Sunday, September 30, 2007

How Can I Speed up my Divorce?

This is another frequent question, asked by about half of my clients, sometimes at the beginning of a case and sometimes after it has gone on for a while. Actually, most clients eventually get to this question if their divorce lingers long enough. There are a few things that can be done, but they ultimately depend on the goodwill or motivation of your spouse. You can always just wait for a trial, but it usually takes a long time to get into court (often a year or more in Tarrant County). The situation is similar in other (non-divorce) family law matters.

Here's my list of 9 suggestions. You may be uncomfortable and may not enjoy some of them, but they are provided to help you speed up the process, not to make things more pleasant for you; if speed is not your highest priority, you may not want to do some of these. Please remember, they may not apply in every case -- they are possibilities to consider.

1. Don't disagree. That may seem obvious, but the more you and your spouse disagree about things, the less likely an early settlement is. You have to make a value judgment about how important some principles and some issues are. The ultimate position is to "roll over" and let your spouse have everything he or she wants. That rarely seems like a good decision, but it probably comes down to evaluating the matter under discussion. Also, giving in completely sometimes doesn't satisfy the other spouse. Sometimes it is helpful to argue a little about something and then later concede it so your spouse thinks he or she really won something.

2. Be cooperative and nice. Being a bully rarely pays off in a quick settlement. Making demands and setting deadlines may provoke more resistance than agreement. On the other hand, being cooperative and respectful may pay dividends. Looking for common ground and showing effort in working toward that may get a friendlier, more cooperative response.

3. Apologize. This one may be tough for a lot of people, but if your highest priority is to get the divorce over with, it can be helpful if an apology is done appropriately and sincerely. There are always things each spouse can legitimately apologize for. If you have a hard time coming up with something, talk to family and friends, particularly of the opposite sex, and ask their help in coming up with something. A good apology may open up communication and help your spouse feel better about the situation, which can lead to productive negotiations.

4. Figure out your spouse's underlying issues and resolve them. If you can't figure out the underlying issues, get some help. Talk to family and friends, maybe a counselor and maybe your attorney. Once you identify the issues, do some brainstorming with your attorney and try to come up with some acceptable alternatives to present. If you can solve the biggest issues, you have a chance to work out a final settlement a little sooner.

5. Use mediation. This is about the best way to resolve cases (other than Collaborative Law). With a good mediator, you have a high probability of settlement, although there's no guarantee. If the other party demands 85% of the assets to settle, there's little hope for mediation to bring sense to them. Most of the time though, mediation will result in a settlement.

6. Get a mutually respected person to intercede for you. In many cases, there is someone who your spouse respects and/or will listen to who can be an informal mediator for both of you. This could be a friend, relative, minister or someone else who is respected and perceived as neutral by your spouse. You should still be prepared to make some concessions to get the deal done.

7. Don't send mixed signals. Make sure that your spouse understands that you fully intend to finish the divorce. Even as you try to compromise and be nice, be sure that your efforts are not misinterpreted as an effort at reconciliation and make sure that you that you are sincere.

8. Provide all appropriate and needed information. If you drag your feet in providing information that has been requested, or argue over its relevance or value, you are wasting time. If you truly want the divorce over with, take on the burden and do more than your share of the work. If time is not important to you and if your value is on equally sharing the work load in the divorce, then don't cooperate. Providing the needed information in an organized fashion, sometimes even before it is requested, will speed up the settlement process and help establish good will, especially if the information really benefits your spouse.

9. Bring in a neutral expert to help with difficult issues. Sometimes past efforts and common sense are not enough to generate appropriate solutions. It can be a real life saver to bring in a neutral expert to help create solutions about kids or about finances. Someone working for both of you is in a position to help both sides understand the possibilities and to reach an agreement. There is some expense, but it is cheaper than spending money on two attorneys in trial, and it is much quicker. This is something we do in Collaborative cases all the time and it works very well.

Hopefully, these nine suggestions can help you move your divorce (or other family law case) to a satisfactory conclusion within a reasonable time period. You might try just one or two of the techniques, or you might need several. Please discuss your strategies with your attorney before you start with them. Good luck!

Wednesday, September 26, 2007

How Long Does it Take to Get a Divorce?

This is another in a series of questions I am frequently asked. My answer will be in the context of a non-Collaborative divorce case.

There is a minimum 60-day waiting period that is imposed by the Texas Family Code. The time begins when the divorce petition is filed. After the 60 days is up, the divorce can be granted at any time if there is a full agreement. To get to that point, the parties both need to have information about the important issues and facts of their situation. In addition, each needs to be able to trust that the other party will do what he or she says will be done. The attorneys must draft and get agreement on the language of the final decree of divorce, and that occasionally takes more time than expected, or at least hoped for.

Also, both parties need to emotionally be ready to be divorced. If either party wants to try to stay married and refuses to give up on the marriage, they can slow down the process by various means of foot dragging and the insistence on following standard procedures.

A divorce that can be completed right after the 60 days is up is very unusual. It can happen in some cases, such as:

  • a short-term marriage,
  • a very simple set of facts,
  • minimal assets (although sometimes those people are the worst fighters) or
  • where the parties have worked out a lot of the details before the divorce was filed.

Quick divorces may also take place where someone :

  • feels guilty,
  • is scared or
  • is extremely anxious to move on with their life.

Occasionally, one party has enough dirt on the other party that they can force capitulation.

Sometimes, the parties are just realistic, reasonable people who can sit down together and work things out -- but that's very rare.

A better answer would be to estimate that, in Tarrant County, it will take at least 3 to 6 months, if most (not all) things are agreed, and a year or more if one or both parties are not in agreement on the final terms.

Monday, September 24, 2007

Can a Divorce Court Divide Social Security Benefits?

Although not really a frequently asked question, this is still an occasionally asked question. A recent story in Lawyers USA mentioned a Utah Court of Appeals decision that was consistent with Texas law. The answer given in Utah, and in Texas, is "No".

The Social Security Act, which is a federal law, prevents states from considering Social Security benefits as a marital asset, or community property, as we would say in Texas. That means that courts cannot award all or part of one spouse's benefits to the other spouse.

Social Security benefits can be considered in ordering child support, especially in cases of disability. The court can't order Social Security to divide a payment or direct it to anyone other than the beneficiary under federal law. A court can take the benefits into account when considering amounts of income,cash flow and alimony.

Benefits can be considered in negotiating post-divorce support or allocation of resources. While we know that Social Security may or may not be paying as promised in the future, we can consider the possibility or probability of such payments when calculating cash flow to meet projected future needs. It is another possible resource to keep in mind in planning for the future.

Bottom Line: Although a court can't divide the benefits, it doesn't have to ignore them and they can be considered in deciding other issues.

Friday, September 21, 2007

Keeping Control During Your Divorce

There is an excellent article , entitled "Keeping Control During Divorce", on a website by Lee Borden, a Birmingham, Alabama attorney . He lists some very practical ideas to help you protect yourself from yourself and your spouse.

1. Don't give up control of the divorce to your lawyer. It is your divorce and you are the one most affected by it. You are also better able to make decisions based on your knowledge of how your spouse is expected to react to situations. You are the one to feel the effects of your spouse's emotions. You have to deal with the effects of numerous strategic decisions made in the course of a divorce. Some attorneys have standard ways of dealing with situations, and sometimes those ways may make a situation worse. You have more to lose than your lawyer does in the process, so you should be consulted before major decisions are made.

2. Don't divide the property without a thorough inventory or disclosure of the assets and liabilities. Minimize the possibility of hidden property. If you don't insist on disclosure, your spouse can later say that the (hidden) asset would have been disclosed if someone had asked about it.

3. Don't spend too much time and money doing Discovery. It's easy for too much to be done, which causes attorney's fees to go up. Much information can be exchanged informally or gained by using releases. The more information you gather and present to your lawyer, the less time your attorney will have to spend gathering and organizing the information. A balance must be struck -- you do need a certain amount of information. One way to limit discovery is to insist that the requests be focus on limited targets rather than having the attorney use the standard catch-all requests. Again, the more you can do to handle the information, the cheaper the process will be.

4. Don't Let your family or friends tell you what you need or what you should be feeling. This is your divorce. You are the captain of your own ship. You are the best judge of how you feel and what you want. It's nice to have support, but don't let them take over. Each case is different, so their experiences and stories may not fit your situation.

5. Don't ignore taxes. Pay your quarterly taxes, withhold enough (or a little more) and keep good records. Make sure that you withhold enough if you withdraw funds from a 401 K plan. When you are dividing assets, consider what items could be taxable and which might have no tax consequences. It is prudent to work with a CPA or certified divorce financial planner if you have significant assets. If alimony is part of a package, remember to figure the tax effects on it.

6. Don't try to win back your spouse by being generous, especially if you are not usually generous. You may get taken advantage of and then left behind. Your spouse may see the generousity as weakness or foolishness. You may end up feeling resentment toward your spouse once your effort fails. It's OK to be nice, just don't be abnormally generous.

Following this advice will help you keep your divorce under control and help you get a better result.

Saturday, September 15, 2007

The Importance of Reading Your Legal Papers

Many times over the years, I have had clients not read documents I sent or gave to them. The documents included letters, our employment agreement, motions, court orders and even final decrees of divorce. Sometimes it doesn’t matter, but often it can lead to problems. Sometimes lawyers send the papers for CYA purposes, but many times the attorney really needs to hear back from a client with feedback. Many documents would just take a few minutes to read, while others could be 40 to 50 pages long and might require quite a bit more time. Either way, it would be helpful if clients would make the effort to read whatever they get from their attorney.

Here are 7 common excuses given for a client not reading over documents sent to him or her:

1. "But I’m not a lawyer – I don’t understand it." That may be true, although I’ve had lawyer clients not read things as well. The problem is that you can be bound by a court order, or get started in a process, regardless of whether you understand something. You should read and understand as much as possible and you can ask a friend or your attorney to help explain things. While you may not understand some words, not everything is done in legalese. Your confusion or lack of understanding may help your attorney uncover some problems with the document, so don’t be shy about speaking up and saying that you don’t understand. It may save you a lot of trouble down the line.

2. "That’s what my lawyer’s for. I trust him/her." Unfortunately, lawyers make mistakes or they may misunderstand something you have told them. Also, sometimes circumstances change and what once was appropriate may not work anymore. Attorneys depend on their clients for information and it often helps to get a client’s perspective on things.

3. "There’s nothing I can do about it, so why should I waste my time reading it?" Actually, there often is something that can be done if problems are discovered early. Remember the old saying, "A stitch in time saves nine." Pointing out a problem early usually makes it easier to correct.

4. "If it’s a problem, I’ll just appeal it later." An appeal can be extremely expensive and slow. Even worse, your chances for success on appeal are usually not good. Appellate courts don’t often reverse the original courts. That’s not a smart gamble to take.

5. "It costs too much – I can’t afford to be charged for talking with my lawyer about it." Remember the old TV commercial that used to say, "Pay me now or pay me later"? It will cost more later to correct the problem. If the cost of legal services is a barrier, maybe you should change attorneys. That’s one reason why you should select an attorney carefully at the outset. One of the important considerations is financial compatibility.

6. "I don’t have time to deal with it now." You get to make your decisions on priorities, but you should be aware of how delays can cause problems which require costly repairs later. Usually, family law issues are among the most important events in someone’s life, so it makes sense to face up to the situation now, rather procrastinating.

7. "My ex and I can work it out." That’s often true when you and your ex are getting along well. When the relationship sours, as sometimes happens, you are left to deal with a problem that probably could have been avoided or corrected if addressed right away.

Please help your attorney help you. Read over any documents he/she sends you. Ask questions and explain your concerns and problems. It will help you get better results and avoid problems in your family law matters.

Wednesday, September 5, 2007

Tips for Success in Settlement Conferences or Mediation

In his South Carolina Divorce blog, J. Benjamin Stevens listed 9 excellent tips for negotiating in a settlement conference or mediation session. A little more explanation is available from the original source, "Settlement Conference Success" by Helene Taylor, published in The Modern Woman's Divorce Guide, but the key points alone are clear and self-explanatory. They are as true for men as women.

Many divorce and family law cases can be settled in various formats of informal settlement discussions. About 90-95% of cases will settle in mediation, if they reach that stage. In either approach, the following tips are useful to prepare for a successful negotiation effort.

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.
6. Be determined.
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing

You will really benefit by taking time to prepare for negotiations by following the first three steps above. That will help keep you on target and realistic. You will know what you have to win or to lose, which is useful information when you are weighing offers and options. Acting consistent with tips 4 -- 9 will help you reach an agreement and have something that is satisfactory to both.

Tuesday, September 4, 2007

Can I Get a "Legal Separation" in Texas?

No. Legal Separation is a distinct process in some states, but not in Texas.

In Texas, you can be married and living together or apart. Separation is a necessary step for a couple to get divorced here. Once someone files for divorce, a court may make, or the parties may agree on, temporary orders which can remain in effect until the divorce is final. The temporary orders generally govern custody, support and possession schedules for children, as well as various financial issues, a determination of who gets to stay in the house, who pays the bills and who uses and controls what property.

You technically remain married until the divorce is granted. If you want to start the divorce process in Texas, you need to file a petition for divorce.

This is the second in a series on common questions we are asked.

Monday, September 3, 2007

Should I Move Out of the House?

This is the first in a series of short postings about common questions we hear.

The direct answer is usually, "It depends."

Moving out of the house in Texas does not mean that you are giving up your legal rights to the house or an interest in the house. It does not mean that you are at fault for anything. It also does not mean that you have given up any claims to anything at the house.

What does it mean? All it really means is that someone moved out of the house. There are many possible legitimate reasons for moving out. Among other reasons, it may mean that:
  • you fear for your safety or the safety of other family members.
  • you are better able than your spouse to obtain new housing.
  • you and your spouse have reached a mature, mutually beneficial agreement to separate.
  • you have no interest in living in that residence.
  • the house belongs to your spouse or someone else and you knew you would be moving sometime soon anyway.
  • another residence may be more convenient for your work, family or other obligations.
  • you can better afford another residence.
  • you prefer to maintain a smaller residence.
  • you want to live in a better neighborhood.
  • you don't care about keeping the furniture and furnishings.
  • you just don't want to stay in the same house with your spouse until the Court rules on it.

Why might you want to stay in the house? Again, there are many possible reasons, including, among others:

  • you don't want the work of packing and moving.
  • you want to keep the kids in the same school.
  • the house was yours prior to the marriage, or you inherited the house.
  • the house is in a great location for your job, family or other obligations.
  • you can't afford what it would cost to live comparably elsewhere.
  • it wouldn't cost less to live anywhere else.
  • you need to stay in a residence of this size.
  • your spouse can better afford the move.
  • the kids' friends and activities are all nearby.
  • your want to keep the majority of the furniture and furnishings.

If you decide to move out, what should you do? Depending on the time available and the circumstances, you should consider the following:

  • Pack carefully and get all of the belongings you will want and need. Don't expect to be able to go back later and get things, no matter how well you and your spouse get along at the time of the move.
  • Document the condition of the house and contents as you move out. Take pictures and/or videos. Have a witness, if possible.
  • Make an inventory of what you remove. Make notes about what you are leaving.
  • Have several helpers, if possible, so the move can be done quickly.
  • Take a reasonable amount of dishes, pots, pans, flatware, towels, sheets, and other everyday items. It costs to replace them. The same is true for furniture.
  • Treat your spouse (and yourself) reasonably as you divide things up for the move.
  • If possible, make arrangements to copy and divide pictures and other family things.
  • Don't damage things as you move out.

Of course, if you are moving out quickly for safety reasons, do your best, but safety must be the most important consideration. You can call a police officer or Constable to supervise, if there is a threat of violence, but you should plan ahead to do that.

There are many possible reasons for moving out or wanting to stay in the house. Think carefully about your situation, both short-term and long-term. Try to be as cooperative as possible with your spouse, but most importantly, protect the safety of you and your family.