Digital and virtual assets as part of the marital estate and division of property

Our lives are becoming more and more connected to technology. Without even thinking about it, spouses may have digital or virtual assets with value to the community estate that should be considered in the division at divorce. 

Chris Meuse's article on the Dallas Bar Association website sheds light on how to address digital and virtual assets in divorce.

The first step, according to Meuse, is to identify whether the parties have any valuable digital or virtual assets. 

Digital assets are intangibles that only exist in a digital form (i.e. data in the form of binary digits). Such assets may include: e-mail and social network accounts; websites; domain names; digital media, such as pictures, music, e-books, movies, and video; blogs; reward points; digital storefronts; artwork; and data storage accounts. These assets, although intangible, are marital property and are subject to characterization, valuation and division, during divorce.

Two examples of digital assets that most people getting a divorce in Dallas, Texas own are the iTunes music library and the Kindle digital book collection. Virtual media libraries, such as Apple’s iTunes and Amazon’s Kindle libraries, are the modern way to store a media collection. Music, movies, and books are now able to be stored on applications such as iTunes on an individual’s computer, cell phone, or any other supportable device.  In addition to adding media already owned, a user can download content; in the context of iTunes, the iTunes Store allows easy access to purchase a variety of media with a simple click. When the company provides their software to individuals, the individual receives a license to use or rent the software, not to own it. So an individual using iTunes really owns a legal right to use the product, not outright ownership of the product. The registered user is also the only individual actually allowed to use the product – not the individual’s significant other or family members -- making division in divorce difficult.

Virtual assets are intangibles used in virtual worlds or massively multiplayer online role-playing games (“MMORPGs” for short). Popular, online communities, such as World of Warcraft, Second Life, and Entropia, draw millions of users worldwide, who spend billions of dollars each year within these virtual realms. In 2009, 3.8 billion dollars were spent on MMORPGs, with over $100 million going towards virtual assets in these online communities. These assets range from virtual pets; avatars; accessories for those avatars (clothing, weapons, etc.); prizes; virtual real estate; to virtual currency. The popularity of these virtual worlds and games is only growing, and family law attorneys must realize these assets are out there and should start asking if they are a part of marital estates.

Once such assets are identified, the next step, as with the analysis of any asset of a marriage, is to determine whether the asset was acquired during the marriage, making it community property subject to division in the divorce, or whether the asset was owned prior to the marriage and is therefore separate property and outside the reach of the divorce court. This analysis is no different with digital or virtual assets than it is with a tangible asset. The example given by Meuse involves an income-producing blog.  If a blog was started during the marriage, it should be considered community property. If a blog were started before the marriage, but it was monetized and produced income during the marriage, that income would likely be considered community property. And, if the spouse who did not come into the marriage with that blog contributed to it by posting to it, editing it, or advancing it in any way, the community estate may have a reimbursement claim against the other spouse’s separate property estate for increase in value to that blog.  

Next, the value of the digital or virtual asset must be determined.  This is the difficult part of the analysis. Many personal, digital assets, such as photos or videos, have little to no market value but have great sentimental value to parties. Other digital assets, such as websites, personal blogs, or domain names can have great value. For instance, the most expensive domain name ever sold, vacation rentals [dot] com went for $35 million in 2007.  Many web-based services are available to value digital assets, and many of those same services can be used to sell such assets. The value of virtual assets can often be determined in the virtual marketplace.  Thousands of transactions take place daily for virtual goods, and like digital assets, the value of virtual goods should not be underestimated. In 2010, for example, a virtual nightclub, Club Neverdie, ran by Jon Jacobs in the virtual Entropia Universe (a virtual world with a real-cash economy) sold for $635,000.00.  

After digital or virtual assets are identified and character and value determined, parties must still figure out how to assign or divide that assets. Some digital assets, such as airline miles or membership points, can be transferred. Other digital assets, like digital photos or videos can be copied. But some assets, like e-books or other digital media files cannot be transferred. When parties own digital or virtual assets that cannot be transferred or copied, practitioners must value such assets, award them to one party, and provide value to the other party, in lieu of those digital/virtual assets.


Rule 11 agreements are revocable before judgment is rendered

A point of confusion for many in the family law context is the viability of a rule 11 agreement to settle an issue or a whole case. 

Rule 11 of the Texas Rules of Civil Procedure provides that an agreement between lawyers in a case is enforceable as long as the agreement is in writing and filed in the papers of the court or read into the record of the court.  However, rule 11 agreements are revocable at any time until judgment is rendered. A court may not enter an order upon a rule 11 agreement when one of the parties to the agreement has revoked his or her consent.

The recent case of  Woody v. Woody, __SW3d__, No. 14-12-00762-CV, 2014 WL 1512395 (Tex. App.—Houston [14th Dist.], 2014, no. pet. h.) (04/17/2014), illustrates this point.  In this case, the parties had very contentious litigation over child support.  In the end, they reached a rule 11 agreement read into the record, but before judgment could be rendered by the court, the father revoked his consent.  The trial court entered judgment anyway, which the Houston 14th Court found to be error. 

Parties can enter into an enforceable Rule 11 agreement if it is made in open court and entered of record. If a party revokes its consent to a Rule 11 agreement at any time before the trial court renders judgment in the case, the agreement can no longer simply be “approved” by the court; instead, the enforcement mechanism is through a separate breach of contract action. Here, although the parties entered into an agreement in open court, Father subsequently requested a reduction in child support. Therefore, Father clearly withdrew his consent to that agreement before the trial court rendered judgment. Accordingly, the trial court erred by incorporating the child support agreement into the final judgment.


Strategy in Asset Divisions - Do's and Don'ts

One asset does not always equal another asset, even if the values are identical. One reason for this may be based on the personal situation of each spouse.  For example, one spouse may have a greater need for cash in the short run, where the other spouse may place higher need on retirement assets. Personal preference or short-term and long-term financial needs may be only part of the equation. Tax consequences of a property division can impact the long-term financial future of divorcing spouses. 

Deborah Nason with CNBC pointed out the not-so-obvious effects of a divorce property division in her article Not always a rose: Avoiding thorny asset-liquidation issues in divorce. For example, she points out, “if the wife keeps a house with $500,000 equity, this asset generally has a gain exclusion; if the husband keeps a 401(k) worth $500,000, he will sustain an unavoidable tax liability—one-third of it could go to taxes.”  However, a judge will view these assets equally based solely on valuation at the time of the divorce. 

But, keep in mind, liquidation is not the best answer either because liquidation creates a taxable event.  Dividing assets between spouses during a divorce is generally not a taxable event. Nason’s article points out, “…because transferring assets between spouses is a nontaxable event, it becomes a great motivator to trade assets back and forth”. 

Nason suggests the following Do’s and Don’ts in considering asset liquidation as part of a divorce: 

Asset liquidation dos and dont's 


—Understand the cost basis of investable assets.

—Make sure you know the purchase price of a real estate asset and quantify all improvements made.

—Understand what the capital gain will look like for the sale of a home.

—Make sure to obtain good business valuation (on equipment, buildings/real estate, goodwill, customer lists, customer base, etc.).

—Get an appraisal for collectibles.


—Liquidate a 401(k) if at all possible.

—Sell something that will result in the biggest capital gain.

—Forget to be aware of the change in capital gain exclusion from $500,000 to $250,000 when the proceeds of a house sale are split.

—Sell an asset without getting a fair price.


4-day delay in entering written contempt and commitment order renders enforcement void

Child support enforcement is akin to a criminal prosecution and must be handled with the utmost eye toward the due process rights of the accused.  It is a well-settled and obvious rule that, in order to hold someone in jail on an enforcement case, such as for nonpayment of child support, both the contempt order and the commitment order must be in writing and signed by the judge immediately following the commitment.  Failure to do both of these things renders the commitment void. 

The Houston 1st District Court of Appeals decided a case illustrating this point recently.  There, the mother sued the father for enforcement of child support and medical support payments he failed to make.  The trial court found against father and held him in contempt with a sentence of 180 days confinement for each violation to run concurrently. The sentence was initially suspended pending compliance, but father failed to comply and revocation was heard.  The court revoked the sentence orally and committed father to jail for 180 sentence. Four days later, the trial court entered its revocation and commitment order.

Father sought habeas corpus, which was granted.  The court of appeals held that 4 days is too long between commitment and entry of the order according to due process. A person may not be imprisoned for contempt without a written order of commitment. An arrest for contempt without a written commitment order is an illegal restraint from which a prisoner is entitled to habeas relief. However, a trial court may cause a contemnor to be detained by the sheriff for a short and reasonable time while the judgment of contempt and order of commitment are prepared for the judge’s signature. Less than twenty-four hours to prepare a commitment order is a short and reasonable time. Two or three days between oral rendition of commitment and the signing of the written order of commitment, however, has been held to constitute an unduly delay that necessitates habeas relief. Because the trial court did not sign a written commitment order until four days after the oral rendition of commitment, Father’s due process rights were violated and that the commitment order is void.

In re Linan, ___ S.W.3d ___, 2013 WL 6504766 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding) (12/12/13)


Division of professional interest in corporation

Often in Texas divorce cases, lawyers are tasked with determining the divisible interest in a professional corporation.  This involved determining the individual’s interest in the corporation and then obtaining the value of the interest.  Often a CPA with experience in divorce litigation as well as valuation of business entities is hired to assist in this endeavor. A new recent case out of the Fort Worth Court of Appeals illustrates the complexities of dividing a professional’s interest in a corporation. 

The husband was a non-CPA partner in KPMG, a national CPA firm. He joined the firm as a shareholder and borrowed money from a third-party lender for his buy-in to the firm.  This buy-in funded the husband’s capital account.  The membership documents defined the value of the interest in the corporation as being the value of the capital account. In spite of the definition of the valuation method of the interest in the company, wife’s expert testified that husband should also have an interest in the professional goodwill of the company independent of the interest in the company.   

Goodwill that exists separate and apart from a professional’s personal skills, ability, and reputation is divisible upon divorce. To determine whether goodwill that is subject to division upon divorce attaches to a professional practice, first, goodwill must be determined to exist independently of the personal ability of the professional spouse, and then if such goodwill is found to exist, the court must determine whether that goodwill has a commercial value in which the community estate is entitled to share. While a partnership agreement is only a factor to consider in the present value of the partnership interest, the questions of whether a business possesses goodwill and if so, what the value of that goodwill consists of, are fact questions for the trier of fact. 

The trial court determined that wife’s expert lacked credibility and disregarded his valuation method, instead opting for the method of valuation stated in the membership agreement and testified to by the national director of husband’s company. So, husband’s capital account was the value of the loan proceeds minus the remaining balance on the loan. 

Hill v. Hill, 02-12-00332-CV, 2014 WL 92795 (Tex. App.—Fort Worth 2014, no pet. h.) (mem. op.) (1/9/14).


Which court is the right court?

In a county versus county venue dispute, Husband filed in County A in Texas and, one month later, Wife filed in County B in Texas.  When cases involving the same subject matter are filed in different counties, the first filed suit has dominant jurisdiction. Normally, the second court would abate in favor of the first-filed proceeding.  However, this can be waived based on the conduct of the parties.  Even if a party files a plea in abatement in County B, but he continues to participate in the litigation in County B, even to the point of reaching a settlement agreement and consenting to final judgment, he cannot then later challenge County B’s subordinate jurisdiction and seek to return to County A. By his conduct, he has waived his complaint seeking abatement.

Bonacci v. Bonacci, __SW3d__, No. 08-11-00255-CV, 2013 WL 6835285 (Tex. App.—El Paso, 2013, no. pet. h.) (12/27/2013).


Is "Conscious Uncoupling" Really Possible?

Thanks to Gwyneth Paltrow and Chris Martin, “Conscious Uncoupling” has been front and center in the headlines. I discussed this trending phrase in my blog last week.

Psychotherapist Katherine Woodward Thomas, the creator of the concept “conscious uncoupling,” describes it as “a break up that is characterized by good will, generosity and respect and a process that leaves both parties feeling valued and appreciated for what they shared. It is a process where two people are striving to minimize the damage that they do to themselves and their children.”

In my experience, more often than not, there is one person who wants out of a marriage while the other spouse wants nothing more than to remain married. When this happens, two people are rarely ever on the same page as to the divorce. Texas is a “no fault” divorce state. This means for a divorce in Texas, one spouse wanting out of the marriage is enough to allow a divorce to take place. A person does not have to prove they were abandoned or any other reason why they want a divorce. A simple “I don’t want to be married anymore” will suffice.

How likely is it a couple will have a “conscious uncoupling?” The Huffington Post discussed the pitfalls of divorce and the issues present themselves during the divorce process that prohibit or hinder a “conscious uncoupling.” In theory a “conscious uncoupling” is a wonderful goal for a couple to strive for, while going through the divorce process. Realistically, there are many painful and stressful issues that arise during a divorce process such as the division of assets and debts, child support and custody.   How a couple handles these situations requires compassion, understanding, and a great deal of communication.

What is Conscious Uncoupling?

Last week Gwyneth Paltrow and Chris Martin announced the end of their marriage in the following statement on her website

“It is with hearts full of sadness that we have decided to separate. We have been working hard for well over a year, some of it together, some of it separated, to see what might have been possible between us, and we have come to the conclusion that while we love each other very much we will remain separate. We are, however, and always will be a family, and in many ways we are closer than we have ever been. We are parents first and foremost, to two incredibly wonderful children and we ask for their and our space and privacy to be respected at this difficult time. We have always conducted our relationship privately, and we hope that as we consciously uncouple and coparent, we will be able to continue in the same manner.”

As a family law attorney and follower of all things celebrity, I was intrigued by the phrase “conscious uncoupling.”  I was not the only person as it turns out.  Blogs, talk shows, national news, morning TV, you name it have been discussing the phrase conscious uncoupling ever since Gwyneth Paltrow released her March 25, 2014 statement. 

This morning, the Today Show interviewed psychotherapist Katherine Woodward Thomas, the creator of the concept “conscious uncoupling.” The phrase was created in 2011 as an approach to divorce in a “no drama” fashion that protects the children and avoids finger pointing.   As explained this morning by Ms. Thomas, conscious uncoupling is “a break up that is characterized by good will, generosity and respect and a process that leaves both parties feeling valued and appreciated for what they shared.  It is a process where two people are striving to minimize the damage that they do to themselves and their children.”  Does conscious uncoupling appeal to you?  Ms. Thomas offers online courses on the subject.

The bottom line is divorce is difficult.  There will still be the division of assets and debts and issues relating to the children such as child support and possession schedules.    Only time will tell if Gwyneth Paltrow and Chris Martin will be able to separate and divorce in a manner termed conscious uncoupling. 


Fresh Start in 2014

At the beginning of any year, there is usually an influx in divorce filings in Texas. Many people delay initiating divorce proceedings until after the Thanksgiving and Christmas holidays. The following are my 3 simple tips should you be contemplating a divorce in 2014:

1. Be aware of your Assets – Before you meet with an attorney regarding a divorce in Texas, make sure you have the most recent financial information for both yourself and your spouse. Beneficial financial information would include the most recent tax returns, your pay stubs, your spouse’s pay stubs, any and all bank account statements, and any and all retirement statements. It is imperative for you to be able to explain to an attorney exactly what assets you two have individually and together. Gathering this information will likely save you attorney’s fees in the long run.

2. Be aware of your Debts - You should be familiar with any outstanding debts of you and your spouse. Being able to tell your divorce attorney what debts you each have individually or together aids the attorney with regards to the financial landscape of your divorce. Beneficial debt information would be the most recent credit card statements, any tax debt information, car notes, loan statements, and mortgage statements.

3. Be involved in your children’s lives – Should there ever be a dispute as to who should be the children’s primary caretaker, you will need to advise your attorney as to your involvement in your children’s lives. You need to be familiar with your child’s teachers, doctors, friends, and extracurricular activities. You need to be an active participant in your children’s daily life such as getting them to school, picking them up from school, attending school and extracurricular activities, getting them ready for bed, feeding them, helping them with homework, bathing them, and taking them to the doctor.

Smart Financial Precautions Every Person Should Make Prior to Filing for Divorce in Texas

Recently on the website Moving Forward Through Divorce, there was an article entitled “6 Smart Things to Do Before the Money Disappears.” This article chronicles financial actions a person should take in preparation for a divorce and contains useful information for divorces in Texas.

Financial preparation is crucial prior to filing for divorce in Texas. It is important to have knowledge about all financial accounts owned by you and your spouse. The article recommends having copies of at least the last three prior year’s tax returns accessible. Additionally, printing a copy of your own credit report can aid you in knowing exactly what outstanding debts are out there in your name. I advise all my clients at the beginning of the divorce process to run a credit check on themselves. More times than not my client will then become aware of a debt in their name that they had no idea about and which had been opened by their own spouse.

The article also recommends having your own credit card available in your own name. Many times at the beginning of the divorce process, one spouse will cancel the only credit card accessible to their spouse. However, having your own credit card takes away the financial control a spouse could potentially exert over you.

Finally, there are two actions that this article recommends a person take in order to maintain privacy. In Texas, a person should accomplish these tasks prior to either spouse filing for divorce as they are usually prohibited during the divorce process. The first would be to open your own bank account in your own name at a new bank. Use this account to set aside financial reserves for the divorce process. The second action to be taken would be to change your passwords, PIN numbers, and obtain a new email address. I recommend you do not use the family computer as it may be possible for your spouse to access your accounts and information.

Implementing these actions will better serve you when going through the divorce process and will expedite your ability to move forward financially.

Who Is a Good Witness for Your Texas Family Law Case?

Anytime there is a contested hearing in a Texas Family Law case, witness testimony is not only helpful but can be what decides a case.

When it comes to choosing who would be a good witness for your case, the first thing to consider is whether there is a time limit for the hearing. For example, a temporary orders hearing in Dallas is usually limited to thirty minutes or less per side. Thirty minutes is a very short amount of time to put on all the evidence you may need. Therefore, it is necessary to plan accordingly and make sure the necessary testimony from each witness is set forth in those time constraints.

The second consideration when it comes to choosing a good witness for your case is the type of testimony that will come from that witness. I advise my clients that unbiased witnesses are the best. Unbiased witnesses are not related to or friends with either litigant. Examples of unbiased witnesses are neighbors, teachers, and police officers. Additionally, testimony of a witness generally needs to be about recent events. For example, a teacher testifying about your child’s behavior in school six weeks ago is much more relevant than a teacher testifying as to your child’s behavior two years ago when your child was in that teacher’s class.

Provide your attorney with a list of each and every witness that you think may aid you in the hearing. Then discuss with your attorney why you think that witness will be beneficial to the hearing. Your attorney’s role is to evaluate each witness and advise you as to the necessity of the witness’ testimony.

Maintaining a Client's Expectations During a Divorce in Texas

When representing a person going through a divorce, sometimes you have to be the bearer of bad news and sometimes you have to give your client a reality check. I tell all my clients at the beginning of their case the following;

“You are the Captain of this ship. My role here is to advise you of the law in Texas, my experience in certain situations and what the likely outcome would be if there were to be a hearing. However, you are going to be making all the big decisions as it pertains to your case.”

I have clients ask for things in their divorce that are outside what the law provides. A perfect example is a parent who pays child support to the other parent wanting the yearly tax deduction for the child. This issue is governed by Federal law and states that the person receiving child support is the person entitled to claim the deduction for the child on their yearly tax return. Because this is governed by Federal law, no state Judge can order a person paying child support to be awarded the right to claim the child on their taxes. The only way a parent paying child support will get to claim the child on their taxes is if the other side agrees to it. It is my job to advise my client of this law as well as maintain his/her expectations on the issue.

Maintaining a client’s expectations is essential to a successful divorce. A divorce attorney is there to educate and help facilitate a settlement that is fair to their own client. This process can be challenging yet necessary.

What Is a Waiver of Service in Texas?

Every person on the receiving end of a lawsuit in Texas is entitled to personal service of a copy of the original filing or filings in that lawsuit. This includes a divorce in Texas.

Personal service is commonly referred to as a person being “served.” Being served consists of a constable or a private process server coming up to you, saying your name, and asking for you to confirm that you are that person. The process server will hand you a copy of the documents and state, “you have been served with a lawsuit”. It is a very simple and quick process and not something a person should fear or dread.

A person can waive this right to be personally served with a copy of the lawsuit by executing a Waiver of Service. However, I strongly advise all litigants to not sign a Waiver of Service as there can be additionally clauses included in the waiver of service that will affect a person’s rights in relation to the divorce or other court proceedings. The waiver of service is executed in the presence of a notary, notarized, and then filed with the Court.

The following is language contained in a Waiver of Service in a divorce proceeding in Texas:

“I acknowledge that I have been provided a file-marked copy of the Original Petition for Divorce filed in this case. I have read and understand the contents of that document.

I understand that the Texas Rules of Civil Procedure require, in most instances, that a party or respondent be served with citation. I do not want to be served with citation, and I waive the issuance and service of citation.

I understand that I have a duty to notify the attorney for Petitioner if I change my address. I understand that, unless I notify the attorney for Petitioner of any such change in writing, any notices that I might otherwise be entitled to receive with regard to disposition of this proceeding will be forwarded to me at the address indicated below.

I further state that the following information is correct and that my-
Mailing address is: _________________________________________________
Telephone number is: _______________________________________________
Social Security number is: ___________________________________________
Driver's license number and issuing state are: ___________________, Texas

I further understand that I have a duty to notify the Court if my mailing address changes during this proceeding."

How Long Does It Take to Get Divorced in Texas?

Whenever I meet with a client for the first time, I am usually asked, “How long will it take for me to get divorced?”  The answer is much simpler than you think.

I answer this question with “It all depends on you and your spouse.”  Yahoo Finance recently had an interesting article about a Connecticut divorce and subsequent litigation that has been pending for over 10 years. Connecticut investment adviser David Zilkha and his ex-wife, Karen Kaiser, were married for five years before Kaiser filed for divorce.  A little over two years after filing for divorce, the Judge granted the couple a divorce.  Since that time, there has been over eight years of litigation regarding the children and legal costs with no end in sight.

Texas has a mandatory 60 day waiting period before you can get divorced.  The 60 day waiting period begins the day a person files for divorce.  This means the 61st day after a divorce petition is filed is the earliest date you can get divorced in Texas. 

It is important to keep in mind there are only two ways you are going to get a divorce in Texas: 1) a final trial or 2) an agreement.  If there are ten issues and you and your spouse can only reach an agreement on eight of the ten issues, then you will need to have a final trial over the two remaining issues.

The more two spouses are on the same page and are in agreement, the quicker and cheaper the divorce process will be.  However, when spouses do not agree over issues pertaining to the divorce, litigation ensues with the result being hearings before a Judge to decide the issues that cannot be agreed upon between the spouses.  Sometimes, it is impossible to reach an agreement with a soon to be ex-spouse and the Court’s intervention is necessary.  However, the majority of divorces usually have some form of give and take when it comes down to negotiations and decision making.

Bottom Line - how quickly you get divorced in Texas depends on you and your spouse being able to cooperate and reach agreements.


Divorce Trends in the United States

I recently read a very interesting article entitled “Great Divide: 6 Divorce Trends of Today (infographic)” on the website Moving Forward Through Divorce.  The article discusses the six trends in people who are seeking divorces today.  As a practicing family law attorney in Dallas, Texas, I too am seeing these trends in my practice. 

1)     The rate of marriage has decreased and thus, so has the number of divorces.  This article states that since 1981, the marriage rate in the United States has decreased and by default, there are fewer divorces. 

2)     Women initiate the majority of divorces.  This article states that 66% of divorces are initiated by women.  I would agree with this statistic in my own practice.  I once heard a statistic that on average a woman contemplates filing for a divorce for a year before doing so; men contemplate filing for divorce sixty days before doing so. 

3)     Divorce for people later in life is a growing trend.  The 50 – 65 age group for divorces is rising.  I have seen this in a number of divorces in Dallas, Texas where people have spent thirty plus years together and decide to end a marriage.  These types of divorces are usually tricky because the number and type of assets as well as separate property that have been acquired during a long-term marriage. 

4)     A number of factors such as socioeconomic levels, religion, level of education, and age affect the likelihood of divorce. 

5)     Where you live can affect the likelihood of getting divorced.  The west coast has a higher concentration of divorce as compared to the northern central region of the country.   

6)     Children of divorce are more likely to have their marriage end in a divorce.  The statistic quoted in this article states that “70% of children with divorced parents vs. 40% of children with parents who are still married think that divorce is an adequate answer to marital problems.”


Social Media Use During Divorce Proceedings

Preparing for Mediation in Texas

When going through any type of litigation in Texas, mediation can be a very successful and efficient tool to bring a lawsuit to a close. During the course of family law litigation, most courts in Texas order parties to attend mediation prior to having a final trial.

Mediator, Karen Stewart posted an interesting article entitled “Divorce Mediation and What to Expect” on the Blogs on Divorce website. It states that more and more people are choosing mediation as a means to resolve issues when going through a divorce.

Mediations play by Vegas rules; what happens in mediation, stays at mediation. This means that any offers that are communicated during mediation are inadmissible at any future hearings.

Any agreements that are entered into during mediation are reduced to writing in the form of a mediated settlement agreement. The parties and their respective attorneys execute the mediated settlement agreement. That mediated settlement agreement becomes a contractually binding agreement that cannot be changed absent a showing of fraud, coercion or duress in the procurement of the mediated settlement agreement or that the mediated settlement agreement is not in the child’s best interest.

The best way to settle any type of family law litigation is to be prepared going into the mediation process. When in a divorce, bring the most recent financial statements of any bank account, retirement account, stocks, as well as any documents evidencing debt. Blue book values on automobiles, boats and other vehicles are valuable as well. When children are involved, it is important to bring personal calendars that chronicle the children’s activities and any relevant events that have occurred during or immediately prior to the litigation.

Just like in anything in life, preparation is the key to success. A prepared litigant will more than likely have a successful mediation.

Are you (facebook) friends with the Judge?

One client complained… the opposing attorney is friends with the Judge on Facebook and can see his posts. Isn’t that wrong?

All of us who use Facebook regularly know that being “friends” on Facebook is not the same thing as being friends in real life. I have many friends, including most of the judges I practice in front of, on Facebook. Some of those “friends” I would barely know if I saw them in person. A few I might not even recognize. I’m sure it is the same with the judges.

I approach Facebook as a polite conversation that you might have at a business-related happy hour. Business related topics such as new law passed by the Legislature, new cases reported out of the courts of appeals, interesting issues related to Texas family law are all appropriate topics of conversation. I even post about vacations, cute things my dogs do, my hobbies (gardening and reading), great meals that I have in restaurants or at home, etc. All of those are things you might talk to someone, even a judge, about at a happy hour.

Many lawyers use Facebook to promote their professional standing. This can include “friending” other lawyers, posting status updates such as photos and videos on training events they have attended, photos of the lawyer with a judge, announcing successful verdicts, and generally commenting on legal affairs. According to the ABA, 40% of judges have Facebook pages, so lawyers often “friend” judges and judge “friend” lawyers.

To be clear, though, there is a boundary. Judges and lawyers (and even litigants) are bound by certain ethical rules. For example, a judge must avoid even the appearance of impropriety. Lawyers and litigants must refrain from attempts at ex parte communication with a judge in an effort to sway the judge’s opinion on a particular matter. So that means, as a lawyer I cannot discuss on Facebook specifics about a hearing I’m going to have today in a way that might be perceived as attempting to persuade the judge to my client’s side. A litigant or client cannot post to the lawyer on Facebook about his or her case. Likewise, it would be a very bad idea for a judge to comment on Facebook about a hearing or the lawyers or litigants that appeared in front of the court on any given day.

One judge in Collin County, Judge Scott Becker, was recently vindicated in having his Facebook page. A criminal defendant was pending probation revocation and ended up getting sentenced to prison. The defendant complained to the appeals court that the judge was Facebook friends with the father of the victim and the father sent the Judge a Facebook message intended to sway the Judge’s decision in the case. The Judge acknowledged being Facebook friends with the Father of the victim and acknowledged receiving the message, but the Judge stated that he didn’t really know the man other than through political circles. The Judge also stated that he stopped reading the message as soon as he realized what it was, he immediately sent a message rebuking the man. Further, the Father was seeking leniency on behalf of the defendant, so if the man’s plea had been successful it would have helped the defendant.

The court of appeals confirmed that being Facebook friends is not the same thing as being friends in real life. “Merely designating someone as a ‘friend’ on Facebook does not show the degree or intensity of the judges’ relationship with a person. One cannot say, based on this designation alone, whether the judge and the ‘friend’ have met; are acquaintances that have met only once; are former business acquaintances; or have some deeper, more meaningful relationship. Thus, the designation, standing alone, provides no insight into the nature of the relationship.” Becker responded in the way that judges are supposed to respond, whether they’re approached online, at a party, or in their chambers. In other words, Facebook is now indistinguishable from real life, comments Eric Nicholson of the Dallas Observer.

Improving Economy, Increasing Divorce Rate

Money (or lack thereof) is characteristically at the top of the list when it comes to reasons for a divorce. But in a depressed economy when people cannot afford to maintain two houses, sell their house, or pay the attorneys, divorce rates slow.

Now, along with the improving employment and job markets, it appears that the number of people filing for divorce is also increasing. Alton L. Abramowitz, a New York City divorce lawyer and president of the American Academy of Matrimonial Lawyers, attributed the recovery of the economy, particularly the stock market’s robust run.

Security that people will be able to take care of themselves, maintain two households, pay child support, and sell their house (often the main marital asset) can give people the confidence they need to get out of an unhappy or unhealthy marriage. If you are considering divorce or just want more information about the process and your rights, contact an experienced family law attorney for a consultation.

To read more about the improving economy and increasing divorce rate, click here:

It's Never Too Late to Settle Your Divorce

Last week, Kim Kardashian and Kris Humphries settled their divorce case. After seventy-two days of marriage, Kim Kardashian filed for divorce in October, 2011. The divorce had been ongoing for a year and a half. The pair was set to go to a final trial on May 6, 2013 but on April 19, 2013, advised the Court that they had reached a settlement to their divorce.

When going through a divorce in Texas, I always tell my clients at the beginning of their case that there are only two ways you are going to get divorced: 1) is an agreement on all issues or 2) a final trial. Let’s say that there are ten disputed issues and the parties are able to reach an agreement on eight of the ten issues; then we can have a final trial on the two remaining issues. The bottom line is the parties either agree or a Judge will decide the issue at a final trial. This is a concept I remind my clients of not only at the beginning of their case but throughout their pending divorce.

When a person files for divorce in Texas, there is not automatically a final trial date assigned to the case. A person must request a final trial date from the Court and the date that is given is based upon the legal issues, the anticipated length of the final trial and the Court’s availability. Depending upon the Texas County you live in, it could be up to a year and a half before you will have a final trial date.

Kim Kardashian and Kris Humphries are an example of the length of time until there is a final trial in a divorce in any state. It is also an example of settling on your own terms is usually better than a third party (the Judge) making the decisions for you.


Mandatory Presence in Court Really Means Mandatory Presence

There was another twist in the Kim Kardashian and Kris Humphries divorce this past Friday. As reported by ABC News, Kris Humphries failed to attend a mandatory settlement conference in the divorce action on April 12, 2013. The purpose of this hearing was to see if the parties were able to reach any kind of an agreement as to the final terms of the divorce before there is a final trial before the Court. As a result of Kris Humphries actions, the Judge on his own motion set a hearing for Kris Humphries to show cause as to why sanctions should not be imposed against him for his failure to attend the April 12, 2013 mandatory settlement conference. A hearing on the sanctions is scheduled to occur April 19, 2013. The case is set for a final trial on May 6, 2013.

During a divorce in Texas, there may be hearings and required conferences with the Court. It is important to communicate with your lawyer to find out whether or not your presence is required. There are many types of hearings where a litigant’s presence is required and a litigant’s attorney’s appearance on behalf of a litigant will not suffice. I always tell my clients prior to any hearing whether or not their presence is required. Even if my client’s presence is not required, I always invite my clients to attend any and all hearings in their divorce no matter what the purpose of the hearing.

Just like in the California court where Kim Kardashian and Kris Humphries divorce is pending, a Texas Court can award sanctions and attorney’s fees against a party for his/her failure to attend a hearing as well as a possible default of the matter that was scheduled to be heard before the Court.

Stayed tune for my future blogs regarding the April 19, 2013 sanctions hearing as well as the May 6, 2013 final trial in the Kim Kardashian and Kris Humphries divorce.

Texas divorce FAQ: Can I have my spouse tested for STD?

It is not common to request that a spouse be tested for sexually transmitted disease.  If you suspect that you are infected, get yourself tested.  If you have proof that your spouse gave you a STD, you may have the ability to sue your spouse for monetary damages.

What Is Cheating When It Comes To Divorce In Texas?

Recently, the Huffington Post published an article regarding the University of Michigan’s study entitled "Was That Cheating? Perceptions Vary by Sex, Attachment Anxiety, and Behavior,” which documents a survey given to 456 students at two public universities in the Midwest regarding their thoughts on cheating in a long-term relationship. The study proposed twenty-seven actions ranging from going to dinner, holding hands, sitting on a person’s lap, sharing secrets, and kissing. The participants were asked to rank each action on a scale of 0 – 100 as to whether they consider the action to be cheating in a long-term relationship. It is very interesting to see what people do and don’t consider to be cheating.

When it comes to infidelity in a divorce in Texas, if a person can prove their spouse committed adultery, the spouse who was cheated on can receive a disproportionate division of the community assets. Additionally, when it comes to spousal maintenance, the amount and duration of spousal support may be affected if the person requesting spousal maintenance committed adultery during the marriage. The finder of fact as to adultery will be a Judge who you must remember is human and sees adultery every day in our Court system.

Recently, I was in a hearing in which I represented a Husband whose Wife had numerous sexual encounters with five different people during the course of their marriage. At the hearing, his Wife alleged that he had committed adultery by texting and emailing with a co-worker. My client did not have any type of sexual contact with this co-worker. The Judge addressed the actions of both spouses and stated that the Husband’s actions with his co-worker were just as bad, if not worse, than his Wife’s actions because what he did involved feelings and emotions. While you may not agree with this way of thinking, it is important to remember that a Judge is a human being and during a hearing, you will be subjecting yourself to that Judge’s way of thinking. What you may not consider to be cheating, a Judge may find those actions to be adultery and you could end up paying the cost financially.

Domestic Violence and Divorce in Texas

Domestic violence can have a huge impact on a divorce in Texas, even when there are no children involved.  Texas is a no fault state which means a person is entitled to a divorce by simply requesting a divorce.  A person is not required to prove a reason for requesting a divorce.  However, if a person can show that there was family violence during the marriage, the repercussions could be long lasting for the spouse who committed family violence.

A spouse who is the victim of family violence can seek a protective order against their spouse if that spouse has committed family violence during the marriage.  If a protective order is issued against a spouse, the protective order can affect a person’s employment, ability to carry a firearm, as well as resulting in possible criminal charges.  A victim of domestic violence can also request the Court to award them a disproportionate division of the community estate in their favor due to the domestic violence.

As reported last week by the Washington Post article “Love, etc.: Josh Brolin and Diane Lane divorcing,” Diane Lane filed for divorce from Josh Brolin  on February 15, 2013 after eight years of marriage.  In 2004, Josh Brolin was arrested for domestic battery against his Wife, Diane Lane.  Ms. Lane later dropped the charges against him.  However, now that Diane Lane and Josh Brolin are divorcing, time will tell if the 2004 domestic battery arrest as well as any other incidents of domestic violence will be part of their divorce proceedings.


Most Expensive Cities for a Divorce: Dallas Ranks #9

On the list of most expensive cities for divorces, Dallas ranks #9 according to the Business Insider. Based on the average hourly rate for Dallas divorce attorneys, Dallas ranked behind Philadelphia (8), San Diego (7), Las Vegas (6), Miami (5), San Francisco (4), New York (3), Newark (2), and Los Angeles (1). 

Keep in mind you sometimes get what you pay for with attorneys. An informed decision on which law firm to hire requires more in-depth analysis than searching the internet for the lowest price on a new television. Make sure you do your research before you hire a divorce attorney. Find someone you are comfortable with, who you respect, and who will meet the specialized needs of your case.   

Your decision to hire an experienced family law attorney can save you time, stress, and money in your divorce case. Even if their initial hourly rate seems higher than others, the expertise and perspective that a highly qualified divorce attorney brings to your case can prove invaluable during one of the most important times of your life.  


Abraham Lincoln was a Divorce Lawyer

Abraham Lincoln, our 16th President, is the in-thing as far as historical celebrities go. But, what many people don’t realize is that Mr. Lincoln was a divorce lawyer before he became President. Joe Palazzolo reviewed Mr. Lincoln’s work as a divorce lawyer in his blog post Abraham Lincoln: Divorce Lawyer for the Wall Street Journal Law Blog.

Illinois was apparently a progressive state for its time, providing greater access to divorce for women than most southern and eastern states, according to Stacy Pratt McDermott in her report on Lincoln Legal Briefs.

One report shows that between 1837 and 1861, Lincoln’s law practice handled 131 divorce cases across 17 Illinois state courts. Women brought 82 of those cases and divorces were granted to those women in 79% of the cases, while only 69% of men were successful in obtaining divorces. The most common grounds for divorce included desertion, adultery, cruelty, and drunkenness. Other asserted but less common grounds included impotence, fraud, and bigamy. Statistics showed that when desertion was asserted by a woman, it was the most successful grounds, resulting in divorce being granted 82% of the time. When women cited desertion as grounds for divorce, the courts granted the divorce 72% of the time. Men were also most successful in obtaining divorce based on the grounds of desertion and adultery.

Additionally, women in Lincoln’s law practice often obtained custody of their children, especially when they cited cruelty, drunkenness and desertion in combination as grounds. The Illinois courts also provided financial support in the manner of child support and alimony for these women.

During this time, Illinois was granting more divorces per capita than Connecticut, Maine, Massachusetts, Missouri or Ohio. In fact, by 1857, Illinois was leading the nation in granting divorces. Possible reasons for the high rate of divorce in Illinois during this time could be that the population was extremely mobile as an early frontier state with industrialization and railroad development. Also, Illinois had a more liberal viewpoint toward women’s right to divorce than most other states. The Lincoln Legal Briefs website lists some of the cases that Lincoln handled.

It is clear that even though Lincoln was successful in obtaining divorces for women in his day, divorce in generally was not as easy to come by. Fault grounds had to be proven to obtain a divorce. In today’s world, most states, including Texas divorce laws, allow for divorce on no-fault grounds called insupportability. Most women can get divorced if they want to without having to prove who-did-what-to-whom. Can you imagine having a judge tell a women in today’s society that she had to stay married to a man just because she couldn’t prove that he was a drunk or cheater?

In Texas, divorce can be granted based on no-fault grounds of insupportability. Or, if a spouse chooses to plead fault grounds, a divorce can be granted based on adultery, cruelty, abandonment for 1 year or living apart for 3 years (aka desertion), felony conviction, or mental hospitalization for 3 years. Fault grounds for divorce can be used to support a request for a larger division of property, or in some cases where the children may be effected by the behavior, it can be used in a custody case.

What if Kim Kardashian Was Pregnant and Going Through a Divorce in Texas?

What happens when a female litigant going through a divorce in Texas is pregnant? This question has been much talked about in the legal community with the recent revelation that Kim Kardashian is pregnant with Kanye West’s child, even though she is still legally married to Kris Humphries.

If a Husband and Wife are going through a divorce in Texas and the Wife is pregnant, it is highly unlikely that a Judge will grant a divorce before the child is born, regardless of the child’s paternity. If the unborn child is the Husband’s biological child and there is no dispute about the paternity of the child, a Judge will not grant a divorce until after that unborn child is born.

What does a woman do if she finds herself in Kim Kardashian’s situation? There is no dispute the unborn child is Kanye West’s and not the child of her current Husband, Kris Humphries. In Texas, Kim would need to have Kanye sign what is called an Acknowledgment of Paternity. When two people are married and a woman is pregnant, there is a legal presumption that the unborn child is the Husband’s biological child. However, if the unborn child is not the Husband’s biological child, the child’s biological father will need to sign an Acknowledgment of Paternity so that the Husband is not legally the child’s conservator. An Acknowledgment of Paternity is a legal sworn document executed by the biological father, filed with the Court and the Bureau of Vital Statistics, and states under oath that a man other than the Husband is the biological father of the unborn child.

Even if the biological father who is not the Husband signs the Acknowledgement of Paternity, whether a Husband and Wife may be divorced prior to the child’s birth is entirely left to the discretion of the Judge. If Kim Kardashian and Kris Humphries were going through a divorce in Texas, a Judge would likely not allow the divorce to take place prior to the birth of the unborn child. Therefore, the Kardashian/Humphries divorce proceedings which have already lasted over ten times longer than the actual marriage, will likely continue well into 2013.

Photo Courtesy of NY Daily News

After a Divorce in Texas, Which Parent Gets to Claim the Child as a Tax Exemption?

A common question at the time of divorce in Texas is “which parent gets to claim the tax exemption for the child.” The answer is governed by Federal law. This means that a Texas court cannot make any rulings or determinations as to which parent receives the tax exemption for the child.

Federal law states that the parent that receives child support is the parent that is entitled to receive the child tax credit. The only way to deviate from this Federal law is by a written agreement between parents contained in the divorce decree.

When parents are operating under a 50/50 possession schedule, the parents will generally have off-setting child support. Off-setting child support occurs when each parent has the child one-half of the time. Having possession of the child one-half of the time theoretically entitles each parent to child support. Off-setting child support calculates each parent’s child support obligation and the parent with the higher child support obligation pays the other parent the difference. For example: If the parents are operating under a 50/50 possession schedule; one parent’s child support obligation would be $1,200.00 and the other parent’s child support obligation would be $900.00, the parent with the $1,200.00 child support obligation would pay the other parent the difference in the two child support obligations, which is $300.00.

It is important when parents are performing a 50/50 possession schedule that there are agreements contained in the divorce decree dealing with which parent is entitled to receive the tax exemption for the child. Many parents alternate tax years that each parent is entitled to claim the child as a tax exemption.

If you do not contain a specific agreement in your divorce decree regarding which parent will receive the child tax exemption, the parent receiving child support, regardless of the possession schedules of the parents, will receive the child tax exemption.

New Year's Resolution: Get a Divorce


Being a divorce lawyer for 20+ years, I have observed patterns in when people hire divorce lawyers. Usually less people file for divorce during the holidays, choosing to stay together “for the kids”. But, I have found that many people decide to start divorces after the New Year, making it part of their new year’s resolution. So, divorce lawyers usually see an upturn in new filings in January and February.

Apparently divorces rank up there with weight loss as one of the most popular New Year’s Resolutions that people make, according to Eric Sotoloff in his blog post The New Year’s Resolution Divorce. People seem to want to start the new year with a fresh start – “new year, new life”.

Geoff Williams writes that there are sound financial reasons to wait until January to file for divorce in his article Considering a divorce? Wait until January. Besides wanting a harmonious holiday, a spouse may get a bonus at the end of the year, so waiting to file the divorce until after the bonus comes in can be beneficial in the divorce.

Another consideration in deciding when to file for divorce is the tax effect of being divorced by the end of the year. A person’s status for filing taxes is determined as of the end of the year. With the changes likely coming in tax brackets in 2013 – and whether Congress lets us all fall off the “fiscal cliff” – divorce may be more financially advantageous in 2013 than it has been before.

Another benefit to waiting until after the holidays to file for divorce is that the wait provides time to plan. A spouse can start collecting all of the year-end statements from bank accounts, retirement account, credit cards, and the like. Financial records are an essential part of a divorce, being used to determine the extent of the marital assets and debts, as well as either party’s ability to support themselves while the divorce works through the process.

People often ask me when is the best time to file for divorce. I don’t know that there is ever a “best” time, but if you have decided that your marriage cannot be saved and you need to get a divorce, there is no time better than now. The sooner you get started, the sooner you will be finished. We are here to help you when you are ready to file a divorce. Give us a call.

Sesame Street's Effect on Divorce in Texas


A divorce can be one of the most difficult events in a person’s life. Spouses separating and dividing assets and debts can be a challenge. Lawyers are there to aid adults with these property issues. However, explaining to your children why you are getting a divorce and how your child’s life will change can be heart breaking and there is no exact playbook on how to tackle these issues.

When going through a divorce in Texas, most Courts order parents to attend a parenting class so that the adults can learn how to co-parent during and after the divorce.   However, not much guidance is given to parents on how to explain the topic of divorce to their children. 

Sesame Street has taken on the topic of divorce for children ages 2 – 8 in a series entitled “Little Children: Big Challenges” which features sixteen short videos on their website .

Sesame Street has been on television for forty years and has tackled numerous subjects such as marriage and death but has not discussed the topic of divorce until now.   In 1992, Sesame Street attempted to discuss divorce but the episode ultimately never aired. Divorce is more prevalent now than in 1992 and opinions on divorce and education regarding divorce have become more accepting over the last 20 years. The clips begin with the character, Abby Cadabby, whose parents are divorcing.   Abby explains what divorce is, her feelings and how she now lives in two houses, one with her mother and one with her father.

As part of the series “Little Children: Big Challenges,” there are Sesame Street videos that deal with actual children. Chase, a ten year old boy, is featured in two clips. Chase discusses how his life is now that his parents are divorced and how the divorce makes him feel. Victoria is another little girl who talks about how her life has changed and what it is like to no longer live with her father. Victoria talks about her feelings and how she has a network of family members that have helped her during and after her parents’ divorce. 

The Sesame Street divorce videos have been receiving a lot of press in recent days. Denise Albert from the Huffington Post has been blogging about her experiences as she goes through her own divorce. Denise Albert: Divorce Diaries. Ms. Albert details how she and her Husband told their children that they were going to divorce. Ms. Albert also showed the Sesame Street divorce videos to her children and was inspired by the fact that the Sesame Street videos gave her children an understanding of what they were going through as well as giving other children an understanding of what her own children may be going through. I have read Denise Albert’s blog and have also watched all sixteen clips of the Sesame Street divorce videos. I agree with the approach Ms. Albert has taken in showing her children the Sesame Street divorce videos. There are not enough outlets for children when it comes to understanding divorce and the feelings that come with it. Sesame Street is one of the most identifiable resources to children. The fact that Sesame Street is addressing the issue of divorce makes the topic less taboo as well as helps a child from feeling isolated from their classmates and family during and after a divorce. 

The Sesame Street videos are wonderful aids to divorcing or divorced families as well as to all children. Whether a child comes from a divorced home or not, a child will inevitably know a classmate whose parents are divorced. The Sesame Street videos bring knowledge and understanding of divorce to all children regardless of their family dynamics.

The Sesame Street divorce videos are not shown on television but are free online and are also available on iTunes.


Is My Spouse Entitled To My Retirement from Before I Was Married?


When going through a divorce in Dallas, Texas, it is important to preserve any retirement funds or other funds you owned prior to marriage. Texas is a community property state. This means that anything owned during the marriage is presumed to be community property and is thus divisible by the Court.

 However, if you can prove that an item or funds are your separate property, then the Court cannot divide or award your spouse that which it finds to be your separate property. Something is your separate property if you can prove you owned it prior to marriage, inherited either prior to or during the marriage, or it was gifted to you either prior to or during the marriage. It is your burden to prove something is your separate property. 

 Many people enter into a marriage with retirement accounts. If you find yourself going through a divorce in Texas, it is your burden to prove that you owned retirement accounts prior to the marriage. The best way to prove that you owned a retirement account prior to marriage is to produce the statement from the month prior to marriage that shows the balance in the retirement account at that time. 

Do not rely on the fact that you will be able to get the information from the retirement plan later on if you need it. Many retirement plans only hold records for 7 years. Additionally, some retirement plans change companies and trying to track down records can be tedious and sometimes impossible to obtain.


What Can You Do After A Default Judgment Is Entered Against You?

 A "default judgment" is an order entered when one side does not appear at trial or file an answer.  This is usually not a good thing for the party who does not show up and who does not get to present their side to the Court.  To protect yourself against a default judgment you must do two things: (1) if you get served with a lawsuit you must file an answer and (2) if you get notice of a trial date you must show up. 
But hindsight is always 20/20 and default judgments are often taken.  If a default judgment has been entered against you the key is to act quickly - don't wait.  Entry of the judgment starts the clock ticking on important post judgment and appellate deadlines.  Among the deadlines that you need to meet if you want to try to set said the default judgment are the following: 

  • 20 days after judgment is entered - deadline to request findings of fact and conclusions of law;
  • 30 days after judgment is entered - deadline to file a motion for new trial (asking to set aside the default judgment);
  • 90 days after judgment is entered - deadline to file a notice of appeal (provided you file a motion for new trial);
  • 6 months after judgment is entered - deadline to file a restricted appeal challenging default judgment.

Consult an attorney immediately if you learn a default judgment has been entered against you. Schedule a consultation as soon as you can to discuss your rights and your options.  Don't wait! Setting aside a default judgment is an uphill battle.  You are asking the Court to undo a case that they have finalized and closed.  However, it is not an impossible task.  The US and Texas Constitutions protect your right to notice and your right to a meaningful opportunity to participate in a trial - especially when it comes to your children and your property.


Texas divorce FAQ: When can I date?

In Texas, parties are considered married until the divorce is granted; therefore, dating even after a divorce is filed can be considered as adultery in the divorce. Further, the party’s conduct during the divorce can be considered by the judge in reaching a decision. If you are dating during the divorce, do not take your children around the boyfriend or girlfriend while the case is pending.

Texas divorce FAQ: Who will pay my legal fees?

In Texas, usually the community property assets can be utilized to pay both sides’ legal fees. If one spouse doesn’t have access to community assets to pay legal fees, then he or she can file a motion to get access to property to pay fees. If there are insufficient cash assets to pay fees, then a party can file a motion to sell assets to pay for fees.

Are My Earnings My Own Once I File For Divorce in Dallas, Texas


Texas is a community property state which means that all assets and debts acquired during the marriage are presumed to be community property and thus divisible by the Court. There is no legal separation in Texas. This means that even after a person files for divorce in Texas, the assets and debts acquired after filing for divorce are community property and divisible by the Court at the time of a final trial.

Dallas, Texas has what is called a Standing Order. The Standing Order is in effect on all parties who file for divorce in Dallas, Texas. The Standing Order contains injunctions that remain in place on each spouse during the pendency of the divorce action. These injunctions regulate how you are to spend money during the pendency of the divorce. Specifically, the Dallas Standing Order enjoins a person from spending funds unless it is for reasonable and necessary expenses and attorney’s fees. The Standing Order becomes effective on the person filing for divorce once the divorce petition is filed with the Court and effective on the other spouse once that person is served with the divorce petition. The purpose of the Standing Order is to maintain the financial status quo during the pendency of the divorce.

Just because you have filed for divorce and/or are in the middle of the divorce process, your income is still community property. This means that your spouse’s income during the divorce is also community property. Any contributions to a spouse’s retirement accounts during the divorce process are community property. Any debts incurred during the divorce process are community property as well. However, the Standing Order is in place to minimize any debts incurred during the divorce process in order to protect the community estate.


Is Your Divorce Decree Also A Contract?

When it comes to people not doing what they should under their divorce decrees, it seems like contempt proceedings and enforcement get all the attention. These are valid ways to deal with post-divorce problems. But, when clients come to me with an enforcement issue I also automatically flip to the last page of their decree to see if both parties signed.  If so, we can also often bring a breach of contract action against the non-complying party.                               

With an agreed decree of divorce, when one party tries to modify provisions of the agreement or has filed an enforcement action based on claims that the other person is not living up to their end of the deal, the defending party should consider a counterclaim for breach of contract and/or assert contractual defenses.  Breach of contract claims are also important because they can allow you to recover your attorney’s fees incurred as a result of your ex’s breach.

If you and your ex both signed off on agreed decree in your Texas divorce look at page 2, it more than likely contains a provision called “Agreement of the Parties” that stipulates that, to the extent permitted by law, the agreements contained in your divorce decree are enforceable as a contract.  While not all portions of an agreed decree will be treated as a contract by the court, contractual actions and defenses can be valuable in trying to hold your ex to the agreement should problems arise down the road.


Is it ok to start dating during my divorce in Texas?

 There is no legal separation in the state of Texas. Texas is a “no fault” state when it comes to divorce. “No fault” means that you may request the Texas Court to grant you a divorce for the simple reason that you want a divorce. You do not need to prove fault by you or your spouse to request a Court to end your marriage in Texas. 

However, if a person commits adultery during the marriage, the other spouse may request that the Court grant a disproportionate division of the community estate due to the other spouse’s infidelity. Even if a person commits infidelity after either that person or their spouse has filed for divorce in Texas, the Court still considers these actions to be infidelity. If the Court finds that there has been infidelity during the marriage, even after the divorce has been filed, the Court can award a disproportionate division of the community estate in favor of the person whose spouse committed adultery.

Additionally, if you begin dating while going through a divorce in Texas, your spouse can request that the community estate be reimbursed for any funds you spent on the person or persons you dated during the divorce process.

The advice I give all my clients going through a divorce in Texas is simple: “Don’t have a Next until you have an Ex.”


FAQ: My spouse has filed for divorce in Texas. Can a Texas court order us to attend marriage counseling?


A court in Texas can order spouses to attend counseling prior to moving forward with divorce litigation. Texas courts do not commonly order counseling even upon the request of a party. A likely reason that courts rarely order counseling is that the purpose of the counseling is to determine if there is a reasonable expectation that the parties can reconcile. If a spouse has taken the steps to consult with a Dallas divorce attorney and has filed for divorce, then there is likely little possibility that the marriage can be reconciled. Additionally, marriage counseling can be expensive.


Texas divorce FAQ: Should I move out of the house?


Whether or not a spouse should move out of the house depends mostly on the individual circumstances of the situation. However, one important thing to know in making this decision is that the person who moves out of the house does not forfeit his or her ownership interest in the house or furnishings and personal items contained in the house.   He or she will still have the right to include the equity value of the residence in the division of the property. (Consider videotaping the contents before you move out!)

Moving out will definitely make it more difficult to get a judge to allow the spouse to move back in. (Have you ever heard the saying, “possession is 9/10ths of the law”?) If there are children to be considered, a judge will weigh heavily awarding the possession of the house to the parent with primary conservatorship of the children while the divorce is pending. Which spouse can afford the house may be a factor at the end of the case in the final award, but will likely not be a factor at the beginning of the divorce proceedings.

Another important factor in deciding whether to move out of the house is whether there have been or might be allegations of physical violence between the spouses while they are unhappily living together. False allegations happen and can be prevented by getting physically separated, even if one spouse has to move out of the house.


Texas divorce FAQ: What can I do to keep legal costs down?

The better your organizational skills, the more you can help your attorney and keep your costs down. Check with your lawyer to make sure your efforts will be an efficient way to help. Gathering and organizing documents, such as bank statements or other financial records, can be very helpful. One of the least efficient uses of your lawyer’s time is to call frequently. Make a list of topics and questions to ask all at once, to cut down on the number of calls made. A single organized call to address three questions will be more efficient and less costly than three separate calls. Also, when you need to vent your feelings and frustrations about the other spouse, talk to a therapist and not your lawyer or staff.

I want a divorce but my spouse doesn't live here

As a marriage begins to dissolve spouses often decide to live in different places. One spouse may return home to live with family while the other spouse stays in the marital residence. This can create problems with a legal concept called jurisdiction. Before a party can be bound to follow a divorce court’s orders the court must have jurisdiction over that party. Jurisdiction is usually based on a party’s connections with or appearance in the state where the court sits, but what if one of the spouses in a divorce does not live in Texas?

There are still several methods parties can use to gain jurisdiction over a non-resident spouse. First, Texas law provides for jurisdiction over a non-resident spouse if the couple lived in Texas as their last marital residence within two years of filing for divorce. Even if the parties have not lived in Texas within the last two years there may still be good reasons for a Texas court to exercise jurisdiction based on the non-resident’s contacts and connections with the state. These types of “long-arm jurisdiction” can even extend to parties living in foreign countries, if allowed by international law.

What if your spouse has no connections with Texas whatsoever, and does not intend to return? In these cases it becomes very difficult to establish jurisdiction in a Texas court without consent or appearance by the non-resident spouse. The non-resident spouse may agree to appear in a Texas court but if not he or she may be able to simply ignore the divorce petition.   Even if the Texas court does not have jurisdiction over the non-resident spouse, the parties may still be divorced. Texas law provides for “status adjustment” whereby the court can grant a divorce without addressing child custody or division of property. Status adjustment leaves many important issues unresolved, but it does allow parties to remarry without fear of violating bigamy laws.   Jurisdiction is a complicated legal concept. If you want a divorce from a non-resident spouse, contact an experienced family law attorney immediately.

Tips on how to keep costs down during a divorce.

Dallas divorce attorneys are frequently asked by their clients how they can keep the costs of a divorce down.  Here are several tips to keep in mind:

1.  Begin tracking down all of your financial documents.  In almost every divorce case your attorney will need to see copies of your bank and savings account information as well as your 401K statements.  Getting a head start by gathering up this information can save you the time (expense) of having your attorney track down these documents.  It is also important to remember to gather up complete documents, not simply the cover page or summary page of the statements.  Your attorney will need the complete statements in order to effectively present the information to the other side. 

2.  Start making a list of all the property that you own.  Again, in almost all divorce cases each party will have to complete a document called an inventory and appraisal which lists all the property and liabilities each party has.  Getting a head start on gathering the information which goes in the inventory and appraisal can cut back on the amount of time your attorney has to spend preparing the inventory and appraisal.

3.  Communicate with your soon to be former spouse.  If at all possible (i.e. if your divorce is relatively uncontested) a lot of attorney time can be saved by negotiating the terms of the division of the property with your soon to be ex.  Although this may not be possible in every case, if there is a open line of communication available, use it to your advantage! 

Hat tip to Dick Price's blog for the idea behind this post. 



No Alienation of Affection Claims In Texas

Recently there has been quite a bit of media exposure over alienation of affection claims arising out of a North Carolina Court.  Under the case in North Carolina, the mistress who was allegedly responsible for breaking up a 30 year marriage was sued by her lover's ex-wife and awarded $9M in damages!  North Carolina is one of seven states to recognize alienation of affection claims, in which spouses can sue third parties that they allege interfered in their marriages.   Texas, however, does not recognize alienation of affection claims in divorce cases

Although Texas doesn't recognize alienation of affection claims, fault in the break up of the marriage can play a role in dividing the community estate.  For example, adultery is commonly a factor judges consider when making the just and right division of the community estate. 

For a more in depth look at the facts behind the $9M award, click here.

Top Five Signs your Marriage is in Trouble

Frequently I encounter clients in my Dallas divorce law firm that share common signs that their marriage has come to an end.  Here are the top five signs that a marriage is coming to an end.

1.  You dream about a life without your spouse.  It is not uncommon for us all to wonder “what if” during our day-to-day lives, but when you start thinking about how your life would be better without your spouse, you’ve definitely got a sign that your marriage is in trouble

2.  You keep things to yourself.  I’m surprised at how often clients come in and tell me that they simply quit communicating their needs and concerns to their spouse.  When your marriage has reached a point to where its not worth it to “bother” your spouse with your concerns and needs, this is another sign the marriage is in trouble.  Open communication is a key to any successful relationship, and holding things back from your spouse is quite unhealthy to the marriage. 

3.  You feel like you are the only person trying to make the marriage work.  If you feel that your spouse is not putting the same amount of effort into the marriage, then feelings of resentment and anger can really kick in.  Anger sometimes fuels people to make rash decisions, however the feeling of a lack of reciprocal effort is a definite sign the marriage is on rocky grounds. 

4.  You lack intimacy.  Sex is part of any healthy marriage.  If one spouse seems uninterested in sexual intimacy with the other, this is a sign the marriage is in trouble.  Even more so, if one spouse is withholding sex as a form of “revenge” then this too indicates a storm is brewing. 

5.  You feel like the bad in the marriage outweighs the good.  This one ties in closely with all the other signs.  If you feel there is more trouble in paradise, then there are some issues that need to be confronted. 

Question to Dallas Divorce Lawyer: How long do I have to wait to get a divorce?

I recently had a potential new client ask me how long they have to wait before the court can enter a divorce decree.  As a Dallas divorce attorney, I get this question a good bit.  Because of the frequency I receive this questions, I felt it would be a good idea to post the basis of Texas family law jurisdiction and the "waiting period" required before a court can enter a divorce decree.  

A suit for divorce must be filed in a county where the suit can be properly maintained.  Under the Texas Family Code, a suit for divorce is proper in the county where the parties have lived for the past 90 days.  In addition to the 90 day requirement, at least one of the parties has to have been a resident of Texas for the past 6 months.  Note that only one party to the divorce is required to meet the 6 month and 90 day residency requirements in order to bring a suit for divorce. 

Once the residency requirements are met, the next step is to file a suit for divorce in the appropriate county.  Once the suit is on file for at least 60 days, the court can enter a final decree of divorce. 

In sum, assuming the residency requirements are satisfied, the "quickest" someone can get a divorce in Texas is 60 days after they have filed their suit for divorce. 


When can we get married?

As Dallas Divorce Lawyer, I frequently am asked questions that touch on "legal separation" and its place in Texas family law.  Texas law does not recognize legal separation as a status, so in Texas, you're either married you are aren't.  The other day I had someone ask me whether she could marry someone who was legally separated from his spouse in another state.  To answer this question, we need to look at who can and cannot get married in Texas.

Under the Texas Family Code, same-sex couples, persons related to each other, and currently married persons cannot get married.  Under the question presented, the answer hinges on whether a person who is legally separated in another state is still consider "married" for purposes of Texas law.  Because Texas does not recognize legal separation as a status, then the person seeking marriage is still technically married to their "former" spouse in the jurisdiction they are legally separated in.  Therefore, the marriage cannot occur.

Under Texas law, a marriage is considered void and of no effect if either party to the marriage is currently married.  As a side bar, there is one small exception to this rule -- couples who are currently married to each other can obtain a marriage license.  In essence this exception allows couples to "legally" renew their wedding vows. 

Overlapping jurisdiction - Dallas Probate and Family Courts.

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. 


Case Takes On Definition of "Family"

A jury in Dallas County, Texas took on the basic meaning of "family" when considering where to place an 18-month old child in the custody of CPS because her father is in jail and her mother is deported.

The child has lived in the home of her foster parents since she was only days old. That is the only home she has known.  Yet, the jury awarded custody of the child to the child's paternal grandmother from Mexico, who had only recently come forward.  The grandmother has custody of two of the siblings of this child in Mexico.

The grandmother argued that she should have custody of the child because she is a blood relative and therefore "family" of the child.

The foster parents happen to be gay and have another adopted child.  They argued that they provided the real family, regardless of bloodlines, for the child for her entire life, so the child should remain with them.

So, what factors did the jury find important?  Was there some element of prejudice against the alternative lifestyle of the foster parents?  Or did the jury place more weight on the blood relationship between the child and her grandmother and siblings?

Hat tip to CBS 11 for this article.

Tips to Surviving a Divorce

Recently I came across a blog discussing tips to surviving a divorce.  Interestingly, the blog wasn't written by an attorney but the divorce survival tips all come back to one thing - the importance of hiring a good lawyer.  The blog has some good tips that apply to a divorce in Dallas Texas which I will outline in the order they were presented.

  1. Hire a good divorce lawyer.  Hiring an attorney that is compatible with your personality is absolutely critical in protecting your rights and best interests during such a troubling time.  The right attorney serves not only as a mediator but also as an advocate of your interests.
  2. Keep written records of everything.  Keeping a journal of who said what and when often shows which of the parties is more organized.  Also, written records of conversations are helpful during the division of community property.
  3. Keep your cool.  Although this is a stressful time, keep in mind that everything you say or do is going to be looked at under a microscope.  If you lose your cool, you can stand to lose a lot.  Not only in terms of property, but also in custody determinations. 
  4. Read everything.  Obviously, a good attorney will ensure that you understand everything relating to the division of property and custody issues.  However, never assume that just because your attorney reads everything that you are not responsible for doing the same.
  5. No guilt trips.  This ties in closely with number three.  Remember, nobody likes a sneaky, passive aggressive person.  Communicate your concerns to your attorney in a direct manner.  Address any problems as they arise - not after everything has built up and is coming to a head.
  6. Never use children as leverage.  All to often we see clients who put their interests (i.e. revenge) before those of their kids.  Remember that the divorce is not their fault, and that you have absolutely nothing to gain (but very much to lose) by using your children as a bargaining tool.

Although these may seem like common sense, it is easy to forget them during a divorce proceeding.  A good divorce attorney who clicks with your personality will help you remember them.

Our firm would like to help you with your divorce.  We represent people getting a divorce in Dallas, Collin, Denton, and Tarrant Counties in Texas.



Hidden Assets in Divorce

Frequently we are asked what recourse is available when one spouse attempts to hide assets of the marital estate during a divorce.  Not only is such conduct highly unethical, it is fraudulent as well.  Typically a forensic accountant is called in to help search for hidden assets.  In our experiences, here are some reoccurring methods used to hide assets:

  • Purchasing lavish antiques, artwork or hobby equipment.  Often times property such as this is overlooked and undervalued;
  • Collusion with an employer to delay the payment of bonuses, stock options or raises;
  • Setting up a custodial account in the name of a child;
  • Repaying a "debt" to a family member or friend when such payments were no previously made;
  • Salary paid to a non-existent employee if the spouse is a business owner;
  • Money paid to close friends or family members for "business" services not actually rendered; and
  • Investment in municipal bonds or Series EE Savings Bonds for which no interest is reported on tax returns.

If you suspect you spouse is hiding assets it is a good idea to review all financial records prior to filing for divorce.  If you are responding to a divorce we suggest you retain the services of a qualified forensic accountant.