Other actions, such as securing pay-off judgments and the withdrawal of a spouse from the business entity were also discussed.

“Small Business Issues in a Texas Divorce” will be available from West LegalEdcenter until Saturday, August 27. For information on the presentation and West LegalEdcenter, please visit http://westlegaledcenter.com/.

For a copy of the presentation from the webinar click here:Small Business Issues in a Texas Divorce presentation

Will you be my Divorce Valentine?

valentines divorce-filingsValentine’s Day should be the day of love and romance, roses and chocolate. Right? For some yes, but for divorce lawyers, February is well into the swing of Divorce Season. Studies conducted by AVVO cite to a 40% spike in new divorce filings in the days around Valentine’s Day. Cynically, many point to someone not getting the right gift for Christmas or not enough flowers for Valentine’s Day. Others point to learning that a spouse shared Valentine’s Day with a girlfriend or boyfriend. Since many marriages end because of financial stress, another reason for the rise in divorce could be getting the bills from Christmas in the mail and fighting about how to pay them.

If you are planning for divorce in February, whatever the reason, be sure that you are ready for the reality of divorce. Make sure you have fully considered the very real emotional and financial negatives of divorce. Many women are worse off financially after divorce than they were before – some sinking into poverty level post-divorce. Others are lonely and scared to be alone. Think through what your situation will be after the separation and divorce. How will you pay the bills? Where will you live? Can you afford to keep the house or should you look elsewhere? Do you know what assets exist that are Texas community property subject to division during the divorce? Do you have access to cash to pay for living expenses when the divorce is first filed until a Court can enter temporary orders providing grounds rules for how the bills will be paid? And that doesn’t even begin to cover the issues surrounding finding and hiring a good Texas divorce lawyer to help you through the process.

There may not be answers to each of those questions – they may be ongoing thoughts. But start the process of thinking about them.

Hat tip:

Heartbreak! Divorce filings rise 40 percent around Valentine’s Day: study

Divorce Season – 6 topics to consider when meeting with a lawyer

January-The-Divorce-Month1January is the month for examination of our lives to find areas for improvement. Some join a gym; others focus on weight loss or financial budgeting. But yet others contemplate a more major life change in January – divorce. January to March has become known as the “Divorce Season” with the highest incidence of couples filing for divorce.

According to a study conducted by FindLaw.com and reported in Divorce Magazine, between 2008 and 2011 divorce filings spiked in January, continued to rise through February, then peaked in late March. The first three months of the year are looked upon as the time to start a divorce action.

So where does one start when reaching the decision to start a divorce? Most people start searching for a lawyer by asking friends for advice and searching the internet, but here are six topics to consider:

1. Identify the potential need for a divorce attorney early.

2. Reach out to trusted resources for referrals.

3. Hire an attorney certified by the Texas Board of Legal Specialization in family law.

4. Ask questions of the attorney at the initial consultation.

5. Take inventory after the meeting regarding your feelings regarding the lawyer interviewed.

6. Trust your gut – if it doesn’t not seem right, it probably isn’t.

Read more: How to choose the right Dallas divorce lawyer

Read more: What to ask an attorney during your first interview

 

5 questions if you want to keep the house after divorce

Real estate concept - two hands trying to divide house, isolated

In December, Dallas showed up in the #4 spot on Realtor.com’s list of hottest real estate markets. It moved up one spot from November, when it was ranked at #5. In the latest report, Dallas was outranked by only three other U.S. cities (all of them in California) — San Francisco, San Jose and Vallejo. (See report from Home Buying Institute here.) Houses tend to sell more quickly in these hot markets, compared to other cities across the country. And, stories of first day listing bidding wars are frequently heard around the coffee pot at realtor offices in DFW. So, what does that mean if you are going through a divorce? How do you factor that in to deciding to keep the house, let the other spouse keep the house, or sell it and split the proceeds?

Today I received in the mail a very timely newsletter from John Snell, CDLP about mortgage lending in divorces. He made some very timely points about topics to consider for a spouse who wants to keep the house after the divorce.

1.Why do you want to keep the house after you get divorced?

This question may be difficult to answer for many. For some, one house may be the same as another house — just a place of shelter and functionality. But for others, the home carries many emotional ties. It may have good memories, such as the place where the child took his or her first steps. Or, it may carry negative memories, such as the painful reminder of the broken marriage. Either way, there are many emotional, financial and practical considerations to consider in deciding whether to keep the house.

2.Is your home a good investment (especially in the Dallas real estate market)?

Going through a divorce requires a hard look at your financial interests. Compare the home’s value in the market to the amount owed to determine the net equity. Also, look at the future market trends for your house and your area. Is this a good long-term investment for you? Or, will this prove detrimental to your financial interests over time? A realtor can give you an idea of comparable sales to determine a ballpark value of your home — and they usually do this for free.  (Call Realtor Debbie Murray at Dallas Luxury Real Estate if you want to talk about how much your house might be worth.) One unique factor right now is the heat of the Texas real estate market. In a normal market, the considerations of keeping the house may be different. But in this market, the selling factors may present an opportunity to make a different decision if the value of the house is high.

3.What is the condition of the house?

It is a good idea to look at your house the way a buyer would when you are considering whether to keep the house in the divorce. What are the repair issues that need to be addressed? Is the roof in good condition? Is the a/c unit in need of servicing? You should consider having a home inspection done prior to discussing settlement to look at repair issues that would affect the overall value of the home. Use the cost of repairs to negotiate the value of the house downward during the divorce negotiations.

4.Can you afford the home on your own after divorce?

If you were dependent upon your spouse’s income during the marriage to afford the living expenses related to the house, you need to fully examine whether you can afford to keep the house without the spouse in the picture. For many people, divorce negatively affects their financial status. Income usually goes down and expenses go up. If you are unsure about what you can afford or need help putting together a budget, consult with a financial professional for help.

5.Can you qualify to refinance the home to remove the other spouse from the note after divorce?

Although it cannot be forced in a Texas divorce, you will want to consider the option of refinancing the home mortgage if you are going to keep it after divorce. This will put separation from your ex-spouse on all issues. Otherwise, as long as he or she is on the note, that ex-spouse will have the right to inquire about timely payment of the note in the future. You can call a mortgage lender who specializes in divorce situations (like John Snell) to find out more.

For the most part, there is no right or wrong answer to this issue. Each situation is unique and has different positive and negative thoughts to balance. Through the combined advice of your Dallas Texas divorce attorney, your DFW realtor, and your divorce-specialized mortgage lender, and your financial professionals, you can reach an educated and informed decision.

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