Friday, November 28, 2008

Marriage Advice from a Divorce Lawyer?

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

Thanksgiving Survival Guide for Divorced and Separated People

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

Makin' a List, Checkin' it Twice ...

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

Sharing Time with Teenagers

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

Meeting Halfway for Child Visitation Exchanges -- Great Tip!

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:

"Frequently parents of divorce have an agreement, or a court order, to meet at a halfway point for purposes of exchanging their children for visitations. For families following such an arrangement,
MeetWays is a neat website.

" 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? 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!"

I guess this would count as a tech tip. It's a very handy tool that can give an objective anwer to a question often asked about where the parties could meet in the middle. Even if the exact middle is not appropriate, just seeing the map could open up other possibilities for meeting places. The site can also help with finding a place to meet in the middle when there is longer distance travel involved, such as living in different cities or counties. It's a simple idea that's really worthwhile. Give it a try and let me know about your experiences.

California Divorce Blawg -- where the story originated.

Saturday, November 8, 2008

Retirement Planning During a Divorce

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

Do I Need a Business Appraiser? And Just What is a Forensic Accountant?

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

Acting Your Age -- Bad Tricks That Will Lead to Conflict

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.