Monday, December 31, 2007

How to Break the News to Your Spouse

Divorces usually begin one of three ways. Either your spouse tells you that he or she wants to get a divorce, or you tell your spouse you want to get a divorce, or the decision to divorce is mutual after both of you have discussed it over a period of time. Many people have difficulty when they are the one to break the news to their spouse. Most of the time, both spouses realize that the marriage is not working out, but in a significant number of cases, one spouse has been quietly suffering until a breaking point is reached. In those cases, the other spouse is often unaware of the problems and is surprised when the spouse announces a decision to divorce.

Once the decision to divorce has been made by one of the spouses, the other spouse needs to find out about it. This is usually accomplished by using one of several means.
  • You can meet with your spouse and tell him or her directly in person. Some people appreciate this and some feel insulted if they aren't told in this way. Some want to be told this way to avoid a public embarrassment. Some want to take the opportunity to plead their case to continue the marriage.
  • You can call your spouse and explain the situation over the phone. It avoids the public spectacle and makes it easier to end the discussion quickly.
  • Notice can be sent by a letter from you or your attorney. The attorney letter will probably not be taken as a warm or conciliatory gesture, although it may not be bad if your spouse is expecting something to start.
  • A mutual friend or relative might be talked into being the messenger. That insulates you from direct contact with your spouse for the time being.
  • You could have your spouse served with notice by a process server. Where you choose to have your spouse served (at home, work or elsewhere) can make a huge difference as far as the perception of your attitude toward your spouse and it could affect your spouse's anger level as the divorce gets started. You should discuss with your attorney whether it is necessary and advisable to serve your spouse and whether you should notify your spouse some other way first.
You should discuss with your attorney whether it is necessary or advisable to have papers served by a process server. Here are some other factors for you to consider in deciding how to notify your spouse about an up-coming divorce.

1. Choose an approach that is consistent with your goals and needs. It really helps to decide what your long-term and immediate goals and needs are: having primary custody; setting aside adequate retirement funds; keeping a friendly relationship with your soon-to-be ex-spouse so you can have a flexible possession schedule with the kids; having your debt paid off or minimized; limiting the amount spent on attorney's fees, having enough money to keep or obtain a house; getting an agreement for more or less child support; etc. On the other hand, you may need to act aggressively and quickly to preserve assets or protect the children, and that might indicate the need to serve papers right away. In some cases, telling your spouse before the papers are served may help your spouse avoid service or take other actions that could be detrimental to you.

2. Clarify what your objective is for telling your spouse about the divorce. Is it to be courteous; to start the divorce in a mature, civilized manner; to punish or threaten your spouse; to set up a hearing right away; to speed up the process; or some other reason?

3. Figure out your spouse's most likely response. Look at the situation from your spouse's point of view, whether you think it is valid or not. Do a little mental role-playing to visualize your spouse's reaction. How does your spouse view the relationship now? Is he or she: unaware of your plan to divorce; accepting of the divorce; eager for the divorce to move forward; opposed to the divorce; in denial and not reacting; or experiencing some other feelings? How do you think your spouse would act with each form of notice? What are your concerns? Would he or she be angry; violent; depressed; crying; happy; or experience some other response?

4. If you are discussing the divorce in person, practice what you will be saying. Think it through and then rehearse it. Choose your words very carefully -- they can make a huge difference in the outcome. You can practice with a friend or family member. Be prepared for any possible objections or other responses that you receive.
How, when and where you notify your spouse about your plans for divorce can have a significant effect on how difficult your divorce turns out. Careful consideration of these issues can make your divorce less stressful and less contentious, and you may have a better chance of achieving your goals and meeting your needs. Many people want to maintain their dignity during a divorce. A thoughtful approach at the start may pave the way to more cooperation later on. These are tough decisions, though, and you should think through the consequences of your choice.

Wednesday, December 26, 2007

The 12 Days of Christmas Divorce

On Christmas Eve, James J. Gross, of the Maryland Divorce Legal Crier, had a very appropriate post for the season and I am reproducing it with thanks.

"The Twelve Days of Christmas Divorce

On the twelfth day of Christmas,My true love sent to me
Twelve demands for relief,
Eleven prayers for property,
Ten thousand for alimony,
Nine hundred for child support,
Eight pages of interrogatories,
Seven requests for documents,
Six requests for admissions,
Five thousand for attorneys,
Four requests to enjoin,
Three pre-trial motions,
Two process servers,
And a complaint for a final divorce!"

I hope everyone has as merry a Christmas and as happy a holiday season as possible as you work through whatever legal issues you face. May your next year be much better and happier!

Monday, December 17, 2007

Internet Legal Information -- Handle with Care!

Years ago, Johnny Cash had a song about building a unique car "One Piece at a Time". In the song, he built a'49, '50, '51, '52...'70 model Cadillac by taking one piece a day from the auto factory where he worked. It's fascinating to try to picture his creation because Cadillac models evolved quite a bit during those years. You know the car would never work in real life, but it made a song that was fun to listen to.

Some people seeking a divorce use Johnny's approach and find out information about legal issues without limiting their search to their home state. That can be a serious problem whether they are just copying or downloading forms or learning about procedures. Piecing together paperwork using other states' forms can lead to problems ranging from wasting your time to having an unenforceable order to having the divorce thrown out of court. Some states, such as California, have standard forms which are readily available for the parties to fill out and file for themselves. Texas does not do that. Although there are some standard software programs used in Texas, there are not any standard state-issued forms that the parties can fill out and submit.

Similarly, trying to act in a Texas case based on New York or Florida or Kansas procedures won't be very effective. In addition, each state will have some variations and unique provisions regarding visitation and child support, as well as property division issues. Texas is surrounded by Lousiana, Arkansas, Oklahoma and New Mexico, but their laws are different in many respects from Texas laws.

The point is that you should be careful to rely on information about family law matters that is based on the law of your state. Don't pick parts of the law from different states and then try to mold them into your pleadings or strategy for your home state. It's fine to research legal issues on the Internet, but just pay attention to the context and what state is being discussed.

Tuesday, December 11, 2007

Does Selling a House Affect Child Support?

James J. Gross of the Maryland Divorce Legal Crier recently had an interesting post about a subject that comes up occasionally in Texas. He discussed how a Maryland judge ruled in a case where the mother sought an increase in child support from her ex-husband, in part because he had sold his house and had realized capital gains. In that case, the Maryland judge granted an increase in child support, but a smaller increase than the mother wanted, and the judge excluded the proceeds from the house sale from income for child support purposes.

The result in Texas would likely be the same for several reasons. Just as in Maryland, capital gains here can be considered part of the net income resources of a parent. Also, like in Maryland, the judge has some discretion in how and whether the capital gains will be included when calculating child support obligations. Here are some of the considerations.

  • If the house equity was considered an asset to be divided in the property division between the parties, then it would be double-dipping to also consider the same equity as income.
  • If the house was bought after the divorce and flipped for a quick profit, then it could be appropriate to count the proceeds as income. They are like a paycheck in that situation, although it would be reasonable to deduct related business expenses.
  • If the sale is a one-time event, it could be considered in setting the support for the limited time when the gain was received, but should not be factored into future support since the gain won't be there again.
  • If capital gains are regularly received, even if the amounts are hard to predict and are not guaranteed, they are more likely to be considered as income for child support purposes.

If capital gains could be an issue for child support in your case, be sure to provide full information to your attorney.

Saturday, December 8, 2007

Divorce is Bad for the Environment

A recent story in the Los Angeles Times reported on a study done by Jianguo Liu, an ecologist at the Michigan State University, on the effects of divorce on the environment. He noted that people in divorced households spent an average of 46% more on electric power and 56% more on water. Although he made some valid points about divorce leading to more power consumption, pollution and waste of resources, I doubt anyone will put off getting divorced in order to save the environment.

Professor Liu mentioned some potential solutions to the problems, including having roommates, remarrying, living in a commune or becoming a polygamist. I guess having many others living in the same household would be more energy efficient, but it doesn't seem likely that some of those options will be very popular.

Actually, the story included some good advice. Divorce is a good time to scale down your living arrangements. Most people have too much stuff anyway. When they get divorced, it provides a great opportunity to live a simpler life with less stuff and a smaller residence. Maybe it could be a time to change lifestyles and be more energy conscious. It could be the beginning of a more environmentally friendly lifestyle, in which case everyone will come out ahead.

Thanks to the Rosen Law Firm and their blog, KraemerVs for their post on the article. They have an excellent blog and web site about North Carolina family law.

Thursday, December 6, 2007

How to Deal with Last-Minute Visitation Issues

At this time of year, and at other times just before holidays and vacation times, it is not unusual to have conflict between parents over visitation/access with the children. A variety of circumstances can lead to the problems:

  • Sometimes the existing court orders are a little vague.

  • Sometimes the parents have been doing things by agreement a certain way and one of the parents decides to change things.

  • Sometimes there is a special event that comes up that doesn't fit into the order or how the parents had been sharing.

  • Sometimes one parent gets mad at the other and starts to use the kids as a weapon.

  • Sometimes other family members interfere and create problems.

  • Sometimes a work schedule or financial issues create a need to change visitation.

  • Sometimes an outside opportunity comes up from school, church, friends, relatives, Scouts or other sources.

  • And on and on. For any number of reasons, conflict can arise and really cause problems at holiday time.

What can be done? Here are some ideas.

1. Prevention is the best approach, if possible. Continually working and communicating with each other can help avoid major problems.

  • Parents should talk early and often so they can avoid unpleasant surprises, hurt feelings and conflict. Discussing plans far in advance can help issues be resolved early or just not even become problems.
  • Establishing a pattern and history of cooperation not only makes it easier to avoid conflict, but also makes it easier to deal with problems if they arise. If one parent has regularly shown a willingness to cooperate over a period of time, the other parent will probably be more willing to "give" somewhere in the future.
  • Be nice. Do unto others as you would have them do unto you.
  • Be flexible. Most plans can be adjusted. In the long run, you'll come out far ahead if you show flexibility and are able to change your plans sometimes. Keep in mind the big picture as far as what's in your child's best interest.
  • Plan ahead. Try not to wait to the last minute to plan or implement changes in your child's schedule. Plan ahead and share the details with the other parent.
  • Listen and be respectful. If you immediately start talking or arguing, you may miss some information and may jump to erroneous conclusions. Listening, just by itself, can defuse tensions. Being courteous and respectful to the other parent may be difficult, but investing in that effort can be rewarding by leading to better communication and relationships.

2. What do you do if you're already not on good terms? It is not unusual for two parents to not get along. Many people have difficulty getting over their divorce or other family conflicts. Parents who don't like each other need to work harder to minimize the conflicts over their children. Here are some tips.

  • Communicate early and clearly. Written notices are good and can help avoid misunderstandings. Direct discussions can also be helpful, if done properly.
  • Don't be accusatory or negative. Avoid using "always" and "never". Think before you speak and choose your words carefully. If you criticize the other parent, they will get defensive and less cooperative. Also, use "I" statements and avoid using "you" when you are speaking with the other parent.
  • Listen and be respectful, even if you don't like the other parent or they don't like you. Being disrespectful will just make the situation worse. Hold your feelings until later.
  • Be willing to compromise. Sometimes you can't persuade the other parent and sometimes you don't have any power or leverage in the situation. Keep your child's best interest paramount and be willing to give up some power if it helps end conflict.

3. What if you are already on bad terms with the other parent? Again, there are several things you can do.

  • Figure out early if you need help. That will give you more time to respond and to find some resolutions.
  • Develop layers of responses which escalate in strength of response and the involvement of 3rd parties. For example, you can start off by contacting a mutually respected friend or family member to be an intermediary. The other parent may listen to such a person when he/she won't listen to you. There might also be a couselor or child specialist who could get involved as a neutral person. A slightly higher step would be to meet with an Access Facilitator at the courthouse. If all of those don't work, you probably need an attorney, but the courts fill up before holidays, so going to court is often a slow and unhelpful process. Sometimes, though, you don't have any other alternatives.
  • When you communicate with the other parent, give clear, non-argumentative messages. Don't be insulting. Think about how you sound to the other parent.
  • Be willing and open to compromise. Even if you are going to court, judges encourage settlement and you often can work out a better agreement than you could get in court. Be flexible.

Last-minute visitation issues are common around holiday times. Knowing that, maybe you can take evasive action to avoid serious collisions over the children.