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.