Tuesday, December 30, 2008
One of my favorite blogs is James J. Gross's Maryland Divorce Legal Crier. James can make a point very succinctly and his posts are usually both entertaining and enlightening. His post today certainly fits that description. I have heard the question over and over about whether the economic downturn/recession/or worse has an effect on divorces. Here is his response.
“'Are divorces going down in these hard times?' The question came from a woman at one of the holiday parties upon learning I was a divorce lawyer.
"I allowed as how many couples are opting to ride out a bad marriage because they can’t sell the house, or they can’t afford the lawyer fees, or their income won’t cover two households.
"'But others,' I said, 'find that now is just the right time to get rid of an unwanted spouse.'
“'What others?' she inquired of me.
“'Why wealthy husbands, for one, with businesses, stock, options and pensions down about 50%, may find this a good time to buy out their spouse for cash at these lower prices, expecting an eventual recovery.'
“'And trophy wives, in the face of layoffs and rumors of layoffs, may decide the right time to leave is while their husbands are still employed.'
“'I never thought of that,' she nodded, and wandered off to get some more punch."
That all fits with the observation about how some people see problems and others see opportunities.
Friday, December 26, 2008
A common question I see is about how to file for divorce. Here is a general, simple explanation of several of the steps that go into filing for divorce. Each case may be different and your case may involve more steps or fewer steps. This is just to give you a general idea about how to file for divorce in Tarrant County, Texas.
Step 1. Do your homework and come prepared. When you go to your attorney's office to start the process, you need to bring various types of information. The attorney will need information on you, your spouse and all the children: full names, dates and places of birth, driver's license and Social Security numbers, and date and place of marriage, among other things. The attorney will probably have a long form for you to fill out and you might be able to request a copy in advance so that you can fill it out before you come in.
You also need to be able to explain your immediate concerns and needs. You should also think in advance about your short-term and long-term goals. You may have financial or custody issues, or both. There may be personal safety concerns as well.
Step 2. Decide how you want to proceed -- Collaborative Law or full litigation. You can start in litigation and switch to Collaborative Law, but it's really better to try to start in Collaborative if your spouse is willing. It doesn't hurt to try to get an agreement to use Collaborative Law and many people will welcome it once they learn about it. On the other hand, in some cases, Collaborative Law may not be appropriate, so litigation must be used. You and your attorney can choose the best course of action.
Step 3. Your attorney will get specific information from you to prepare the pleadings. "Pleadings" are the court papers that are filed -- the petition and sometimes a temporary restraining order (TRO) are filed at the outset. The petition is usually fairly brief and has the basic background information about the parties. It may also contain specific requests for your case and may include grounds for an unequal division of property or special terms for child custody of support. The person filing for divorce is the "Petitioner".
Step 4. The attorney files the petition with District Clerk. If a TRO is requested, the order must be taken to a judge to be signed and then we go to the Court Coordinator to schedule the hearing. If a TRO is issued, it is not in effect on the Respondent (your spouse) until a copy is actually delivered to your spouse by an authorized process server, which can be an approved civilian process server or a deputy sheriff or constable.Step 5. Your spouse gets notice of the lawsuit. This can be accomplished either by having the papers served by an authorized process server or by handing the papers to the Respondent (your spouse who will respond to the petition) and then having him or her sign a "Waiver". The waiver is a document that says that the party has received a copy of the court papers and does not need to be formally "served" with a copy by a process server. A waiver must be notarized and should be carefully read before signing.
These are some of the common steps followed in initiating a divorce in Tarrant County, Texas. The process should be about the same anywhere in Texas, but there may be some differences from county to county. You should consult with your lawyer about how he or she normally proceeds.
Remember that these are only the first steps in what can be a long process!
Friday, December 19, 2008
January is traditionally the busiest month for filing for divorce. If you are thinking about filing, or preparing to file, for divorce, here are some steps you should take.
1. Gather all the financial records you can. Make copies and download all the financial records you can for at least the last year, or even better, for the last three years. These include pay stubs from work, investment account records, credit card statements, phone and utility bills, bank statements, mortgage records, insurance information and tax returns. There may be other relevant financial records as well. When in doubt, keep a copy. Put the copies in a safe location where your spouse cannot get them.
2. Plan ahead so you don't just react to your spouse or the situation. Plan when to start (file). It's usually a good idea to be the first one to file, and you need to carefully consider whether you should file and then notify your spouse or if you should discuss divorce and then file later. The first approach is a little more aggressive than the other one. Sometimes it's appropriate and sometimes it can lead to bad feelings. You have to try to anticipate your spouse's reactions.
3. Put yourself in your spouse's position and try to understand his/her point of view. You need to think about what s/he wants, how s/he will react, what s/he will say and how to motivate him/her. If you only consider what you want or need, you will have a harder time getting the divorce resolved on favorable terms. Unfortunately, perhaps, the system takes into account both parties to the divorce. You can do better in proposing a settlement or in court if you know what matters to your spouse.
4. Find a good, experienced attorney you are comfortable with.
a. Where? Referrals from other attorneys, other related professionals or the Internet. It's a good idea to get information from several different sources and then compare the suggestions. You should not hire someone sight unseen.
b. Interview the attorney and ask questions that you have thought about in advance. It's a good idea to write down the questions so you don't forget them. Feel free to disagree or question the attorney. Ask lots of questions. The attorneys don't mind. In fact, the interaction can help the attorney decide whether or not s/he thinks the client would be appropriate.
c. Find out the attorney's suggested approach and decide if that is the way you would want to proceed. Some attorneys take basically the same approach to every case. Sometimes it is very aggressive and some may be very conciliatory. Other attorneys will explain a wide range of options and help you evaluate which benefits you in your unique situation. Some attorneys try to make all the decisions and tell their clients how things will be handled. That may be great for certain clients. Other attorneys will let their clients make informed decisions after the options and ramifications have been explained. You must decide which approach you like.
5. Have access to some money to get started. You will need money for an attorney, but you will also need money to pay your bills. You may need funds to pay for new housing. You might need the money right away, or it could be in the future. Many people going through divorces end up charging expense, including attorney's fees, on credit cards, and many also end up borrowing from parents, other family members or friends. Be creative and think about as many sources as you can so that you are prepared for difficult times.
6. Be certain and be comfortable with the decision. Getting counseling for yourself before you file could be very helpful. That would allow you the opportunity to explore your options and make sure the decision and the timing are right. But, you should expect second thoughts and doubts about your decision. Divorces rarely start out with both parties fully and irrevocably committed to divorce. Work with any professionals necessary until you reach your comfort point, whether it is an emotional decision or one made after you learn how the legal process works. If your spouse if committed to getting a divorce, your lawyer will probably tell you that the divorce is inevitable unless the spouse changes his/her mind. In that case, you may need to take steps to protect yourself even if your heart isn't in it.
7. Figure out how to tell:
a. Your kids. Coordinate with your spouse. You may want to talk to a counselor about this before you have the discussion with your children. Make it age appropriate. Don't give more information than the kids need. Reassure the kids that they will be loved and cared for. Make it clear that the divorce is not the kids' fault.
b. Your spouse. Here's a good post I wrote a while back (12-15-07) about this topic. It's specifically about Collaborative Law, but the approaches apply to divorces in general as well.
c. Your family and friends. Decide on the timing and the message. Usually, the less information that is passed around, the better. You can clue in the especially important people with more information, but don't assume that you can "win" the divorce by convincing your friends by giving them one-sided information. On the other hand, you may be pleasantly surprised by the support you receive from people who didn't previously express their opinions to you.
There may be some other things you need to do to get ready for a divorce, but this checklist will give you a head start. Good luck.
Sunday, December 14, 2008
There are several issues that have different ending dates in Texas divorces. Here are some that people often wonder about.
1. What is the cut-off date so that anything earned or acquired belongs to just one of the parties? Using some legal terminology, when does the community estate end?
Answer: It ends when the divorce decree is signed by the judge. That means that community property can change in value, up or down, even after the parties are separated. That is true whether the parties are separated for 60 days, 6 years or longer. It used to be that we talked about the increase in value since the parties separated. Now, we have to consider the real possibility of a decrease in value since separation.
Example: Many people continue to make contributions to a retirement plan after they are separated from their spouse. Those contributions and any increase in value (generally) will be community property and are subject to division by the Court, up to the date the decree of divorce is signed by the judge.
2. When is new debt created by my spouse no longer my responsibility? Can I put a notice in the newspaper to terminate my responsibility?
Answer: New debt created by your (ex)spouse after the decree of divorce is signed by the judge is not your responsibility. Up until the decree of divorce is signed by the judge, any debt may be a community obligation which both parties may be held responsible for. After the decree is signed, you are each on your own.
Example: If either spouse charges on a credit card after separation, those charges may be a community obligation up until the decree of divorce is signed.
Publishing a newspaper notice saying you are no longer responsible for your spouse's debts doesn't help you.
3. Why is there a 60-day waiting period and how does it work? Why can't we get divorced immediately if we both agree?
Answer: It is a cooling off period mandated by state law. It begins the day after someone files for divorce. The idea is to give people time to think over the major decision they are working through. A divorce cannot be granted until the petition for divorce has been on file with the court for at least 60 days. That waiting period cannot by waived by a judge or anyone. Wait means wait.
4. When is the Answer due?
The Short Answer: It depends.
The Slightly More Helpful Answer: There are actually different answer dates for different documents. Each pleading, request, etc. should spell out the answer date. You should carefully read over anything you receive to determine when the answer is due. The documents should say when an answer is due or they may explain how to calculate the due date. If you are represented by an attorney, you should show the attorney any documents or notices you receive. The attorney can tell you when and if an answer is needed.
Reminder: These are superficial comments and are not intended as legal advice. Please consult with an attorney to review the application of the law to your unique situation. Divorces always have their own special characteristics that need to be considered when deciding how to proceed. Be aware, though, that courts take deadlines very seriously, so you should, too.
Wednesday, December 10, 2008
In many marriages, one of the biggest assets is the equity in the house. Even thought we are in the midst of tremendous financial uncertainty, there are still several options that can be considered when dealing with home mortgages when it comes time to divide marital property in a divorce.
1. Sell the house and split the equity. The house can be sold and then the equity can be divided between the parties. Of course, in various parts of the country, house values have drastically plunged, which reduces the net equity upon sale, if the house can even be sold. Fortunately for us locally, the Fort Worth and Tarrant County housing markets have felt minimal effects from the housing downturn. For the immediate future, it looks like it will be possible to sell a house and still come out in pretty good shape, at least as compared to other parts of the country. Of course, a relatively new house for sale in an area with continued (or recent) new building will be hard to sell, so the local market isn't good all across the board. Still, Tarrant County house sales are reported to be pretty strong.
2. Consider the equity as just another asset. If one party wants to keep the house, it may be possible to keep the house and just offset the equity with other assets. In other words, the other party can keep other assets that total the same in net value as the house equity, so both parties are happy. It is pretty easy to get a house appraised and to find out the current mortgage balance on the house. The difference, which is hopefully positive, is the equity. Be sure to consult with your attorney or CPA about the tax implications of various assets when you are thinking about how to divide them up.
3. Refinance with cash out. There can still be refinancing, although the rules are tighter and there is less cash available. If you want to refinance, check with your attorney for a reference for a mortgage broker who may be able to help you. With the tighter credit market, a higher credit score will probably be required, but brokers are still anxious to work deals within their guidelines.
4. Cash out through an owelty loan. A specialized form for refinancing is to get an owelty payment from the house equity. This is a form of refinancing utilized in Texas that provides flexibility and a fairly easy way to withdraw cash from house equity. Again, your attorney may be able to recommend a mortgage broker who can help you.
5. Reverse mortgage. It may also be possible to get a reverse mortgage if you are at least 62 years old and there's sufficient equity in the house. Cash is paid out to you and you don't have to repay it as long as you live in the house. Various lenders provide this service which is relatively new in Texas. Make sure you understand how it works before you sign up for it. It can provide cash even when you are retired or have low wages.
If you are in the situation where your house is the major asset, you can consider using one of the above approaches for getting cash or the value of cash for your interest in the house. Talk with your attorney about who to contact. It helps to have a budget and to plan for your future wants and needs. Do you want the house? Can you afford to pay for it? Can you afford the extra cost if more money is borrowed against it? Would cash be better for you? What are the tax consequences? These are all issues you need to carefully consider with your attorney and possibly a financial advisor, such as a CPA.
Friday, December 5, 2008
Some attorneys and some potential clients have the mistaken idea that Collaborative Law is appropriate only for cases where everyone is nice and they are already pretty much in agreement.
The "nice" cases are usually, but not always, easy and rewarding to work on, but Collaborative Law is actually set up to handle more complex and difficult cases. Collaborative Law sometimes seems like overkill when everyone starts out pretty much in agreement, although problems often arise even in those cases.
Where the process is really appropriate and beneficial is the cases where two good people each have similar goals and haven't been able to come to an agreement. The process also is helpful where there may be some aggravating factors, such as an affair, difficult financial circumstances or special needs for the children, but the parties value the maintenance of an on-going relationship, typically for the benefit of children. Parties can make a choice between focusing on their future relationship or rehashing old arguments and reliving bad old times.
Tough cases are well served by Collaborative Law because neutral experts are used and because of the structure of the process that is followed from setting goals to reaching an agreement. For those who look forward, the neutral experts help them overcome past problems and learn new skills to communicate and deal with each other. In addition, most people prefer to deal with their personal problems in privacy, which is how Collaborative Law operates.
If you anticipate having a difficult divorce, you should consider using Collaborative Law to help you get through the experience with the best customized results and the least amount of damage to you. Make sure you talk with a trained Collaborative lawyer so you can get accurate information about your options. For more information about Collaborative Law, please look at the Texas Collaborative Law Blog. Good luck!
Monday, December 1, 2008
Good parents are made, not born that way. If you are lucky enough to have had good parents, you may be in the minority now. Here are some good ideas for you to try out so you can work to improve your relationship with your kids.
1. Be actively involved with your kids' activities. Donate your time to them. Be a coach or a leader for their sports or other activities. Attend their performances. Volunteer to be a driver. Cheer for them. Watch them play. Help with their homework. Read to them and with them. Play with them! You can do different things with kids at each age.
2. Appropriately compliment kids for their good effort or results. You don't have to only say nice things is they "win". Give them some positive support for their effort and encourage them to keep trying. Sure, it's fun to win, but it's also fun to play. Make sure the kids know that you are proud of them.
3. Appropriately compliment the other parent, to the other parent and around the kids. Don't lie about things or be fake, but there's always something nice you can say. If you can't think of something nice to say, do what your mom probably told you: don't say anything.4. Focus on the good. It might be grades, an art project, effort in cleaning their rooms, riding a bike, playing appropriately, etc. At any age, you can find something a child is doing well and you can show some appreciation. If you want to see it again, reinforce good behavior by complimenting it. Don't just go on and on about what a child is doing wrong. Give the child something to remember and strive for.
5. Encourage kids to volunteer and serve others. They will probably need to record volunteer hours for school at some point, but making a spirit of volunteerism and helping part of the kids' upbringing, so that it seems a natural and normal part of life, is one of the best things you can do for kids. Everyone, at some time, will need help from others. It's a good idea to "pay it forward" --donate help in advance.
6. Talk about the best part of the day with your kids. It helps them (and you) focus on the good things that happen. You and your kids will feel better if you think about the good things, rather than just dwelling on what went wrong. Developing this habit can help elevate everyone's mood.
7. Remember that kids see what you do and hear what you say. They will really pay attention to what you do and you will probably see some of your actions in their behavior. You certainly want to see your kids doing good things, so you need to act appropriately. The same thing is true about what you say around them and how you say it. Children can imitate things right away after observing you, and can develop habits, similar to yours, over time. Try to be a good role model.
8. Learn to appreciate kids' music, books and games. That's not to say that everything they like is worthwhile (which could as well be true about the things you like), but it is too easy for parents to overlook or downplay kids' culture. Parents should look for the value in their kids' lives. If you show a genuine interest in your kids' activities and interests, you can be more of a factor in their lives. You will be able to speak their language and you can enjoy time with them.
9. Encourage friendships and sharing. That can be done in part by setting a good example, but you may have to explain things to kids periodically about sharing as they get older. Do what you can to make it possible for kids to do things with their peers so they can have friendships. Just as important, don't put up roadblocks to the kids being able to participate in activities and be with friends who are important to them. Transportation in particular can be time consuming, but it will be over before you know it, so you should enjoy the time you have with the kids.
10. Be a good host. When your kids want to have friends over, make it possible. You may need to have a supervisory role, which will vary according to the age of the children, but help your children out. Get to know their friends and welcome them to your home. It's always better to have them hanging out at your house rather than roaming the streets.
Please try these out and then send a comment about your experiences to this blog. YMMV.
Friday, November 28, 2008
One of my favorite blogs is the Alabama Family Law Blog, written by Michael Sherman. In a recent post, he commented on the reasons for divorce that he had observed in some of his cases. Not too surprisingly, I have seen similar situations. Each case is different, but most divorces will involve one of the following elements:
"Seems ironic that a divorce lawyer might offer marriage advice. When the Minister of Education at my church asked me to teach Sunday School to the Newlyweds, I gave him a hard time about bringing in a divorce lawyer to teach to these young married couples. But, I really don’t know someone more qualified to tell you what to do and not do in your marriage than a divorce lawyer. In my divorce practice in Mobile and Baldwin County, I have seen all the problems that tend to contribute to the breakdown of a marriage. Maybe you know a young (or not so young couple) that could benefit from this information.
"Here, in my experience, are the top five problems that contribute to divorce:
"1. Money – Whether it is differences in values about money, issues about control of the money or financial pressures that put a strain on the relationship, money issues often lead to divorce. Best to get on the same page early, be fair about how the money is controlled, and attempt to understand and accommodate your spouse’s views on money.
"2. Communication – I will often have a client of mine that is going through divorce tell me that they love their spouse, they are just no longer in love with them. I’m not sure exactly what that means. But, typically it is a sign that the couple quit having meaningful communication with one another some time ago. Communicate deeply and often with your spouse.
"3. Lack of Commitment – I don’t intend to get on my soapbox about this issue, but it is hard to dispute that our nation no longer has the same view of marriage we once did. Sometimes a divorce is the only option, but quite frequently (particularly with younger couples, it seems) I will see one or the other spouse who really cannot express a good reason why they want the divorce. One divorce lawyer I know comments on how the threshold on what it takes to get someone to pull the trigger on divorce has decreased dramatically in the past twenty years. Perhaps it has something about how self absorbed and tied to instant gratification we have become. It will keep divorce lawyers in business, but it is sad for us as a nation.
"4. Physical Addictions – Thankfully they occur in the minority of cases that I see. But, when they do, they are quite tragic. Whether it is alcohol, illegal drugs or prescription drugs, the effects of addiction can obviously be devastating. The best advice is to intervene early and get professional help.
"5. Sex – Of course, sexual problems frequently lead to divorce as well. But, their effect is probably overestimated. Generally speaking infidelity is a sign of other problems in the marriage, not the original problem. Increasingly, however, I am seeing the internet playing a role in these cases. Whether it is pornographic websites or the ability to meet others anonymously and easily online, the internet provides new snares for a relationship that did not previously exist.
"Despite the fact that I help my clients navigate their way through divorce, I do not encourage divorce. Hopefully this advice will help someone avoid it all together."
In addition to Michael's list, I would add one more broad factor in the breakup of marriages -- mental or emotional problems by one or both of the parties. For example,
- Sometimes depression (untreated) can destroy a marriage.
- Other times, one of the parties is a very controlling person who ends up smothering the spouse who leaves the marriage to gain his/her freedom and escape an abusive environment.
- In some cases, there is a true personality disorder or mental illness. Untreated, that can also destroy a marriage.
My advice: get professional help and follow through with treatment and medication. That can be very effective, but it's often pretty hard to get our spouse to acknowledge the need for psychiatric help, much less to comply with the treatment plan.
In any event, all of the above problems warrant the assistance of trained professionals. Trying to work out the problem on your own is not likely to be effective. The first step is to ask for help. The key here, as in many things in life, is the follow-through. Without it, there will be no solution until you see a divorce lawyer.
Monday, November 24, 2008
James J. Gross of the Maryland Divorce Legal Crier has another timely and very apt post on the holiday season. I always get a lot from his writing and I think many people experiencing family transitions will too. Although his post mentions Thanksgiving, his suggestions really can apply at any time during the year. I strongly agree with his approach of starting a new life and taking charge of the situation. Don't just sit back and feel bad. There are some fairly easy baby steps you can take to get your life back in order. Here's what James has to say:
"You probably didn’t expect to be divorced or separated on Thanksgiving at this time in your life. You probably feel like saying, 'Gee, thanks for another #@*!! personal growth experience.' Well, instead of staying at home feeling sorry for yourself and ordering pizza for Thanksgiving, here are some ideas to help you make it through the long holiday weekend.
"The first thing you have to do is get into action. Move your body and the head will follow. Go for a walk or a jog. Get to the gym and start losing that marriage fat. Start a dance class or take tennis lessons. Any activity is good that will get you moving. Don’t think about it. Just do it. Force yourself.
"The next thing to do is build a support network. This can be your friends, relatives, religious leader, neighbor or therapist. Join a support group. Participate in online support groups. It may seem to you that you are the only person in the world going through a divorce, but you are not alone.
"Now, get outside of your troubles. Find someone with problems bigger than yours and help them. Volunteer to feed the homeless for Thanksgiving. Visit a nursing home or a hospital.
"Invite some friends over for a potluck supper. Everything is attitude. Stay positive and strong and have a great Thanksgiving. Leave a comment if you have an activity or idea that helped you survive Thanksgiving when going through a divorce."
Whatever your situation, no matter where you are in transitioning your life, these are great ideas to help you clear your mind and re-energize your life. Try these out and see if your spirits improve. Send a comment and let us know about your successes.
Thursday, November 20, 2008
One of the most stressful times for a family going through a divorce or after a divorce is the holidays. Family traditions have to adjust to new living arrangements, court orders and emotional conflict. Among the holidays, the traditional two biggies for conflict are Thanksgiving and Christmas.
Thanksgiving is coming up and I hope you already have a clear mutual understanding of the schedule for the kids. If not, you need to talk right away. Don't wait until Wednesday or Thursday to work out the details. In Texas, we have a standard possession order that covers the holidays very well. In even-numbered years (that includes 2008), the parent who does not have primary custody will normally have the children for Thanksgiving, beginning the day school lets out and ending the Sunday or Monday after Thanksgiving. The other parent has the kids for the same time period in odd-numbered years. BUT, check your order to make sure that it is set up that way.
The Christmas schedule can be more complicated. The standard provision is usually for the parent with primary custody to have the kids for the first part of the Christmas break in even-numbered years and the second part of the break in odd-numbered years. The exchange time in the middle used to be noon on December 26, but in new orders, it may be noon on December 28. Or your order may have something entirely different. SO, check you order to find out for sure when the possession times are and when the exchange is.
A helpful reminder is that whoever has the kids for Thanksgiving normally has them for the second half of the Christmas break.
Note: For those of other than Christian faiths, your court order can be written to reflect your personal holiday preferences. You should not feel like you are limited to standard Christian observances. With your input, your attorney can create or modify an order that reflects your religious practices or non-practices in the holiday season.
In Tarrant County, divorce lawyers can easily put together a schedule that meets your needs, but it is important that you tell your preferences. If necessary, we can get you into court shortly before the holidays to clarify of modify the visitation schedules, but please let us know as far in advance as possible because the courts get very crowded in December each year.
Final Tip: A little communication goes a long way. Before bringing in the attorneys, you should always consider just talking with the other parent. Even if you don't get along real well, a brief discussion can save both of you a lot of money if you can reach an agreement. You are not bound to a court order if you both agree on something. You can be as creative as you want to, as long as you both agree.
Good luck and happy holidays!
Saturday, November 15, 2008
Christine Bauer, of the Florida Divorce and Family Law Blog, has a very timely post on visitation issues with teenagers. In addition to the usual stresses between parents going through a divorce, parents of teenagers must deal with a very different environment when they are trying to arrange a visitation schedule for children who are teens.
- The children often don't want to be considered kids (and often shouldn't be).
- They frequently want some role in deciding where they will be and what they will be doing.
- At the same time, they can be very manipulative.
- They also have more and more activities and greater independence, particularly when they drive.
- School work can become more demanding and time consuming, while extra-curricular activities can eat up a lot of their free time.
- One way or another, there often isn't much free time left for teenagers to be around their parents.
Another complicating factor can be changing relationships between parents and children. There often is a lot of conflict and communication problems. To make it worse, if one parent has not been very involved with the children during the marriage, but suddenly, because of a divorce, wants to make up for lost time, children sometimes will not quickly welcome that parent back into their lives. That can create a lot of frustration and conflict for both parent and children, and a court order alone is usually not a good or sufficient solution.
Here's what Christine Bauer had to say about the topic:
"When Judges impose time sharing for children who are young, these types of rulings are very easily enforced and its likely that the children aren't really given a choice as to whether or not they should visit with one of their parents. With teenagers, this is a much more grey area. Teenagers have busy schedules, often times have anger issues towards one parent, and/or are easily manipulated into feeling a certain way towards one parent. What do you do if your teenager refuses to spend time with you doing your designated days? As a parent, how can you encourage your teenager to spend time with a parent when they say they have no interest in doing so? I have the following suggestions:
"1. Be flexible. If your teenager primarily resides with you, you have the benefit of spending time with this child during the week. Encourage your child not to make plans that will affect their ability to spend time with the parent who only sees their children during the weekend. If plans are made during their visitation with the other parent, be open to switching weekends so that the other parent doesn't go weeks without any quality time with their child.
"2. Don't speak negatively about the other parent or project your own angry feelings towards that parent onto your children. Often times a teenager will feel protective towards one parent and may decide that they don't want to spend time with their other parent in order to protect the parent they feel is being wronged. Remember that your child deserves to have a loving relationship with both parents and its your job, no matter how hard, to insure that this happens.
"3. Always keep the other parent informed about extracurricular activities so that the non-custodial parent can be actively involved in your child's life and be afforded the opportunity to see the child even when its not their designated time sharing days.
"4. Encourage family therapy if there are issues and problems that preclude the child from wanting to spend time with either their mother or father. Family therapy can be tremendously helpful to a child who feels they don't have the ability to communicate with their non-custodial parent.
"5. Don't allow your child to make too many decisions about visitations. Remember that you are the parent and that there are many things that you 'make' your children do that they don't want to do, like homework, cleaning their room, etc. One of the things that you should make your child do is spend time with their mother or father."
These are all good ideas for dealing with visitation issues that seem to get worse as kids get older. Some of these will take some time, such as family therapy, and there are no instant cures. Take your time. Getting both parents to work together on solutions is the best appoach. Good luck!
Monday, November 10, 2008
One of the consistently best family law blogs in the country is Georgia Family Law Blog by Steve Worrell. He recently posted a brief article about a really useful tool for parents who are figuring out where to meet to exchange their children. It's a web site that creates a map to help parents quickly resolve the issue of arranging the meeting place. Here's what he had to say:
"Meetways.com was created to let its users find a point of interest between two addresses. Let's say you need to meet your ex and the kids at some halfway point? Meetways.com will allow you to enter both addresses, then give you the exact halfway point and a list of restaurants and points of interest in that area. Save hours trying to figure out the halfway point on a map and instead find it in one simple click!"
SOURCE FOR POST: California Divorce Blawg -- where the story originated.
Saturday, November 8, 2008
Most people seem to think that divorce is just about dividing up property and debts and dealing with the parent-child issues. That very broadly describes the process, but it really only touches the surface. One of the issues everyone should seriously consider is retirement, and they should go deeper that just splitting everything equally. To get people thinking about approaches on retirement, here are three questions to examine.
1. Should all retirement assets be divided 50-50? I would suggest that there are a number of factors to consider when dividing assets.
- Big picture. It helps to look into the future to decide what is and will be important to you. Are there short-term needs, such as education and training, buying new housing, starting a new business, etc., that will need immediate funding? How is your health? Are there any special needs for you or any family members? Are there any long-term or later-in-life needs that you are expecting? Are you the beneficiary of a trust? Are you expecting a significant inheritance? Does your spouse have special needs? Is your spouse expected to be a beneficiary of a trust? Are you likely to be able to create more retirement assets, such as adding to a 401K account, after the divorce? Can your spouse create more retirement assets post divorce? You should develop the financial context for your life in great detail so you can act in your best interest.
- Tax aspects. Some assets will come tax-free and others will require payment of taxes when the payments are received. You should look at your projected cash flow and living expenses upon retirement. Taxes need to be accounted for in determining the net resources you will have available. While your tax rate should be lower after retirement, you may have trouble affording the taxes because you will probably have less income then. If, during the divorce, you have the option of choosing an asset with taxes owing vs. an asset that is non-taxable, and the values are considered the same, the you should take the no-tax item, unless there are other disadvantages with the asset, such as being very risky. That brings up another consideration.
- Risk toleration. You probably need a trained advisor to help you determine the extent of your risk toleration. Generally, the higher risk associated with an asset, the greater the possible return, and the safer the asset, the lower the return is. Financial planners often look at your age, you needs, the value and nature of your assets, and other factors, in helping you decide how risky you want to be. Many people have assets with various levels of risk. You should consider how much risk you want or need.
- Employment prospects. Another important factor is your job situation. If you are already employed, it may be fairly easy to project your income into the future. If you are unemployed and/or just rejoining the job market, your future may be less certain and much harder to predict. Even people who have had secure jobs for a long time may be less certain in the current financial crisis. If you are trying to decide on a career after being out of the work force for a long time, you may have trouble just figuring out what to do. Also, quite a few people going through a divorce also go through job changes. For various reasons, there's a lot of job uncertainty during times of family turmoil, and that makes it hard to plan.
2. How do you make decisions on retirement plans during a divorce? The best answer is to get a financial advisor. It may be expensive, but it will pay for itself in the long run. If you are in a litigated divorce, each side usually hires their own expert or experts. There might be more than one if the experts have to testify. In Collaborative cases, the two sides jointly hire a neutral financial planner who works for both parties. In either approach, your attorney should be able to help you find someone, and probably will want to decide who to bring in. While there is cost involved in using a financial advisor, you will probably save money in the long term by being able to make the best possible financial decisions for you.
3. How do you carry out the decision? There are several possible ways to do so.
- Some retirement plans will need a Qualified Domestic Relations Order (QDRO). A QDRO is a court order that divides an existing account in a plan into two separate accounts which are independent of each other. Each of you will manage your own plan and you will separately be responsible for any taxes owed on your share.
- The terms of the agreement will be specified in the Decree of Divorce or in a separate Agreement Incident to Divorce (AID). The decree is the regular final court order that normally spells out the terms of the divorce and has the details of how the assets are divided.
- Sometimes, we use an Agreement Incident to Divorce. That is a separate document that is approved by the parties and then the court, but which is usually not filed with the court papers. It is used most often to protect the privacy of the parties and to give a little extra flexibility to the division of property. You can ask your attorney about whether it is something you would want.
- Finally, some investment accounts can be divided by the companies by the parties signing forms once the companies get a signed copy of the divorce decree. You can check with your agents to find out what they require.
Rather than making a knee-jerk response and just dividing all retirement assets 50-50 each, it would probably benefit the parties if they bring in expert help to figure out the best mix of assets to fit in with the opportunities and needs of the parties. Even if your spouse doesn't choose to think about these issues, you and your attorney should think seriously about your retirement when you are going through a divorce.
Wednesday, November 5, 2008
Recently, Mark Ashton, in the Pennsylvania Divorce Lawyer and Attorney Blog, published an excellent post about how accountants can assist in a divorce case by setting a value on a business or by tracing financial transactions and producing a report. When the accountant testifies, s/he becomes a "forensic" accountant. Accountants can play a major role in preparing cases for settlement or trial. Attorneys will often work closely with accountants, exchanging information about the case and reaching conclusions about the financial aspects of the parties' community or separate property estates. The following is Mark Ashton's post, which clearly explains a lot about the key role accountants play in valuing businesses or in tracing assets:
"Many of our clients either own their own businesses or are married to people who do. In divorce the value of the business is a material aspect of equitable distribution and needs to be considered both for the income it produces and the value the business has. Figuring out the answers can be complicated and expensive depending on how honest the books and records of the business are.
"It may not come as a surprise to many readers to learn that some people use business accounts to pay utility bills for their homes, cell phones, college tuitions, car payments and personal travel expenses. It is not unheard of for a boy or girl friends to be a paid employee with benefits. Over the course of years, we have seen it all. The highlight or lowlight of this author’s experience was the business owner who put an addition on his home and booked it as an asset of the business. The same owner deducted his annual four month stay in Florida as a business travel expense even though he could not identify any work that he ever secured while enjoying the warmth of the Florida sun.
"So should everyone in a situation where the spouse owns a business hire accountants and appraisers? The question is not easily answered. A forensic accountant is one with specialized training to uncover fraud or misrepresentation. His or her job is to ferret out whether income is fully reported and whether all the expenses paid by the business are reasonable and necessary. If I buy your business chances are that I will not be paying your child $2500 a month to go to college or covering the Escalade you use to commute to work and charge to the company. Those are what are called 'add backs' because they are added back to what should be the real income of the business.
"The business appraiser takes what income and expenses are 'real' and attempts to determine what willing buyers and sellers would pay for the business. Thus, if your business earns $100,000 a year and pays your kid’s college and your Escalade, the real benefit of owning the business is probably closer to $150,000 a year. The business appraiser asks that question: 'What would a willing buyer pay to own a business that spins off $150,000 in income?' That is a function of many different integers. What is a reasonable rate of return? How much capital needs to be replaced each year to sustain the business? Is the compensation paid to the business owner fair given the work he or she supplies? What 'hard assets' does the business own? And, most importantly, what does the future look like in terms of potential growth. These are complex questions and the price for answers is not insubstantial.
"But reason needs to be part of the process. A business with one employee selling product using a desk and a phone rarely sells for a lot of money. You don’t need a forensic accountant to successfully argue that the children’s cell phone bills are not business expenses. But if the matter is complex and the business appears to have a value that a buyer would be interested in paying a substantial sum to take over, clients need to examine seriously the need to employ talented experts to tell the story in court.
"The starting point before engaging experts is for both the lawyer and the client to get the core financial documents and review them before the accountants and valuators become involved. Clients bring information to the equation that experts will never develop alone. The fact that valuation is a cooperative enterprise involving coordination and a common understanding of the objects at hand. Failure to do so produces an expensive and often unintelligible result."
Sometimes the parties to a divorce are able to cooperate enough to share a neutral accountant, but often a case ends up with dueling experts. (That's one of the reasons why I so strongly support Collaborative Law, which uses one neutral expert, but that's another topic.) Of course, cost can be a factor in using experts of any kind, so the parties and attorneys need to make sure both that there are sufficient funds to pay for the expert and sufficient assets to justify the expense. Not all accountants are qualified to do these tasks (just like not all attorneys are qualified to do family law), so qualifications and experience should be considered when hiring someone. The hiring, by the way, is normally done by an attorney, rather than the client. Your attorney can help you decide if the hiring is advisable.
Thanks to Sam Hasler of Sam Hasler's Indiana Divorce and Family Law Blog for his comments which drew my attention to the original post. Sam always has a wide variety of interesting posts on his blog.
Sunday, November 2, 2008
Sometimes, it's easier to act like a child than it is to accept adult responsibilities. Sometimes it's more fun to act like a child. Usually, it doesn't help resolve your family law issues. Sometimes we subconsciously continue to act like little kids because it's the way we dealt with conflict in the past. The methods are not always effective, especially when measured against the goal of peacefully resolving marital problems, but they require little or no thinking or planning and they will almost always lead to a reaction.
Here are some things that you should seriously avoid. These are DON'Ts. They make a difficult, stressful situation worse and they may prevent you from meeting your needs. Think back to when you were a kid. Which of these techniques did you use to annoy your sister or brother? How do you think your spouse feels when you do these things to him or her?
1. Hiding toys from someone. One kid hiding toys from a brother or sister is not at all unusual. It may be payback for something else or it could be from jealousy. Things are often hidden and held hostage to encourage some other action by a party in order to get the item back. That behavior happens all the time in divorces.
2. Getting the last word in an argument. Very common with children, especially as pre-teens and teens. Some kids develop that as a habit and they continue to practice it in marriages, which can lead to bad problems. It gets worse in a divorce.
3. Instigate a conflict, then claim to be the victim. We all have seen this happen. A younger child hits an older one who retaliates. The younger one then starts crying and an adult ends up disciplining the older one for picking on the younger one. That technique also works in divorces and can be very irritating to the initial victim who is punished.
4. Insist on taking away something your sibling wants. Sometimes, it doesn't matter what the kids are fighting over. They both claim they want the same thing and it becomes a contest of wills. Ever see that with married or divorcing couples? I have, plenty of times.
5. "I'm hungry/bored." Young children are naturally focused on themselves, their comfort and their needs. As they get older, they start being bored. Adults do the same things as they withdraw from relationships, or avoid a close relationship with a spouse. Being self-absorbed may feel somewhat comfortable, but it makes it hard for an adult to really understand their spouse or other family members. Lacking insight into others or empathy for their feelings makes it hard for adults to maintain good relationships.
6. "You're mean." Young children not only blame others for their problems, but they will make a broad assertion about how bad the other child is. Many adults continue to do that throughout their lives.
7. "That's not fair. " This is a common complaint among children. As children mature, their arguments may grow more sophisticated, but they still come back to the subjective standard of fairness. Obviously, what is clearly fair from the perspective of one person may seem very unfair to another person looking at the same situation, but from a different perspective. Many adults going through a divorce become very frustrated because the process and the results don't seem fair to them. Actually, what often happens is that the situation seems unfair to both parties at the same time, because fair is subjective.
How many of these sound familiar? Most people use most or all of the techniques as kids and some continue the tricks as adults. The results are usually unsatisfactory for adults. Situations are more complex and often more is at stake.
What to do? Here are some ideas.
- At the outset, spend time to think about your goals so that you decide what's important to you. Don't waste time on irrelevant or insignificant things.
- Think before you act or speak. How will your words or actions affect your spouse and how will s/he react? Try to anticipate the consequences.
- Get counseling to help you through the difficult emotional times.
- Talk to your attorney and follow the attorney's advice, even if it's not what you were hoping to hear.
- Try to consider the issues like a business transaction.
- Put yourself in your spouse's position and try to understand how s/he feels.
- Think long term. Consider the future consequences of a course of action. Don't base your decision solely on what is expected to happen immediately. Look at the long term effects of different actions.
Tuesday, October 28, 2008
Recently, I have read articles in various media about a movement to deal with litigation, especially medical malpractice cases, by having the party/parties at fault start off very early on by apologizing to the injured party (or their family) and take responsibility. It is a somewhat risky strategy since the potential defendant is exposing himself/herself/itself to liability by making what we call an "admission against interest". Nevertheless, much of the experience with that approach has been very favorable to both sides in such matters. It reduces anger, frustration and litigation. It may also result in parties being satisfied with smaller settlements. There is often a much faster resolution of the issues.
Christine Bauer, who writes the Florida Divorce & Family Law Blog, had an interesting post today about the value, and she would say necessity, of an apology in a divorce case. She wrote about golfer Greg Norman's divorce and how the lack of apology has probably made things worse. Here's what she had to say, including a link to an Australian newspaper.
"There are many reasons for divorce, and sometimes the blame for the divorce falls more on one party than the other. I've said in other blogs that there are two 'divorces' when a party legally terminates their marriage, the legal divorce and the emotional divorce. The legal divorce is sometimes the easier part. I've always thought that in order to get through the emotional divorce you have to accept accountability for your actions, and apologize when you have been the person who has committed some wrong doing. It is the only way that you and your ex-spouse can move on. I know that this is easier said than done, but accepting accountability and apologizing can help you let go of your own anger and help you heal. I hope that the Normans can do that, because it appears there are still some bitter feelings.
"To read the latest about Greg Norman, his affair with Chris Evert and his divorce, see:http://news.theage.com.au/national/norman-never-apologised-about-evert-20081027-59q4.html. "
As you may know, divorces are often very emotional experiences. It is also true that while generally both parties are at fault for the breakup of the marriage, often only one of the parties recognizes his or her underlying mistakes that lead to the breakup. In many ways, it would probably be beneficial to the emotional health of the parties, and the bottom line financially, if one or both of the parties could and would apologize for at least some of the wrongs inflicted on the other party during the marriage.
Caution: Look before you leap. Before making such an apology, please talk with your lawyer. You might also want to talk to a counselor to figure out the best way to make the apology. Be aware that your heart-felt apology could trigger a bad reaction in your spouse. I wouldn't recommend it for every case, but an appropriate apology could be a huge benefit to everyone involved. I have had a number of cases where it would have undoubtedly helped end the divorce sooner, result in a better settlement for both sides and save everyone a lot of money. YMMV
Sunday, October 19, 2008
Mediation is one of the best ways to settle divorces or other family law issues, assuming that Collaborative Law is not utilized. With significant effort by both sides, mediation is very successful, resolving around 90% of the cases, at least in my experience. Even those that don't settle at mediation become more likely to eventually settle short of trial.
Mediation can be very emotionally draining and often leaves the parties exhausted, but generally pleased to have the matter resolved. After all the time and energy has gone into preparing for mediation and then working through the negotiations, the post-agreement steps are not really discussed much. So, what goes on after mediation?
- The parties normally leave the mediation site with a written and signed mediation agreement that spells everything out in great detail, although not in formal language. The first step, post mediation, is to have the formal agreement/court order drawn up. The attorneys will make sure that appropriate language is included to make the agreement clear and enforceable.
- The agreement/order is then reviewed by the parties and their attorneys. Once everyone approves the language, they sign it. The signed agreement/order is then submitted to the court. Sometimes, the order can be signed by a judge without a formal prove-up; other times, at least one party and his/her attorney will have to appear in court and have a brief prove-up hearing.
- Some additional paperwork often must be filed with the court to comply with local and state rules. Vital statistics forms are used and sometimes a child support form will be required.
- There may also be some brief, related court orders, such as a wage assignment, a medical support order or a qualified domestic relations order (also known as a QDRO), which may need to be signed by the judge. The wage assignment sets up a mechanism to automatically withhold funds from a parent's paycheck and then send the funds to the other parent. The medical support order similarly provides for payment for medical expenses and insurance provisions. The QDRO divides a retirement plan so that whenever payments are paid out from a plan, they are automatically divided between the two parties.
- There may be some real estate documents, possibly including a deed, deed of trust and a note for payment of a share of the equity. There can be assignments of mineral interests, utility deposits and other interests. Utility services may need to transferred.
- Car titles may need to be signed, or a power of attorney, limited to transferring a car title, may be used.
- Additionally, the parties will need to change their health, home, life and auto insurance.
- Sometimes, the parties will still need to separate their credit cards, although that is often done during a divorce.
- Parties also need to revise their wills and plan executors and beneficiaries.
- Furniture and belongings may still need to be separated and a specific date and time should be set to do that.
- The family photos and videos may need to be copied, scanned or otherwise divided between the parties.
As you can see, there's a lot that goes on before the fat lady sings. After the main court order is completed, the work is not too difficult. There's just a lot of loose ends to take care of. Hopefully, the list above will help you think about what needs to be done in your case after mediation.
Tuesday, October 14, 2008
From yesterday's Maryland Divorce Legal Crier, by James J. Gross:
‘This is worse than a divorce. I’ve lost half my money and I still have a wife.’
[Don't worry, women can use the joke also.]
James is always a great source for interesting and often amusing comments.
Monday, October 13, 2008
A Gentle Reminder: As of today, there is barely enough time to finish a divorce here in Texas before the end of the year. Because of the 60-day waiting period required by Texas law, a divorce filed after October 31 cannot be finished by the end of the year. If you are in a divorce that is already pending, you can determine whether the 60-day waiting period will be a problem.
Some people want to wrap up their divorces at the end of the year, or just after the first of the new year. If there may be tax considerations in your case, you should talk with your CPA or a tax attorney to advise you about your best course of action.
Naturally, given that it takes two to tango (and file tax returns), this is not necessarily a decision that just one party to a divorce gets to make. Timing for tax purposes affects both parties, so there must be a meeting of the minds or a court ruling. Taxes sometimes can be a major issue in a divorce, so be prepared to address the issue. You need to think about your situation and, with professional help, decide how you want to proceed. If you are going to mediation, be prepared to discuss the tax aspects of any settlement.
This may seem like just one more thing to deal with, but it can really affect the bottom line of any settlement, so plan ahead!
Friday, October 10, 2008
Charles Jamieson, a Palm Beach, Florida attorney recently pointed out a subtle trend with families in an excellent post about the role of health insurance in family life. He wrote the following in his Palm Beach County Family Law Blog:
"Getting married for money or for wealth dates back to genesis or even earlier. Divorce attorneys and most other people are aware of this dynamic and probably know people who have married for this reason. However, getting married for health insurance coverage is not so well known. This lesser known behavior should not be surprising, given the difficulty people have in today's society finding and affording reasonably priced health insurance. Consequently, for some modern couples, the words: 'In Sickness or in Health' have taken on an actuarial meaning. These couples may not be marrying for 'richer or for poorer'. Instead, they may be getting married for affordable co-pays and deductibles. These couples weigh any marital doubts that they may have against the medical needs that they do have. For the same reasons, a spouse may prolong an unhappy marriage so that they can maintain affordable health insurance coverage. With either scenario, the psychological pressures can be immense. A recent article in The New York Times profiled a number of couples, who have dealt with the motivation of obtaining health insurance in terms of becoming married or divorced. To review this article, please click here."
Charles points out how economic and/or medical conditions can directly affect one's marital status, both encouraging some to marry and encouraging some to stay married. With medical expenses being one of the leading contributors to price increases, the situation is likely to become more common.
Another way to deal with the situation is to use a prenuptial or post-nuptial agreement. Those agreements can be used for estate planning purposes as well as controlling the impact of debt and medical expenses. Parties can technically remain married, which can keep insurance in effect, but have all of their assets and debts divided by a binding agreement. Likewise, an older couple might marry to maximize some retirement or insurance benefits, but operate under a prenuptial or post-nuptial agreement for tax or family (keeping peace with their children) reasons.
Sometimes attorneys are able to help people come up with creative solutions for emotional and financial difficulties. The best advice: Look (go see an attorney) before you leap. Find an attorney with the experience, expertise and willingness to be creative. Solutions are available if you look in the right places.
Friday, October 3, 2008
Most family law cases are resolved through negotiations. Sometimes people use Collaborative Law. Sometimes they go to mediation. Sometimes they engage in informal negotiations. In a few cases, and for various reasons, sometimes they let a judge decide an issue or two, or sometimes they just go to trial.
Over the years, I have heard over and over that everyone should be unhappy after a court makes a decision. I have heard that as an argument to get the parties to reach an agreement in a divorce or family law case. I have even heard mediators say that they have done a good job if both parties are unhappy with the agreement. Does that mean that they have done a bad job if the parties like the agreement? Are our expectations so low, or is the argument just a way to get reluctant parties to accept a decision or agreement that they don't really like? I believe that negotiations can result in happiness by both sides. One process that is truly focused on successful negotiations is Collaborative Law. You can read more about it in this blog or in my Texas Collaborative Law Blog.
Aside from utilizing the Collaborative process, here are some ways people can act to improve their level of satisfaction with negotiations (or even trial outcomes).
1. Adjust your expectations. Most attorneys want their clients to be realistic about the possible outcomes. Very few attorneys (especially good ones) will encourage their clients to assume that everything will work out well or that they will get everything they want. Experienced attorneys are able to give realistic ideas to clients about what to expect, what the law allows and what the results often have been in similar situations. Clients sometimes don't want to face the possibility of an unpleasant outcome, but they may be facing bad facts, an unfavorable legal position or a hostile judge or jury. Clients often need to not be overly optimistic. Lowering expectations makes it easier to meet or exceed them, which means the client is often very happy.
2. Try a different process. If you are unsuccessful in reaching a satisfactory agreement in direct negotiations with your spouse/opponent, maybe you should change the environment and take a different approach. You can always go to court, but I prefer to use mediation in most cases. Somehow the use of a trained, neutral third party mediator raises the chances of success. Often the mediator ends up having more credibility than the attorney for either party; being known as neutral and with special experience and expertise, the mediator can often move mountains. If mediation doesn't work, the parties can try arbitration or trial. Of course, my all-time favorite is Collaborative Law, although you can't easily jump in or out of the process. Collaborative is a good starting point because it can leave open the other alternatives.
3. Focus on the future. Playing the blame game is really counterproductive. Sometimes it is important to figure out what went wrong, but most of the time it generates hard feelings, leads to more arguments and wastes time. In contrast, if the negotiations focus on how to achieve the goals for each party and just look to the future, the discussions can move much more quickly and be more successful.
4. Distract yourself. One of the "cures" for a crying infant is to distract the child by various means, such as a new activity or motion, new sounds, placing the child in a new environment, etc. You can do the same thing for yourself. If you figure out that you are in a funk because you are having difficulty dealing with a case or some issues, you can lead yourself out of the funk by such things as physical activity, pleasant music or background sounds or moving yourself into a different environment. It takes some self-awareness, but anyone can do it, if they want to.
5. Get more information. Sometimes getting additional information about a subject under discussion will lead to a decision. Instead of spending hours arguing about the value of a house, it may be more rational to get a new appraisal or run comps. Sometimes it helps to know the rules of a program or an investment service. You may be mistaken in some assumptions you have made, and getting information may help you correct your thoughts or approach so that you can see an appropriate solution or so that you can realize that you have already done well.
6. Forgive. Being able to be a mature adult and to offer forgiveness sure positions you to be successful. People can really get bogged down with hatred, anger and reliving the past. Let go and you can focus on your goals for the future. Get rid of the negative emotions and you can operate at a higher level. Everyone makes mistakes and everyone makes bad mistakes sometimes. We all have done things that caused hurt to our loved ones. If you have received the hurt, you can let go of the painful incident if you just forgive the other party. Forgiveness frees both parties to succeed.
7. Choose to be happy. Some people have a hard time accepting that they can choose their mood, but it is true in many cases. Mental or emotional illnesses may prevent a person from being able to exercise that much control, but the more common situation is that people have the ability to choose to be happy. Making a conscious effort can lead to a very pleasant mood.
It is important to ignore the nay sayers who will whisper negative comments that will upset you and make you unhappy. There are many well-intentioned people who cross your path and will be influencing you and your attitude. You can take charge of your own attitude by following the suggestions above.
Wednesday, October 1, 2008
One of the factors in selecting an attorney to hire in a family law case is location. Here in Tarrant County, Texas, more people are living in downtown Fort Worth and they may want to hire a lawyer with a downtown office for convenience. At the same time, many who work in downtown Fort Worth find it convenient to have a lawyer whose office is also downtown.
Actually, as I have posted previously here, there are a number of factors which should be considered in choosing a divorce or family law lawyer. Location may be a factor, but I would suggest that you take a broader view and consider the following factors which were discussed in the previous post:
1. Start with the end in mind.
2. Perhaps the single best source of information is recommendations from your friends.
3. Look at the experience of the attorney.
4. Find someone who specializes in family law if you have a family law issue.
5. Pay attention to the approach the attorney recommends.
6. Consider the chemistry.
7. Discuss attorney's fees.
Choosing a divorce lawyer or an attorney for other family law matters is a very important decision. I would rate chemistry, experience and communication as the highest considerations, but recommendations and convenience are also important. I recommend that you investigate any attorney you are considering and be sure to look at more than one. Check out the attorneys on the Internet. Before getting started, spend some time thinking about what you want to end up with and what budget and source of funding you have to work with. Make your decision after meeting with the prospective candidates and carefully evaluate all the factors. Each person will weight the factors somewhat differently. You should decide based on your own unique situation.
Monday, September 29, 2008
I often have prospective clients call and say that they want an uncontested divorce. Most of the time, that means that both husband and wife have agreed that they want to get divorced. When we ask a few other questions about some of the basics of a divorce (custody, child support, who gets the house, how to divide the retirement assets, etc.), we usually find either that no agreements have been discussed or that there are certain issues where there is definitely conflict.
Many people confuse "uncontested" with "no fault". Those people want to have a simple divorce with as little conflict as possible. They don't want mud slinging. Nevertheless, even relatively friendly people can require a lot of help to get to the point of agreement.
Aside from sometimes needing help to be able to be civil with each other, divorcing couples usually need professional help when there are significant assets and/or liabilities to allocate between the parties. Tax considerations may come in where someone may not expect them. For example, $100,000.00 from a retirement fund may not be worth (net) as much as $100,000.00 in house equity. Likewise, the retirement fund may work out better in the long run for one party if s/he isn't able to take care of, and pay for, the house. There are many considerations to be made in reaching an agreement in a divorce. Sometimes both parties are financially unsophisticated and sometimes just one party is unsophisticated, which puts that party at a disadvantage in negotiations.
1. The Good: True uncontested divorces are cheaper and faster than contested ones, by a longshot. They are also less destructive to family relationships, which is very important when kids are involved. Uncontested divorces can be a great way to get what you want, rather than leave the decision up to a judge who doesn't care about you.
2. The Bad: The parties, or one of them, may agree under duress from the spouse. The result is sometimes an unreasonable deal because of pressure, threats, guilt or a desire to save the marriage by being generous in settlement. Obviously, some of the pressure comes from the spouse or other family members, and sometimes it is self imposed. The problem is that once the deal is done, and the situation changes, the deal can't be undone.
3. The Solution: Not surprisingly, the best step is to get professional help. An attorney may be needed, a financial expert might be beneficial and a counselor may help a party make rational decisions. Unless there are no children involved and there's insignificant property and little or no debt, the parties should get help. When there are significant assets or liabilities, there is enough at stake to at least warrant a consultation, and full representation is advised. Spending a little time and money to protect your financial future is a wise decision. A good attorney will ask questions about the issues and agreements when you come in and will follow that with advice on how to reach a settlement. You can save time, money and grief, even with an attorney involved, but be sure you choose carefully. Make sure the attorney's experience and approach match up with how you want to proceed. It's your choice.
Thanks to Dan Nunnely of Tulsa, Oklahoma who had two thoughtful posts about uncontested divorces in his Oklahoma Family Law Blog.
Friday, September 19, 2008
As William Wilson recently noted in his Indiana Family Law Blog, spouses often spend more time getting ready for a barbecue than they do getting ready for mediation. From my experience, I have to agree. While they are usually cheaper than going to trial, mediations involve a significant financial investment by each side, but the upside is that about 80-90% of the time, around here, a case settles in mediation. (Keep in mind that in baseball, the greatest hitters connect only 3 times out of 10.) In spite of all that potential for success in mediation, there seems to be little preparation in many cases.
What can be done to improve the odds of success or get better settlements? Here are some ideas:
- Clients should really become familiar with how mediation is practiced in their area. In Texas, we most often use the caucus method with the parties being kept in different rooms and the mediator moving back and forth between rooms. We also have attorneys present in virtually every mediation. In many other places, the parties stay in the same room throughout the process and often don't use attorneys. Both ways can be successful, but the parties should know ahead of time about the style they will encounter. Many clients have a lot of anxiety about whether they will be in the same room with their spouse. If they will, they need to be prepared.
- The issues need to be clearly identified and thought out in advance. The attorney should help the party be able to state their positions concisely. Sometimes it helps to have an extensive discussion about goals so the client and attorney both know what their objectives are.
- The attorney needs to make sure that they have all the information they need. That includes updates with current values and balances on financial records, as well as any records regarding the children. Telling the mediator that you can get certain information later, or that you left the records at home, just won't cut it. The information needs to be present, current and organized.
- Make sure the mediator gets the pleadings and any relevant information in advance so that he or she can become somewhat familiar with the facts and issues of the case. That will save valuable time for negotiations while everyone is together.
- It's helpful to prepare charts and summaries to help manage voluminous information. Having a computer and spreadsheets can also be helpful.
- Have copies of documents and paperwork for you, the other side and the mediator. It's sometimes helpful for everyone to be looking at the same records at the same time.
- Think about the best alternative to a negotiated agreement (BATNA). If you can't reach an agreement in mediation, what is the best realistic outcome for you if you go to court? Is it worth taking the risk?
- Think about the worst alternative to a negotiated agreement (WATNA). If you can't reach an agreement in mediation, what is the worst realistic outcome for you? Is it worth taking the risk?
- Spend time in advance to brainstorm possible solutions that you might propose in negotiations.
- Try to anticipate the other party's issues and possible solutions. Plan out how to respond to them. Be prepared to agree to some issues and consider how to try to persuade them to change or trade out on some of the other positions. It often helps to make some concessions to the other side so they can feel like they are winning. Figure out what issues you can fight for and then give in on.
- Keep in mind the many benefits you can get by settling, especially compared to the cost, time and stress involved in going to trial.