After the divorce, what else do I need to take care of?

I found Christie Gammill’s article in this winter’s Texas Family Law Section newsletter interesting in reminding attorneys that the divorce only ends the litigation but doesn’t end the “to-do” list for the client. Here is the list of action items that a divorced party may still need to address once the decree is entered. Ms. Gammill points out that a person doesn’t need to face this list alone.  He or she can employ professionals to accomplish many of these tasks.

 1.                Financial Planning

·        Review your financial goals with your advisor, including an updated cash flow analysis

2.                Banking / Brokerage / Advisory Accounts

·        Update your accounts by notifying the appropriate entities of account authorization changes and your name/address change, including banks, schools, utilities, and insurance companies

·        Sign and execute the processing of any forms necessary to change the account registrations

·        Name Change - obtain new Social Security card, Driver’s License, credit cards, passports etc.

3.                Revise/transfer titles on personal assets - House(s), Automobile(s), Boat, and Other Non-Financial Assets

4.                Retirement Plans/Accounts

·        Qualified Domestic Relations Order or “QDROs” these pertain to qualified plans such as 401(k)s, 403(b)s, Pensions, Profit Sharing Plans, Keogh’s, and Money Purchase Plans

o   Submit certified original QDRO along with necessary pages of your divorce decree to the respective company for approval. Once the QDRO is approved you will receive a letter stating it is in good order (or not).

o   Once the plan administrator processes the QDRO, a new shell account is setup within the company’s plan for the benefit of the non-employee spouse and the percentage or dollar amount awarded is transferred into the new account.

o   Once the funds have been divided and deposited into Alternate Payee’s account, he or she will receive documents via mail or e-mail to rollover or distribute the funds once the account has been segregated.

o   If you haven’t begun working with a financial advisor, you may engage one to aid you in this process

·        Non-Qualified Plans- includes but not limited to: IRAs, SEP IRAs, Simple IRAs, Roth IRAs, and Annuities

o   The holding firm or brokerage account will typically require their own papers and/or a letter of instruction from the original account holder to divide or transfer the account into someone else’s name.

o   Annuities can be complex and the implications of a transfer or ownership should be carefully evaluated before assigning to another party or transferring to an ex-spouse*.  

o   Be certain to obtain tax advice regarding consequences of transfers and liquidations of non-qualified plans. These will have a cost basis that will be important to keep track of in the future.

o   The brokerage firm will typically have its own IRA Rollover/Distribution Form to transfer funds incident to divorce. Your ex-spouse will need to sign the forms, and you will need to provide certain necessary pages of your decree to the brokerage forms.  It is recommended to have these papers ready to go at prove up of the divorce.

·        Follow up diligently on your Divorce Transfer Paperwork to ensure it is moving along and properly processed.

5.                In Health, Life, and Other Insurance

·        COBRA—allows you to stay on your ex-spouse’s employer sponsored health insurance up to 36 months after divorce. The will premium will be equal to 102% of current Employer cost, which may be a temporary solution to finding private health insurance. Stay informed of changing health care laws and options.

·        Private Health Insurance—consult with a health insurance broker who will spend time helping you in regards to medical conditions, premiums, physicians, and deductibles.

·        Life Insurance: You will want coverage at least equal to present value of future stream of payments of Child Support and Alimony or Property Settlement/distribution. You will also want to update beneficiaries on policies owned by you.

·        Property/Casualty Insurance: This is a great time to shop your existing/new coverage for auto, umbrella and homeowners/renters insurance.

6.                Social Security

·        You may be eligible for up to 50% of your ex-spouse’s Social Security Retirement Benefit if you were married for 10 years or longer. If you are unmarried, your benefit would be the greater of 100% of your own benefit, or 50% of your ex-spouse’s benefit at full retirement age. The earliest non-widow retirement benefit may be as early as age 62 and will have an applicable benefit reduction and may be permanently reduced.

7.                Real Estate

·        If you or your ex-spouse is required to re-finance the mortgage or take your name off of the mortgage, you will want to work with your attorney to get the appropriate documents signed and executed.

8.                Wills and Trusts

·        Update plans for your estate. Wills, Trusts, and Powers of Attorney will need revising.

·        If you have minor children: Special trusts need to be created for certain assets such as IRAs and some annuities. You may also need to revisit guardianship choices.

9.           Mortgage

·        Review options with Mortgage Planner regarding qualifying for a new home purchase or the refinance of a current home·       

·        Determine if vacating spouse will be compensated and how this will be structured/what types of loan programs are available.·     

·        If child support and/or alimony will be used for qualifying for new loan discuss current lender guidelines with a Mortgage Planner

10.         Professional Team of Advisors

Build a team of people to help you work through financial issues

Family Law Attorney – Team Leader: Custody, Property and Alimony expert; preparation and execution of legal documents. Will oversee timely payments on financial obligations or cooperation in the signing of any of the aforementioned documents

Financial Advisor – partners with other experts during your divorce; post-divorce financial planning and asset management and risk management. If you did not have the primary relationship with your advisor during your marriage, you may consider interviewing one of your own.           

CPA – income tax preparation and analysis for current and future personal and business tax returns; returns may be particularly complicated during the year of divorce

Estate Planning Attorney – new wills, trusts; see through trust if you have minor children

Health Insurance Broker & Mortgage Broker - assist in the areas above

 *it is recommended that you seek advice from a financial professional before making any changes to an annuity contract and you consult your tax advisor as well.

 

Pornography in Texas Divorce

All too frequently, the issue of pornography comes up in divorces across the state of Texas.  Whether it is an addiction to pornography, sexting a photo to a spouse or paramour, or videos of sexual acts, pornography has taken the divorce stage front and center.

Recently, the Dallas Morning News reported a story of a woman by the name of “Lisa” whose ex-boyfriend posted nude photos of her he had secretly taken to dozens of websites.  Lisa did not become aware of the nude photos until she began receiving threats.  The Dallas police and prosecutors are building a case against Lisa’s ex-boyfriend for his online rampage and cyber bullying. 

Software Company McAfee released the following statement earlier this month:

“68 percent of more than 1,000 American adults in McAfee’s annual survey said that they have shared intimate messages or photos from their cellphone.  While that shouldn’t be such a big deal because it’s consenting adults doing it amongst each other, the fact of the matter is that we know throughout history that half of all relationships end and they are communicating this digital data to people who may very well not be in their life a month of a year from now.”

No matter how much you are in love or how much you trust your significant other and/or spouse, I strongly advise any person to not distribute or participate in any form of pornography - Unless you do not mind this exchange being viewed by an attorney, a judge or possibly a jury. The McAfee survey was also quoted as stating “roughly 9 percent of the survey respondents said an ex has threatened to post risqué photos of them online and about 57 percent of those people said the threat was carried out.”  The divorce process can be nasty and people can say and do things they would not ordinarily do under different circumstances.  Do not give your spouse any ammunition. 

 

The Effect of Divorce on Children

Many parents going through a divorce in Texas are unaware of the impact the divorce has had on their own children. An article by the Huffington Post discussed a survey performed by a U.K. parenting website Netmums.com on 1,000 parents and 100 children regarding their views and the effects of divorce.

“One-third of the children under 18 surveyed described being ‘devastated’ by the divorce and 13 percent blamed themselves for their own parents’ divorce. Thirty-nine percent of the kids surveyed said they hide their feelings about the split from their parents, 20 percent said there's no use communicating because their parents are too ‘wrapped up in themselves’ and 14 percent said they couldn't be honest with their parents about how upset they felt.”

There was a stark contrast of the parents’ opinions as to how children were coping as compared to the feelings of those of the children surveyed. 77 percent of parents said their children were coping fine with the split.

Courts in Texas use many tools to aid families in need. The most widely used activity would be a co-parenting class. Some counties require both parents attend a co-parenting class before their divorce may be finalized. Co-parenting classes are even offered on the internet.

In higher conflict cases, a parenting facilitator or parenting coordinator is appointed. The purpose of a parenting facilitator and parenting coordinator is to aid parents on decisions and communications as it pertains to the children. Should the parents be unable to agree, the parenting facilitator/coordinator will assist the parents with disagreements and work towards agreements and resolutions on those differences.
 

Facebook Can and Will Hurt You in Your Divorce Proceedings

 

Far too many times I have seen clients’ postings, comments, and pictures on Facebook and other forms of social media be used against them in a divorce proceeding. Even if you block your soon to be ex-spouse from your personal page, there are always ways around getting access to your account. Many times family members and mutual friends will allow a “blocked” spouse access to their spouse’s social media pages in order to gather evidence in divorce proceedings. 

As reported by the Huffington Post, one Father in Cincinnati, Ohio was almost put in jail for his Facebook posts relating to his wife and ongoing divorce. Even though his Wife was “blocked” from his page, she gained access through a mutual friend. The Husband had written on Facebook “If you’re an evil vindictive woman and want to ruin your husband’s life and take your son’s father away from him, all you have to do is say that you’re scared.” The divorce judge held the Husband in contempt of court for his Facebook post stating that he had violated an injunction to not harass his wife. The judge in this case gave the husband two choices; either apologize to his Wife everyday on Facebook for 30 consecutive days or spend 60 days in jail.

The advice I give my clients is to assume that a judge is reading and viewing each comment, picture, and post you make on any form of social media. Before you make a post, ask yourself “Would this reflect poorly on me should the judge read it?” If the answer is yes, do not share that thought, comment or picture with the social media world. If you are incapable of making that judgment call, I suggest you shut down all forms of social media accounts until your divorce is finalized.

 

Divorce Tax Preparation

It’s that time of year again – tax season is upon us. As discussed in my previous blog, it is important when preparing for a divorce in Texas to be aware of your assets and debts before you meet with a lawyer. It is my recommendation to have the two prior year tax returns in your possession at your initial consultation.

The IRS has now made access to your prior year tax returns easier. As reported by TechCrunch.com, Americans can now download their tax return transcript directly from the IRS. Before this feature became available, it would take approximately two weeks for a copy of any prior year tax return to be sent by the IRS through regular mail. 

Take advantage of this new feature and become better informed and prepared. Download your prior year(s) tax return here: http://www.irs.gov/Individuals/Get-Transcript

 

What Is a Default Divorce in Texas?

Any person who is on the receiving end of a lawsuit in Texas is entitled to what is called “personal service.” Personal service is where a constable or a private process server comes up to the person on the receiving end of a lawsuit, asks if they are that person, and personally hands them a copy of the original petition and citation. The citation states that the person has been served with a lawsuit in a specific county in Texas. The citation also states “you have until on or before 10:00 a.m. on the Monday next following the expiration of twenty days after you were served in which to answer the lawsuit.”

Simply put, a default divorce is when the person who was served with the divorce petition fails to file a written answer within the requisite time period. A written answer is a simple document filed with the Court stating you are answering the lawsuit. If an answer is filed, then a default divorce cannot be obtained.

A divorce in Texas has a mandatory sixty day waiting period before you can finalize the divorce. This means that on day sixty-one, if the person on the receiving end of the divorce has been personally served with the divorce petition and the period in which that person has to answer the lawsuit has expired; the petitioner in the divorce may obtain a default divorce.

When requesting a default divorce, it is required that evidence be presented for each item you are requesting in the divorce decree. For example, if you are requesting the other parent’s possession schedule with the children be less than the Standard Possession Order found in the Texas Family Code, evidence must be presented to show why the specific possession schedule you are presenting is in the children’s best interest. At the conclusion of all of the evidence, assuming all prerequisites have been met and elements of the law established, the Judge will have the option to grant the divorce.

Given what could happen in terms of a default divorce, it is important to seek legal advice and file an answer if served with a divorce petition in Texas.
 

Why should I hire you as my Dallas divorce attorney? Part 2

This is the second in my line of posts responding to the questions posed by Carla Schiff Donnelly in her article about hiring the right divorce lawyer. There, she poses several questions that a person should ask a divorce lawyer in the initial interview. Here is my answer to question #2:

  • What is your approach to a new case?

Every case is different, depending on whether it is contested or uncontested, just beginning or already in the middle of litigation, and depending on the issues involved. Most often the first step would be to file the divorce petition and schedule a temporary hearing. The purpose of the temporary hearing is to get some ground rules – temporary orders – in place that will last while the divorce is pending. During this phase we evaluate the need for experts or consultants to add to our team – one example would be to hire a business valuation expert if that is an issue. The next phase involves gathering the information needed to attempt settlement of the case. This phase is called discovery. Once we have enough information to make educated decisions, then we will work to schedule mediation in order to try to get an agreement. One thing is for sure, a divorce will only happen after one of two outcomes – either settlement or a contested trial. If settlement doesn’t work, then we request a trial setting and prepare for presentation of the case to the judge.

See my answer to question #1 How long have you practiced family law?
 

Preparing for Divorce in Texas

Jeff Landers, the author of the new book, Divorce: Think Financially, Not Emotionally – What Women Need To Know About Securing Their Financial Future Before, During, And After Divorce, wrote an interesting article for Forbes.com regarding asset division during divorce. 

The focus of the article centered on women preparing themselves and their finances during the divorce process and to become educated on what assets they are entitled to at the conclusion of the divorce.  The biggest mistake I see either spouse make during the divorce process, not necessarily just women, is to rely upon the representations made by the other spouse when it comes to what a person is entitled to when dividing property.

Texas is a community property state.  This means that everything a person owns at the time of divorce is presumed to be community property and is thus divisible by a Court.  However, if a person can prove that an asset is their separate property, the Court cannot divide that asset and will award it to the person whose property is characterized as separate.  A piece of property can be separate property in Texas if it was 1) owned prior to marriage 2) inherited either prior to or during the marriage 3) was gifted to a person during the marriage or 4) is a personal injury award for pain and suffering.  It is important that you consider these factors when you are meeting with your attorney to discuss your options and how you are going to prove an asset is your separate property. 

Many types of assets can be what are called “mixed character assets” meaning that the asset can be made up of both community and separate property.  The most common example of this type of asset is a stock option.  For instance, a stock option can be awarded to a spouse by their employer during the marriage but the stock option will not fully vest until after the divorce.  The stock option has both a community property and separate property aspect.  The employee’s continued work after divorce is required in order for the option to vest and this continued work after divorce is considered the spouse’s separate property.  Therefore, the community property portion of the stock option needs to be assigned and then divided at the time of divorce.

Education and preparation is necessary when preparing for and going through the divorce action.  Your divorce attorney is your guide and advisor during this process.  However, the more you know, the more successful of an outcome you will have.

 

Children and Divorce - Their Top 3 Questions

One of the toughest moments in a divorce is telling the children. Although it is better to tell the children together, sometimes one parent selfishly decides to tell the children his or her story alone, without involving the other parent.

According to Huffington Post Divorce, Family therapist Diane Shearer says parents should look beyond the questions about divorce and get at what kids are really asking for. "When kids ask tough questions, they aren't looking for complicated answers. They are looking for affirmation, not information." This means they want to be assured that both parents love them no matter what. They want to know that the parents recognize their turbulent feelings.

Here are some tips on three of the most common questions.

1.  Why?

Kids want to know the big picture reason behind the break-up. According to Shearer, the child really seeks an affirmation of love. The child’s subconscious logic may be, if mom and dad can stop loving each other, can they stop loving me too? The child isn’t asking, nor does he or she need to be told, all of the real reasons for the split. Instead, both parents should provide reassurance to the child that both parents still love him or her and they will all continue to be a family – just a different family than they have been.

2.  Is it my fault?

Children, especially young children, can be self-centered and can’t help but wonder if something they did caused the split. Sometimes this will cause children to become pleasers – trying to please each parent so maybe they will get back together. The most important response to this question is reaffirm both parents’ unconditional love for the child and reassure them that the complications the parents face are unrelated to the child.

3.  Where will I live?

A child will want to know how the break-up affects his or her life. It is best to have a decision about when the child will see each parent before offering the child an answer. Certainty for the child is important since other aspects of their lives are in upheaval. Tell them where they will be, when, and for how long. Speaking positively about the other parent at this time is extremely important for the child’s wellbeing. If there is no finality as to a parenting time schedule, offer the child as much certainty as possible. Be honest by saying that some of the answers haven’t been decided yet, but that the child will see each parent frequently.

What questions are your children asking you about divorce? And, how are you answering them?

The Effect of Family Violence on Spousal Support in Texas

The Texas Family Code states that a person is entitled to receive spousal maintenance if the person can prove that the other spouse was convicted of or received deferred adjudication for a criminal offense that constitutes family violence. The act of family violence has to have been committed against the other spouse or a child of the other spouse and the act of family violence has to have been committed during the marriage within than two years before filing for divorce or while the divorce action was pending.

An interesting question was posed regarding this provision of the statute; “Does the act of family violence have to have occurred during the two years preceding the divorce or does the spouse have to have been convicted of or received deferred adjudication for family violence within two years prior to filing for divorce?”

The answer is the act of family violence has to have occurred during the marriage within the two years prior to filing for divorce or during the pendency of the case. Also, the person has to have been convicted of or received deferred adjudication for that act of family violence that occurred during the marriage within the two years prior to filing for divorce.

Example: A wife commits an act of family violence against her husband 5 years prior to either spouse filing for divorce. The wife was convicted four years ago of assault pertaining to the incident of family violence against her Husband that occurred five years prior. This act of family violence for which wife was convicted did not occur within the two years prior to the filing for divorce. Therefore, it does not qualify the husband to receive spousal maintenance for the family violence that was committed against him.

Another question I have received is “Does an arrest for family violence enable a person to receive spousal support?” The answer is no. The person who committed the family violence has to have been convicted of or received deferred adjudication for a criminal offense that constitutes family violence.
 

Dallas Mayor's Rally Against Domestic Violence This Saturday

As divorce attorneys in the Dallas area, we are unfortunately familiar with the harsh reality of domestic violence.  We have stared into the eyes of the victims, watched them garner the strength to face their abuser and take the hard-fought steps toward regaining a life where they are in control.  Domestic violence often hides in plain sight across all economic backgrounds, religions and races. The more light that we can shine on this issue, the better.

 Now, Dallas mayor Mike Rawlings is speaking out against domestic violence and is calling on men to help end domestic abuse. To raise awareness and further this initiative, Mayor Rawlings has organized a rally against domestic violence this Saturday, March 23, 2013.  The rally is scheduled to take place at City Hall and will include an impressive roster of political and sports-celebrity speakers and attendees. Emmitt Smith, Roger Staubach, Don McPherson, Brandon Carr, and possibly Dirk Nowitzki will be in attendance.  State Representative Rafael Anchia will be the emcee for the Saturday event. Other speakers include: former soccer player Daniel Hernández, Bishop of Dallas Kevin Farrell, sportscaster Dale Hansen and State Rep. Jason Villalba, who will talk about four bills that would help combat domestic violence.

 The rally will be this Saturday, March 23, 2013, beginning at 10 a.m. at City Hall at 1500 Marilla Street.  For more information on the event click here: http://www.dallasmenagainstabuse.com/event/

 

Real estate in a Texas divorce - What do you need to know?

I read with interest Jeff Landers’ (@bedrock_divorce) Personal Finance Column on Forbes.com about real estate in divorce. He had seven points that he believes divorcing women need to know about real estate and real estate appraisals. I actually think that his point is relevant whether you are a man or a woman – anyone going through divorce that has real estate needs to be aware of how real estate is handled, especially in Texas since the rules in Texas are a little different than most other states.

In Texas any asset purchased during the marriage is considered community property and is divisible in the final divorce. (Any property purchased before marriage or received through gift or inheritance is separate property. For a discussion on Texas characterization and division in divorce, click How to Divide Marital Property in a Dallas, Texas Divorce.) In reaching a fair division of the marital estate, first the values of the assets must be determines. For real estate, it is always best to get an appraiser to give an opinion of value under the current market conditions.

Landers’ points are:

  • Most real estate appraisals are based on comparable sales.

A real estate appraiser evaluates a property based on the recent sales of comparable properties in the area, considering whether the features of the real estate in question make it more valuable or less valuable than the other properties considered. Some people try to use the tax appraisal value in divorce, but that value may or may not be related to the actual fair market value of a house.

  • Unique features may be evaluated differently by different appraisers.

How the unique features of a property are valued is a subjective standard that can differ from one appraiser to another. Appraisers won’t consider the extravagant window treatments or fancy paint on the walls. Features that effect value include a swimming pool or a 4-car garage. If one side of the divorce gets an appraisal and the other side disagrees, then a second appraiser can be hired. If there is a substantial difference in the two opinions, then a third appraiser can be appointed by a judge to “break the tie”.

  • One woman’s peaceful Zen garden may be another woman’s backyard eyesore.

Like appraisers view things differently, so may buyers. The seller may be really into fruit trees and think the orchard is of great value to the property. A buyer, on the other hand, may find the falling rotting fruit to be an annoyance that attracts critters to the yard. So, a seller’s viewpoint of the value of costly improvements they performed on the house may not be indicative of the value that an appraiser or a buyer may find.

  • Make sure you use an appraiser who’s knowledgable in the local market.

Realtors like to say, “all real estate is local” – that holds true in valuing real estate in a divorce. The local market conditions drive the prices of real estate. An appraiser in Dallas may not be familiar with the under currents of the housing market in Houston to give a fair assessment of value.

  • Real estate values change over time.

Over the past few years we have seen with great emphasis how the real estate market can change over time. Economic factors – like the availability of mortgages, how high or low mortgage interest rates are, or whether the job market is shrinking or growing – affect housing prices. Just because a house was worth something when it was purchased does not necessarily carry over to the present value. Likewise, some cases need to have a historical value to show what the property was worth in the past.

  • Fair market value is only part of the story.

In considering a division of property in a divorce in Texas , finding the fair market value of the property only provides part of the information needed. The mortgage balance is also important to know, which then provides the equity position in the property.

  • Equity in the property is not the same as money in the bank.

Obviously, you can’t spend home equity at the grocery store or use it to pay the electric bill. So, different spouses may have different priorities in achieving a fair division of property. One spouse may have more interest in spendable cash; where another spouse may be more interested in the long-term equity of the real property. But, even if the house gets sold for more than was paid on it, there are tax considerations to take into account. If the house appreciated in value since it was purchased, there may be capital gains taxes to pay. This will decrease the cash available to spend.

Photo Credit: © Remygerega | Stock Free Images & Dreamstime Stock Photos

Texas divorce FAQ: Can I have my boyfriend/girlfriend sleep over during the divorce?

Most Texas courts directly prohibit or at least frown on having sleepovers while the divorce is pending, especially when the children are around.  It is better to completely end one relationship before getting into a new one.

 

Texas divorce FAQ: How much will my case cost?

It is difficult to determine in advance how much the case will cost. The total fees will depend on the difficulty of the issues and the time involved. It is impossible to know in advance what issues the other side will raise, what motions they may file that will require hearings, or what other difficulties may come up. Your lawyer may be able to give you estimates for particular aspects of the case as you go along. An exhaustive “leave no stone unturned” approach can be very costly and mostly unwarranted.

Texas divorce FAQ: Does my lawyer have to keep working for me when I don't have any money to pay the bill?

Generally speaking, lawyers work in exchange for payment of a fee. If a client lacks the means to continue to pay the lawyer, then the lawyer will seek permission of the court to withdraw from the representation. The ethical rules for lawyers require that a lawyer withdraw from representation in a way that does not damage the client’s case.

Texas divorce FAQ: Does the loser have to pay attorneys fees?

So called “loser pays” statutes don’t apply in family law because it is very difficult to identify a “winner” and a “loser”. Often, some aspects of the decision will favor one party, and other aspects the other. If a party makes an argument that is “frivolous” or “groundless” as provided by the relevant statutes, then that party can be made to pay attorneys fees as punishment. This happens very rarely. Where one party violates a court order, for example to pay child support, the law may require payment of attorneys fees.

Attorney Fees - Who Gets Them and When: Part 4

 

Divorce is personal and it is easy to feel attacked or wronged by your spouse or even their attorney. Clients take it personally when the other side files inflammatory or seemingly unsupported pleadings, refuses to respond to discovery, or otherwise seems to delay or interfere with the litigation process. In certain situations the court can punish the opposing party (and sometimes even their attorney) for these bad acts and/or misconduct by order them to pay the innocent party’s attorney fees.         

Under Texas law, a court may impose sanctions on the offending party, their attorney, or both for improper conduct including abusing the discovery process, making false statements to the court, filing frivolous or groundless pleadings, and failing to properly serve or deliver pleadings or motions, and for failing to comply with a court order.   These sanctions can include attorney fees. A court can impose sanctions (including attorney fees) at the request of a party or, in some cases, on the court’s own initiative.             

In deciding whether to award attorney fees as sanctions, the court can consider all matters that have occurred in the litigation -- not just the specific violation(s) alleged. Also, the court is justified in refusing to impose sanctions if both sides are equally guilty of poor conduct or bad acts.             

I hope this series has helped to shed light on the different ways a court can award attorney fees in a Texas divorce or other family law proceeding. Keep in mind in most of these situations the decision on whether or not to award fees is discretionary – meaning that even if the court has the statutory ability to award attorney’s fees, the judge might decide not to at the end of the day.

Texas divorce FAQ: Why do I have to pay for a lawyer when I don't want the divorce?

 

Texas has a no-fault divorce statute, which means that a divorce can be granted even if only one party wants it. So, even if you don’t want the divorce, the divorce can happen anyway. If you want your interests to be protected, you will need to consult an attorney. The attorney will require payment in some fashion. In certain situations, a party can request payment from the marital estate or from the other party, but this is usually a reimbursement for fees paid. Most attorneys won’t wait to be paid until after the services have been rendered.

 

Attorney's Fees - Who Gets Them and When: Part 3

 

In addition attorney’s fees in a divorce, the court has authority under Texas law to award attorney’s fees to one side or the other in a Suit Affecting the Parent-Child Relationship (or “SAPCR”).

A Texas court can enter temporary orders for payment of reasonable attorney’s fees and expenses in a SAPCR (including divorce cases with children and modification cases). But the fees must be for “the safety and welfare of the child”. Attorney fees for the safety and welfare of the child can also be awarded as temporary orders during an appeal.

Texas courts have the ability to award attorney’s fees in SAPCR cases as “necessaries” for the child and in suits to adjudicate parentage. 

In a modification case, you can request attorney’s fees from the other side if the court determines that the modification suit was filed frivolously or designed to harass the other party. Likewise, attorney’s fees can be ordered against a party who knowingly makes a false allegation of child abuse or neglect in a SAPCR.

Finally, attorney’s fees can be ordered in suits brought for the enforcement of prior orders for child support or of possession of or access to a child. 

Check back next week for part 4 where I will focus on awards of attorney’s fees as sanctions.

 

Necessary Financial Information for Temporary Orders Hearing in Dallas, Texas

 

During a divorce proceeding in Dallas, Texas, at the time of filing for divorce or anytime during the pendency of a divorce action, a party can request a Temporary Orders Hearing. The purpose of the Temporary Orders Hearing is for the Court to make financial orders regarding child support, payment of debts, and possible temporary spousal support.

Depending on your employment, there are financial documents that are necessary to show the Court at the time of the Temporary Orders Hearing so that the Judge has the necessary financial information before he or she makes financial orders that will last during the pendency of a divorce action. If you are an employee, there are a number of documents that evidence your earnings. You should provide your lawyer with at least your three most recent pay stubs, your prior year’s tax return or at a minimum your W-2 from the prior tax year. If your income has decreased from the prior year, your prior year’s W-2 is extremely necessary in comparison to your most recent pay stubs so that you may prove to the Court your decrease in pay. If you are entitled to any type of bonus, written documentation from your employer evidencing when and how the bonus is paid is imperative. Most pay stubs state how much has been paid that year in bonuses as of the date of the pay stub. 

If you own your own business or are an independent contractor, there are different financial documents that are necessary to provide to your lawyer. The prior year’s tax return is imperative as it will not only show your income but also any deductions or adjustments made due to your type of employment. Any 1099 you receive needs to be given to your attorney. Also, if you receive a set amount per month or what some refer to as a “draw,” any documents evidencing this “draw” needs to be provided to your attorney as well.

Finally, if children are involved you need to provide written documentation as to the cost the family’s health insurance as well as documentation as to the cost of only the children’s monthly health insurance amount. This information is considered when calculating a person’s child support obligation. Failure to provide these necessary documents can have a negative impact on you during the pendency of the divorce that may be much more far reaching than you realize.

 

Does It Matter Who Files for Divorce First?

Whether or not to file for divorce first in Dallas, Texas may have an effect on your divorce case.  When it comes to issues that need immediate attention at the beginning of a divorce action, the fact that you file for divorce first can set in motion a series of events that can directly benefit you.

When a person files for divorce, that person can request a Temporary Orders Hearing in the Original Petition for Divorce.  The purpose of the Temporary Orders hearing is what I refer to as “putting a Band-Aid on the situation.”  The Judge is going to make orders that will remain in place during the pendency of the case.  These orders include possession schedules for you and your spouse’s time with the children, conservatorship of the children, child support, who gets to remain in the marital residence during the pendency of the case and who must vacate the marital residence, temporary spousal support, and who will be responsible for certain bills.  Filing for divorce first may give you an advantage when comes to issues at the Temporary Orders hearing in that you will likely have more time to prepare for this hearing than your spouse will have. 

If two people are married without children and a temporary orders hearing is not necessary at the beginning of the divorce action, then it will not likely matter who files for divorce first.  Average filing fees for divorce actions range from $300.00 - $350.00 plus the costs of personal service of the Divorce Petition on your spouse.  These are costs that are paid by the person who files for divorce first. If you do not file first, you can expect the filing fees to be approximately $35.00 and you will not need to pay for personal service of the Counter-Petition for Divorce on your spouse. 

It is important to speak with your attorney at the beginning of your case to establish what your short and long term goals are for your divorce.  Depending on your goals, it may be beneficial to file for divorce first as opposed to waiting for your spouse to file first.

 

Be Prepared for your Direct Examination

  • Direct examination is your opportunity to tell the Judge your “side of the story".
  • This is your opportunity to tell the Judge what it is that you want the Court to do.
  • You will be nervous, so be sure to practice and be prepared for your direct examination.
  • It is important to get across to the Court your positive attributes as a parent, if there are child-related issues involved.
  • Don’t just focus on the negatives of the other parent.
  • Do focus on the positives of you as a parent.
  • Your goal should be to paint a picture for the judge about how things have been working prior to the separation and filing for divorce.
  • Focus on events that occurred within 90 to 120 days prior to the filing of the divorce, unless you and your spouse have been separated for quite some time or if there are facts that are important that pre-date this time period.
  • A judge will likely not be interested in something that happened 5 years ago at this stage of your case.
  • For instance, during the last 90 to 120 days who takes the children to school, who gets them up and ready in the mornings, who helps them with homework, who picks them up from school, who cooks them dinner, who gets them ready for bed, who gets them to extracurricular activities, who takes care of their medical needs, etc.
  • Be sure to meet with your attorney in advance to find out what kinds of questions that he/she will be asking you.
  • Once you know what kinds of questions that you will be answering, take some time and think about your responses.
  • Practice saying your responses out loud before the date of the hearing.
  • Be sure to give a concise response to the questions. 
  • Many counties in Texas will limit the time that you have to present your case to the Judge at the temporary orders hearing. 
  • Often times you will have 20 to 30 minutes, so don’t waste time going on about things that are irrelevant for this stage of your case.
  • Your attorney will be asking you questions that will generally start with “who,” “what,” “when,” “where,” “why,” “how,” or “please explain.” 
  • Be sure that you are familiar with any documents that your attorney plans to introduce into evidence through you.
  • Know what you need to do to assist your attorney in getting these documents admitted into evidence.
  • Your attorney will likely prepare a relief requested exhibit that contains all of the specific things that you are asking the Court to order. For instance, what possession schedule you are proposing, what child support amount you are proposing, etc.
  • Once the relief requested exhibit and/or any other exhibits have been admitted don’t just shove them aside, use them to assist you with your direct examination.
  • If you do not understand the question that you are being asked be sure to stop and ask your attorney to please repeat and/or rephrase the question.
  • You never want to answer a question that you do not understand.
  • If either attorney makes an “objection” during your testimony, stop answering the question immediately whether you are mid-word or mid-sentence.  The judge will then rule on the objection.
  • If the judge sustains the objection, then you do not have to answer it.
  • A way to try to remember this is sustain starts with an “S” and stop starts with an “S,” so if the judge sustains, then you stop and do not have to answer that question.
  • If the judge overrules the objection you have to answer the question.
  • At this point, you will likely not remember the question, so make sure that you ask the attorney to repeat the question.
  • It is possible that the judge could ask you some questions directly at the conclusion of your direct examination.  Be sure to be respectful and answer only the question(s) that the judge is asking you. This is not your opportunity to say anything and everything you would like. 

Attorney's Fees - Who Gets Them and When: Part 1

 

More often than not, prospective clients come to the initial consultation with questions about attorney’s fees.  Can they make their spouse pay?  Will they have to pay? Why has their spouse requested them in their petition for divorce? And so on.  No matter what the question is, there is a common theme – attorney’s fees, especially the idea of attorney’s fees in a family law case, can be confusing at best and terrifying at worst.  My purpose in writing this series of posts is to take some of the mystery away.

First of all, virtually every person asks for attorney’s fees in their initial divorce petition, whether their case is contested or not.  No, it does not mean that you will have to pay the other side’s fees on top of your own.  In the vast majority of family law cases that settle, attorney’s fees are allocated in a manner where each side pays their own.  In the other portion of cases that go to trial, even then the court usually orders each side to pay their own fees. 

But, here’s the caveat – in a divorce attorney fees for both sides are typically paid from the community estate.  This means that while your final order will likely say that each side pays their own, in all likelihood the community is footing the bill for everything.  Practically speaking, this means that the more that comes out of the community estate in legal fees for you and/or your spouse, then the less that you or the court will have to divide when the divorce is final, ultimately meaning a smaller piece of the pie for each of you.

What all of this means is that when at all possible, it will be better for both you and your spouse if you can reach an agreement – allowing you to both maximize your share of the community estate by minimizing attorney’s fees.  Will this always be possible? Of course not.  Settlement requires good faith effort on both sides.  When you don’t have this, then you will probably need to spend money on attorney’s fees to reach an acceptable resolution to your divorce case.

Stay tuned for my post next week on the statutes that apply to attorney’s fees in your divorce.

 

What to Wear and how to Appear at Your Temporary Orders Hearing:

Keep in mind that your temporary orders hearing is generally your first opportunity to come face to face with the judge that could be deciding issues involving your children until they turn 18 or graduate from high school.

 

The way that you present yourself to the Judge could have an impact on the outcome of your case.

Here are a few tips to keep in mind when getting ready to go to your temporary orders hearing:

 

  • Be sure that your hair is clean and combed;
  • Be sure that your facial hair is groomed in a way that it looks neat and clean;
  • Wear slacks and a shirt with a collar if you own them;
  • Do not go out and buy these items of clothing just for court;
  • If you do not own slacks wear a nice shirt and long pants;
  • Do not wear a tank top or sleeveless shirt;
  • Do not wear shorts;
  • If you wear a skirt make sure that it is not too short;
  • If you wear pants make sure that they do not fall too low exposing your underwear;
  • Do not wear flip-flops;
  • Make sure that all shirts cover your stomach;
  • Do not show too much skin in court;
  • Do not wear a hat or cap to court;
  • Do not chew gum once you are in the courtroom; and
  • Make sure that you have your cell phone turned off once you are in the courtroom.

Texas divorce FAQ: How can I help with my case?

 

Be sure to coordinate your efforts with your lawyer to make sure you are being effective. Generally speaking, the more organized you are, the more help you are to your lawyer. Organizing your thoughts about what you want from the court and the facts supporting why you should get it can be very helpful. Also, gathering and organizing financial records can make your lawyer’s life easier and save you money. Keeping a journal of your interactions with the children is a helpful task in a custody case.

 

Preparing for Your Temporary Orders Hearing: Your Attorney Can Only Prepare Your Case With the Information They Have Available to Them, so Provide Them With Everything You Can.

 

Provide your attorney with all good/bad facts:

  • It is extremely important that you openly and honestly discuss all facts that could be relevant to your case with your attorney.
  • You do not want your attorney to find out “bad facts” about you for the first time at the hearing.
  • Discuss your past criminal history and any other “skeletons in your closet” with your attorney before the temporary orders hearing.
  • Discussing these issues with your attorney before the hearing will allow your attorney to try to minimize the impact of the “bad facts” in your case.
  • Discuss with your attorney any “bad facts” regarding the other party in advance.
  • Discussing with your attorney any “bad facts” regarding the other party will allow your attorney to try to obtain any relevant documentation, such as police reports, prior to the hearing.
  • Provide your attorney with the “good facts” of your case as well. This will allow your attorney to present you in the most favorable light to the Court. 

Provide your attorney with all relevant documents:

  • It is important to provide your attorney with all relevant financial documentation as early as possible prior to the hearing. This will allow them to review these documents prior to the temporary orders hearing in order to determine which documents should be used at the hearing.
  • Provide your attorney with all relevant pay stubs, bank statements, credit card statements, tax returns, etc. These documents will likely be exhibits for the Court at the temporary orders hearing.
  • Provide your attorney with any relevant medical records, school records, childcare records, police reports, photographs, emails, text messages, Facebook and other social networking information. These will likely be exhibits for the Court at the temporary orders hearing.

Provide your attorney with witness information:

  • Provide your attorney with the name and contact information of any possible witnesses for your case as early as possible. This will allow your attorney enough time to issue any necessary subpoenas to secure the attendance of witnesses for your hearing.
  • Advise your witnesses that your attorney or someone from his/her office will be contacting them about their possible testimony in your case.
  • Inform your possible witnesses of your temporary orders hearing date.
  • Try to find out if your witnesses will require a subpoena to attend the hearing.

 

Texas divorce FAQ: What if I don't show up in Court?

 Failure to appear for a hearing or trial can result in a default being taken against you. In other words, whatever the other party asks for at the hearing, they will win in your absence. If this happens, talk to an attorney immediately. Sometimes, if you have a valid reason for not being in court, a judge will give you a second chance.

 

Texas divorce FAQ: Can I make my spouse sign a joint tax return?

The tax filing status as married or single is determined as of the last day of the year. So, if the divorce remains pending as of December 31st, the parties are still married for tax purposes. If the divorce is granted during the tax year, then the parties’ marital status is probably single as of December 31st. Typically, parties cannot be forced to sign a joint tax return. In most circumstances, it is usually more advantageous for parties to file a joint return than to file separately. The advice of a good CPA to give each spouse independent advice makes sense.

Texas Divorce FAQ: Where do I file for divorce?

Divorces are typically held at the petitioner’s county courthouse. Texas, like all other states, has residency requirements that parties must meet before they can file for divorce. Texas requires that the petitioner live in the state for six months and in the county for 90 days before filing. If the parties have separated and lived in different counties for more than 90 days, then the divorce can be filed in either spouse’s county of residence. If neither party meets the residency requirements, then the parties may have to wait to file until they establish residency in a Texas county.

Temporary Orders Hearings: What You Need to Know to be Prepared for A Temporary Orders Hearing in Texas

 

Typically, a temporary orders hearing will be the first hearing held before a judge in your Texas divorce and/or child custody case.   Temporary orders hearings are an extremely important part of your case. At a hearing for temporary orders the judge will enter orders that could remain in place during the pendency of your divorce and/or child custody case. Although the issues addressed at a temporary orders hearing can vary from case to case, generally the judge will make a temporary determination regarding the following issues:

1.      Temporary conservatorship/custody of the children;

2.      Temporary residency restriction for the children;

3.      Temporary possession of and access to the children (possession schedule);

4.      Temporary child support;

5.      Temporary medical support;

6.      Temporary exclusive use of the marital residence;

7.      Temporary exclusive use of motor vehicles;

8.      Temporary exclusive use of personal property and furnishings;

9.      Temporary spousal support;

10.   Temporary payment of expenses related to the household, including the mortgage and utilities;

11.   Temporary payment of insurance premiums, including auto insurance, health insurance, life insurance, and homeowner’s insurance;

12.   Payment of attorney fees; and

13.   Any other issues that the court deems necessary for the protection of the parties, children, and/or property.

Over the next several weeks you will learn what you need to know to be prepared for a temporary orders hearing, including how to prepare for the hearing, what documents you will need to present as evidence, what witnesses you may need to appear on your behalf, and how to present yourself to the judge.

 

Texas divorce FAQ: Will my spouse be required to return to work?

As in many divorce situations, whether one spouse may be required to get a job depends greatly on the facts of that particular situation. Because post-divorce alimony is very limited in Texas, the reality is that most circumstances will require both spouses to work after the divorce. Where one spouse has not worked outside the home for a while during the marriage, there may be a period of time while the divorce works through the process that the money-earning spouse will be required to support the stay-at-home spouse to facilitate the adjustment to the new status quo.

Common-Law Marriage: Examples of Situations Where a Texas Court Found that No Common-Law Marriage Existed

1.    No Agreement to be Married:

·        Behavior that is consistent with courtship, such as holding hands and showing affection towards one another;

·        Marriage proposal and giving of an engagement ring;

·        Statements that parties were “trying out” their relationship and would later marry if everything worked out; and

·        A promise by one person to the other to stay with them during illness.

2.      No Holding Out:

·        An indication on a lease agreement or other contract that you do not have a spouse;

·        Evidence that only one person in the relationship ever stated to another that he or she was married;

·        Evidence that a man only told a few of his friends that he was married and the woman never told anyone; and

·        A woman stated upon being admitted to the hospital that she was single.

3.      No Cohabitation/Living Together:

·        Evidence that a man and woman never spent an entire night together;

·        A man and woman never moved any personal property into the same residence;

·        A man and woman never moved in together; and

·        A man and woman living in the same house but sleeping in separate beds in separate rooms.

Texas divorce FAQ: Can my spouse continue to use our credit cards?

At the beginning of a divorce, most courts enter orders that regulate each party’s use of credit during the divorce. Although a judge won’t prohibit use of credit altogether, the order will require only reasonable spending. This isn’t the time for extravagant purchases. Sometimes a spouse will cancel credit cards prior to the divorce being filed. If there is a question about this, call the credit card company in advance and confirm.

Legal Effects of a Common Law-Marriage

 

If the Court makes a finding that a common-law marriage exists between you and another person, the common-law marriage has the same legal consequences as a ceremonial marriage. This means that you would have to file for divorce if and when the relationship ends just as you would if you had a ceremonial marriage. Once a common-law marriage is in existence the husband and wife cannot “undo it” by agreeing that they are no longer married.  Additionally, if a common-law marriage exists, then all property and debts accumulated during the duration of the common-law marriage that are community property are subject to division by the Court at the time of the divorce.

A common-law marriage between a man and a woman begins when all three of the following elements are satisfied at the same time in Texas:

1)     The parties agree to be married;

2)     The parties live together as husband and wife, and

3)     The parties represent to others in Texas that they are husband and wife, which is often referred to as “holding out” to others that you are husband and wife.

A common-law marriage ends when it is dissolved by death, divorce, or annulment.

 

Texas divorce FAQ: Can I change the judge?

When a suit is filed, the court and judge assigned to the case is set in stone. Judges are reelected every 4 years and may be replaced by a newly elected judge. In extremely rare situations, a judge may be found to have such a severe conflict of interest or bias that the case can be moved to another court. The better approach to avoid the uncertainty of a judge’s decision is to make the best agreement for settlement that is possible.

Texas divorce FAQ: What should I wear to court?

Dress conservatively as if you were going to an important event, like a job interview. Generally slacks and a nice shirt are appropriate for men and women. For women a skirt and blouse may also be appropriate.  Jeans, shorts, sweat pants, crop pants, spaghetti straps, low cut blouses, or short skirts are almost never ok.

Common-Law Marriage: 10 Ways to Know If You Could Be Involved In a Common-Law Marriage:

  1.  Filing a federal income tax return with the other person named as your spouse;
  2. Obtaining a life insurance policy and identifying the other party as your spouse and designating them as beneficiary;
  3. Purchasing a home or other real property where the deed is signed by you and the other person as husband and wife;
  4. Taking out a loan with the other person being identified as either your husband/wife;
  5. Sending cards or letters to the other party that state “from your loving husband,” or “to my loving wife;”
  6. Hosting or attending a party in Texas where you introduce the other person as your spouse;
  7. Signing a guest book at a wedding, etc. as “Mr. and Mrs.”;
  8. Your family members referring to him as their son-in-law;
  9. Introducing the other person to your colleagues, neighbors, and/or friends as your husband/wife; and/or
  10.  You and the other person have an agreement to live like husband and wife and be a married couple.

Next week I will be discussing examples of situations where Courts in Texas have either found that a common-law marriage existed or not, as well as the legal effects of a common-law marriage in Texas.

 

 

Texas divorce FAQ: Can I buy a house during the divorce?

It is not wise to create new assets or financial obligations when you are trying to divide the current assets/debts. In some circumstances, such as by agreement or when the parties have significant financial abilities, the parties may agree to allow such a purchase.

Common-Law Marriage: What You Should Know About Common-Law Marriage in Texas

 

Common-law marriage is recognized in Texas between a man and a woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife. Spouses that have a common-law marriage have not obtained a marriage license and have not participated in a marriage ceremony. 

As more and more people get away from the traditions of formal ceremonial marriages, it becomes more important to understand when and how you could find yourself in a common-law marriage relationship.   Over the next few weeks I will be discussing the definition and requirements to prove a common-law marriage in Texas, the top 10 ways to know if you are likely involved in a common-law marriage relationship, and the legal effects of a common-law marriage.

Today more and more couples are cohabitating prior to marriage, which is one element of common-law marriage in Texas. There are many misconceptions about common-law marriage. The most common misconception being that living with someone alone is enough to prove a common-law marriage relationship. That is not the case in Texas, since another element that must exist to prove a common-law marriage is that there was an agreement by both people to be married. It is possible to live with someone that you are in a romantic relationship with without there being an agreement to be married.

In order to meet the requirements of an informal/common-law marriage in Texas the man and woman must:

1)     Agree to be married;

2)     Live together as husband and wife, and

3)     Represent to others in Texas that they are husband and wife, which is often referred to as “holding out” to others that you are husband and wife.

All three elements must exist at the same time to establish a common-law marriage.

In addition to meeting the above requirements, you must also prove that both husband and wife have the capacity to enter into the marriage. In the state of Texas to have the capacity to enter into a common-law marriage, you must be members of the opposite sex, you must both be at least 18 years of age or older, you cannot be related, and you must not be currently married to someone else. If you can fulfill these requirements, then you know have the capacity to enter into a common law marriage. 

Proving a common-law marriage depends on the factual circumstances of each case. In making a determination of whether or not a common-law marriage exists, courts in Texas review the facts on a case by case basis.  

1)     Agreement to Be Married

To establish a common-law marriage the parties must agree to be married. The case law in Texas states that there must be evidence that shows that the parties intended to have a present, immediate, and permanent marital relationship wherein they both agreed to be husband and wife. An agreement to get married at some later time in the future is not sufficient to establish an agreement to be married.   If there is no written agreement to be married, your actions and the actions of the other party can be used to prove that there was an agreement to be married.

 

2)     Living Together/Cohabitation

In order to establish a common-law marriage the parties must live together in Texas as husband and wife. The requirement of living together for purposes of fulfilling this element of a common-law marriage requires more than just sexual intercourse under the same roof. The case law in Texas states that in order to prove cohabitation you must be living together as husband and wife, and you must be maintaining a household and doing things that are commonly done by a husband and a wife. There is no magic number for how long you must reside together in Texas in order to fulfill this requirement.

3)     Holding Out

In order to establish a common-law marriage the parties must represent to others in Texas that they are married. The case law in Texas states that the purpose of this requirement is that there can be no secret common-law marriage. Spoken words are not necessary to fulfill this requirement. The actions and conduct by each person may be enough to fulfill the requirement of holding out. 

Next week I will be discussing the top 10 ways to know if you are likely involved in a common-law marriage relationship, and the legal effects of a common-law marriage in Texas.

 

Texas divorce FAQ: /What happens to the wedding gifts?

 

Wedding gifts can be a tricky issue in a divorce. Usually gifts received by either party prior to marriage are separate property of that spouse and not subject to division by the divorce court. However, in my experience, when the parties cannot agree on splitting up the pre-marriage gifts, the divorce judge is likely to either order the gifts returned to the gifting family member or friend (in a short term marriage), or award the gift to the spouse whose family gave the present to the couple. In extreme circumstances, the judge can order the gifts sold and split the money between the spouses.

 

Texas divorce FAQ: Can I change the locks on the house?

The question of whether one spouse can change the locks on the house and deny the other spouse access to the house is frequently asked. The simple, short answer is NO! Until a divorce judge awards one spouse or the other the exclusive possession of the house and permits the locks to be changed, both spouses have the right under Texas law to occupy the marital residence. If one spouse locks the other out of the house without the property authority, the other spouse can obtain entry to the house without penalty under the law. In other words, the locked-out-spouse can legally break-in to the house, or hire a locksmith to permit entry.

Texas divorce FAQ: Can I tape my telephone conversations with my spouse? What about my spouse's telephone conversations with my children?

A person may tape a telephone conversation only if that person is a party to the conversation. So, if Mary and John are talking on the telephone, Mary may record the conversation, even without telling John she is recording, as long as she is the one on the phone with John. However, Susan, who is not part of the telephone conversation could not tape Mary and John’s conversation. To do so would be a federal criminal offense. 

As it relates to children, a parent who is not talking to the children on the phone cannot tape the children’s conversation. So, if Little Johnny is talking to Daddy on the phone, Mommy cannot tape the conversation. To do so would be a federal criminal offense.

Texas divorce FAQ: Can I read my spouse's mail? Can I read my spouse's e-mail?

Federal law governs who has the authority to read a person’s mail or e-mail. As to mail (“snail mail”), the person to whom the correspondence is addressed has a right of privacy to that mail. A person who opens another person’s mail without permission commits a federal criminal offense.

Similarly, with e-mail, a person has an expectation of privacy in their electronic communication. If the spouse has shared the password to the e-mail, then they have consented to the other spouse reading the mail. However, guessing at the password or using other methods of reading the e-mail without the spouse’s consent is a federal criminal offense. Spouses are getting prosecuted around the state of Texas and the U.S. for violating these laws – called the Federal Wiretapping Statutes.

So, tread very carefully in reading a spouse’s mail or e-mail, especially if the marriage appears to be headed for divorce court.

Texas Divorce FAQ: When should I move out of the house?

There are different factors to consider when deciding whether or not to move out of the marital residence. First, if there are children involved in your divorce and you are seeking primary custody/conservatorship of the children, do not move out of the marital residence until such time that you have concluded a temporary orders hearing in your case.    If you move out of the marital residence prior to a temporary orders hearing and the children remain there with the other parent, then you have weakened your position in the case for primary conservatorship/custody of your children.   If you leave the house you are leaving the children. Courts in Texas generally award temporary exclusive use of the marital residence to the parent that is appointed as the primary conservator of the children. With that being said, in many situations it can be difficult for both spouses to remain in the same residence until a hearing can be had. Therefore, it is important to consider the environment at the marital residence in determining if and when you should move out of the marital residence prior to a hearing. In some counties in Texas, it could be several weeks to a month before you are able to have a hearing before the Court to determine which parent will be awarded temporary exclusive use of the marital residence. During the time that you are awaiting a hearing do not allow yourself to be put in a situation where any allegations of family violence could arise.  

If there are no children involved in the divorce, but you want to be awarded either temporary exclusive use of the marital residence and/or be awarded the marital residence at final trial, then do not move out of the house until a hearing can be held.   In many cases where children are not involved, courts in Texas consider whether or not either party has a place that they can reside temporarily during the pendency of the divorce. If you move out of the marital residence prior to a temporary orders hearing, then you weaken your case for being awarded temporary exclusive use of the residence as it would appear to the Court that you do have another place to reside during the pendency of the divorce.

Texas divorce FAQ: How long will the divorce take?

The “cooling off period” is the shortest amount of time that a divorce can take in Texas. From the date the initial divorce petition (the document that starts the process and notifies the divorce court that a divorce is requested) is filed, there is a mandatory 60-day waiting period before the divorce may be finalized. Usually this applies only to agreed divorces, where the spouses have agreed prior to filing the divorce as to all of the terms of the divorce as to children and property. More often, the spouses do not agree, causing the divorce to take a much longer amount of time (and money). How long (and how much) depends on many, many factors. The complexity of the contested issues is definitely a factor – custody, relocation of the children beyond the county of the divorce, special needs of the children, complex property division, premarital agreements, spousal maintenance/alimony, etc. So, if the parties cannot agree on some issues and require the divorce judge to resolve their dispute, a final trial must be requested. Some counties’ dockets are so overcrowded with contested trials that parties must wait a long time to get a setting – some counties this may be 6 months to a year! The shortest time frame for an agreed divorce in Texas is 60 days, plus a few days to get to the courthouse and finalize everything. The longest divorce that I have ever seen lasted 10 years, including many years challenging the decision of the divorce judge on appeal!

Texas divorce FAQ: Should I hire a private detective?

Most often the question of whether to hire a private detective in Texas divorce cases arises in the context of proving that a spouse is having an extramarital affair or committing adultery in the eyes of the law. Except in extraordinary circumstances, I usually advise clients that the money they think they want to spend on a private detective can be better spent in other ways. Adultery is not the be-all-end-all issue in divorce that it used to be. It may be an unfortunate comment on our modern society and the frequency of adultery as an issue in divorce proceedings, but when a spouse has an affair, it may be the impetus for getting a divorce, but will have little effect otherwise. It extreme circumstances, like when the children have been around the paramour, the question of the affair may have more impact. Likewise, in some extreme situations, the spouse committing adultery may suffer a less-than-equal property division. In a particular case, there may be other reasons to hire a private detective. But, speak with your lawyer about the issues in your divorce, the benefit to be gained from spending money on a private detective, and the overall strategy of your case before going forward in that direction.

Texas divorce FAQ: Can one lawyer represent both spouses?

Most often in an attempt to save money on divorce proceedings, spouses in an amicable divorce want one lawyer to represent both parties. Simply put, any lawyer that agrees to this is acting against the ethical rules that govern lawyers’ conduct in Texas. Each spouse in a divorce have differing interest and viewpoints in reaching a divorce settlement and require different advice under the law. A lawyer cannot give advice to opposing sides of the same lawsuit. So, it is not possible for one lawyer to represent both spouses. It is, however, possible for one lawyer to represent one of the spouses in drafting agreed or uncontested divorce paperwork. The other spouse should be presented with the proposed agreed orders prior to presentation to the divorce court. If the other spouse can read/understand the paperwork and confirm that the contents match the agreement, he or she may do so representing himself or herself, without having to hire a lawyer. Or, he or she may consult a lawyer for review of the paperwork at a smaller fee than lawyers normally require for full representation.

Texas divorce FAQ: Can I stop the divorce?

Sometimes one spouse wants a divorce, but the other spouse would rather stay married. The spouse that wants to stay married would like to stop the divorce from happening and wonders if this is possible. A divorce in Texas is usually filed on the grounds of insupportability, which means that one spouse believes that the marriage is broken beyond the point of repair due to discord or conflict of personalities. This means that it only takes one spouse wanting a divorce for one to be granted in Texas; it takes both spouses to desire to reconcile in order to stop the divorce proceedings.

Small business owners get divorced too

Sometimes spouses who own small business get divorced in Texas. Dividing a small business in a divorce can have special challenges.  Read this white paper I wrote about the Top Five Concerns Regarding Small Business Ownership and Divorce in Texas.  To summarize, the five points are:

  1. What type of entity is the business – corporation, partnership, or sole proprietorship?
  2. When was the business formed?  Different rules apply if it was formed during the marriage versus before the marriage.
  3. Have there been changes in the formation since the business was started?
  4. Who runs the business day-to-day?  Will one spouse operate the business going forward or is there a dispute about who and how the business will continue to operate during the divorce?
  5. Where do the customers come from?  In determining value of the business, one consideration will be whether the customers come to the business solely because of the reputation of the business (called commercial goodwill) or because of the reputation of one of the spouses (called personal goodwill).

When spouses have a small business and are getting a Texas divorce, it is critical to hire a Texas board certified family law attorney to handle these complex issues.

 

The rules are different in Texas family law

I read with interest an article written by a Dallas Divorce Lawyer (Jonathan Bates of Kinser & Bates), “Baker's Dozen: 13 Unique Ingredients of Family Law Practice”

Texas Lawyer, March 12, 2012. He set out 13 ways that family law differs from other areas of law in the way a case is handled. I thought his 13 points would be instructive for potential divorce parties, particularly in thinking about what kind of lawyer to hire. I always recommend that a potential divorce litigant hire a lawyer who is experienced in family law in the particular geographic area where the divorce will be filed. Example, hire a divorce lawyer in Dallas, Texas if your divorce will be filed there. Further, it is important to find a lawyer who is board certified in Texas family law to ensure that the attorney has a minimum level of competence in divorce cases. Jonathan Bates’ 13 points justify why just any lawyer won’t do to handle a divorce case, but instead why a family law specialist is best.

His 13 points, in summary are:

  1.  Children: Divorce cases involving children have nuances that a general litigation attorney may not appreciate. Although it sounds simple to say that the best interest of the children are the primary factor for the court to consider, this concept affects how the case is prepared and presented, from the beginning pleading to the end of the case.
  2. Pleadings: In civil cases, pleadings must have a lot of factual specifics. In family law, these facts are not required and are very much frowned upon. Texas family law pleadings are broadly interpreted and failing to following the commonly accepted format screams to the Judge and opposing attorney that the lawyer does not know what he/she is doing.
  3. Trial strategy: An overly aggressive style, although common in civil or criminal cases, may not play well in family court. Instead, a certain finesse is essential to show the court that you are sensitive to the issues at hand, while still presenting the right amount of assertiveness of the client’s position.
  4. Prioritizing: An experienced Texas family law attorney will be able to discern what information is probably not crucial to the case (example, one-time instance of adultery committed by a spouse five years prior to the divorce) and what information the Judge will really want to hear (example, taking the children for sleepovers at the boyfriend/girlfriend’s house before the parents are separated). In other words, in a custody case, the focus should be on actions that directly affect the parenting of the children.
  5. Discovery: Pretty much all information about either parent or the children or the money is discoverable in a divorce. All bank statements for any account owned by either party is usually discoverable for several years before the divorce was filed. In a custody case, medical and mental health treatment of either parent may be relevant. The contents of either parent’s computer may be obtained, including emails, text messages (for iPhones, stored in iTunes), and websites visited. Further, objections to the standard family law discovery requests result in disfavor with Judges.
  6. Privacy: Because of the sensitive nature of the information exchanged in family law cases, judges will liberally grant requests to seal a court file or enter confidentiality orders protecting the parties’ information.
  7. Evidence: Judges are sensitive to a party trying to block the entry of standard and customary information in a family law case. Such actions make a party appear to be hiding something, even when a lawyer may be making a technically correct objection. Bates suggests that the evidentiary victory of challenging the admission of relevant information may be more damaging than the admission of the evidence in the first place.
  8. Developmental tools (for evidence): There are many tools in the family lawyer’s toolkit for developing evidence – social studies, psychological evaluations, drug testing, and forensic accounting evaluations are examples.
  9. Characterization: Determining whether certain assets owned by either spouse are community property (obtained by either spouse during the marriage and divisible in the divorce) or separate property (owned by either spouse before the marriage or obtained through gift or inheritance and not divisible upon divorce) is a crucial part of the divorce. Expert witnesses, such as valuation experts or forensic accountants, can evaluate documents and evidence and provide useful testimony.
  10. Statutes: Texas family law statutes are revised every two years when the Texas Legislature meets. Having an attorney who is current on the latest law and the effect of any changes is essential to the effective presentation of a divorce case.
  11. Facts: Texas family law cases are very fact-specific. Judge because a friend or co-worker had a certain result in their divorce does not mean that result will be the same in another situation based on different facts. As Bates says, “Unfortunately, many divorce litigants receive inaccurate information from Hollywood, the Internet, or friends and family members. They often do not understand that an outcome implemented by agreement in another case may not be the likely result after a trial on the merits. What happened in another state or county may be inapplicable.” Even slight variations in the facts of two cases may result in significantly different outcomes.
  12. Counseling: People (spouses or children) going through a family law case are often seeing some of their worst times and may need someone to talk to (other than a very expensive attorney).
  13. Terminology: Using the right vocabulary is important. The term “custody” is used in lay terms but is not a common term in Texas Family Law. Know what the words “conservatorship” and “primary residence” mean. Understand that rarely does one parent get the children 100% of the time – instead, almost all cases are about how the parents are going to share the children.

What to Expect When You Fail a Drug/Alcohol Test During the Pendency of a Divorce or Child Custody Case in Texas:

 

Over the last several weeks I have been discussing the most common methods of drug and/or alcohol testing utilized by courts in Texas in divorce and child custody cases. Failing a drug and/or alcohol test during a divorce or child custody case will have a negative impact on the custody issues involved in your case. There are several things that Texas courts commonly order when a party fails a drug and/or alcohol test during the pendency of a divorce or child custody case.

The first thing that you should expect to happen if you fail drug and/or alcohol test in Texas is for the Court to order that your periods of possession of and access to your children shall be supervised. The duration of the supervision will depend upon several factors. Family law matters in Texas are very factually driven, and the Courts have a lot of discretion regarding the remedies and precautionary measures that they order for the protection of the children. One factor for the Court to consider is the level of the illegal substance and/or alcohol found in a person’s system. For example, persons who have used drugs on a frequent and consistent basis will likely have their possession of and access to their children supervised for a longer period of time. 

If the Court orders supervised possession the Court can order that your possession of your children take place at a supervising facility. The Court could also order a qualified individual to supervise your possession, or the Court could order a person that is agreed upon by the parents to supervise the possession. If the Court orders a facility or a qualified individual to supervise your possession it will likely be expensive. Most supervisors, whether a facility or individual, charge by the hour to supervise possession of children. 

Additionally, the Court could, and likely will, order a person that has failed a drug and/or alcohol test during the pendency of a divorce or child custody case to attend Alcoholics Anonymous and/or Narcotics Anonymous on a regular basis. The Court could also order the person to submit to a substance abuse evaluation that will be conducted by a qualified professional, in order to determine the extent of any issues with substance abuse and/or dependence. If ordered, a substance abuse evaluation will be an added cost that you will be responsible for.

Finally, the Court will likely also order you to submit to random drug and/or alcohol screening for several months and/or years if you test positive on a test. The cost for random alcohol testing is an important factor to be aware of. A urinalysis alcohol and/or drug test can range is cost from $50.00 to $100.00 per test. A hair test and/or nail test can range in cost from $100.00 to $200.00 per test. Some courts order testing to occur at least once every thirty days. Other courts order random testing to take place more frequently. If random testing is ordered you are usually allowed anywhere from as little as 3 hours to as many as 24 hours to submit to a test upon receipt of notice that a test is being requested. Random drug and/or alcohol testing can be an expensive inconvenience.

 

Breaking Up Is Hard To Do: How Can You Call Your Divorce Quits If You Decide to Reconcile

Second thoughts after filing for divorce are not uncommon.  While a case is pending, couples often decide that they would like to try to reconcile and work out their differences instead of going through with the divorce.  People often ask me if they can stop the divorce if they change their mind. The answer is: it depends.

If both parties agree that they want to stop the divorce, the answer is an easy yes.  In this situation, the parties can agree to nonsuit their divorce action and the case will be dismissed by the court, no questions asked.  The document filed with the court is called a notice of nonsuit.

Likewise, if only one spouse has filed affirmative pleadings in a case, that spouse can unilaterally decide to nonsuit their claims. This will stop the divorce.  But since a party’s notice of nonsuit only dismisses that party’s claims, one party cannot unilaterally stop a divorce by filing a nonsuit because the other party’s claims (and the divorce) will still remain pending.  

Once a party files a notice of nonsuit, their claims will typically be dismissed without prejudice.  This means that if the parties want to re-file their divorce at another time then they are not prohibited from doing so.  It is important to note that dismissal is final, by a notice of nonsuit or otherwise.  It does not press “pause” on the divorce or hold it while the parties make up their minds.  In the event attempts at reconciliation are unsuccessful, the parties will have to re-file their divorce action.

It is possible to continue hearings or trial dates while parties attempt reconciliation, but the court is not likely to postpone the resolution of a case indefinitely or allow the case to remain on the docket for years.   While the litigation can be stalled for a little while, at some point parties attempting reconciliation will have to decide whether to nonsuit their case and dismiss the divorce or whether to move forward with ending their marriage.

What to Expect in Your First Meeting with a Divorce Lawyer

 

Like going to the doctor, people often put off consulting with a divorce attorney because they are afraid to hear bad news or cannot bear to face the problem.  This is the worst thing you can do for your divorce case.  In a divorce, knowledge is power and a promptly scheduled consultation with a reputable divorce attorney is one of the best ways to get it.  Keep these things in mind to help dispel the anxiety and stress that accompany many people to their first meeting with a divorce lawyer.

First, remember that the attorney you are consulting with is on your side.  We understand that you have likely never done this before, that you are scared, and that you need information. During your consultation we will give you information of the law as it applies to your case, work to identify the major issues in your case, and attempt to provide you with a realistic assessment of your options.  Our goal is to achieve the best possible outcome for you – you are hiring a divorce attorney to be your advocate. 

In order to assess your case and give you the information you need, understand that we need information from you.  During your consultation we will delve into personal issues like the history of your marriage, what you think might have led to the divorce, your relationship with your children, and the status of your finances. Know that what you say to us in your initial consultation and throughout the attorney-client relationship is confidential. Do not be afraid to be honest – that is one of the most essential aspects of a successful attorney-client relationship. You will not shock us with what you say and we will not judge you. 

While we will give you our assessment of your case and provide you with information on the law and your legal rights, do not be afraid to ask questions.   Let us know what is important to you and what you want to know. Your initial consultation with a divorce attorney should be a safe place for you to get the information you need to better understand the process and to begin making sense of the confusion swirling around you.

 

Divorce Decree: Final Step in The Divorce Proceeding

Divorce Decree

After a decision is reached, whether by settlement or trial, a divorce decree is entered.  This is usually a lengthy document that formalizes and finalizes all of the provisions of the divorce - including issues of property division and child custody.  The decree must be drafted very carefully, because, once entered, this agreement will become the rules by which you must live and the document you must turn to if the other party does not do what they are supposed to do.

Entering the divorce decree is the fifth and final step in the divorce proceeding. 

This excerpt is taken from my book, "Basics of Texas Divorce Law" and is intended to educated and assist in understanding the process of divorce in Texas. 

Trial or Settlement: Step 4 in The Divorce Proceeding

Trial or Settlement

Not all divorce cases go to trial.  First, after pretrial discovery is over, the spouses will probably be ordered to go on to mediation.  Mediation is a procedure where the parties and their attorneys meets with a neutral thrid-party (usually an experienced family lawyer) to try and negotiate a settlement.  The vast majority of all family law cases are settled prior to trial.

If settlement is not possible, the case will go to a judge or jury.  Either party has the right to request a jury trial on certain issues designated by the Texas Family Code.

Texas is the only state that continues to allow jury trials to determine child custody.  A jury trial may also be held on other issues like character and value of marital property.  The Texas Family Code requires other issues such as a just and right division of the community estate, the possession schedule for children and child support to be determined by the judge.  If a jury is not requested or allowed, then the judge decides all contested issues.

 

Excerpted from my book, "Basics of Texas Divorce Law"

The Discovery Process: Step 3 in the Divorce Proceeding

The next step in the divorce process is discovery.  This proceedure allows both sides to get the information they need to determine the size of the community estate and to learn the position the other party will take on certain issues.  Discovery can be written or oral.

Written Discovery

There are typically five types of written discovery relevant to a divorce case.

Request for Disclosure: These are standard questions that are asked in every civil suit.  Parties are required to identify persons with information relevant to the case, identify expert witnesses, detail the legal contentions and specify any economic damages.

Interogatories:  One of the most useful pretrial discovery methods, interrogatories are a set of written questions sent to the opposing party that require responses about relevant issues, such as the location of bank accounts, balances in those accounts and signatory privileges on the accounts.  Although almost anything relevant to the case can be asked, the total number of questions is limited to 25.

Request for Production of Documents:  This discovery tool allows a party to request copies of documents relevant to the issues in the case.  Just about any document can be requested.  The most frequently requested items are records reflecting bank accounts, 401(k) plans, stock options, income, gifts to people other than the spouse, safe deposit boxes, telephone records, insurance plans, and credit card statements.

Request for Admission: These are statements that the opposing party must either admit or deny.  If they refuse, they must state a reason why the statements can neither be admitted nor denied.  The person answering these requests will be stuck with the answers, and failure to answer them will result in all of the requests being deemed admitted.

Sworn Inventory and Appraisement: This type of discovery is unique to divorce cases.  It requires the answering party to list every asset he or she knows about.  It also requires the party to characterize the assets as either separate property or community property and to place a value on it.  This document is signed under oath, so a party who deliberately hides assets and keeps them off of the inventory will be subject to punitive remedies from the court.

Oral Discovery

Oral discovery is in the form of depositions.  These are pretrial witness examinations taken under oath in front of a court reporter.  Any witness with information that will affect the case can be deposed.  Under Texas law, the deposition testimony can be presented to the court as if the witness were testifying in person before the court.

The deposition is an incredibly useful tool because it locks the witness into the testimony he or she will give.  The witness cannot come back later and change his or her story regarding a certain event.  If they do this, then the deposition can be used to challenge their truthfulness as a witness.

 

Excerpted from my book, "Basics of Texas Divorce Law"

Temporary Orders Hearing: Step 2 of the Divorce Proceeding

Before the TRO expires, a judge will schedule a temporary orders hearing to determine if the TRO needs to be made permanent while the divorce goes forward.  The temporary orders hearing will usually happen within two to four weeks after the divorce is filed.

Often temporary orders are arrived at by agreement of the parties through negotiations.  Occasionally, the agreements may be handled informally, without the entry of court orders.  This usually only works when the parties are very agreeable.

If there is no agreement, the court will approach the temporary orders hearing like a miniature trial, allowing the attorney and parties to call witnesses, present evidence, and prove their case for what should happen while the divorce is pending.  The judge will make provisions for temporary spousal support, temporary custody and possession arrangements, temporarychild support, temporary use of property and payment of debts, and payment of interim attorney's fees, if applicable.  These are the orders that will govern your daily life until the divorce is finalized.

Some counties use Associate Judges to handle temporary orders hearings.  The Associate Judge is appointed by the elected District Judge to sit in matters assigned to her.  Following a contested temporary orders hearing held in front of an Associate Judge, a party dissatisfied with the outcome has a very limited time to appeal the ruling.

Excerpted from my book, "Basics of Texas Divorce Law"

Filing a Divorce Petition: What You Need to Know

There are five basic stages to a divorce proceeding.  Filing a divorce petition is the first.

Any Divorce, even one on friendly terms where everything is agreed, must begin with the filing of an "original petition for divorce" in a state district court.

Some counties in Texas, such as Dallas and Tarrant counties, have specialized courts that deal only with family law matter like divorce.  Most other counties send divorces through the same general district courts used for all types of civil and criminal matters.

In order to file for divorce in Texas, one of the spouses must have been a resident of the state for the six months prior to filing the petition and a resident of the county where the suit is filed for 90 days.

Most petition include a request for a two-week temporary restraining order (TRO).  This is intended to freeze things as they are and prevent one spouse from taking any action that harms the other.

The TRO prevents spouses from hiding money or spending money in abnormal ways.  It also prevents the interference of the use of the marital residence.  The TRO 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 TRO specifically excepts spending moneys for reasonable and necessary living expense, including attorneys' fees, or business expenses of the parties.

Some counties utilize a standard TRO, 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 TRO in addition to the Standing Order.  Some counties that use the Standing Order include Bell, Blanco, Brazos, Burnet, Caldwell, Coke, Collin, Concho, Dallas, Denton, Ellis, Grayson, HAys, Irion, Llano, McLennan, Montgomery, Nueces, Rockwall, Runnels, San Saba, Schleicher, Sterling, Tom Green, Travis, and Walker.  Each county's Standing Order may differ slightly. 

 

Excerpted from my book, "Basics of Texas Divorce Law"  

Taking Control

Excerpted from an article by Diana Shepherd, CDFA

Posted by Michelle May O’Neil on August 8, 2011

 

Do you have a written, detailed, up-to-date budget detailing all your daily, weekly, monthly, and yearly expenses and income? If you’re like most people, your answer to this question will be “no.” The lack of a budget may have caused financial problems during your marriage, but it could be ruinous post-divorce.

The first step to gaining control of your finances—and life—during divorce is to prepare an accurate current budget and a post-divorce budget. You will need to gather documentation to ensure that your budget is objective and not the product of guess-work.

Identify your sources of income, which includes revenue from full- and part-time employment, investment return, and self-employment income. Add up all the income from different sources to come up with total income. If you’re clueless about what your spouse earns, obtain or make copies of his/her tax returns for the last three to five years.

After you have an accurate picture of what’s coming in, you need to create an equally accurate picture of what’s going out. You should review your check register and credit-card statements—or your online banking records if that’s how you usually pay your bills. Remember that not all your expenses are paid monthly; some insurance premiums or tax bills might be payable quarterly or annually, so make sure to account for those as well.

Don’t forget about cash withdrawals using ATM cards; you’ll be surprised how quickly taking $50 here and $100 there can put you in the red if these withdrawals are not included in your budget. Also, you need to be able to account for where/how you spent the cash: was it taking taxis to work, going out to restaurants, on a new outfit, or paying the babysitter?

After you’ve completed a “first draft” of your budget, ask a reasonable and financially-savvy friend or family member to review it and question the expenses that seem unreasonable. If you’re going to ask for help with your budget, you’ll have to agree to keep an open mind and not to become angry or defensive if he/she questions one of your items. This person is trying to help you, and he/she will probably be a lot easier on you that a judge would be!

If you’re like most people, your number-one financial concern during divorce is maintaining positive cash flow—in other words, being able to pay the bills on a monthly basis—not only on the day after divorce, but five, ten, 15 years into the future. In order to meet cash-flow needs, there are three sources of money that may be available to you as a result of your divorce: child support, spousal support, and marital property. Let’s take a quick look at all three.

 

Child Support

In the US and Canada, a parent is obligated to support his or her children, regardless of the parent’s marital status. All states and provinces have child support guidelines; you should review the guidelines in your area to get a rough idea of what you might be entitled to receive or have to pay. Generally speaking, child support is based on factors such as the ages of and number of minor children, the amount of time they will reside with each parent, and the income of each parent. These factors are plugged into a formula, which then supplies a recommendation for the Court. In a divorce situation, the non-custodial parent is usually ordered to pay child support to the custodial parent, from which the custodial parent pays the child’s expenses.

However, the child support formula does not take into consideration your child’s actual expenses. For example, extra-curricular activities, private school tuition, and college funding are not factored into the formula. These are considered “extraordinary expenses,” and they are often an area of great discussion and/or argument. One of the ways in which a Certified Divorce Financial Analyst™ (CDFA™) can help their clients is to determine which costs may not be addressed by the guidelines and then to help them find alternative solutions to cover these expenses. Since child support is such a complex area of the law—and because it can be a very contentious issue between divorcing parents—you should ask your lawyer for guidance regarding the child support amount.

Spousal Support

Another source of income (or an expense) for many divorced people will be spousal support. Spousal support is based on different factors, and it’s a very gray and subjective area. However, the two most heavily weighted factors are need and ability to pay; the length of the marriage is another factor that is considered when awarding spousal support. Unless you have prepared an accurate budget, you will not know how much spousal support you need—or, if you’re on the other end of the equation, how much you can afford to pay.

Property

The third potential source of money in a divorce is property. Many states and provinces call for an equitable division of property. “Equitable” does not always mean “equal”—it is, however, supposed to mean “fair.” If the spouses can’t agree, the judge is the final arbiter of what constitutes fair. Although most divorces settle 50/50, it can make a huge difference which 50% you get; in other words, all assets are not created equal. The first thing to know is that there are two kinds of property: Marital and Separate. Anything that is marital will go into the marital pie that’s going to be equitably divided; anything that’s separate property will not. The distinction between the two is a gray area and should be discussed with your lawyer. To read more about the types of property, click here.

The Last Word

You need to create an accurate budget today, and you need to understand how child support, spousal support, and property division will impact your ability to cover your cash-flow needs. Remember, you only get one chance to negotiate your property settlement. Can you really afford to make a mistake?

Click the link to read the entire article and find our more about how a CDFA can help you take control of your finances during and post divorce.

Divorce Business Valuation Article

 

Proper Evaluation of "Goodwill" of a Business During Divorce
Posted by Michelle May O’Neil on May 23, 2011

 

This article deals with people who own a service business and are the focal point in their business. In most states the assets owned by an individual going through a divorce must be valued. This includes a business that one spouse may own. The value of the business may include both tangible assets and intangible assets. The majority of the value of the intangible assets may be related to "goodwill". Goodwill is defined as the characteristics of a business or individual that cause customers to return to that business or person.

 

In many cases, the value of the business or practice is determined based on the earning stream of the business. The concern to the spouse who owns the business, and who also has a spousal support obligation is that the earning stream used to value the business is also used to pay the spousal support obligation. This is what is called the "Double Dip Theory".

In many states, this situation is avoided when the portion of the business that is related to "Personal Goodwill" is excluded from the value of the business, or "Enterprise Goodwill". Thus, it is very important to identify and differentiate Personal Goodwill from Enterprise Goodwill.

 

These two types of goodwill can be defined as follows:

  • Enterprise Goodwill is associated with the entity itself. It takes into consideration issues such as location, qualified workforce, required licenses, name, etc. The key is that the value of the business is separate from the individual owner.
  • Personal Goodwill is associated with the individual. It takes into consideration the individual's age, health, personal reputation, training and effort. Customers return to the business because of the individual. The value of the business does not exist absent the individual.

The key is whether the Goodwill can be sold or transferred independent of the individual. Generally, Enterprise Goodwill is considered to be "saleable", but Personal Goodwill is not. Here is a simple check list to determine Personal Goodwill or Enterprise Goodwill:

  • Is the value of the business or professional practice inseparable from the actions, skill, the expertise and reputation of the individual owner?
  • Is the value of the company, other than the hard assets, such that it cannot be Transferred without the individual?
  • Can the economic benefits of the company to be transferred be realized only through the performance of post-divorce services of the individual?
  • Is the revenue or the ability to acquire future income tied directly to the efforts of the individual?
  • Is the ability of the entity to attract referrals separate and apart from the persona of the individual?
  • In summary, make sure that your divorce attorney is aware of the key aspects of your business and the importance of you, individually, to the success of the business in an effort to avoid the perils of the Double Dip.

Hat tip for this article to Bruce Richman (CPA/ABV, CVA, CDFA™), author of the book Guide to Tax and Financial Issues in Divorce.

 

For more articles on assistance regarding business valuation, visit http://www.divorcemag.com/articles/Business_Valuation/.

Note on Annulment

Posted by Michelle May O'Neil on June 27, 2011

Although annulment is not as popular an option as it once was for ending a marriage, there are still times that we have people inquire as to whether they can annul their marriage.  In our book, Basics of Texas Divorce Law, we briefly cover the topic of annulment.  The excerpt below is helpful information to those curious about annulment.

Annulment

     A suit for annulment, as apposed to a suit for divorce, is brought when there has been some legal impediment to the creation of a valid marriage; that is, the suit is for premarital causes rather than conduct that occurred during the marriage (as in a divorce).  Annulments have declined in popularity because in 1970 the Texas Legislature adopted no-fault grounds for divorce which made getting a divorce far easier.  Today many people pursue annulments for religious reasons.

     There are four general grounds under which an annulment is possible. 

     1.  A court can annul a marriage if a party to the marriage was at least 16 years of age, but less than 18 years of age, at the time of marriage and did not have parental consent or court-ordered permission to marry.  Note, however, that an annulment under this ground is discretionary and the court must consider facts relevant to the welfare of the parties to the marriage (for example, whether the wife is pregnant).

     2.  A court can also annul a marriage if at the time of the marriage the person seeking the annulment was under the influence of drugs and/ or alcohol and as a result lacked the capacity to consent to the marriage.  Also, the person seeking annulment cannot have voluntarily continued to live with the other party since the effects of the drugs/ alcohol ended.  Note that we're not talking about a simple case of having a few drinks and then getting hitched.  Texas courts have held that the degree of intoxication must be so great as to have "dethroned reason, memory and judgment."

     3.  Another ground for annulment is impotency.  A court can annul a marriage if either party was permanently impotent at the time of marriage and the person seeking annulment did not know of the impotency at the time of marriage.  Also, the person seeking annulment cannot have continued to voluntarily live with the other person once they learned of the impotency.

     4.  Fraud, duress and force are additional grounds for annulment.  A court can annul a marriage if one party used fraud, duress or force to induce the person seeking annulment into the marriage.  Just like the other grounds for annulment, the person seeking annulment cannot have voluntarily continued to live with the other party since learning of the fraud or being freed from the duress or force.

     These are the grounds most people think of when considering an annulment.  Once an annulment is granted, the marriage will be considered void and treated as if it never happened.  If an annulment is not granted, then the marriage will be considered valid indefinitely and the parties must seek a divorce to end it.

Moving Through Your Anger During and Post Divorce

     Anger is normal and healthy.  It is one of the five stages of the entire grief process (along with denial, bargaining, depression, and acceptance).  Not only is anger healthy, it is even considered to be an essential part of grieving. As uncomfortable as it can be to feel so angry, it is crucial to allow yourself to go through this phase.

Anger can be a very scary experience, regardless of whether it’s your own anger or anger that is directed at you. For this reason, many people try hard to avoid it. Yet feeling angry is not wrong. It’s what you do with your anger that determines whether it is constructive or destructive.

     Using anger in a constructive way, such as to stand up for and take care of yourself and your children can actually serve you well. On the contrary, screaming and raging can damage relationships and self-esteem and is, therefore, destructive.

     Another expression of anger not discussed as often as screaming and raging is the kind of anger in which someone seethes for years. This is the person who cannot get over the wrongs that have been done to her or him, and self-identifies as a victim. Although it may feel powerful to wield your anger over someone, it is actually quite disempowering, because you are spending your valuable time and energy thinking about the person with whom you are angry. The act of focusing on that other person is sometimes called “giving your power away.”

     Because divorce is such an intense experience, fraught with feelings of rejection, failure, and mistrust, it is a situation in which people have the potential to stay angry for years. They may resent the fact that they have had to return to work, or that they now have the burden of child care responsibilities, or that they have no hope of having children anymore and feel that they “wasted” valuable years with their ex-spouse. Perhaps they trusted someone who was untrustworthy and now their anger is directed at themselves as well as at their spouse.

     There are endless scenarios and reasons why people can become—and stay—angry, but if you do stay angry, you should know that the toxic emotion is in you and the other person may have no clue that you are feeling the way you do. It is always in your best interest to move beyond feeling high levels of anger.


This article has been edited and excerpted from Stronger Day By Day with permission by New Harbinger Publications, Inc, copyright © 2010, written by Susan Pease Gadoua

How Do Attorneys Charge Clients for a Divorce?

Posted by Michelle May O'Neil on August 15, 2011

It is not unusual for clients to complain about their attorney fees for a divorce. Below you can find some of the different ways that attorneys charge for handling the divorce process. This may help clients understand the billing process and perhaps what their best option is when it comes down to hiring an attorney.

1. Flat Fee:

A recent blog put forth the idea that the best way to bill is on a flat fee basis. There are merits to flat fee billing if each case can be processed very quickly with few court appearances. In most instances, a flat fee billing is neither fair nor reasonable to the clients or the attorney. If a flat fee is high the client is often charged more for services than is justified in his or her divorce. If the flat fee is low the attorney may not be providing full or adequate services, and if problems arise they often will not be properly dealt with. If the client calls every day knowing that he or she is not going to be billed for it this can encourage a lot of wasted time. In those instances the attorney may not be handling the case as thoroughly as necessary or giving all the time that should be devoted to a particular divorce case. If problems arise and what starts out as a simple case suddenly becomes complicated then the flat fee arrangement can turn into a disaster for everyone.

2. Hourly Billing:

This is the most common fee arrangement. In many practices, an attorney will bill on an hourly basis against a retainer. Some attorneys will take the position that the retainer is just to retain the attorney and then the fees on an hourly basis are billed on top of the retainer. In the past when the economy was good and people weren't hesitant to spend large sums of money on legal services, that might have made sense. In these tough economic times that makes no sense at all. What is normally done is charge a retainer and then an hourly rate against the retainer. If the case is simple, with few problems, the retainer will cover the entire fee. If problems arise or a lot of time goes into the case, then an hourly rate will be billed once the retainer is used up. Some ways for clients to save money when operating on a retainer basis: maximize time, do not call every day, raise several questions at once and utilize the firm’s support staff or associate in many instances, to maximize the amount of legal services and minimize the fees involved. Hours are normally divided into increments. Some attorneys bill in quarter-hour increments, and others in a third of an hour or a tenth of an hour. Any correspondence or work done on a file is billed upon these time increments. This includes phone calls, e-mails and court appearances. Some attorneys will bill a minimum of one or two hours for court appearances. Driving time is usually billed as well. When you meet with an attorney you should discuss the fees carefully and find out exactly how the billing is done and what is the standard practice for that attorney.

3. Unit Billing:

Some attorneys are using what is called "unit billing," which means that they bill not for time but rather for units. The argument for unit billing is that as an attorney becomes more and more experienced with more work on the computer, work that might have taken an hour or two can be done in a quarter hour or less and therefore unit billing is done because an attorney who is more efficient and experienced should not be punished for his/her efficiency or expertise.

4. Value Added:

Another means of billing which is frowned upon more and more is what is called "value added," where if there are exceptional results on top of the hourly billing or retainer there will be some type of bonus at the end.

As you can see, in family law there are many ways to bill. The critical thing at your initial consultation is to make sure you understand how you will be billed and also make sure that everything is spelled out in writing. You should always have a written contract or retainer agreement with your attorney, so that if there are problems or issues in the future it is all clearly spelled out.

Hat tip to Henry Gornbein for his May 27, 2011 post

FAQs During Divorce

Posted by Ashley Russell on August 1, 2011

The divorce process is not an easy one, nor is it uncomplicated.  Divorce can bring up many questions that may not have been considered prior to filing.  Divorce Magazine did a piece on FAQs during divorce.  I offered my responses to a couple of these questions.

What if we decide we want to reconcile?

            Second thoughts after a divorce has been filed are not uncommon.  This is an important question to ask.  While a case is pending, couples often decide that they would like to try to reconcile and work out their differences instead of pursing the divorce.

            If both parties agree that they want to stop the divorce, the answer is an easy yes.  In this situation, the parties can agree to nonsuit their divorce action and the case will be dismissed by the court, no questions asked.  The document filed with the court is called a Notice of Nonsuit.

            Likewise, if only one spouse has filed affirmative pleadings in a case, that spouse can unilaterally decide to nonsuit their claims, thus stopping the divorce.  However, since a party’s Notice of Nonsuit only dismisses that party’s claims.  One party can not unilaterally stop a divorce by filing a nonsuit because the other party’s claims will still remain pending. 

            Once a party files a Notice of Nonsuit, their claims will typically be dismissed without prejudice.  This means that if the parties want to re-file their divorce at another time then they are not prohibited from doing so. It is important to note that dismissal is final, by a Notice of Nonsuit or otherwise.  It does not pause the divorce or hold it while the parties make up their minds.  In the event attempts at reconciliation are unsuccessful, the parties will have to re-file their divorce action.

           It is possible to continue hearings or trial dates while parties attempt reconciliation, but the court is not likely to postpone the resolution of a case indefinitely or allow the case to remain on the docket for years.   While the litigation can be stalled for a little while, at some point parties attempting reconciliation will have to decide whether to nonsuit their case and dismiss the divorce or whether to move forward with ending their marriage.

 

 Will I get 50% of our family assets?

            Not necessarily.  While many people believe that they will get “half of everything” upon divorce, an equal division of the community estate is not required in Texas.  Although the property division often ends up at an award of roughly 50% of the community estate to each party, this is not the legal standard.  Instead, the Texas Family Code provides for a “just and right division” of the community estate. Specifically, in a decree of divorce, the court is required to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

            Absent an agreement of the parties, the court is afforded broad discretion in deciding how to divide the community estate in a just and right manner based upon the evidence before it.  While the division will typically start at 50/50, the court will then consider various factors that can shift the percentage of the martial estate awarded upon divorce in favor of one spouse or the other in order to each a “just and right” division.  A property division weighted more heavily in favor of one spouse than the other is referred to as a “disproportionate division”.

            Among the factors that a court will consider in arriving at a just and right division are the following: (1) fault in the breakup of the marriage; (2) the spouses' capacities and abilities; (3) benefits which the party not at fault would have derived from the continuation of the marriage; (4) business opportunities of either spouse; (5) relative physical conditions; (6) relative financial conditions of the parties, including their obligations and need for future support; (7) disparity of ages; (8) size of separate estates; (9) the nature of the property; (10) debt owed by a spouse; waste or concealment of community assets; (11) disparity of earning capacity; and attorney’s fees.  This list is not exclusive and the court can consider other evidence it believes to be relevant to its decision.

            While this seems complicated, in a no-fault divorce where the parties are of similar age, in similar health, and have roughly equal incomes, debts, separate property, and have committed no real wrong doing during the marriage, then the court will typically divide the community estate in a roughly equal manner.  It is situations where one party has extenuating medical circumstances, the parties have disparate incomes or earning capacities in the future, or one party has been the victim of cruel treatment or abuse, for example, that the division will have to favor one spouse over the other in order to be just and right.  

Post-Divorce Revenge Surgery?

Posted by Michelle May O'Neil on July 18, 2011

Is "revenge surgery" a growing trend? A recent study by the Transform Cosmetic Group in Great Britain revealed that more than a quarter of the patients who visit plastic surgeons' offices are newly divorced women.

ABC's Ashleigh Banfield spoke to several women about their post-split operations, including 43 year old Alicia Hunter, a single mother of two, lost 60 pounds, got a new set of boobs and underwent a few tweaks of Botox to boot.

"It’s very liberating to feel good within your own skin," she said. "I always thought it would be a little bit life-changing and it has been."

However Dr. Jon Turk, a New York City plastic surgeon, cautions against going under the knife for the wrong reasons.

"Patients who come in who are bitter or angry about their divorce and looking to use surgery to either make their spouse jealous or to just fill some type of emotional void, those are the ones that I think we really need to counsel carefully," he said.

And so the debate is on: Should divorced women try to recapture their youth through surgery, and are their cosmetic surgery extremes more a confidence-boosting fresh start, or revenge against their former husbands?

Watch the full story at http://abcnews.go.com/Health/plastic-surgery-divorce-revenge-confidence-boost/story?id=13571751

 

Who's Getting Divorced?

That's the question the Census Bureau answered in its May 2011 report, "Number, Timing and Duration of Marriages and Divorces: 2009." The Census Bureau collected histories from some 39,000 households and identified certain characteristics of persons who were divorced. The findings contain few surprises:

  • When it comes to race, the divorce rate is fairly similar for Caucasian (10.8 percent), Black (11.5 percent) and Native American (12.6 percent) couples.
  • Men tend to be divorced at a later age than women (35-to-44 as compared to 25-to-34), which is likely due to the fact that men tend to marry women who are younger than themselves.
  • Men and women who attended college but did not achieve a 4-year degree were 16 to 20 percent more likely to be divorced. While one may suspect this is due to lower income, that can't be the only factor since those with only a high school education tend to earn less than those with some college education and yet high school graduates were less likely to be divorced. Economists have suggested that a failure to finish college could occur for financial reasons or from a personal lack of drive, both of which may lead to less marital success.
  • Female respondents who worked full time were 46 percent more likely to be divorced. Men's full-time employment was somewhat less indicative of their marital status (employed men were 35 percent more likely to be divorced than those employed part-time or less).
  • The rate of marriage is the same for all income levels, but marriages of low-income people are much less stable. Survey respondents who were below the poverty level were far more likely to say they were divorced. And women who were divorced were far more likely to be receiving cash assistance from the government than men who were divorced.

            Source: 24/7 Wall Street.com, "The Six Demographic Characteristics of Divorce."

Hat tip to Scott D. Stewart for his post on June 10, 2011

Divorce Therapy for Parents: How to help your children

Posted by Michelle May O'Neil

It's never too late to do what's in the best interests of your children.

Like many promises, commitments, and agreements, wedding vows often don't seem to be worth the words spoken or the paper they're printed on. However, once a child is brought into the world, that is permanent. And just as "with power comes responsibility," "with children comes moral responsibility" to parent them to have the best chance for a good life and, need I remind you, one which he or she never asked to be born into.

Divorce therapy for divorcing couples with children is quite simple, if parents take the well-being of their children seriously, show their commitment through actions vs. mere words, and can let go of needing to be right in order to do what's right for the child.

It rests on the usual consensus between parents that an 18-year-old entering the world/college/work force with the characteristics of Child A has a much better chance for a good life than Child B as described below.

Child A

Child B

Focused

Scattered

Resilient

Quits

Persistent

Bails

Passionate

Bored

Goal-oriented

No Goals

Handles Disappointment Well

Is Easily Upset

Doesn't Take Self Too Seriously

Hypersensitive

Coachable

Know-it-all

It also rests on a shared belief that a child's personality is built largely upon nature (genetics and temperament) and nurture (parenting in early years, social factors in later years) and that nurture through parenting is much more modifiable than is nature.

Other factors that are pointed out but are not generally known by parents (although usually agreed with when explained) are that a child's well being and sense of security are greatly affected by the cooperative, mutually respectful, and enjoyed relationship between the parents. It is not solely determined by the parents' relationship with the children.

A majority of teenagers, when asked if they had the choice between their parents being nicer to them or more loving towards each other, will pick the latter. The animosity between parents is very painful to their children.

There is ample research from child development studies to support this, not to mention asking each parent the effect that their parents' relationship had on each of them.

Developmental psychologists have gone so far as to say that the cooperative and collaborative relationship between parents has a long-lasting effect on the child's own minds and personality, especially with regard to how his or her emotions and logic work together or fight each other. Some psychologists say that arguing between parents is not as detrimental as arguments that never are clearly and fully resolved. That state of "nothing gets better" or "same old thing again" can cause many children to develop a predisposition to anxiety (that the non-resolution will escalate to something worse) or depression (that mom and dad don't seem to like each other).

Divorce Therapy Made Simple has three steps. Family law attorneys or the court usually direct the couple to attend therapy together.

Step 1: Both parents agree and accept that at age 18, a child with the characteristics of Child A is in a much better position to have a good life than Child B.

Step 2: Both parents agree that how the child is nurtured/parented/raised and how the parents interact with each other have a significant influence on raising a child to become either Child A or Child B and that they have a moral responsibility to do right by their child.

Step 3: Each parent needs to make a compelling and convincing case for what they're asking for (regarding living arrangements, custody, and co-parenting) and how it will result in a Child A rather than a Child B. If they can't make such a case for a request with regard to the children, it will be dismissed by the therapist as irrelevant.

Out of these meetings, actionable and observable behaviors are agreed upon that will positively affect their children. The results of such meetings, either positive or negative regarding the co-parenting skills of the parents, may be given back to the attorneys or court in the form of a written report and/or verbal testimony or deposition.


Hat tip to Mark Goulston for this article. He is also the bestselling author of four books.
 
For more articles on divorce and therapy, visit http://www.divorcemag.com/articles/Therapy

Relief for Divorce-Related Stress

 

Meditate away your stress

The practice of meditation offers peace, serenity, and calm -- a welcome respite from the turbulent emotions of divorce.
By Diana Shepherd

Posted by Michelle May O'Neil on June 6, 2011

How do you beat divorce-related-stress? Many people try "treat" behaviors: smoking, drinking, taking drugs (prescription or "recreational"), eating a carton of chocolate ice-cream -- whatever gives them feelings of pleasure and well-being. Unfortunately, all of these are band-aid solutions: they temporarily ameliorate some of the symptoms without addressing the root of the problem.

Here's a better solution: consider practicing meditation on a regular basis (daily is best). Anyone can practice meditation; you don't have to be on a path to spiritual enlightenment or have any religious beliefs. "Thinking you're unable to meditate is a little like thinking you are unable to breathe, or to concentrate or relax," notes scientist, writer, and meditation teacher Jon Kabat-Zinn, Ph.D. in Everywhere You Go, There You Are. "Pretty much everybody can breathe easily. And under the right circumstances, pretty much anybody can concentrate, anybody can relax."

There are as many types of meditation as there are colors in a rainbow. You can meditate while seated, standing, lying down, dancing, singing, eyes open or shut, listening to music, brushing your teeth, eating -- the list goes on.

Mindfulness Meditation

"Mindfulness provides a simple but powerful route for getting ourselves unstuck, back in touch with our own wisdom and vitality," claims Kabat-Zinn. "The key to this path...is an appreciation for the present moment." Too often, we ignore our present: immersing ourselves in regrets about the past or fears about the future. This is never more true than while going through a life-changing experience such as divorce. So now more than ever, you need to learn to bring yourself back into the present, to quiet and unclutter your mind.

The following meditation can help you to maintain your balance, offering a calm clarity even in very stressful situations. At first, you'll need a quiet space free from distraction to practice mindfulness meditation. Eventually, as you build these mental muscles, you'll be able to bring yourself back into the present moment and quiet your mind anywhere, anytime.

Sit comfortably, your spine reasonably straight but not ramrod stiff, and close your eyes.

Focus your attention on your breathing.

From time to time, you'll become aware of emotions, thoughts, sounds, smells, or physical sensations that break your concentration. Acknowledge they are there, then let them drift past like a cloud -- without passing judgment or getting emotionally or mentally involved with them. Bring your attention back to your breathing and continue the meditation.

If you're struggling with intrusive thoughts, try counting your breaths. Think: "One inhale, one exhale. Two inhale, two exhale," and so on up to 10 or 20. Then start again at one.

Here's another exercise that can help you beat stress. Dirgha Pranayama is called the "three-part breath" because you're actively breathing into three parts of your abdomen. The first position is the lower belly (between the pubic bone and the belly button), the second is the upper belly (between the belly button and the bottom of the ribcage), and the third is the chest (the ribcage). Here's how to do it:

  • Sit with a straight back, consciously relax your body, and let go of thoughts and worries by focussing on your breathing.
  • Breathe slowly and steadily, in and out through the nose and into the belly.
  • Inhale slowly into the first position, then into the second, then into the third; then exhale in reverse: third, second, first positions. Rest your hands on the first two positions to feel your belly rising and falling.

Guided meditation can also be very helpful, especially when you're just starting out. Consider taking a regular class, or listening to a tape or CD at home. Try Susie Mantell's award-winning relaxation audio, Your Present: A Half-Hour of Peace or one of Dr. Kabat-Zinn's "Mindfulness Meditation Practice" CDs.


For more articles on meditation, visit http://www.divorcemag.com/articles/Meditation

Divorce Over 50: 3 Mistakes to Avoid

Posted by Michelle May O'Neil on June 6, 2011

While the overall divorce rate has decreased slightly over the past two decades, for those over 50 it has doubled.  Paradoxically, experts chalk the increase up to baby boomers' affinity for marriage in the first place. More older people are on their second and third marriages by the time they hit 50 and those are marriages that are less likely to last.

Regardless of first, second or eighth, the stakes are higher for couples in their 50s, 60s and 70s. By the time most people are 50, they have a long work history, own some real estate, have a retirement account, life insurance and more – in which case, it's critical to get the best settlement possible.

Here are some mistakes particularly common to the over-50 set, all of which can lead to a lower-than-deserved settlement or make you pay your ex more than you should.
 

Mistake 1: Ignoring taxes on retirement funds

For those over 50, 401(k)s and other pre-tax retirement accounts may be the most significant asset other than the family home. That makes it essential that both sides understand their true value, which is actually considerably less than the balance. Because the money's taxed upon withdrawal, the real value of the account is only about 65% of what the statement says. This miscalculation can hurt, especially in community property states like California, Texas, Arizona and Nevada, where divorcing couples often split assets evenly: One spouse takes the house, the other takes the retirement fund and savings accounts, which may look equivalent on paper. Lawyers suggest negotiating for a larger portion of other shared savings to make the trade more equitable.


Mistake 2: Overvaluing alimony, undervaluing Social Security

Whether a couple is retired or still working, monthly income may actually be more important than the division of hard assets. Alimony, which may be awarded to the spouse who earns less or has been out of the workforce for some time, is one of the most common ways divorce settlements compensate for discrepancies in a couple's income. But banking on monthly payments from an ex-spouse gets riskier every year after 50, as the chance of them dying increases.  One way to protect yourself, is to get a life insurance policy on your ex. It's not enough to be the beneficiary on your former spouses' life insurance plan -- he or she can change that at any time. You want to own the policy outright.

On the other hand, Social Security is often undervalued in divorce negotiations. If the couple was married for at least 10 years, one spouse is entitled to the benefits of the other at age 62 – as long she/he remains unmarried. A person who makes less than his or her spouse will want to claim the higher-earning spouses' Social Security, as it will be worth more. If your spouse has a claim to your benefits, remember to figure that amount into negotiations for alimony or other payments.

Mistake 3: Forgetting about the kids

Older couples have older children – teenagers, college students, or even independent adults – which means custody battles may not be as pitched, if they exist at all. That doesn't mean there aren't issues. To prevent conflagrations down the road, make a plan to ensure that the assets being passed along to the children are set up appropriately so that your children, rather than, say, your ex's future spouse or your kids' new wife, get the money. For starters, create a "lifetime asset protection trust" for your kids to protect the assets in case they, too, get divorced. The trust will keep your kid's ex-spouse - or anyone else - from receiving any of the money you leave behind for them.

One expert suggests, if you have children under age 18, "it's really important to have the guardian of the children … be separate and distinct from the guardian of the money." That may seem counter-intuitive, and in reality, each spouse will control some money, but both money and children can be manipulated in messy divorces. Splitting those responsibilities and obligations can create a system of checks and balances.

Hat tip to Catey Hill for her March 23, 2011 article on Smartmoney.com
 

Does gridlock increase Dallas divorce rates?

Are you being driven to divorce, asks CBS 11? A study commissioned in Sweeden found that the risk of divorce goes up by 40% for spouses with commutes over 45 minutes.  "To be able to commute to work can be a positive thing because it means you don't have to uproot your family with every career move, but it can also be a strain on your relationship," says study author Erika Sandow. Commuting was found to be harder for women than men, and the risk of divorce is usually the highest during the first few years of commuting.

Dallas divorce attorneys say there are, naturally, other factors to consider when looking into the break down of marriage relationships.  The economy and finances have been straining marriages for years.  Long commutes may add to the stress a spouse feels during the day and takes time away from the family spent driving.

So, what can be done to prevent the commute from killing your marriage? Communication is essential to the health of any relationship.  Making special time for each other can also help bridge the gap.

Carol Cavazos and I discussed this study in the interview I did with her for this story on CBS 11:

 

What You Need to Know about Alimony/Maintenance in Texas

Posted by Michelle May O'Neil on May 2, 2011

Until recent years, Texas did not allow for the payment of alimony and, even now, it is available in extremely limited circumstances and limited duration.

A spouse can be awarded alimony/maintenance under the Texas Family Code only if one of two specific conditions exists.

The first is if the other spouse was convicted of a crime involving family violence within the two years prior to the filing of the divorce suit.  This includes class C misdemeanor convictions if the allegation involved family violence.  It also includes occasions where the defendant received deferred adjudication in exchange for a plea of guilty.

The other starts with a 10-year marriage, where the spouse seeking maintenance lacks sufficient property (including property awarded in the divorce) to provide for his or her minimum reasonable needs.  If that factor exists, then, the inquiry turns to whether the spouse can or cannot work outside the home because he/she has an incapacitating personal physical or mental disability; or, he/she is the primary caregiver of a child requiring substantial care due to a physical or mental disability; or the spouse clearly lacks adequate skills to find a job to support minimum reasonable needs.

Most alimony claims rely on the second of the conditions.  But for the request to be successful, the spouse must be able to show a reasonable attempt to find an appropriate job or get job training.

Judges are further limited in the right to award maintenance by state law that says support can continue for no longer than necessary to provide for the spouse's needs, but no more than three years after the divorce is finalized.  The exception to this rule is when the maintenance is awarded based on a disability of either the spouse receiving maintenance or caring for a disabled child, in which case the award may be indefinite in duration.  Also, monthly payment amount is limited to either $2,500 or 20 percent of the paying spouse's average gross income - whichever amount is lower. 

If this post was helpful, you may be interested in purchasing our book, Basics of Texas Divorce Law which includes several other topics you may want to know more about such as, the divorce proceeding, division of property and issues related to children.

Am I Even Married? (Common Law Marriage)

     An Excerpt from the book, "Basis of Texas Divorce Law" co-authored by Michelle May O'Neil and Ashley Bowline Russell

Posted by Michelle May O'Neil on April 18, 2011

     A common law marriage is when a man and woman agree to be married and live together in Texas as husband and wife while representing to others that they are married.  Contrary to popular belief, there are no time requirements for establishing a common law marriage.  Provided there's an agreement to be married that the couple tells other people about, a couple could live together for one day, to establish a common law marriage.

     There are two ways to dissolve a common law marriage. The first is through traditional legal divorce procedures.  The second option is to separate and wait.  According to Texas Family Code, if no lawsuit to determine marital status is filed within two years after the separation of common law spouses, the law presumes there was no agreement to be married.

     Practically speaking, if there are children resulting from a common law marriage, it is better to pursue a traditional divorce.  This is also true if the two spouses obtained substantial amounts of property during the term of the marriage, as a divorce is an easier way to divide the property than through a traditional suit for partition between non-spouses. 

IRS Forms and Information Resources

 

Posted by Michelle May O'Neil on April 11, 2011

Jeanne M. Hannah is a family law attorney in Traverse City, Michigan who has written an excellent family law blog for a number of years. She recently gathered links to a number of IRS tax resources and publications and published them in her blog. The following is the text of her post of March 14, 2011:


 

The IRS has released updated publications and forms that help divorced and divorcing people understand and deal with these issues:
  • income tax filing status
  • the right to claim tax exemptions
  • how to protect against tax liabilities arising from FOC intercepts of tax refunds on joint returns when, in fact the intercept is for child support arrearages of only one spouse and some of the tax refund belongs to the other spouse.
  • how to claim "innocent spouse" relief from liability caused by unreported income by the other spouse are now available.

 

See, in particular, IRS Publication 504 Divorced or Separated Individuals [January 10, 2011]

Other recently published and/or updated publications or IRS Forms that family lawyers' clients will find helpful and informative are:

Injured Spouse Relief: IRS Form 8379 is filed by one spouse (the injured spouse) on a jointly filed tax return when the joint overpayment expected was applied (offset) to a past-due obligation of the other spouse (e.g., a tax intercept for unpaid child support arrearages. This is how the injured spouse recovers her tax refund. See also the instructions for using Form 8379 here.

IRS Publication 971. How to Claim Innocent Spouse Relief. [Revised February 2011]

Innocent Spouse Relief: IRS Form 8857 is used to request exemption from tax liabilities cause by the under-reporting of income by the other spouse on a joint return filed during the marriage. See also Instructions for Filing Form 8857

Other recently revised publications of interest to those recently divorced or divorcing are these:

Publication 501: Exemptions, Standard Deduction, and Filing Information [Published January 5, 2011]

Publication 544: Sales and Other Dispositions of Property, including transfers to spouse, rollovers or retirements accounts

Publication 555: Community Property, including information about how to handle income from separate property [Revised December 2010]

Publication 590: Individual Retirement Arrangements (IRAs) [Published February 3, 2011]


 

Hat tip to Dick Price for posting this helpful article.

Coping with Divorce-Related Anger continued...

Anger
By Jane Nahirny

Posted by Michelle May O'Neil, April 4, 2011

 

 Using children as human shields in the divorce battle is a common way to fan the flames of divorce anger. Many scenarios are possible, all of which are damaging and punitive to the children: the custodial parent withholds visitation from the non-custodial parent; the non-custodial parent refuses to pay child support; the custodial parent "forgets" to pick the children up; or the non-custodial parent is hours late in bringing them back. "We forget what's best for the children because we are so intent on getting that other person," writes Ahrons. But "getting back through the kids is hitting below the belt." 

Divorce anger is also often expressed through the legal process itself. Here, it's very important to remember that your lawyer is your advocate, not your therapist or best friend. Expressing anger to your ex-spouse through the legal process invariably leads to prolonged, emotional proceedings that will ultimately leave you -- and the family resources -- drained dry.

Using the court as a venue to vent your anger is a bad idea for a couple of key reasons: it's the wrong venue, and it's very expensive (financially and emotionally). Unfortunately, the legal divorce process itself tends to add fuel to the fires of anger. Dividing property (some of which has great sentimental value) and trying to prove your case for custody and/or support can be very emotionally charged because these issues underline what is being lost or changed because of your divorce. Some degree of upset is inevitable, but driving yourself alongside your ex into bankruptcy is truly cutting off your nose to spite your face.

So how can you cope with this new and intense anger? The key lies in understanding its roots, and in finding constructive ways to express the hurt, disappointment, and loss that both you and your former spouse are feeling now as you proceed through separation and divorce. "Anger can really be a very healthy and positive tool, but if we use it destructively, all we do is scare people and alienate them," stresses Dr. Andrea Brandt, Ph.D. M.F.C.C., and a specialist in anger management with the California-based LifeWorks Company. "People have to learn to have anger work for them, not against them."

Here's some advice about coping with your own and your ex-spouse's divorce-related anger.

If you're angry:

Write it out. Work through your anger by keeping a journal or by writing letters you don't mail, suggests Dr. Brandt.
Shout it out. "If you can roll up the windows in your car or put your head in a pillow and scream, it can drain some of that negative energy out of your body," she adds.
Talk it out. It's important when you're angry to develop your own personal support system. Instead of directing your anger at your ex-spouse, talk to a good friend (or two), or find a therapist who specializes in anger management.
Get some professional help. "Remember -- anger acts as a shield. Your anger suppresses other vulnerable feelings that may be too hard to deal with. It's easier to feel angry than to feel lost, confused, and worried," says Dr. Mirman. "Talking to a professional can help you begin to feel those emotions you've been supressing and move past the anger." You could also benefit from a support or anger-management group where you can share your story. "Support groups help people develop much greater self awareness around their anger," explains therapist Deborah Rodrigues. "They remove the sense of isolation and help people move to a position of growth and development."
Re-examine your "core beliefs." When we point a finger at another person in anger, we're really pointing three fingers back at ourselves, says Sharon I. Roach, S.S.W., a certified Core Belief Engineering practitioner. "Often, anger is based on something that we observe in early childhood and form a belief about. The problem is that as we grow older, our beliefs and decisions can become outdated."
Take responsibility for your part of the marriage break-up. "It's a rare couple in which both partners were exactly equal in the breaking of the marriage, but it's an even rarer couple in which one partner was solely at fault," writes Constance Ahrons in The Good Divorce. Do some personal growth work. "Anger is a great motivator towards action and can propel you to take steps in your life to change situations," says Cynthia Callsen, a New York-based counseler and psychotherapist. "Your anger can help you identify old patterns, and then you can take the steps to stop repeating them."
Learn what "pushes your buttons." Try to understand your anger -- and what triggers it -- before you express it. Don't be afraid to say that you need some time to think about your response.
Protect your children. Never make them part of your conflict with your former partner by withholding visitation or support or poisoning their minds against your ex. "For the sake of the children, if for no other reason, learn constructive methods of expressing anger," Ahrons says.
Keep conflicts at a moderate level, Rodrigues advises. "The other person will often match your level of intensity." And be sure to choose your battles carefully. "Expressing every little irritation and disagreement provokes resentment. Think about the most important issues -- and let go of the small stuff."
Use "I-messages" when expressing anger. Say: "I feel disappointed when you don't call," not: "You stupid idiot, you're always late!"
Give yourself time to recover from the loss of your marriage. On average, experts say that the healing process takes about two years. "It's important to realize how sad you are," says Ahrons. "This won't necessarily make you more vulnerable to your ex-spouse; your successful handling of your emotions puts you in a more powerful position."
Forgive, let go, move on. Anger can become a comfort, a constant in our lives, but as long as you continue to nurse your anger against your ex, you will never have a happy, fulfilled, post-divorce life. Own your responsibility for the break-up, and realize that you have the power to make the choice to forgive and move on, or stay angry and remain stuck. It doesn't matter what your ex does, you can still choose forgiveness. (For more on this topic, see "The Power of Forgiveness".)
 

If your ex is angry:

Listen to and validate your ex-spouse's comments. "Your ex may be feeling like he or she isn't being heard," says Callsen. "By really listening to his or her concerns, you may realize where the anger is coming from and identify what you can do to help." It also really helps to defuse the situation, by saying something like, "I understand why you're angry with me."
Don't be afraid to take a "time-out." Walk away from an anger attack if you can't handle it. "You can always say, 'I'm not going to talk to you until you calm down,'" suggests Callsen. "You might be feeling angry yourself that you were just attacked. So walk away, or end the call. Put limits on what you'll take and how you'll be treated."
Get some assertiveness training to boost your self-esteem. "Anger is like a fire that must be burned up into the ashes of forgiveness," writes Ahrons. "If we are passive, it is like throwing more logs onto the fire..."
Use your response to defuse the situation. "When someone is angry, they're likely to pull in a million different issues," says Rodrigues. Insist on dealing with each issue separately, and one at a time. You can also try agreeing with your ex, she says. "When you say 'Yeah, you're right,' it tends to quiet people down pretty quickly. There's nowhere to go with it, so eventually the anger shuts down."
Try not to take your ex-spouse's comments too personally. "Remember that anger is a projection of one's own inner feelings and one's own world," says Roach. Rodrigues agrees: "Accept the fact that this person is angry because they're going through turmoil. It's not your anger, it's theirs, so don't own it."
Stay calm. It can really help de-escalate the anger, says Rodrigues. "Tell yourself 'I can handle this' during an angry phone call from your ex. Relaxation techniques, such as deep breathing, can also be effective when you're listening to someone who's really angry." A mantra can be helpful, too, adds Brandt. "If I'm speaking with someone who's really angry at me, I'll always say silently to myself, 'This is good for our relationship.'"
Learn to recognize your own hot buttons.When someone pushes one of your buttons, your response is going to be way out of proportion to the offense. "Other people's feelings and words are simply information," stresses Roach. "If you're affected by them, there may be something that trails behind them from your history that is bothering you."
Try to feel a little compassion -- no matter how hard that may be. "Now that the relationship's over, the other person is probably feeling fearful and threatened that they'll never love again or they'll never see their kids," says Rodrigues. "Try to hear what's underneath the anger. Quite often, it's fear, pain, or shame." Showing empathy or compassion for your ex can go a long way to defusing his or her anger.
Be honest with yourself. Recognize that when someone is angry with you, there may be something in what they're saying. "Very often, you might hear something that's really valuable," says Brandt. If your ex is yelling at you, you can choose to think he/she's a jerk and start yelling back, or you can "dig for the gold" in what he/she's saying. Keep the gold; discard the dirt and rocks.
Value your safety above all else. If your former partner's divorce anger seems to be headed in a dangerous direction, put some boundaries in place and communicate through a third party. "Threats should always be taken seriously," advises Rodrigues. "Remove yourself from the situation and refuse face-to-face contact if you sense any danger at all... put the answering machine on and screen your calls."

 

Coping With Divorce-Related Anger

By Jane Nahirny 
Posted by Michelle May O'Neil

Rose was so mad she could hardly see straight. She and her husband, Jim, were six months into their "trial separation" when she discovered that he had been dating someone else. Reeling from the impact of the painful news, she sped over to his new apartment, intent on learning every last detail about the new woman in his life. Her heart pounded and terrifying questions flashed through her mind as she drove: "How could he have lied to me? Who was this other woman? Was she attractive?" And, perhaps worst of all, "What was I thinking when I suggested that we should separate?"

Anger is a very familiar emotion for all of us. And in healthy relationships, it can be an overwhelmingly positive force in our lives. "Anger is a very healthy emotion," says Chet Mirman, Ph.D., a licensed clinical psychologist and director of The Center for Divorce Recovery. "Healthy anger can tell us if there's something wrong -- something painful and threatening that we need to take care of. It helps us protect ourselves, and to know when people are crossing our boundaries."

But for couples who are going through separation or divorce, anger is often anything but healthy. In her informative book The Good Divorce (Harper Perennial, 1995), Dr. Constance Ahrons defines divorce-related anger as "an extreme rage, vindictiveness, and over-powering bitterness that is felt when a love relationship is ending. It is a special kind of anger that usually hasn't been experienced before."

When anger is coupled with divorce, it's often used as a misguided means of hanging on to a failed marriage. After all, for many people, a bad relationship is better than no relationship at all. Divorce anger allows people to punish their ex as often as possible, all while maintaining an ongoing (bitter) relationship with him/her. It's a situation that leaves both partners in divorce limbo -- a perilous situation that obstructs growth and self-awareness.

Some people hold onto their anger so tightly -- stoking the fires on a daily basis -- that their rage takes over their whole lives, coloring and informing all their thoughts and actions. They weigh every action to see how much emotional or physical harm it will inflict on their ex-spouse -- even simply being a nuisance will do in a pinch -- without seeing the injuries they may be inflicting on innocent victims.

Look for next week's continued discussion on divorce-related anger.

More information on health and well-being articles:
 

The Good Karma Divorce

How to Handle Your Emotions during Divorce

Anger Management 
 

Common Sense Rules for Divorce

Via Dick Price's excellent Tarrant County Divorce blog, he points to Daniel Clement who writes an excellent blog, the New York Divorce Report, where he had some good lessons for anyone going through a divorce.

Contemplating divorce or already engaged in one? No matter where you are in the process, five common sense rules apply to all family law cases:

Don't underestimate the fury of a scorned spouse.

" Heaven has no rage like love to hatred turned. Nor hell a fury like a woman scorned." Anger, jealously and feelings of betrayal inspire the need for revenge. A divorce premised on the need for revenge will be costly (economically and emotionally), bitter and damaging to all.

You can listen to your friends, but maybe don’t pay attention to them.

"Divorces are fact specific. The facts of your case are different from your neighbors your friends, and your co-workers. The facts of your case will determine the outcome. So, when a client tells me that 'My hairdresser said that I should do. . . ' or that 'I am entitled to. . . .' I try to find out when the hair dresser started practicing law. By analogy, I don’t tell my mechanic how to fix my car.

Don't write or say anything that you don't want to be read or heard in court.

Social network postings, pictures, and even causal asides will be used against you in a contested divorce or a custody fight. Your own words could be the strongest evidence against you. If you don’t want something to be used against you, exercise discretion and don’t say it, post it or photograph it.

Don't let any anger, guilt or remorse get in the way of a reasonable and fair settlement.

Settlements should objectively fair, based upon the facts of the case. The emotions of anger and guilt cloud judgment. For instance, a spouse who feels that he/she betrayed the other by having an affair, may be willing to 'give away the farm' to satiate feelings of guilt. On the other hand, the betrayed party may have a knee jerk reaction rejecting a fair settlement offer because it does not provide for loss of the other’s body parts. Accept the advice of your attorney and financial advisors in order to resolve your case.

Hire a lawyer who practices matrimonial law, not someone who handles divorces only occasionally.

Due to the complexity of the issues involved in the dissolution of a marriage, ranging from the valuation and distribution of assets to the custody and care of children,you should seek representation from an attorney well versed in this particular area of law, not from someone who dabbles."

Needless to say, divorce has serious consequences. Unfortunately, some people don't consider the long-term effects of what they do and say during a divorce. It is easy to give in to emotion and act irresponsibly in stressful and uncertain times. Instead of reacting quickly and in anger, it is much better to stop and consider your choices and act in ways that will reduce the fighting and put you in a better position to get a good resolution. In other words, stop, think and avoid the temptation to gain temporary, but immediate gratification. Consulting with your attorney before making important decisions is a good way to avoid creating bigger problems.

For information about Family Law Attorney in Dallas, Texas, contact O'Neil Attorneys Family Law.

The Professions with the Highest Rates of Divorce

If your spouse helps people or touches them for a living, be careful -- you might be headed for a divorce. Helping professions and hospitality workers have some of the highest divorce rates in the country, according to a comparison of divorce rates among occupations.  Divorce in Dallas Texas statistics are similar.

The conventional wisdom is that police officers have high divorce rates. But a year-old analysis of the top 15 jobs with the highest divorce rate that recently made the rounds of the Internet doesn't even list police officers among the worst offenders. Based on data from the 2000 U.S. Census, it found that law enforcement workers had a lower divorce rate than the general population.

Before we try to explain why some of these jobs might have high divorce rates, here are the to p15 professions and their divorce rates:

 

  1. Dancer: 43%
  2. Bartender: 38%
  3. Massage therapist: 38%
  4. Gaming cage: 34%
  5. Extruding machine operator: 32%
  6. Gaming: 31%
  7. Factory: 29%
  8. Phone operator: 29%
  9. Nursing: 28%
  10. Entertainers, sports: 28%
  11. Porter: 28%
  12. Telemarketer: 28%
  13. Waiter: 27%
  14. Roofer: 26%
  15. Maid: 26%

The national divorce rate in 2009 was 10 percent. It's hard to know whether the above jobs are prone to more divorce or whether more unstable people are drawn to those professions. Professional dancers, athletes and entertainers, for example, have more opportunity to cheat on their spouses because they often work away from home and are surrounded by adoring fans. At least that's Tiger Woods' explanation.

Helping professionals, such as massage therapists and nurses, have a high amount of stress and work long hours, spending less time with their families. Hospitality workers, such as waiters, maids, porters and gaming workers, also work irregular hours in high-stress jobs, and come in contact with people on vacation who might be feeling a little randy and have time and money for a tryst on the job.

No matter what the profession, divorces are highest among jobs where workers face high stress and temptations. Those temptations include other women, gambling and alcohol.

Jobs that require extensive travel, odd hours and are high in stress can lead to divorce because the worker is away from their spouse too much and doesn't know how to deal with the stress away from home.

Working odd hours and then spending more time with co-workers instead of a spouse isn't the only thing that can lead to divorce. One of the biggest causes of divorce is economic pressure.

When you can't make ends meet, that adds an economic pressure that you can't avoid.  Even highly paid CEOs who feel pressure at work can have high divorce rates.

Nighttime work can also lead to higher divorce rates, said Richard Fitzgibbons, director of the Institute for Marital Healing, on the Catholic News Agency website. "Those who work in the evenings are a distinct disadvantage," Fitzgibbons said, "because the marital friendship usually suffers, with ensuing significant loneliness."

Some of these jobs also don't pay well, which can lead to more stress in a marriage. Better-educated workers tend to have higher-paying jobs, which can provide less stress in marriages.

Resource: jobs.aol.com

Four Questions to Ask Before You Get a Divorce

The day after Valentine's Day is usually a busy day on the divorce attorney's calendar.  But, are you ready for a divorce? It's often hard as well as stressful to decide on divorcing. Significant damage can be done to both couples and children alike if not thought through properly. Before making a divorce a final decision, a Divorce Attorney Dallas Texas can help you and your spouse go through some important questions. Try to reflect on the following questions before considering divorce:

Do you know exactly why you are contemplating a divorce?

The most important question for you and your mate to find the answer to is the reason you are thinking about divorce. The divorce itself might become a problem if you don't fully evaluate why the action need to be taken. If a fight was involved, let things cool off before breaching the subject again. Take your time and go over the reasons one by one. Divorcing is not an action that should be taken lightly; it should not be done on impulse or when negativity is all around.

I don't think there is any hidden reasons at the back of our decision.

Please ensure you have enough valid reasons for proposing divorce. Focus on solving these underlying problems instead of immediately opting for separation. One example of this is mentioning divorce as a way of voicing frustrations about your marriage, or just to manipulate or threaten your partner. If this is the case, then divorce might not be the solution you are looking for. You might want to seek marriage counseling or couple's therapy instead.

Do you know the resulting effects that are involved?

When filing for divorce, you should consider many factors. Bear in mind that it can have an effect on you and your spouse's individual and common goals. It is a stressful situation and effects your emotions and finance. Children and other family members gets affected by divorce. Carefully assess the worst possible scenario, which could emanate from your plan. Then decide if you can or at least will be willing to accept these dire consequences. Ask yourself if you have the ability to help your children cope, or if you have a support system that is readily available to help you through the painful divorce process. Denying or repressing the negative aspects of the divorce will only make things harder for you and later on other people involved with you in this divorce.

Will you be able to act maturely after the divorce?

Don't think of divorce simply as a one-time legal decision to cease a relationship because its effects last beyond the legal proceedings and technicalities. Ask yourself if you are willing to let go of any resentments you have towards your spouse and whether you are willing to take responsibility for the decision you made. Your attitude will affect how you move on after the separation; it will also help to set the foundation for your new, post divorce life.

Spouses need to be aware that deciding to get a divorce is quite serious. Its negative effects can become long-term if the decision is not thought through properly.

Article credit to Jacob Schiffer from ezinemark.com.

 

Is There A Divorce Busy Season?

Typically, January through March is considered the "busy season" for divorce lawyers in Dallas.  After the first of the year, interest picks up in people wanting to file for divorce in Texas.  Many speculate that new year's resolutions give the spark to action for some.  Others figure that unhappy couples stay together through the holidays, intending to split afterwards.

I've also heard a theory that couples split after the Superbowl due to drinking and fighting.  I have to say I've never had any client as a Dallas divorce lawyer give me that as a reason for getting a divorce.  Some think Valentines might be a factor -- stay together long enough to see what the Valentine's present is, then call the divorce attorney.

Recently, a reporter in Columbus Ohio wrote that the statistics there show that March is the busiest month for new divorce filings, most likely because it takes a month or two to get an appointment with the divorce attorney, get the money together to pay her, and get the divorce on file.  See the article Couples Most LIkely To Call It Quits In March.

 

Divorce in the New Year Protecting Your Business

January is the month of renewal – closing the door on the negativity of the prior year and planning for the challenges of the new year. Many commit to weight loss, exercise, or stopping smoking at the start of a new year as an opportunity to make improvements in their lives. On the other hand, some people use the beginning of a new year to make new personal beginnings, such as ending their marriage.

Planning for a divorce and new life may seem daunting. Not knowing what to expect can be scary and frustrating. In a Texas divorce, specific requirements must be met before someone will even be allowed to file for divorce. For example, a spouse must live in Texas for 6 months and in a particular county for 90 days to qualify to file for divorce in Texas and in that county.

When going through the divorce, marital assets and debts will need to be divided between the parties. Some people enter into a premarital agreement when they get married to ease the divorce process and define the division of assets and debts in the event of divorce. But, some spouses are unable to agree in advance as to the division of marital property upon divorce in Texas, which can lead to contested litigation. Also, some parents are unable to agree regarding each parent’s role with their children after divorce. Child custody issues can become expensive and time-consuming.

For those spouses who own a business as a marital asset, getting divorced and reaching a fair division of the marital estate can be even more complicated. A business entity is a separate marital asset – the individual assets and debts owned by the business are not part of the marital estate, only the entity as a collective whole. The first step in dividing a marital estate that contains a business entity involves establishing when the business was started. If it was formed prior to the marriage, it may not be community property under Texas marital property law. However, any changes to the organization, such as the entity type or owners may alter the initial characterization of the business as separate or community property.

After determining that the business is community property under Texas marital property law, the second step is to figure the business’s monetary value to the community estate. A CPA or business valuation expert will evaluate and establish the value of the business for property division purposes. It is recommended that the CPA be certified by the American Institute of CPAs in Business Valuations. The value will depend on many different factors, including the amount of assets the business has, properties that the business own, current customers, intangible goodwill, as well as other financial information.

Practically speaking, while the divorce works through the process, the business will need to continue to operate. Owner spouses need to know what to do to protect their investments while the divorce process is ongoing. This becomes even more important if both spouses work at the company and agreements need to be in place regarding each spouse’s rights, duties and responsibilities regarding running the business.

Once there is evidence of the assets and debts contained within the community estate as well as the value of each asset and debt, the parties by agreement, or the judge after a trial, will work to achieve a fair division of the assets and debts between the parties. The division does not have to involve a split of each asset and debt, but will contemplate an overall fair division. One spouse will receive certain assets, the other spouse will receive other assets, each spouse will be allocated certain joint debts, and each party will be assessed the debts in their name only.

If you are considering a divorce or have been served with divorce papers, contact an experienced divorce attorney, especially if you own a business. The decisions you make during this process could impact not only your personal financial freedom but also your business’s bottom line. You need to know what will be considered in the final split of the marital assets and debts.

Contact the Dallas firm of O’Neil Attorneys Family Law for your family law needs, including dividing your business assets upon divorce. Michelle May O’Neil and Ashley Bowline Russell are well-acquainted with the special concerns for complex property divisions in a divorce in Dallas Texas or the surrounding areas. O’Neil and Russell released their new book The Basics of Texas Divorce Law in December 2010. Find them online at www.themayfirm.com or www.oneilattorneys.com.

 

The Changing Face of Marriage

Belinda Luscombe of Time Magazine writes this week about Marriage:  What’s It Good For?, pointing out that the state of marriage has shifted in unexpected ways. A couple of statistics they point to:

·         In 1960, nearly 70% of American adults were married; now only about half are.

·         In 1960, 2/3 of 20-somethings were married; in 2008, just 26% were.

·         College grads are now far more likely to marry (64%) than those with no higher education (48%).

The most interesting statistic they cite in the article is the percentage of children born to unmarried women.  In 1960, about 5% of children were born outside of marriage, compared to 41% in 2008.  And, broken down by race, in 2008, 72% of black children were born to unmarried women, compared to 53% of Hispanics and 29% of whites.

Marriage, today, practically speaking, is just not as necessary as it used to be.  40% of those surveyed believe marriage is obsolete. Now, neither men nor women need to be married to have sex or companionship or professional success or respect or even children. The largest statistical difference is that which has opened up between the rich and the poor.  In 1960, the median household income of married adults was 12% higher than that of single adults.  By 2008, the gap grew to 41%.  So, the richer and better educated you are, the more likely you are to marry or be married, says the article.

The reasons for getting married now include love, commitment, companionship, with having children and financial stability being less important reasons.  Also interesting is the effect the marriage statistics seem to be having on divorce statistics.  In recent years, the overall rate of divorce has plateaued.  The rate of divorce among college graduates has declined, which is offset by a rise in divorce among those at the lower end of the socioeconomic spectrum.  Also, 2/3 of divorces are supposedly initiated by women.

Here’s what I think: This is a very interesting article, more for the sociological comment than an indictment of marriage.  As a family law attorney in Dallas, Texas, this article only serves to confirm what we see on the ground here.

The stats about the increase of wealth of married folks beg the question of the impact of women moving into the workforce.  In 1960, only 32% of women worked outside the home.  Now, 61% of women work outside the home.  Women have also seen increases in their average level of education and income.  So, the increase in the median household income of married adults could easily be linked to the increased number of working women, without comment on the marriage rates.

In the 60’s people may have married, and married young, to have sex, have children, and, for women, have the financial stability of the working husband.  Today, women don’t need a man for any of those things.  The invention of the birth control pill combined with the increase of working women has changed the dynamic for women.  Our society’s mores have shifted, too.  So, a woman doesn’t need to get married to have sex or avoid the stigma attached to having a child without a husband.  And women’s equality in the workplace has eliminated the dependence on the working husband for financial security. 

This leaves love and companionship as the only arguments left favoring marriage.  But, our society doesn’t place importance upon having one long-term companion and increasingly accepts the concept that a person may have several, or even many, relationships over a lifetime.  In fact, I’ve heard several young people comment that they don’t believe in the idea of spending a lifetime with one person because over time your needs, wants, and desires change, resulting in a need to change partners.

I also don’t place great meaning upon the statistic that 2/3 of divorces are initiated by women.  This doesn’t equate to women making 2/3 of the decision to divorce or being 2/3 to blame for divorcing.  In fact, all this may mean is that women are more likely to act upon decisions, once made, than are men. 

Insupportability deciphered: the plain English of "no fault" divorce in Texas

What is “insupportabilty”? We often encounter this question from new or prospective clients. According to the Texas Family Code: "the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Tex. Fam. Code §6.001. But what does this really mean?

Simply put, insupportability means unendurable, insufferable, and intolerable. Insupportability is a “no-fault” ground for divorce in Texas (meaning that a divorce can be granted without proof that one spouse was at fault for the breakup of the marriage). Insupportability is the basis upon which courts grant the vast majority of the divorces in this State. 

While the spouse seeking the divorce must prove that the marriage is insupportable, mere conclusory testimony by one spouse (usually in the form of yes / no response to questions from the attorney) that the marriage has become insupportable and there is no reasonable expectation of reconciliation is sufficient to support the divorce. There is no requirement to establish the source or nature of the conflict, how long it has lasted, your efforts to fix it, or who is at fault.

There is no legal duty to reconcile in Texas. While there is a provision for counseling in the Family Code, plainly stated, there is really no defense to a petition for divorce based on insupportability – if one person wants to be divorced, there will be a divorce. No matter how much one spouse protests, Texas will not force you to stay married indefinitely against your will.

Hire the Right Attorney for Your Dallas Divorce

Client Testimonial Tuesday: 

Divorces are very difficult and painful. Don't make matters worse by hiring the wrong attorney. My "donkey was in a ditch" and Michelle May O'Neil not only got me out, but put me back on track to obtain my desired results. She is well respected in her field, very knowledgeable , and will fight for your rights. If you want things done right, do them right the first time, have Michelle May O'neil represent you.

A.Y.

How Do I Get a Texas Divorce?

Michelle May O'Neil of Dallas Family Law firm O'Neil Attorneys Family Law, posted an article on JD Supra called How Do I Get a Texas Divorce?

SUMMARY: Although it is highly unlikely anyone enters into a marriage with the thought that divorce will be the inevitable end to the union, the unfortunate reality is that many people will have to endure the pain of divorce. Statistics tell us that about half of all first marriages will end in divorce. However, in Dallas area divorces alone, the divorce rate has been closer to 60 percent for first marriages and climbs to 75 percent for second marriages!

 

A divorce is a lawsuit to dissolve the legal marriage relationship. A divorce encompasses many different issues including the division of property and debts, and what legal rights each parent will have to the children. Keep in mind that a divorce generally only dissolves the legal relationship. Many religions also have requirements about how to dissolve a marriage from a religious standpoint.

 

For those that have reached the point where divorce is the last remaining option, questions are likely more prevalent than answers. This article helps answer the question about How To Get A Texas Divorce.

How To Find a Good Lawyer When You Need One

Today, Michelle May O'Neil, Board Certified Family Law Attorney of Dallas Family Law boutique O'Neil Attorneys, posted an article on How to Find a Good Lawyer When You Need One? via JD Supra.

SUMMARY: Most people do not have a clue how to find a good lawyer when they need one. In fact, statistics show that 68% of consumers spend two hours or fewer gathering information before selecting a lawyer. The vast majority of consumers report feeling they “can trust” their lawyer is the most important factor in the selection process. Dallas Family Lawyer Michelle May O'Neil reviews the best way to find a good lawyer when you need one.

 

This advice provided by Michelle May O'Neil is particularly useful when searching for a good divorce lawyer or family lawyer in Dallas Texas, including a divorce lawyer that handles child custody or division of business interests in a divorce.

Michelle May O'Neil has over 18 years of experience representing men, women, and children related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as "a lethal combination of sweet-and-salty", Ms. O'Neil exudes genuine compassion for her client's difficulties, yet she can be relentless when in pursuit of a client's goals.

O'Neil maintains her divorce law firm in Dallas, Texas. You can learn more about her at www.oneilattorneys.com or read her blog at Dallas Divorce Law Blog.
 

Divorce Survival Tips, Dr. Phil Style

How do you protect yourself and prepare for a divorce?  You must know your rights under Texas divorce law when it comes to spousal support, child support, and marital assets.  It also helps to know the outlook of the judges in the county you live in who might be likely to hear your divorce case, such as Dallas County Divorce Judges or Collin County Divorce Judges.  Sometimes how a judge views the law and the facts that fall within the law can vary from county to county.

Here are some Divorce Survival Tips to help you get ready:

  • Divorce proceedings can be like war -- be prepared for the battle. It doesn't have to be like war, and can be handled collaboratively, but people can't get along well enough to reach agreements.
  • Consider the timing of the divorce.  Consider whether it is beneficial for you to stay in the marriage until a particular time.  Example, your spouse is set to receive a bonus at the end of the year.  If you file the divorce prior to that time, you risk a claim that the bonus is not marital property.  Or, is there a benefit to making it to the 10-year-marriage mark?
  • Consult with an attorney, or more than one attorney, to make sure you are getting the best advice for your situation.
  • Gather the information you will need to present your best case.  You will need all of the documents related to financial accounts, real property, debts, etc.  (Check out Divorce Cost and Prep from DivorceApps.com for an iPhone App that will help you put together a list of documents that your lawyer might need.)
  • Don't put the kids in the middle of your divorce.  Work something out with your spouse so that you can both stay involved in the kids' lives and co-parent them together.
  • Don't talk to everyone you see about your divorce.  Keep your conversations very limited to just the one or two people you know you can trust and who won't talk to your spouse.

Dr. Phil has his own set of Divorce Survival Tips.

See related post:  Dr. Phil asks, Are You Ready For Divorce?

Dr. Phil asks, Are You Ready for a Divorce?

About 20% of people that contact a lawyer about a divorce are not "ready" to actually get a divorce, according to a statistic cited by Dr. Phil on his show today Are You Ready For Divorce?  Dr. Phil believes that most people are too quick to get divorced. 

As a Dallas divorce lawyer, I routinely advise my clients that they should explore every option for keeping their marriage together before going the divorce route.  Dr. Phil agrees.  He says before you get a divorce, you should make sure your emotional business is finished, you are prepared legally, and you are ready to move to a co-parenting relationship with your spouse (instead of the married dynamics you have been in).

Dr. Phil has a Divorce Readiness Test:

  1. Have you done everything you can to save your marriage?
  2. Do you have unfinished emotional business?
  3. Have you researched, planned, and prepared yourself legally for divorce?
  4. Are you ready to adopt a new standard of conduct with your children?
  5. Are you will to create a new relationship as a co-parent?

To make sure you are ready for divorce, Dr. Phil suggests reading books about repairing your marriage, going to a marriage counselor, speaking with a clergy person or spiritual advisor, and spending time focusing on what each person's role is in the marital break-up. Evaluate: How did the marriage go wrong? Is what fight is about worth ruining the marriage? Are you willing to put in the effort to make the relationship work? What is your role in causing the break-up?

You know you are ready for a divorce when you can walk out the door with no anger, frustration, or hurt.  Otherwise, you have unfinished business, says Dr. Phil.

Tomorrow... Divorce Survival Tips.

 

Same Sex Couple Divorce and Parenting Issues

On Thursday, June 17, I will be participating as a panelist in the State Bar of Texas Family Law Update:  Same Sex Couple Divorce/Parenting Issues webcast seminar. 

This two-hour webcast is intended to inform the family law practitioner about recent developments in same-sex family law cases. Dallas and Austin have both recently litigated gay divorces; the 5th and 9th Courts of Appeal have recently issued opinions addressing standing for same-sex parents.

  • WHO is most affected by same-sex family law cases?
  • WHAT can practitioners do with cutting-edge lawyering?
  • WHERE will standing end up, with the split of opinions among appellate courts?
  • WHEN is a parent not a parent?
  • WHY can’t couples legally married in other jurisdictions get divorced in Texas?

Advising same-sex couples can have long-term ramifications for the best interests of children, and need to anticipate upcoming changes in the law, both locally and nationally. Join us to see the latest developments from the attorneys on the front lines. 

This seminar is approved by the Texas Bar for continuing legal education with 2 hours credit. The seminar is sponsored by the Sexual Orientation and Gender Identification Issues Section of the State Bar of Texas.

I am very excited to be on this panel and plan to learn more than I teach!  Other speakers on the panel include:

1. Ms. Jennifer R. Cochran, Austin
Attorney at Law

Read Jennifer's Blog Here:  The Zealous Advocate

2. Ms. Karen J. Langsley, Dripping Springs
Attorney at Law

3. Ms. Michelle May O'Neil, Dallas
O'Neil Anderson

4. Mr. Peter Schulte, Dallas
Schulte & Apgar

Mr. Schulte has been in the news a great deal lately, representing one member of the gay couple seeking a divorce in Dallas.  That case remains pending on appeal in the Dallas Court of Appeals.

See my prior posts on that case:

  1. Dallas Judge: Ban on Gay Marriage and Divorce Unconstitutional: UPDATE
  2. Dallas Judge Tena Callahan Speaks Publicly For The First Time Since Her Controversial Ruling

Time Magazine has also written on this topic recently, discussing the gay divorce cases pending both in Dallas and in Austin, Can Gay Couples Divorce Where They Can't Marry?

The cost of the webcast seminar is $135. 

Webcast registration is only available online and by using a credit card. Go to TexasBarCLE.com and select 'Webcasts' from the menu. Registrations by mail, fax, or phone will not be accepted.

We encourage early registrations to give you time to verify that your system is webcast-ready. Our technical support lines are usually extremely busy on the day of a webcast, so be please register and test your system a few days ahead of the webcast date.

Sandra Bullock and Step-Moms

No doubt everyone out there has heard about Sandra Bullock and Jesse James are getting a divorce.  The question that burns in my mind... how could anyone cheat on someone as wonderful as Sandra Bullock?  But, that begs the question for today.

Bullock, 44, married TV host and motorcycle builder Jesse James in July 2005. The couple met the previous year when Bullock arranged for her then ten-year-old godson to meet James, who hosted Discovery's Monster Garage. James has two daughters and a son from previous marriages: 14-year-old Chandler, 11-year-old Jesse Jr., and five-year-old Sunny.

The couple won temporary full-time custody of Sunny in 2009, after James' ex-wife, adult-movie star and former Penthouse model Janine Lindemulder, was sentenced to six months in prison for income-tax evasion.

Interestingly, in her recent Oscar acceptance speech for her role in the movie Blind Side, she said the award is “… for the moms that take care of the babies and children no matter where they come from. These moms and parents never get thanks.” Maybe she included herself and her step children in that message.

There has been a lot written about how much Sandra Bullock relishes her roles as step-mother.  But, what happens if she wants to continue a relationship with Jesse's children after the divorce?

Unfortunately, the law doesn't favor step-parents' relationship with step-children.  In most states, including under Texas divorce laws, the biological parent will determine whether and when a step-parent can see the kids after the divorce.  Much like grandparents, no  matter how much money and love has been put into helping raise the children, the step parent is out in the cold when the relationship with the biological parent ends. 

Thanks to Blogs On Divorce for the backdrop for this post.

 

 

Divorce Apps now available for the iPhone!

Divorce Apps for iPhoneDallas, Texas -- Michelle May O'Neil of Dallas' divorce boutique firm O'Neil Anderson announces the release of Divorce Cost & Prep -- the first in a planned line of divorce-related apps for the iPhone by her newly formed company DivorceApps.com.  She and her business partner, forensic CPA Bryan C. Rice, saw a niche in the iPhone app industry that was not being met.  "When I got my iPhone, I couldn't believe how many games were available, but so few apps for divorces," said Rice.  "Michelle and I teamed up to develop some apps that would be beneficial for our clients to use." 

Divorce Cost & Prep serves two purposes.  First, a person contemplating divorce can assess the hidden and direct costs of divorce, such as the cost of providing two houses, two wardrobes for the children, or transportation costs for exchanging the children between houses.  Second, the app gives divorce clients a list of information and documents to gather for their lawyer to assist preparation of their divorce.  O'Neil wanted to provide an app that would make a client's life easier and her own as well.  "Many times clients want to know what documents they can gather for their lawyer, so this will give an easy way for clients to gather everything I will need for their case," says O'Neil. 

Divorce Cost & Prep is available on iTunes for $4.99.

The pair have more apps in the works.  Bear Cahill of BrainwashInc.com assisted with the development of the divorce apps for the iPhone.

More Tips for Avoiding Financial Disaster in Divorce

1. Negotiate a reasonable settlement.

Get some professional advice from a CDFA or CFP to make sure you'll be able to live with the financial terms of the settlement -- now and into the future. 1.Don't live beyond your income. Reduce your expenses -- or increase your income -- so that you are always saving something for a rainy day. Ask your financial advisor for help creating a budget if necessary.


2. Think twice about keeping the family home.

Ask your financial advisor whether you can truly afford it, and ask them to show you what cash you'd have available for investment if you moved to a smaller home.

3. Realize that you won't get everything you want in the property division.

Don't spend months and thousands of dollars fighting over furniture, appliances, or other personal items. Make a short list of "Must-Haves" and be prepared to compromise on everything else. Look at the big picture; is this asset best for your situation?

4. Protect your Retirement Assets.

In the U.S., have the QDRO (Qualified Domestic Relations Order) filed as soon as possible. 

5. Use debt sparingly.

Get a copy of your credit report and close all joint accounts and all credit you do not use. Avoid maintaining balances on credit cards.

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.

Avoiding Financial Disaster in Divorce

Many people face financial uncertainty when they divorce in Texas.  Often, this stems from taking the same amount of income that was previously being used to fund one household and splitting it up to cover two househoulds, including two house payments, two utility payments, two sets of furniture, and maybe even two attorneys.  This problem is especially exacerbated when only one spouse works, leaving the other spouse somewhat dependent on the working spouse for money.

The time while a divorce is pending is when you should really tighten the belt and spend only within your means.  Now is not the time to go to Neiman's or have fresh flowers weekly.  Prepare youreself now for the eventuality that your standard of living may change dramatically after the divorce is final. 

One common mistake people make is considering the divorce settlement to be income used to pay monthly expenses, instead of reserving the assets, retirement and other items received in the settlement for self-improvement, reserves, or rainy days.  Doing this will only make it worse when the assets or other funds run out. 

When you are deciding on what assets you and your spouse will take, you should be aware that not all assets are equal. One of you may end up with a huge tax bill when you access the assets: for instance, you could end up paying capital-gain taxes upon the sale of your home or your investment assets. In addition, if you dip into your retirement assets, you may end up paying income tax and a penalty. Consider the present cash value of each asset in dividing things up -- if it isn't cash then how hard would it be to convert it to cash.

Other assets may end up being a money pit. Your primary residence, vacation home, or rental properties could cost you a significant amount of money to maintain. Frequently, the primary benefit of a rental property is not necessarily cash flow, but the tax losses that are generated. If you are in a low tax bracket, then these losses may not benefit you to the extent that another investment would. Your expenses may actually increase. For example, if your spouse used to make all repairs, mow the lawn, etc., but now you have to hire someone to do those things, then your expenses will increase. Would you be better off liquidating these properties and investing the proceeds in something that would increase your cash flow instead of creating a financial drain?

For more info on this topic, see Divorce Magazine's article.

Here's more info on Property and Debt Division in Divorce.

Questions to ask yourself before filing for divorce.

As a Dallas divorce lawyer, I am often asked what can one do to prepare themselves for the filing of a divorce.  A divorce can be one of the most stressful and emotionally involved experiences of your life.  So before filing for divorce it is important to ask yourself some key questions to make sure you understand the legal process and are prepared for the emotional involvement a divorce requires.  First, ask yourself whether it would be beneficial to speak with a marriage counselor, either individually or as a couple.  Even if you think there is no hope for saving the marriage, talking to a professional might help you recognize where things went wrong, and how you can avoid similar behavior in the future. 

Ask yourself if whether it is a financially good idea or bad idea to get a divorce in this economy.  Although there are signs that the economy is strengthening, a lot of individuals still have not fully recovered from the effects of the economic downturn.  Property values are still down somewhat and the stock market hasn’t fully recovered.  As a result, getting a divorce now may cost you more than it would if you “stick it out” and wait until the economy is moving in strong positive direction.  Obviously, the emotional aspects of considering a divorce sometimes outweigh the financial aspects.  However, it is still important to ask yourself how getting a divorce in this economy would effect your overall net worth.

Ask yourself, and others, for a reference to a qualified divorce attorney.  A divorce is a complicated procedure and you will need someone to not only advise you but listen to your needs and concerns as well.  You’ll be spending a good amount of time, and money, with your divorce attorney, so it is critical that you shop around until you find an attorney that fits your personality and needs.  A great resource for finding divorce attorneys are websites such as AVVO.com or your state’s bar association webpage.  Referrals from friends and family that have gone through a divorce are also a great resource to consider.

Ask yourself if you have all of your financial documents in order.  Again, emotions during a divorce can be overwhelming but it is absolutely critical to have all your financial documents gathered and in a safe place before filing for divorce.  During a divorce, your bank account statements, credit card statements, retirement and brokerage account statements will be looked at with great scrutiny.  Doing the legwork before filing for divorce and gathering all these documents will help not only keep costs down (from having your attorney search for these records), but also help keep the emotional toil down as well.

Ask yourself what steps you can take to safeguard your assets during separation.  One of these steps is for you to take possession or certain assets, especially those you wish to continue using such as your car or other personal belongings.  Another step involves protecting your credit score by closing out joint credit cards and bank accounts.  By taking these proactive steps, you can help keep things as normal as possible during such an emotional time.

Finally, ask yourself what your goals of the divorce are.  For some, the goal is short-sighted: they just want to end their marriage.  For others, the goal is to be put in a situation to where they can move on to greener pastures and continue to grow in their personal lives.  Whatever the reason, it is important to ask yourself what your goal is and communicate this with your divorce attorney. 

Divorce Business Valuation Approach

Calculating the value of a business can be one of the most important parts of a divorce because a closely-held business may be one of the most significant assets of the marital estate.  The best approach to such valuation is to hire an independent business appraiser—a CPA with an Accredited in Business Valuation (ABV) credential or a certified professional, like a Certified Business Appraiser (CBA) or someone recognized by the American Society of Appraisers (ASA).  Such expert will begin by obtaining all business books and records, tax returns, and financial statements and reports for at least the last five years.

Using this data, the appraiser will determine the company’s intangible and tangible net assets, an appropriate rate of return for them, and will calculate excess earnings in accordance with various accepted methods.

After finding a proper capitalization rate for the excess earnings (that which remains after taking into account normal costs, return on assets and salaries), the appraiser can place a value on the most contentious aspect of business valuation, the intangible asset known as “goodwill.”

"Commercial goodwill” is the capacity of a business to attract new customers, or keep old ones due to great locations, a reputation for superior service or skill, or anything else that influences a person, supplier or other business to continue a commercial or professional relationship. “Personal goodwill” describes the nontransferable ability of an individual to attract and maintain customers or clients due to his or her skill or reputation for honesty, intelligence, craftsmanship.

 

 

Minimizing Your Business Value in Divorce

When spouses own a business and they are getting divorced, the value of the business becomes a major focus of the division of property.  Dallas Texas Board Certified Divorce Lawyer Michelle May O'Neil explains the concepts of valuation of a closely-held business entity that affect and even minimize the value of a closely-held business entity:

Valuing a business is a complex, and often expensive part of a divorce.  A business consists not only of tangible assets like buildings, bank accounts, inventory, tools, fixtures, furniture and machinery; but also, intangible ones such as mortgages, leases, patents, trademarks, unlisted stock, skilled labor, accounts receivable and most notably, “goodwill.” A business is valued usually based on the fictional assumption of a sale between a willing buyer and willing seller.

The most common legal concept that affects the value of a closely-held business is the distinction between the personal goodwill and commercial goodwill of the business.  The personal goodwill is that goodwill attributable to the person of the business owner.  Take a small bookkeeping firm, for example, owned by a wife.  Most of her clients do business with her company because they like her and trust her work.  her business has no reputation separate from her.  That value of the business attributable to her presence is personal goodwill.  The value of a business attributable to personal goodwill is the spouse's separate property.

Commercial goodwill, on the other hand, is that  goodwill that exists independent of the business owner.  It is the independent reputation of the ABC Company that exists separate from the business owner.  The value of a business attributable to the commercial goodwill is community property if the business would otherwise be community property.

Also diminishing the value of a business is the frequent occurance where a business remains subject to the control of multiple owners.  This discounts the value to any one of the owners for lack of control.

Another factor that decreases the value of a business involves marketability, which is defined as the ability to convert an investment into cash quickly at a known price and with minimal transaction costs. The more difficult a business would be to sell, the greater the discount for marketability.

Many businesses have "Buy/Sell Agreements".  These cannot be relied upon to calculate a business' value.  Such agreements typically protect the majority partner interests and rarely reflect actual value.

The best way to approach valuation of a business entity in a divorce is to hire an independent business appraiser—a CPA with an Accredited in Business Valuation (ABV) credential or a certified professional, like a Certified Business Appraiser (CBA) or someone recognized by the American Society of Appraisers (ASA).

Keeping Business Alive During Divorce

Divorce is a hard enough time but when you own your own business, managing your divorce and keeping your business alive can be extra challenging.  Here are some tips from Board Certified Dallas Family Lawyer Michelle May O'Neil of O'Neil Anderson:

  • Be an open book.  Don't try to hide anything from your spouse.  When discovered, the divorce judge may very well impose greater punishment than the value hidden.
  • Hire a good forenic accountant to evaluate the business.  If the business is community property, the value of the business to the community estate will be an essential question in the divorce.
  • Know the difference in personal goodwill and commercial goodwill and how that difference may affect the consideration of your busines sin the division of your community estate and divorce.
  • The declining economy may have removed much of the liquidity from your business, which may affect the cash available to pay the increased expenses of separating and paying divorce lawyers.
  • If both spouses work in the business, it is best to pick one who will stay in the business and one who will exist.  Rarely can people who cannot stay married to each other remain business partners.

Can the Divorce Judge Make Me Turn Over My Business' Cash to My Spouse?

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

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

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

Married men = higher income.

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

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

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

 

Feelings of a Father in Song -- Highway 20 Ride

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

 

Highway 20 Ride:

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

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

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

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

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

What does "is" mean? The Importance of Drafting

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

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

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

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

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

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

Answer: Yes.

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

 

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

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

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

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

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

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

I made a huge mistake, can I get an annulment?

A resident of Dallas county came and asked me for some advice on whether a divorce or annulment was his best option to proceed with.  As a Dallas divorce lawyer, I get a lot of questions on annulments versus divorces and I think its worth the time to post a blog on the differences between the two and under what circumstances an annulment is available.

A suit for annulment, as opposed to a suit divorce, is brought when there has been some legal impediment to the creation of a valid marriage; that is, the suit is for premarital causes rather than conduct that occurred during the marriage (as in a divorce).  Annulments have declined in popularity because in 1970 the Texas Legislature adopted no-fault grounds for divorce which made getting a divorce far easier.

There are four general grounds under which an annulment is possible. 

1.  A court can annul a marriage if a party to the marriage was at least 16 years of age, but under 18 years of age, at the time of marriage and did not have parental consent or court-ordered permission to marry.  Note, however, that an annulment under this ground is discretionary and the court must consider facts relevant to the welfare of the parties to the marriage (for example, whether the wife is pregnant).

2.  A court can also annul a marriage if at the time of the marriage the person seeking annulment was under the influence of drugs and/or alcohol and as a result lacked the capacity to consent to the marriage.  Also, the person seeking annulment cannot have voluntarily continued to live with the other party since the effects of the drugs/alcohol ended.  Note that we're not talking about a simple case of having a few drinks and then getting hitched.  Texas courts have held that the degree of intoxication must be so great as to have "dethroned reason, memory and judgment". 

3.  Another ground for annulment is impotency.  A court can annul a marriage if either party was permanently impotent at the time of marriage and the person seeking annulment did not know of the impotency at the time of marriage.  Also, the person seeking annulment cannot have continued to voluntarily live with the other person once they learned of the impotency.

4.  Fraud, duress and force are additional grounds for annulment.  A court can annul a marriage if one party was used fraud, duress or force to induce the person seeking annulment into marriage.  Just like the other grounds for annulment, the person seeking annulment cannot have voluntarily continued to live with the other party since learning of the fraud or being freed from the duress or force.

These are the grounds most people think of when considering an annulment.  Once an annulment is granted, the marriage will be considered void and its treated as if it never happened.  If an annulment is not granted, then the marriage will be considered valid indefinitely. 

 

We were separated in New York, but reconciled and have been living together since '96 in Dallas. Am I still married?

I recently had a question from a potential client regarding common law marriage.  Turns out that this individual had separated from her husband in 1995 in New York (not divorced, but separated), the couple reconciled, moved to Texas in 1996 and have been living together since then.  Thirteen years later, she decides to move on and wants to know if she has to go through the formalities of a divorce here in Dallas.

First, Texas does not have "legal separation" like other states do.  The impact of this is that since this individual was never divorced in their home state, then legally she is still married.  Even if she were divorced, and then reconciled in Texas, there is another problem that risen -- informal (common law) marriage.

An informal or common law marriage is a marriage between a man and woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife, but who have not obtained a marriage license and participated in a marriage ceremony.  All three of these elements must exist at the same time for there to be a valid informal marriage.  if a valid informal marriage exists, a formal divorce proceeding is required to dissolve the marriage. Texas does NOT recognize informal divorces. 

Bottom line: this individual is likely still married and a divorce proceeding in Dallas County is required to end the marriage.  Even if the marriage ended in New York, there is the possibility a common law marriage exists which will also necessitate the need for divorce. 

How Divorce is Worse Than a Recession

Can anyone argue that a divorce can be more ruinous to your finances than just about any other financial catastrophe? 

Ron Leiber of the Your Money column in the New York Times writes about the Four Money Talks to Have Before Marriage:

Divorce tends to be emotionally gut-wrenching for the people who go through it (not to mention those around them). But most couples don’t realize that divorce can also be among the most ruinous financial moves anyone can make.

Sure, you could bet big and lose on a single stock or money manager. Or your small business could go bankrupt, taking your life savings with it. But divorce and the costs that often come with it — from legal bills to the sudden need for an additional residence — affect far more people.

The risk that any marriage will end in divorce is about 45 percent, according to David Popenoe, a professor of sociology emeritus at Rutgers University. The chances fall to about 40 percent for first marriages and decline further for college-educated couples, people from intact families and couples who share the same religion.

Given the various financial complications, I’ve long wanted to devote a series of columns to divorce and money. This week, I’ll start with a topic that could save some marriages if more people made it a priority. It’s crucial to air and resolve financial disagreements beforehand.

“It’s almost impossible to be hooked up to somebody who has the same balance of spender and saver as you, or expansiveness versus conservativeness or financial circumstances,” says Gregory A. Kuhlman, a New York City psychologist who runs marriage success training programs with his wife, Patricia Schell Kuhlman.

He adds that the mix gets even more volatile with second marriages, when couples may have children, ingrained financial habits and savings or other assets that necessitate the discussion of a prenuptial agreement. “Success in marriage is only partly attributable to compatibility. It’s about how you manage those differences and whether you have a style for doing so that is successful.”

What follows is a list of four financial issues that ought to be near the top of the discussion list before getting married. Please add to the list in the comments of the online version of this article.

ANCESTRY When Lisa J. B. Peterson started her Boston-based financial planning firm, Lantern Financial, she knew she wanted to focus her practice on young professionals. She quickly realized that many of them could use premarital financial counseling and built a program called Harmoney around their needs.

One of the first things she asks clients about is what she refers to as their financial ancestry. “It’s looking back at your own personal past,” she says. “How did your parents deal with money, how does that impact how you deal with it, and how might that impact the couple’s relationship?”

Because so many of our money behaviors are learned, she asks couples to share their earliest money memories — whether their father hid money from their mother or how either parent fretted over the funds available. This can be a particularly intense discussion for people whose parents were divorced, and the stories are sometimes accompanied by tears. “Money is so emotional, and people forget that,” Ms. Peterson says. “You think that it’s just numbers.”

CREDIT While it’s about the least romantic subject imaginable, your credit history holds a chunk of your permanent financial record. It follows naturally from the ancestry conversation, and Lantern Financial pulls credit reports and scores for its clients.

Molly Milinazzo and Scott Donovan, an engaged couple who live in the Dorchester section of Boston and are both 24 years old, were relieved to discover that their scores were within about 15 points of one another when they went through the Harmoney program in May. “A lot of people end up surprised, and it’s best to keep those kinds of surprises at bay,” Ms. Milinazzo says.

Full disclosure on the credit front is useful for two reasons. First, a credit report is, in part, a catalog of past mistakes and overall habits — loan payments you missed or department store credit cards you didn’t really need. That in itself is a good starting point for a discussion about what you’ve learned (or still need to learn) about handling money.

There’s an immediate practical side to this, too. If there are errors or low credit scores that a couple can improve, there may still be time to make the fixes so that the couple can get the best rates on a loan for their first home a year or two later.

CONTROL Figuring out who will pay the bills each month may not seem to be an important conversation or assignment. But it gets tricky when both people want to take it on. “People understand that in a relationship, money is control,” says Jeff Kostis, a financial planner in Vernon Hills, Ill., who walks engaged couples and newlyweds through a checklist of questions. “If you’re not paying the bills, you don’t know where the money is going, and you feel like ‘He doesn’t want me to go out with my friends’ or ‘She doesn’t want me to play in the fantasy football pool.’ ”

For two people who have both been on their own for a while and don’t want to give up doing the monthly financial chores their own way, Mr. Kostis suggests, at a minimum, regular household meetings complete with Quicken or other spreadsheets so that the person writing the checks can keep the other one up to speed. With more stubborn couples, he might suggest handing the controls back and forth at the beginning of each year.

Mr. Kuhlman, who explains the counseling approach he and his wife take with clients at stayhitched.com, says it shouldn’t be surprising that control issues come up constantly when talking about money. “It’s concrete, you can see it,” he says. “It’s not ephemeral or less measurable, like affection.”

A few things that he suggests couples discuss early on: If one person is making most or all of the money, does that person get to make most or all of the financial decisions? If you’re the car aficionado or have researched all of the local school options for the children, do you get to make the decisions about those things? “These are the kinds of things that don’t come out when you’re dating,” he says.

AFFLUENCE Here’s another question that tends not to come up during courtship: Just how rich do we want to be one day? Mr. Kuhlman refers to this more politely as the “desired level of affluence.” “Are our career paths going to be something that pulls us together? Or, more often, are they things that will tend to pull us apart, where we’ll really have to be proactive to make sure it’s under control?” he says.

Mr. Kostis might put it a bit more bluntly, say to a spouse of an aspiring investment banker or corporate lawyer: Are you O.K. with acting essentially as a single parent, with your partner working 80 hours a week until the age of 80? “Not that there is a right or wrong answer,” he says. “It’s just about understanding, going into the marriage, what that would really mean.”

He adds that people in the financial advice business often joke that they spend half their time talking about money and the other half acting as marriage counselor. “But it’s the same communication style,” he says. “You’re giving people permission to be honest without having someone jump down their throat for giving the answer that they really want to give.”
 

 

Money Ruined Our Marriage

One blogger recently claimed that money was the root of all evil in the cause of divorce.  Although I disagree with him slightly -- I believe that a breakdown in communication between spouses is the root cause of most divorces -- communicating about money can certainly cause some major problems in a marriage.

Ron Leiber of The New York Times writes about the five money issues that can cause marital strife and some ideas on what to do about them:

REDUCED CIRCUMSTANCES If your household income and assets aren’t what they once were, it can be a real problem for spouses who are not living in the style to which they have become accustomed. You may have thought that neither of you could possibly be the kind of person who would feel this way, until you found yourself in the thick of it and were surprised you were contemplating leaving the marriage. “Do they decide to check out?” asked Ms. Wang, who is based in Palo Alto, Calif. “Because if they decide to re-engage, it means readjusting expectations about what married life is going to look like. Can they redefine a relationship that’s not based around the lifestyle?”

Sadly, some people simply cannot.

YOUR MISTAKES When one person in the household is the chief financial officer, there’s just one place to point the finger when things go wrong. So in families where the price of the home has fallen, the adjustable-rate mortgage is resetting to a higher payment and the retirement accounts have fallen 25 percent from their peak, the resident money manager sometimes comes under attack.

“If you go into debt, you may smack your head and say ‘How could this have happened?’ and ‘You never told me we couldn’t afford this big of a house,’” said Lili A. Vasileff, a financial planner in Greenwich, Conn., who has taken to calling her work “marital financial mediation.”

“But blame is not a Ping-Pong game,” she said. “This often happens because they didn’t realize that they weren’t making joint decisions.”

The solution is more transparency and conversations about assets, debts and risk. But after years of letting the other grownup in the house make the decisions, people get out of the habit of keeping up with the details.

YOUR PARENTS Some of the toughest financial problems that come up well into a marriage are those that feel like a choice between your spouse and another loved one.

Take an aging parent who needs specialized care but has run out of money or can’t get the treatment that you and your siblings want to provide without everyone spending a lot of their own money.

“Many couples find themselves in these situations ethically where they feel like they have to do something” to help a family member financially, said Jerry Gale, an associate professor of child and family development at the University of Georgia, where he’s part of an effort to integrate traditional therapy and financial planning. “But if I do that, what is the cost to my own family?”

YOUR CHILDREN While the desire to do right by the children often keeps couples together, the financial challenges that children pose can be formidable.

Ms. Vasileff, who is also the president of the Association of Divorce Financial Planners, said this sometimes comes up with a third child whose parents have bled the college savings dry paying for the first two children. “How do we not deprive our youngest child of what our other children had because we had more money then? Is that just life, that there is not enough left?” she said. “That really strikes hard between the two spouses.”

Even if you manage to get the children educated, they may move home in their 20s expecting their old room back. “It really comes to a boiling point when a couple realizes that they have very different expectations for what will happen when their kids reach the age of majority and how their coming home could affect the couple’s postretirement years,” Ms. Vasileff said.

YOUR UNCERTAINTY Most couples reckon with a sort of low-grade, long-term economic uncertainty that comes when so many people around them are losing their jobs. The stakes only get higher as you and your marriage age and you have children or other large financial responsibilities.

Some people handle this better than others, but the pervasive anxiety that often results can slowly wear down a couple.

It is possible, if you’re diligent early on and live below your means, to plan around many of these issues. A larger-than-average emergency fund can provide a better mental buffer against uncertainty. Starting early with college savings or buying long-term care insurance for your parents will help, too.

But few couples get everything right, which is why it’s a good idea to stop every so often and reassess how you’ve arranged your finances. Sometimes even the most basic practices deserve re-examination. Dan Icolari and his wife, who live in the St. George section of Staten Island, have been married for 46 years. But about 20 years ago, they realized that their different approaches to money were the source of a lot of their arguments.

“Rather than fighting, we decided to separate our bank accounts,” he said. “Once we did it, it instantly affected every other part of our relationship.”

Over the course of a long marriage, you’re bound to run up against financial issues that you didn’t plan for. Or you may simply change your mind about your goals and how money affects them.

“Step back from where you are, often in the heat of the emotions or frustration or anger,” said Mr. Gale, the Georgia professor. “I try to remind people to think about how they overcame stress and challenges in the past. I think couples, when things get stressful, it becomes ‘Here’s what I need to do or for you to do.’ But it’s really about what you can do together.”
 

Hat Tip to Daniel Clement for his post Financial Issues That Destroy The Best of Marriages.

I didn't know he was already married when we got hitched. What do I do?

I was recently informed about a situation where a woman married a man who happened to already be married.  The blushing bride had no idea about her husband's prior (and still existing) marriage to the other woman, and understandably was quite embarrassed by her situation.  Perhaps more importantly, however, the woman wanted to know what her legal rights were under these strange facts.

This type of situation is what Texas law refers to as a putative marriage.  A putative marriage is a marriage that is entered into in good faith by one of the parties (here the wife given her lack of knowledge about the prior marriage) but that is invalid (in this case because of bigamy).  Although the marriage in this circumstance is void (because of bigamy), Texas law protects the innocent spouse by making the marriage "putative."  A putative marriage gives the innocent spouse who acted in good faith the same rights as a lawful spouse would have had during the marriage. 

Without going into the details as to proving good faith, the legal effects of the putative marriage are quite significant.  Texas courts have held that a putative spouse has the rights of a lawful spouse in property acquired during the marriage - i.e. community property.  As such, once the putative marriage ends, the putative spouse is entitled to a just and right division of the community property, the right to seek temporary support during a suit to dissolve the marriage, and the right to seek spousal maintenance. 

Bottom line, if the putative relationship was entered into in good faith, then the court will treat the dissolution of the relationship very similarly to that of a "normal" divorce.

A Divorce Lawyer's Take on Tiger's Texting Troubles

 

Recent media coverage of the Tiger Woods scandal illustrates the speed with which a text message can go from a seemingly “private” communication, for the intended recipient’s eyes only, to Wednesday’s Access Hollywood, David Letterman's Top 10 Tiger Woods Texts List on Thursday , and just about every celebrity gossip website and magazine out there. While Woods’ extramarital affairs would no doubt be at the center of a media frenzy regardless, the text messages provided by Woods’ lovers provides concrete evidence supporting what might otherwise just be speculation. With the text messages circulating the web, delving into the depths of what Woods mistakenly believed to be private communications can be as easy as typing “Tiger Woods text messages” into Google. Various verbatim exchanges between Woods and his alleged paramours are open to the public to read and analyze at their leisure. Unfortunately for Woods, text message exchanges with the subjects of his extramarital affairs are also accessible to his wife, and to the attorney she hires in the event of a divorce.

 

While it might not make the late night talk shows or celebrity gossip sites, texting frequently leads to big trouble for people who are not Tiger Woods. A text message with a paramour can reveal an extramarital affair to the unsuspecting spouse who accidently comes across it, or confirm the suspicions of a suspecting spouse who looks through their cheating spouse’s phone. After a divorce is filed, text messages provide powerful and often embarrassing evidence of infidelity by the cheating spouse during the marriage.

 

In today’s world it is easy to be seduced by the ease and immediacy of text messaging. Texting can be particularly appealing to those involved in extramarital affairs due to the illusion of privacy this method of communication offers. People text things that they may not feel comfortable saying in person or over the phone (for example, “sexting”).  But they often don’t realize the extent to which text messages are accessible by people other than the intended recipient. Texting, like e-mail, credit cards, and phone bills, leaves a trail. Telephone companies keep records that can be subpoenaed and used as evidence of infidelity in a divorce proceeding. Also, there is nothing to prevent a scorned or opportunistic lover from saving the messages, sending them to the cheating spouse’s husband or wife, or in Wood’s case, leaking them to popular media outlets for publication.

 

For the cheating spouse, the moral of Wood’s texting indiscretions is that texting can spell big trouble for you, in your marriage and in your divorce. For the spouse who is cheated on and his or her attorney, use the cheater’s texting troubles to your advantage as great evidence for your adultery claim.

Facebook and Divorce -- Media Interview

This week I received a phone call from Meredith Manning with CBS11 in Dallas, asking to interview me for a story related to the effect of Facebook and other social media on divorce.  She found me through my prior blog posts on the subject.  Of course, I was honored to be interviewed.  We discussed the impact that social media has had on litigation in general and family law/divorce cases specifically.  She continues to seek a spouse whose divorce was impacted by facebook -- if you know anyone like that who would agree to be interviewed (with identity concealed), let me know.  The story should air in a couple of weeks.

What not to tell your kids during a divorce and how not tell them.

Although it may seem like common sense, there are a number of things parent shouldn't tell their kids during and after their divorce.  A common them among some of these things is the assignment of blame for the divorce (be it blaming the other parent or the child).  Another common theme involves the delivery of the message.  Communication experts have routinely pointed out that approximately 80% of communication is in the delivery.  Also, these communication tips not only apply to divorce cases in Dallas but across the country too.

Examples of things not to say that fall in the "not my fault" category are:

  1. I don't want a divorce, but your [mom/dad] does;
  2. You can thank your [mom/dad] for us splitting up; and
  3. Because of what you did, we're getting a divorce.

Examples relating to the delivery of the message include: 

  1. Yelling at the other parent in front of the children; and
  2. Expressing apathy/frustration about the other parent's rules.

Sometimes parents "sugar coat" the issues which results in their children having unrealistic expectations.  Although the level of explanation to provide a child varies by age, intellect and maturity, parents do themselves a disservice by trying to shield their children from truths surrounding their divorce. 

Bottom line: Parents should remember to avoid blame assignment and pay attention to how they communicate with their children when discussing their divorce.  Hat tips to Dick Price's blog and Wolfgang at Singleparentgossip.com for the motivation behind this post. 

Divorce Judge: I think he needs help -- can I order it? Answer: NO!

 Divorce Court Cannot Order a Parent to Take Meds or Go To Treatment

Facts: Father and mother married 09/06/05. They had child on 5/22/06. On 4/17/07, father filed for divorce.  Both mother and father sought joint custody, but only mother sought designation as the conservator with right to designate child’s primary residence. Evidence at trial showed that father had suffered from bipolar disorder and drug abuse since he was a teenager. Father had a history of starting and terminating treatment. At the time of marriage, father was not taking medication or attending counseling. In 12/05/07, father relapsed and used methamphetamine twice. Father restarted therapy and medication but did not take his medication consistently. On 05/29/08, trial court divorce decree appointing father and mother JMC and giving mother the right to establish the child’s primary residence. The decree required father to continue taking his medication, going to counseling, and attending AA meetings. Father appealed.

The court of appeals found the divorce judge committed error and reversed the decision.

Opinion: Although trial court had discretion to require father to continue treatment as a condition of possession and access, it could not simply issue stand-alone orders to father. Because complying with the orders was not a requirement for father to maintain his parental rights, the orders were not related in any matter to the child. They were, therefore, an abuse of trial court’s discretion.

Comment: Here, the court order failed to provide any link between the father’s access to the child and the requirement of continued medication and counseling. The father argued that the requirements pro-vided in the decree violated his rights as an “incapacitated person” under the Texas Probate Code. The Amarillo Court agreed. Another argument that father could have made here is that the court’s order requir-ing him to take medications violates his constitutional rights. Under Washington v. Harper, 494 U.S. 210 (1990), a person has a significant constitutionally protected liberty interest in avoiding the unwanted admin-istration of antipsychotic drugs. In order for the government to require someone to take medication against their will, there has to be a finding, by clear and convincing evidence, that the person is a danger to himself or others and the treatment is in the patient’s best interest. See Tex. Health & Safety Code §574.106(a-1). So, although a judge can enter orders affecting the child based on the parent’s decision to take or not take medication, the court cannot order the parent to take the medication outside of an involuntary suit under the Texas Health and Safety Code. M.M.O.

 

In re Marriage of Swim, __ S.W.3d __, 2009 WL 1940877 (Tex. App. -- Amarillo 2009, no pet. h.)

 

 

 

 

What You Say on Facebook Can (& Will) Be Used Against You!

What You Post on Facebook Can Harm your Dallas Divorce case!

According to www.insidefacebook.com, Facebook is growing in every age/gender demographic, with the fastest growing segment: Women over 55, up 175.3% in the last 120 days (as of February 2, 2009).  Read the post here.  While the fastest growing age group by total users is still 26-34, the number of women over 55 on Facebook grew by an astounding 175.3% since the end of September. Their male counterparts, however, weren’t able to keep up – growing by only 137.8%. The number of women over 55 on Facebook almost double the number of men over 55 on Facebook today.

 

That being said, people can't resist what they post on Facebook.  Consider this article from CBS News about the effects of what some people have posted:

Online hangouts like Facebook and MySpace have offered crime-solving help to detectives and become a resource for employers vetting job applicants. Now the sites are proving fruitful for prosecutors, who have used damaging Internet photos of defendants to cast doubt on their character during sentencing hearings and argue for harsher punishment.

"Social networking sites are just another way that people say things or do things that come back and haunt them," said Phil Malone, director of the cyberlaw clinic at Harvard Law School's Berkman Center for Internet & Society. "The things that people say online or leave online are pretty permanent."

The pictures, when shown at sentencing, not only embarrass defendants but also can make it harder for them to convince a judge that they're remorseful or that their drunken behavior was an aberration. (Of course, the sites are also valuable for defense lawyers looking to dig up dirt to undercut the credibility of a star prosecution witness.)

Prosecutors do not appear to be scouring networking sites while preparing for every sentencing, even though telling photos of criminal defendants are sometimes available in plain sight and accessible under a person's real name. But in cases where they've had reason to suspect incriminating pictures online, or have been tipped off to a particular person's MySpace or Facebook page, the sites have yielded critical character evidence.

"It's not possible to do it in every case," said Darryl Perlin, a senior prosecutor in Santa Barbara County, Calif. "But certain cases, it does become relevant."

Perlin said he was willing to recommend probation for Lara Buys for a 2006 drunken driving crash that killed her passenger — until he thought to check her MySpace page while preparing for sentencing.

The page featured photos of Buys — taken after the crash but before sentencing — holding a glass of wine as well as joking comments about drinking. Perlin used the photos to argue for a jail sentence instead of probation, and Buys, then 22, got two years in prison.

"Pending sentencing, you should be going to (Alcoholics Anonymous), you should be in therapy, you should be in a program to learn to deal with drinking and driving," Perlin said. "She was doing nothing other than having a good old time."

Santa Barbara defense lawyer Steve Balash said the day he met his client Jessica Binkerd, a recent college graduate charged with a fatal drunken driving crash, he asked if she had a MySpace page. When she said yes, he told her to take it down because he figured it might have pictures that cast her in a bad light.

But she didn't remove the page. And right before Binkerd was sentenced in January 2007, the attorney said he was "blindsided" by a presentencing report from prosecutors that featured photos posted on MySpace after the crash.

One showed Binkerd holding a beer bottle. Others had her wearing a shirt advertising tequila and a belt bearing plastic shot glasses.

Binkerd wasn't doing anything illegal, but Balash said the photos hurt her anyway. She was given more than five years in prison, though the sentence was later shortened for unrelated reasons.

"When you take those pictures like that, it's a hell of an impact," he said.
 

My Divorce Is None of Your Business

Fred Silberberg of the Huffington Post blog posits that a divorce proceeding ought to be a private family matter not subject to open public view.  He says in New York divorce proceedings are private such that the public cannot view the proceedings. However, he says, California has open courts such that the public has full access to the proceedings.

When one enters into a marriage or a domestic partnership, they do it privately. While the parties get a marriage license, no one is privy to whatever agreements the parties may reach regarding refinances, domestic arrangements, childcare arrangements and the like. In fact, the law is even written in a manner to protect the confidentiality of the marital relationship. For example, a spouse can refuse to testify against his or her spouse in a legal proceeding, and the communications between the spouses are generally held to be confidential and not subject to disclosure. Even Federal law addresses this to some extent in keeping tax return information confidential. Yet, if parties end up in divorce court in some states, suddenly there is no confidentiality whatsoever. And divorces, being the nasty animals that they often are, dredge up all kinds of allegations and personal information. Suddenly, the dirty little secrets that one spouse confided in the other become the public disclosures that the entire world has a right to know.

 

Read more at: http://www.huffingtonpost.com/fred-silberberg/my-divorce-is-none-of-you_b_277705.html 

However, at Divorce Saloon, the author posts that she has first-hand witnessed that divorce proceedings in New York are not closed to the public.

I think that is incorrect. I have never seen a judge toss anyone from a courtroom just because the civil action being heard is a “Divorce.” The general public can totally sit in on your divorce and hear all your business if they choose, Mr. Silberberg. Both in New York and California.

Now. I don’t think they can get a copy of the transcripts. Nor can they view the file unless they are parties to the action or the attorneys. But they can sit in in the courtroom and hear your business. Sure, the judge always has discretion if she will seal a case off from the public. But that is likely to meet with First Amendment challenges if it is a newsworthy case. So I think you are wrong on what you said in your article, Sir. We can argue about it, but I think, ultimately, you are incorrect.

Read more at: http://www.divorcesaloon.com/the-no-fault-divorce-revisited-is-your-divorce-anyone-elses-business

But, the blogger at Divorce Saloon comments that, even though New York is not as depicted, she agrees that divorce proceedings should be private.

In Texas, divorce proceedings, like other civil matters, are generally open to the public.  Courts have the discretion in certain circumstances to close the courtroom and seal a file. In my experience, judges are more likely to grant a request to close the courtroom and seal the file when there are sensitive matters involving children involved.  Both authors talk about "family business" as being a reason to keep such matters private, but it is doubtful that a Texas court would find that to be enough.  It is also doubtful that a Texas judge would find it to be enough that the divorce matter involves financial business of the spouses.

Although the Texas media does not often report on divorce proceedings, the nature of our court system requires that such proceedings be open to the public.  Because we have elected judges, the public should be able to assess a judge's performance in any such proceedings.  To close the courts for certain cases would transform the court system we have into a semi-administrative system that works against our traditional notions of justice.  Spouses, if they do not want their matters tried in an open court proceeding, can (obviously) settle their matters outside of court such that their laundry is not aired publicly except to the extent that there are documents contained in a file that may be viewed by the public.  Or, if a trial -- airing of dirty laundry -- becomes necessary, the spouses always have the option of hiring a private judge to conduct the trial in a private session.  The parties would bear the cost of such special judge, but that would be a prioritization of their privacy based on the cost of doing it (cost/benefit analysis).

Hat tip to Divorce Saloon blog for pointing me to this article.

 

Custody Suit Over Pet Gets Expensive

Pet Custody Dispute Leads to Mounting Legal Bills

Legal bills in a custody dispute involving a couple’s pet dog have topped $40,000, according to media reports. The mounting attorneys’ fees come after a landmark decision by a Pennsylvania appellate court that held a trial judge should have weighed the subjective value of the pug in determining custody and compensation for the couple. An attorney for one of the parties conceded that the protracted dispute could be a slippery slope for the legal community. Martha Neil, American Bar Association Journal 07/30/2009
 

Divorce Affects Long-Term Health

Divorce Linked to Chronic Illness, Study Finds

The toll of divorce on a spouse’s health may be more than emotional, a new study has concluded. According to the study, published in the Journal of Health and Social Behavior, persons who were divorced reported more chronic health problems than those who remained married or were never married. Data for the national study were gathered from nearly 9,000 men and women in their 50s and early 60s.

While this does not mean that people should stay married at all costs, it does show that marital history is an important indicator of health, and that the newly single need to be especially vigilant about stress management and exercise, even if they remarry.

The health benefits of marriage, documented by a wealth of research, appear to stem from several factors. Married people tend to be better off financially and can share in a spouse’s employer health benefits. And wives, in particular, act as gatekeepers for a husband’s health, scheduling appointments and noticing changes that may signal a health problem. Spouses can offer logistical support, like taking care of children while a partner exercises or shuttling a partner to and from the doctor’s office.

Over all, men and women who had experienced divorce or the death of a spouse reported about 20 percent more chronic health problems like heart disease, diabetes and cancer, compared with those who had been continuously married. Previously married people were also more likely to have mobility problems, like difficulty climbing stairs or walking a meaningful distance.

While remarrying led to some improvement in health, the study showed that most married people who became single never fully recovered from the physical declines associated with marital loss. Compared with those who had been continuously married, people in second marriages had 12 percent more chronic health problems and 19 percent more mobility problems. A second marriage did appear to heal emotional wounds: remarried people had only slightly more depressive symptoms than those continuously married.

Tara Parker-Pope, The New York Times 08/03/2009
Read Article: The New York Times
 

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

One of the questions we are frequently asked is whether Texas allows alimony.  Before going into the substance of this question, it is important to note that the Texas Family Code calls 'alimony' spousal maintenance.  Given the frequency of this question, I'm going to break the answer up into a two part mini-series.

Spousal maintenance is available in certain very limited circumstances.  Under Chapter 8 of the Texas Family Code, spousal maintenance is available for:

  • spouses of long-term marriages that lack sufficient property to meet his or her reasonable needs, and cannot support themselves because of his or her disability, a child of the marriage's disability, or his or her lack of earning capacity; OR
  • The spouse of a convicted spouse for a criminal offense that constituted an act of family violence.

Tex. Fam. Code Sects. 8.051(1) - (2).  Courts have held that the spousal maintenance provisions under Chapter 8 of the Texas Family Code were promulgated to provide temporary and rehabilitative support for a spouse after the dissolution of a marriage.  Although the spousal maintenance provisions were first enacted in 1995 to protect long-term homemakers, over the past 14 years they have been expanded greatly.  Notwithstanding this expansion there are significant obstacles that present themselves along the way to awarding spousal maintenance.

Even if the court orders spousal maintenance there are a litany of factors the court must then consider in determining the amount to order.  These factors (in no particular order) include: 

  • The seeking spouse's financial resources;
  • The financial resources of the spouse from whom maintenance is sought;
  • The relative financial resources of both spouses;
  • The spouses' contributions to each others earning capacity;
  • The amount and value of the separate property brought into the marriage;
  • The duration of marriage (in excess to the required 10 year duration if maintenance is not sought under the family violence qualification);
  • The age, employment history, earning capacity, and physical/emotional health of the spouse seeking maintenance;
  • Whether the parties committed any marital misconduct (i.e. extramarital affairs);
  • The contributions as a homemaker by the spouse seeking maintenance; and
  • The education and employment skills of both spouses.

There is a final hurdle that has to be cleared on the road to spousal maintenance -- the duration of the award.  As a general rule, courts cannot order spousal maintenance for more than three years.  Tex. Fam. Code Sect. 8.054(a).  Additionally, spousal maintenance must be limited to the shortest reasonable period.  Thus, spousal maintenance could be ordered for a year in duration.  Like most rules of law, there is an exception to this.  The duration of spousal maintenance can exceed three years if the spouse seeking maintenance is unable to support him or herself because of a physical or mental disability; or is the custodian of a child of marriage who has a physical or mental disability.  Id. at Sect. 8.054(b). 

As a Dallas divorce lawyer, I frequently encounter individuals who are either completely unaware or misinformed about the spousal maintenance provisions.  If you believe you fall into either of the scenarios where spousal maintenance is available, please don't hesitate to contact our office.

In the next part of this mini-series I'll address enforcement and collection of spousal maintenance awards.

 

A Little Divorce Humor To 15 Fifteen Funniest Quotes About Divorce

15. “Ah yes, divorce…from the Latin word meaning to rip out a man’s genitals through his wallet.” - Robin Williams

14. “The difference between a divorce and a legal separation is that a legal separation gives a husband time to hide his money.” - Johnny Carson

13. “The only time my wife and I had a simultaneous orgasm was when the judge signed the divorce papers.” - Woody Allen


12. “I’m an excellent housekeeper. Every time I get a divorce, I keep the house.” - Zsa Zsa Gabor

11. “To get over my divorce, I got a prescription to live at the Playboy mansion for a while.” - James Caan

 

10. “I’d marry again if I found a man who had $15 million and would sign over half of it to me before the marriage and guarantee he’d be dead in a year.” - Bette Davis

9. “She cried - and the judge wiped her tears with my checkbook.” - Tommy Manville

8. “I can’t get divorced because I’m a Catholic. Catholics don’t get divorced. They stay together through anger and hatred and festering misery, just like God intended.” - Lenny Clarke

7. “I look a divorce this way: it’s better to have loved and lost, then to live with that bitch for the rest of my life.” - Steve McGrew

6. “Marriage isn’t all that it’s cracked up to be. Let me tell you, honestly. Marriage is probably the chief cause of divorce.” - Larry Gelbart

 

5. “Divorce sucks. Let me tell you, after five years of marriage, it is devastating to have the person with the good credit move out.” - Rich Vos

4. “Workaholicism is such a tough addiction to get over. I had to divorce my wife because she was an enabler.” - Dave Mordal

3. “What happened? Satan was busy?” - Sam Kinison on finding out his wife had hired lawyer Marvin Mitchelson to represent her in her divorce case against him.

2. “I can’t take his genius any more.” - Rita Hayworth on why she divorced Orson Welles

1. “You know why divorces are so expensive? Because they’re worth it.” - Willie Nelson
 

The 15 Funniest Quotes About Divorce
Darndivorce.com <-- I love this site!

Thank you to Whip It Out Comedy for their hilarious collection of divorce quotes.

Sex, lies and infidelity.

Infidelity is a frequent topic brought up by our clients.  Texas is a no-fault divorce state which means if a spouse wants a divorce, the other spouse is not required to have committed a "bad act."  See Tex. Fam. Code Sect. 6.002-.007.  Lately there have been several public figures that have revealed their extramarital affairs.  Coupling this with the frequency adultery is brought up by our clients, a primer on adultery as a ground for divorce is appropriate. 

Under Section 6.003 of the Texas Family Code, adultery is a ground for divorce.  As a Dallas divorce lawyer, my experience is that adultery usually is not the cause of divorce.  Although infidelity is is commonly reported as a cause of divorce, several studies show that the majority of couples who discover infidelity remain married to the unfaithful spouse for several years following their discovery.  Additional studies at the University of Washington and University of North Carolina report that occurrences of adultery are declining and that the strongest risk factor for adultery is one occurring outside of the marital relationship - opportunity. 

Under the adultery fault ground found in the Texas Family Code, one spouse is required to show that the other engaged in sexual intercourse with one not their husband or wife.  Without diving into semantics, Texas courts take a literal approach in construing the term intercourse.  As a result, proving adultery is very difficult to do. 

Assuming a party to a divorce is able to prove adultery occurred, courts take different approaches in deciding what impact that conduct will have in dividing the marital estate.  It comes as a shock to most people that a lot of courts take a "so what" approach - meaning adultery has little, if any, impact on the remainder of the divorce proceeding.  This is especially true if the couple's status quo prior to filing for divorce was one of marital discord.  Courts do, however, examine adulterous conduct very closely when it was committed in front of children of the marriage; the timing of the affair prior to filing for divorce; and where the adulterous conduct occurred.  The minority of courts consider adultery an atrocious act, hate what it does to the marriage relationship, and divide the marital estate disproportionately as a result. 

Although a fault ground for divorce, adultery is also an act of betrayal against your spouse.  Committing adultery causes an untold pain which rapidly turns into anger.  This anger will cause the innocent spouse to inflict the most amount of pain and burden on the other spouse during the divorce proceeding.

If you suspect that your spouse is having an affair, and you are considering ending the marriage, you should understand that proving adultery is very difficult, and if the offensive conduct did not occur in front of the children of marriage, adultery generally does not cause a court to deviate a significant amount from a 50/50 split of the community property.  Finally, remember that you do not have to navigate the divorce process on your own.  Contact a competent Dallas divorce attorney to help guide you through the maze. 

 

 

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Facebook No No's in Divorce

Time Magazine has an article entitled Facebook and Divorce dated June 22, 2009 touting the relationship between Facebook and other social networking media and divorce litigation.  As the age of online-social-network users creeps up, it overlaps more with the age of divorce-lawyer users, resulting in the kind of semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators, states the article by reporter Belinda Luscombe.

The article suggests five no no's for divorcing couples as it relates to social media:

  1. Pictures or discussions of new purchases or vacations are fun, but they might color the court's view of your finances and affect your settlement.
  2. If you're in a custody battle your ex's lawyers would love to present you as the non-nurturing type.  Don't post crazy party pics.
  3. It's not just your page you have to worry about.  Make sure your friends' photos of you can't be used against you either.
  4. Don't talk smack about the lawyers, the judge, and especially your spouse on your page or anyone else's.  (You think your kids never use a computer?)
  5. Don't "de-friend" in-laws or your ex's friends right away.  People need time to adjust.  Unless it's really high conflict.  Then go for it.

The article goes on to say:

Lawyers, however, love these sites, which can be evidentiary gold mines. Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.

Battles over finances and custody remain the Iwo Jima and Stalingrad of divorce cases. Opposing lawyers will press any advantage they have, and personal information on sites like Facebook, MySpace and LinkedIn is like decoded bulletins from enemy territory. 

Half the fun of social-networking sites is the posting of personal news. The other half is the posting of personal opinion, something spurned spouses typically have in spades. MySpace and its ilk offer the giddying cocktail of being able to say something in the privacy of your home that will be publicly accessible, along with a chaser of instant gratification. All this at a time when people are often less than their best selves. On the walls of two Facebook groups — I Hate My Ex-Husband and I Hate My Ex-Wife, which together had been joined by 236 Facebook users as of early June — posts include all manner of (often misspelled) vitriol, including some colorful British slang: "my husband is ... a dirty smelly chavvy theivin alcoholic drug addict selfish scum bag" and "my ex wife is a no good lieing slag," each of which was posted alongside a smiling photograph of the commenter.

There's little the besmirched can do legally, unless there are children involved. Family-law courts routinely issue restraining orders to prevent one parent from disparaging another to a child. "The question is, If it's on the Internet, can that speech be blocked?" says Stephen Mindel, a managing partner at Feinberg, Mindel, Brandt & Klein in Los Angeles. "The First Amendment is going to come into conflict with the family-law courts."

It seems everybody — except perhaps some lawyers — would be better off if divorcing spouses gave each other some space on MySpace. But when confused, anguished people look for ways to work through their feelings, a social-networking site can be an almost irresistible venue.

In my Dallas divorce cases, I've had issues regarding social media come up.  In one case, I represented a mother seeking to show the father's job history to support the argument that the father should pay retroactive child support over the past history of the child's life.  I found the father's LinkedIn profile and used his job history posted on there as evidence.

I also represented grandparents who had custody of their granddaughter in a suit for access filed by the child's father.  I found the father's MySpace page where listed that he had no children and lied about his education and other qualities and used that as evidence against him as to why his access to the child should be supervised.

Shout out to Barbara Glesner Fines of the Family Law Prof Blog for pointing out this article.

Counseling Not Required for Texas Divorces.

Approximately two weeks ago a bill sponsored by State Representative Warren Chisum (R) requiring couples to attend counseling prior to filing for divorce died in the 81st legislative session.  Under House Bill 480, the party seeking a divorce would have been required to attend ten hours of counseling in conflict management, communication skills and forgiveness skills.  Representative Chisum sponsored the bill in order to address the state's high divorce rate (upwards of 55% for first time marriages and 70% for subsequent marriages). 

According to the Dallas Morning News the bill was popular among social conservatives and marriage counselors who claimed the bill was designed to save marriages "[t]hat have fallen on hard times."  The bill would require the spouse seeking a divorce to complete the ten hour course before filing court papers; otherwise, the divorce petition would be dismissed.  Further, Representative Chisum's bill would allow to judges to decide child custody issues on whether a parent completed the required counseling.

Despite your political affiliation, I see several problems arising from Representative Chisum's proposal:  (1) Do we really want to enforce the counseling requirement in cases where the spouse filing for divorce is doing so because of domestic violence; (2) what about cases where there is alleged abuse of a child, certainly waiting to file could present issues of child safety; and (3) what if the spouse filing is doing so because of substance abuse issues of the other spouse? 

Although many people walk into our office not wanting a divorce, forcing individuals to undergo an additional hurdle before filing is not the best way to address our state's high divorce rate.  A divorce is one of the most stressful events a person can endure.  Obstacles like the proposed bill would only add to the stress - not alleviate it.

Collin County Texas Divorce Standing Order

In Collin County, Texas, every divorce that gets filed has the Collin County Standing Order attached to it, which is effective against both parties to the divorce.  The Standing Order replaces the previous procedure to apply for the standard family law restraining orders.  The purpose of the Standing Order is to provide some general rules of behavior for parties during a divorce. It prohibits behaviors such as changing the child's school or day-care, making harassing phone calls, or opening the other parties mail.  It also prohibits either party from changing beneficiaries on life insurance or disconnecting utilities at either party's residence.

As far as enforceability... the Standing Order is not very enforceable.  So, if there's some behavior you are particularly interested in curtailing, the better course of action is to get an order from the court directed specifically at the party to prohibit the action. 

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.

 

 

Divorce Litigant Sues His Lawyer

A party in a complicated divorce proceeding has filed a lawsuit claiming his former counsel promised him a favorable outcome because of a “special relationship” with the presiding judge. The attorney and law firm named in the suit vehemently deny that any member of the firm made such a declaration at any time. The divorce involved significant property division issues, according to an attorney for the firm named in the suit.  See the full article at Texas Lawyer (shout out to John Council who wrote the article). 

Bascially, what happened according to the lawsuit (according to the client) -- the lawyer told the client that he had a special relationship with the Judge and therefore could affect the outcome of the case.  There was also a receiver appointed to sell a marital asset, and (again, according to the client), the lawyer said he had a relationship with the receiver and could obtain a favorable outcome from the receiver.  Then, all went badly for the client.  The receiver didn't do what the client wanted and somehow the Judge gave some informal opinion negative to the client, so the client agreed to an outcome that he didn't want.  So, the client blames the lawyer and files a lawsuit.

First, and very obviously, this is a one sided story.  The ethical rules require that lawyers cannot imply they have a special relationship with anyone in a manner that would influence the outcome of the case.  Further, a lawyer cannot guarantee a client a favorable or certain oucome.  IF the lawyer did either of those things, then the lawyer could be in big trouble.  But, again, that's a pretty big IF.  I'd think that the client who filed the lawsuit is going to have to have some corroborating proof of his allegations, beyond just his word that the lawyer made those statements.

This is Dallas divorce law drama unfolding.  It will be interesting to see how it turns out.

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.

A Kid's Guide to Divorce

Children are the innocent victims of divorce.  Sometimes they blame themselves for the family's breakup and try to "fix" it.  Children need to be reminded that, just because mom and dad are getting a divorce, that does not mean that they don't both love the children.  Also, they need to be reassured that just because one of the parents is leaving the household, does not mean they are leaving the child.

A Kid's Guide to Divorce is a website that I found from a post from Michael Sherman of AlabamaFamilyLawBlog.  This website is a wonderful resource aimed at children of divorce.  The website says, "Sometimes the feelings kids have about their parents' divorce are so strong that kids have a hard time concentrating on anything else.  When kids are very sad, mad, or worried, they may have trouble paying attention in class..."  Not only is this website insightful, it is especially important because it is aimed at kids on their level.  There's also an article on Living With A Stepparent, Being Adopted, What Should I Do If My Family Fights, and Why Am I So Sad.  For every parent going through a divorce with kids, this webiste is a must read for both the parents and the children.

Is Divorce a Good Idea in this Recession?

I have been asked several times lately about whether it is a financially good idea or a bad idea to get a divorce during this recession.  Luckily, Texas and specifically the Dallas area, has not been hit as hard by the recession as other parts of the country.

Determining whether divorce is the right option for you requires weighing many different factors, including the financial impact of this decision on you and your family. It is no surprise that with the current state of our economy, the portion of the community estate most people leave their marriage with today is worth less now than it was in the very recent past. Whether it is a bad idea to get a divorce in the current economic climate depends, in part, on the types of assets that make up the community estate and the financial positions of the parties, namely, their immediate need for cash and liquid assets.

Often in a divorce, it is necessary to sell the marital residence and/or cash out an investment or retirement accounts. Now, with the current economy, these assets are worth less than they were in the past and will be again in the future. Frequently, in these tough financial times, people must sell their marital residence upon divorce because neither of them can afford it on their own. Cashing out retirement and other investment accounts upon divorce is also common due to increasing unemployment and the immediate need for cash. If selling or cashing out these assets at their current value is unavoidable, there are some definite economic disadvantages to getting a divorce right now.

 On the other hand, for those people in the financial position to hold on to these assets until the economy improves, it can give them more “bang for their buck” in the final property division. Since community assets are valued as of the date of divorce, these assets represent a smaller portion of the community estate now than they would have before the current economic downturn. The current economy enables people who can afford it the opportunity to obtain community assets in the final property division, like the marital residence or their entire 401(k) plan, at what is effectively a discount.