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.