Saturday, January 26, 2008

Zen Divorce

James J. Gross, who writes the always interesting Maryland Divorce Legal Crier blog, had a post on Zen Divorce. Part of his post was the following:

"As a divorce lawyer, I make a living off the infidelity, desertion and cruelty of others. I have seen people spend hundreds of thousands of dollars fighting over the marital estate. Believe me, I know how hard it is to toil, sacrifice and save for years to build up an estate, only to watch helplessly as it is destroyed almost instantly in a divorce. It is tough to let go of money. Yet that counterintuitive step is the secret of what I call the Zen Divorce.

"In order to have a Zen divorce, you have to think as follows: It is only money. And money does not buy happiness. Would you rather be happy or would you rather be rich? If you would rather be happy, you will have to learn to let go of the money. Walk away from it. Leave your luggage behind. You can always make more money - or re-marry someone rich."

James really explains the situation well. Unfortunately, very few people are mature or emotionally secure enough to be able to walk away, realizing that the money can be replaced. Of course, it is usually not easy. Many divorces result in disproportionate spending on litigation over comparatively small matters because the parties, or even just one of the parties, refuse to stop fighting. Even with a large estate to argue over, the emotional toll to battle may not be worth it.

Unfortunately, it takes two to reach an agreement, even with a Zen approach. While you can control your feelings and decide your strategy, you cannot control your spouse.

I recently finished up a long-running divorce where the other side spent close to $100,000.00 in attorney's fees (vs. $50-60,000.00 for us) to try to get a disproportionate share of an estate worth about $200,000.00. We had two trials, numerous hearings and appeals. She sank further and further into debt, but her anger would not let her agree to settle, even when offered 65% of everything. The judge awarded her 65% and a small amount of attorney's fees.

I would still strongly urge anyone going through a divorce to step back, consider the whole picture and try to be as objective as possible. If you're angry and don't want to settle, please go see a counselor -- not necessarily because you are crazy, but because you are not functioning in a manner that is not in your self-interest. Anger is common in a divorce, but you need to be thinking rationally in order to get the best result for yourself. Get some help!

Even if your spouse is difficult to deal with, try to put the whole case into perspective. Is the decision to fight a sound economic decision? What do you have to gain or lose by fighting? What is the worst possible outcome if you fight? What's the worst possible outcome if you don't fight? Think long-term, not just in the present or immediate future. Sometimes giving the other party what they want even backfires for them. If you're not trying to hold on to something, it becomes less attractive to the other side. And sometimes, they can't manage or benefit from what you give up. That is true even in child custody cases where one parent presses and presses for more time with the children and then can't really take care of them well.

Bottom Line: consider letting go of what you want, in order to get it.

Tuesday, January 22, 2008

10 Tips for Witnesses: Don't Give These Answers!

After recently spending several days in court on various matters involving testimony, I feel like I should share some fairly common statements that should no longer be used in court. I understand that some of these are the way people may talk in a conversation, but they were not uttered in conversations. They were spoken in a formal court hearing which operates under different rules than regular social discourse. The following statements are guaranteed to not impress or convince a judge or jury in court:

1. "I have all the records at home/in my truck/at my office, etc. and I can bring them in." Sorry, but you need them right now and you can't stop court to go get them.

2. "Everybody knows that ______ is true." That's not acceptable proof. 'Everybody' needs to testify.

3. "I got it off the Internet, so I know it's right." Think again!

4. "I can get letters from lots of friends/co-workers/relatives/neighbors saying that." Have you heard of hearsay?

5. "I could have gotten the records/pictures/witnesses, etc. if I had just known that I needed them." You should prepare in advance with your lawyer and follow his or her instructions about what you need to bring.

6. "I have it all on my computer." If your computer's not with you today in court, it does no good.

7. "I can bring in lots of witnesses to prove that." If so, you should have brought them in.

8. "They're all lying about me." Sometimes conspiracies happen, but more often it seems likely to be true if a number of live witnesses come into court and say the same thing.

9. "I may have plead guilty, but I didn't really do what they said I did." Sorry, but you can't argue that for a guilty plea. If you were convicted after a trial, you could say you didn't do it and that the jury was wrong, but that still won't get you anywhere. A conviction is a conviction.

10. "Do I have to answer that?" I love to hear that from an opposing witness. That always grabs my attention. 99.9% of the time, the answer is "Yes". I want to find out what you're scared of.

Bottom line: You lose credibilty and waste time by using these answers. Anyone about to testify in court should talk extensively with the lawyer for your side to prepare for your testimony. Remember, this is more than a simple conversation over coffee. There are rules and formalities imposed by the court system and you must observe them.

Saturday, January 19, 2008

The Increasing Popularity of Post Nuptial Agreements

There has recently been much discussion about post nuptial agreements in three excellent blogs (Sam Hassler's Indiana Divorce & Family Law Blog, the New Jersey Divorce and Family Law blog by Victor Medina and New York Divorce Report by Daniel Clements), as well as The New York Times. The posts and newspaper article all mention how popular and more common post nuptial agreements have become. That seems to be the case here as well.

Post nuptial agreements are contracts between husband and wife dividing up all or part of the assets they own. The agreements are also known as partition agreements. They may be done for estate planning purposes to help manage taxes and to distribute assets according to the wishes of the owners. They may be done to protect a business from personal claims or to protect personal assets from business-related claims or debts. They may also be done to preempt or minimize divorce issues. There are many legitimate purposes for preparing such an agreement. Hopefully, having such an agreement will reduce tension between the husband and wife and clearly define their financial relationship.

Under Texas law, the agreement needs to be in writing and signed by both parties. There needs to be full disclosure of the assets and liabilities. The agreement must have been voluntarily entered into with adequate time for consideration. It is not required, but it is highly advised that both parties have an attorney to review and advise. Someone signing a post nuptial agreement without an attorney is taking an enormous risk. If the agreement is valid, it will not likely be set aside, even if it turns out to be very one-sided or unfair, which seems to be different from the law in Indiana, New Jersey and New York. In Texas, it's "signer beware"!

The safest way, for both parties, is to use the Collaborative Law process to reach an agreement on the terms of a partition or post nuptial agreement. That would address all the legal requirements and would assure that both parties really understood what they were doing and fully participated in the decision-making process. Even if the parties don't agree to use the Collaborative process, they should each have their own attorney so they can complete an agreement that is workable and appropriate for their needs.

Wednesday, January 16, 2008

Will I Have to Pay My Spouse's Attorney's Fees?

This is part of my Frequently Asked Questions series. Many times, I hear this question early in the litigation process. Often one side will threaten to make the more financially secure person pay for the other person's attorney. It's often used to irritate a spouse who controls the funds and who often is used to controling most things in the relationship. Sometimes it's just a matter of economics -- one side has all the money, but both sides need lawyers.

The answer to the question in Texas is usually, "It depends."

Ultimately, all the money comes from the same pot, the community, unless one party has some separate funds (inheritance, gift or possessed prior to marriage, for example). If the only source of money to pay attorney's fees is current income, and there is a disparity of income and/or debts being paid, most courts around here will order some equalizing of attorney's fees. If both parties have adequate income or credit to be able to pay their own attorney, the court may not require the other party to pay for them.

The party receiving payment often does not receive the full amount requested, but Courts usually try to provide a minimum, but adequate, amount. The amount received depends on a number of factors, including the complexity of the case, the resources available, other obligations of the parties and the expected cost of each attorney, among other things.

Attorney's fees are often part of a final judgment, although they may just be considered as part of the division of the property. The Court will usually take into consideration a number of factors, including effort and cooperation by each party, how well or badly the parties behaved, income disparity and available resources, among others.

Since the funds used to pay attorney's fees are usually community funds, the legal reality is that the community is paying the fees, although it may feel different to the paying spouse. Best advice for the spouse controling the money: Be prepared to pay. Best advice to the spouse needing money: Don't count too heavily on the payment because the Judge may not award as much as you need, or even anything at all.

Saturday, January 12, 2008

5 Ways Not to Notify Your Spouse About a Divorce

A few years ago (maybe 25 or 30), Paul Simon had a song called "Fifty Ways to Leave Your Lover". It was kind of a light-hearted look at a serious situation that faces lots of people every year. Certainly, the way the parties split up has a big impact on how a divorce is handled. Will it be respectful and fairly friendly, or will it be mean and spiteful, leading to retaliation and escalating animosity?

Many postings have been written on how you should or can notify your spouse about the impending dissolution. There are many good, respectful, and/or appropriate ways to do so.

Just to be sure that you know what not to do, please note the following list of bad ideas.

1. Clean out the house. Letting your spouse come home to an empty house certainly conveys information about your intentions and your attitude about your spouse. It also guarantees, like the Ground Hog not seeing his shadow, that you will have at least 6 weeks of rough weather.

2. Disappear with the kids. Similar to the above approach, this means of notification tends to destroy the hope of cooperation with your spouse about the kids. Judges may get mad, too.

3. Move out of state. And take the kids and furniture. This works if you really want to escalate the fighting. It also guarantees that attorneys will be financially rewarded for your efforts. There will be major fighting and you will probably be ordered to return.

4. Clean out the bank accounts. This may provide some immediate enjoyment and satisfaction, but usually just slows down the fighting until your spouse finds alternate sources of funds. Courts usually don't like this approach and will often order you to return at least some of the funds. Your spouse will also be pretty ticked off. Having said all of that, it is still important that you have an appropriate share of the community funds, so make sure you have some funds that you alone control.

5. Pick the worst time and place to maximize the embarrassment. Serve your spouse: at work; at a wedding or other family gathering; a happy occasion, like a birthday party; when your spouse is with his or her boss; or when your spouse is with friends. Your spouse is sure to return the favor in some way. Done right, this could cost your spouse his or her job, which would be great fun initially, but which also could cause financial hardship for you as well when important bills are not paid.

There may be important reasons for actually using one or more of the techniques. Your spouse may be hiding. You may need to hide for safety reasons. You may need to control the finances or protect property. Whatever reasons you have, be sure to thoroughly discuss the situation and make a decision with your attorney's help.

You and Paul Simon could probably find 50 creative ways to leave your spouse, but you need to think through the consequences beyond the immediate satisfaction and enjoyment. There might be other ways to split that won't end up costing you so much. You should talk with your lawyer about the best way to notify your spouse. The choice of notice should help, rather than hinder, your efforts to achieve the most important underlying goals in your divorce.

Send me a comment if you care to share some good or bad experiences in notifying a spouse or if you disagree with some of this post.

Wednesday, January 9, 2008

Does Divorce Affect Parenting Ability?

A recent study conducted by a University of Alberta, Canada researcher concludes that divorced parents generally parent about as well after a divorce as they were before the divorce. Most people tend to expect that parenting suffers after a divorce, but that is apparently not always true. There are certainly cases and situations where the stress, conflict and other difficulties of a divorce cause problems for parents, but generally, it seems that parenting behavior is not changed significantly by a divorce. In other words, good parents will still usually be good parents.

The study makes sense from my perspective of over 30 years of divorce work. The problem situations arise when a parent who lacks some skills, experience or confidence in parenting suddenly is on his or her own in caring for children. Parents who weren't very involved before the divorce rarely suddenly become excellent parents. Parents who were inappropriate with children before divorce will probably remain the same. Excellent parents will also very likely continue to be great parents.

Many courts, especially here in Tarrant County, will automatically order the parties to go to parenting classes. That doesn't hurt, but it also may not lead to much improvement if the parents are already doing a pretty good job. It might be time to come up with a way to screen parents and create several different parenting classes that can provide help in specific ways, rather than taking a "one size fits all" approach. A basic parenting skills course, for example, could be of enormous benefit to parents who are not used to the responsibilities of parenting. Of course, until that is done, I will continue to suggest that both parents, in virtually every divorce I handle, go to at least the basic co-parenting class. Our local class is well-taught and the parents and children seem to benefit.

Thanks to Ben Stevens who writes the great South Carolina Family Law Blog which had a post about the study that was previously reported by the Rosen Law Firm of North Carolina and their excellent blog, KramerVs.

Monday, January 7, 2008

How the Judge Divides Assets -- Will We Have to Sell Everything?

This is another in a series of common questions from clients. The answer is "NO".

Many clients ask if the Judge will make them sell everything and then split the money. Sometimes one party will threaten the other with asking the Judge to sell everything. That's usually done to scare or intimidate the other party who may not have been as compliant as the spouse wants. Sometimes it's suggested out of frustration when the other party is stubborn and unreasonable (imagine that happening in a divorce!). Sometimes it is just a bully's threat. Sometimes people have been told by family or friends that it will happen.

Theoretically, the Judge could order things sold, but I have never seen it in over 30 years of divorce work. There are some obvious reasons why it doesn't happen:

1. It's too much trouble. Imagine a giant, comprehensive garage sale or auction. It would be unmanageable. There would be no one to run the sale and make sure it was all done honestly. It would require a lot of people to work the sale. Such a sale would undoubtedly take a long time and would probably delay the divorce.

2. There would be little return for the sale of used things. The cost of replacement would greatly exceed the gain from the sale. There might not be a market for a lot of things, and some things would be "priceless", as they say on the commercial. Some things would probably have a negative value.There could be tax consequences from the sale of some assets and a court is not likely to knowingly set up that problem.

3. In Texas, the Court is required to make a division of property that is "just and right". It is hard to conceive of any judge thinking selling everything would result in a just and right division.

The most common means for dividing property is by agreement. Most cases are settled by agreement. Negotiations occur almost constantly while a case is pending, unless one party literally refuses to discuss settlement or takes an unyielding, extreme position that makes settlement impossible. Probably 90--95% of cases settle before trial. If informal negotiations are unproductive, mediation is a highly effective settlement method that is used all the time. One way or another, the parties usually reach agreement on property agreement.

So don't worry if your spouse threatens to have everything sold. It ain't gonna happen!

Friday, January 4, 2008

How to Interview Your Lawyer

When people realize they need to hire an attorney for a divorce or some other legal matter, they begin to search around to find one. They may know one or get recommendations or research on the Internet. There are lots of sources of information about attorneys. At some point, the prospective client will set up a time for a first meeting with an attorney to decide whether to hire the attorney and to find out if the attorney is willing and able to take the case. The first meeting between attorney and prospective client is very important for both parties who want to size each other up. Gathering records and making a list of questions are very helpful for the meeting, but there are some other steps to prepare that shouldn't be overlooked.

I have just read an excellent post, by Chris Marston on another blog, about the interviewing process. Although the post in Inside the Firm of the Future is technically about lawyers interviewing for employment at a law firm, it sparked some thoughts about how clients might benefit from some of the techniques when they are first meeting with a lawyer. Incidentally, the tips are also very useful for almost anyone looking for a job -- a topic that I know often surfaces during or after a divorce. At any rate, here are my five slightly modified tips, based on Chris Marston's great post.

1. Differentiate Yourself. Some attorneys will take on any case that comes in the door. Others will accept only clients that meet their standards who have interesting cases. It's a good idea to explain to the attorney what unique qualities there are about you and your case, especially if you want or expect special attention. You should not assume that any attorney you visit will automatically accept you as a client.

2. Do your Homework. With the Internet, it's possible to find out a lot about almost any attorney. If you do a search and can't find anything, you might wonder how they have remained out of sight. You can also ask around if you know other attorneys or business people or professionals who might have had dealings with the attorney. Find out what kind of practice the attorney has and what organizations he or she is a member of. Make sure the attorney is experienced and works with the type of matter you have.

3. Get over Yourself. Don't just talk about yourself. You do need to give some background, but be prepared to discuss the overall issues and your goals. Think about what you want and need for the future. Be prepared to discuss everyone and all the issues that may arise in your case. While it's sometimes good to interview several attorneys, be sure to adapt your approach for each one.

4. Interview THEM! While it is important to provide information about your case, it is also important to find out if the attorney is a good fit for you. Believe it or not, every attorney has a different personality and each handles business differently. That means that some attorneys will be able to work with you very comfortably, but others won't. It's really better for everyone if you can be upfront in explaining how much communication and what type of communication you want from your attorney. Do you prefer an associate or assistant or the main attorney to contact you? Do you want periodic calls? Can there be too many letters from the attorney? (Some clients have requested that we cut back on some mailings, even when there's no cost involved.) Find out what the attorney's policies are on these and other issues that will affect you. If you aren't familiar with the legal procedures, ask for clear explanations. Make sure the attorney can speak to you without resorting to legalese. Do you really understand what the attorney is saying? Feel free to ask lots of questions!

5. There is only ONE right answer: Be Yourself. Don't try to impress the attorney or to hide your warts. In family law, we understand about people's imperfections. It is much better to admit to any problems up front so the attorney can help you. Surprises are not good in the legal system. There are often many ways to resolve or work around problems, and often what you think is terrible will be no big deal to the attorney. Many people are their own worst critics, but shouldn't be. Other people have been told by their spouse or other family members over and over how terrible or worthless they are, and they sometimes start to believe it. Don't worry about being embarrassed. Experienced attorneys have seen and heard much worse in all likelihood.

Again, if you are looking for a job, read Chris Marston's original post. If you are looking to hire an attorney, try out these suggestions. Thanks to Michelle Golden at Golden Practices for the tip about Chris' post.

Wednesday, January 2, 2008

New Year's Resolutions: 7 Tips for Being a Better...

Since it is the first of the new year, I will join the chorus with some New Year's Resolutions for divorced or separated parents and others. Following these tips should help you behave better, have better discussions and keep the peace.

The holidays can be a tough time for families, whether together or divided. There are many activities, financial obligations and a feeling that everything should be wonderful, but that things might not work out well. When families are together, there can be problems with conflicting events and expectations from both sides of the family. In a post-divorce situation, the stress tends to be magnified. The same conflicts, plus others, can occur. Usually, families operate under a standardized, somewhat arbitrary schedule for time with the children. Many times, the parents encounter difficulties in juggling school activities, parties, shopping, family gatherings, and travel. We are a little past the immediate danger of some of the worst arguments, but it never hurts to plan ahead.

Here is a list of seven tips to help you be a better ex-spouse/parent/grandparent/or significant other. Hint: you can actually use these any time of the year when you are dealing with family issues.

1. Listen and think before speaking. Listen to your child or the ex-spouse or whoever the discussion is with. Pause and think about what you are going to say and what effect it may have. Try not to react in anger, even when justifiably provoked. Listening demonstrates respect, which doesn't hurt when you are negotiating a personal issue. Think carefully about the words you choose. They can make a huge difference. Labeling someone an idiot or stupid or something worse will make it harder to get a concession from them.

2. Pause and take a deep breath to diffuse anger. You don't have to go on autopilot to engage in a discussion. Doing so will likely lead you into an argument where you and the other party simply fall into a pattern of quick, angry reactions to each other. If you pause, the other party may continue speaking and that may not be bad. Sometimes, as we know, people just want to vent, to get something off their chest. Letting the other party speak may go a long way to resolving the problem.

3. Put yourself in the other person's position. This may be hard to do as an argument starts to heat up, but you can do it if you pause, take a deep breath and think before you speak. With only a small amount of effort, you can probably put yourself in the other person's place and try to understand what he or she wants and why. That effort may enable you to figure out a way to resolve the issue without getting into a huge argument. Play the devil's advocate with yourself. Consider how you would feel if the other person requested what you are wanting. Think through what you are saying and what the consequences may be. Think of the damage you can cause by recklessly pursuing an argument. You may technically be right, but that may not be the best position to take. If you insist on following the letter of the law (the exact wording of the order, for example), that may preclude you from getting a break from the other party later on when you want to do something a little outside the rules.

4. Don't take things personally. That's often a tough one. If you're in a "discussion" with your ex, it's natural to take things personally. One way to help avoid that is to plan ahead, anticipate arguments and be prepared for how an angry response may be delivered by your ex. You don't have to stoop to his or her level. While it may be very satisfying in one sense to get angry and engage in a big argument, in the long run it is harmful. Keep in mind the fact that you will probably continue to have some relationship with the other person for the rest of your life. If you take time to anticipate what may be said, you can avoid a quick, angry response.

5. Try out the other person's suggestion. Sometimes the other party is right and sometimes their ideas are as good as yours, although it may be hard to admit it. For example, if the other parent wants to split the cost of a tutor, maybe you should try it out. Don't just defend your power, authority or turf. Give their suggestion a try. Maybe you'll find that it's not such a bad idea. If you try it and it is a bad idea, it will be harder for your ex to defend the next time such an issues arises. If the idea works, great!

6. Put each situation in context. Think about the big picture. It may be better to concede some small stuff to keep the peace or to encourage your ex to be accomodating for you later on something else. Not all issues are equally important. Exchanging weekends, or changing the pick up or return times a little bit, should not be a big battle. Resist the urge to bring in other issues when the discussion could be about just one small issue.

7. Seek common ground. Be able to compromise. It is rare for one person to always be right or solely have the best ideas. Think about what you and the other party have in common. For example, you may disagree about which after-school activities a child should be in, but you may be able to work to an agreement by remembering (and discussing) what goals you both have for the child. If you start from a broader policy or value statement, such as encouraging music education because studies show it can lead to higher IQs, then you can change the focus to finding the best program available under the time and financial limitations that may exist. Starting from, or going to, common ground can help the parties find answers they can both live with.

It is true that it may not be entirely satisfying to be a peacemaker. The adrenaline rush from a fierce argument can be wonderful, especially if you skillfully tear the other person apart with your clever words. In the long run, however, the damage done may cause major problems that seriously outweigh the enjoyment of winning an argument. These are just a few of the actions you can use to help you avoid getting into destructive arguments and help you become a better parent, ex-spouse, etc. ...