Monday, December 28, 2009

Staying Ahead of the Curve: 12 Proactive Steps To Take If You Are Contemplating Divorce

I always recommend reading Sam Hasler's Indiana Divorce and Family Law Blog. He is a good source for staying current on family law issues because he writes insightful and interesting posts and also comments on posts he reads on other blogs. He recently wrote about a post he read in the Minnesota Divorce and Family Law Blog that is really appropriate for this time of year. At the same time that many people are making their New Year Resolutions, many other people are deciding to initiate divorce action. I often see a rise in divorce filings in January and February. People get through the holidays and then decide it's time to end their marriage.

For those who find themselves about to start on a divorce, the Minnesota blog has a great post with suggestions on how to prepare. The situations that Jason Brown mentions in his post occur all the time in Tarrant County divorces, and the need to plan ahead seems universal. Here's Jason's excellent article.

"Once you break the news of your desire to dissolve your marriage, interesting things may start happening at your house. Critical records and valuable items of personal property may suddenly vanish. It pays to be proactive to ensure that you have all the information you will need to move forward as efficiently as possible.

"The wasted time and cost associated with hunting down missing documentation can be staggering. We've handled cases where everything from an expensive diamond ring to boxes of business records have taken a bit a 'vacation.' We almost always find them, but not without substantial effort. In cases where they are not found, the Court will impose substantial sanctions and assume the missing evidence is favorable to you.

"To help avoid the mess, we've assembled a list of 12 things you should gather to ensure that you have all of critical information in hand before your spouse has a chance to conceal, transfer or sell items. These include obtaining:

"Copies of financial statements;
Copies of tax returns;
Copies of computer hard drives;
Copies of insurance policies;
Copies of wills and/or trusts;
Inventory of safety deposit boxes, with a witness;
Copies of deeds and/or titles to real property;
Copies of small business ledgers, financial journals, payroll, sales tax returns and expense account records;
Copies of appraisals for art, antiques, jewelry and collectibles;
Record the contents of each room in your home through video;
Copies of retirement account statements; and
Copies of your spouse's pay stubs for the last few months.

"Investing some time in gathering these items will ensure that your spouse cannot take advantage of you during the divorce process. The denial of the existence of an asset is a fraud upon the Court. Once your spouse knows that we have all of the key information in hand, they are far less likely to engage in bad faith conduct and [more likely to] be honest in their disclosures throughout the process."

I can't exaggerate the importance of taking time in advance and copying or gathering all these records. Much of your likelihood of success depends on the information you have. What you believe the facts to be is not nearly as important as what facts you can prove. Having these records will greatly improve your chances of proving the facts to your judge or convincing everyone in negotiations that you are correct and are prepared to try the case, if settlement fails. And that's the best position to be in.

Saturday, December 12, 2009

7 Ways to Wreck Your Kids' Holidays

Even with the bad economy, there's plenty to celebrate and enjoy this time of the year. But sometimes people are just miserable because of holiday stress and family issues. If you have children, this can be a great time of the year. If you have children and are divorced, this might still be a great time or it can be really difficult.

While you can (if you take responsibility and try) control your own feelings and attitudes, many people don't do it and let themselves get swept up in various holiday dramas. We can't control what an ex-spouse feels, says or does, and that sometimes leads to problems at this time of the year. On top of that, there's a natural feeling of disappointment when you can't be with your kids at certain times during the holidays.

Parents have
a variety of attitudes about sharing or not sharing their kids, particularly around holidays. Their attitudes range from very considerate to insensitive to indifferent to the concerns of others, and even to being antagonistic toward others. Some people seem to thrive on conflict. Other people want to avoid conflict. If you're one of those who wants to avoid wrecking the holiday season, here are some quick tips on what you should avoid so you don't ruin it for yourself, your kids and other family members and friends.

What Not to Do:
  • Make last-minute changes in your plans. You can create more havoc and hard feelings if you try to change the arrangements after everyone else has their plans made and travel schedule booked. Ignoring the other parent's plans will certainly create a great opportunity for conflicting plans. Trying to be cooperative well in advance of the holidays is the best way to deal with planning.
  • Be inflexible if the other parent requests a change in the schedule. Things do come up that require new plans. Some parents insist on following the court's order without variation, when the other parent is asking for a favor. Such parents later inevitably have situations arise later that necessitate a change in the schedule. If they haven't been kind to their ex-spouse, they may not be able to convince that ex-spouse when the shoe's on the other foot.
  • Be inflexible and demanding if you request a change in plans. If you are working under a court-ordered schedule, you can change it by agreement or by going to court and convincing a judge. Which do you think is quicker and cheaper? If you think that you can always have your way on visitation issues, you will quickly learn otherwise.
  • Argue in front of the kids about the plans. Mature parents understand the need to keep kids out of adult issues. Arguing and negotiating a holiday schedule should not be done in front of the kids.
  • Short-change the kids, but blame the other parent. If you choose to not let the kids have or do a certain thing, such as attend a family party, don't blame your ex-spouse. If you are convinced that the decision is the right thing, then notify the kids in an age-appropriate way and don't criticize the other parent.
  • Criticize the other parent and the other side of the family. There are many times when a parent is very tempted to make fun of, or put down, the ex-spouse and his or her family. Some people even claim that such criticism is acceptable because it is "the truth". It's not necessary to investigate the truthfulness of the statements, because that's not the real issue. Even "truth" can be hurtful. The concern is that such critical statements are damaging to the children because they realize that they come half from each parent. They likely will take that criticism personally.
  • Compete against the former spouse for the love and affection of the kids. Don't try to provide the best gifts, the best parties or best trips. Children have plenty of love to share and there's just no need to wage a battle over the children.
What to do

Some people are interested in avoiding the drama and conflict during the holidays. If you are one of those, here's some things you can do to improve your chances of having a happy holiday season.
  • Keep a good relationship all throughout the year with your ex-spouse. You may have to hold your tongue occasionally, but the kids will respect you for it and you will have a better chance of getting any needed schedule adjustments or favors that you request.
  • Be flexible and be willing to compromise. There are two sides to everything. Keep in mind that you can accomplish more through cooperation than through battle. And your kids will appreciate a reasonable and realistic relationship between their parents.
  • Demonstrate mature behavior for kids. This will help your children learn to deal with adversity and it will help earn their respect.
  • Listen and think before you speak out. Don't just blurt out an emotional response in discussions with your ex-spouse. Take a deep breath, listen to what your ex is saying and then think through your response before you answer. It will help avoid a lot of hurt feelings.
Happy Holidays!

Monday, December 7, 2009

Be Careful What You Say, Text and Write!

At the risk of bringing up a subject that many people are already tired of, the recent highly-publicized woes of a famous golfer clearly illustrate some of the issues I have written about before. As most people who have been paying attention are aware, Tiger Woods' predicament revolves around extra-marital relationships that appear to have been substantiated by his own texting and voice mails.

We will probably see and hear more in the coming weeks and months, but there has already been quite a bit of publicity about some text messages and voice mail. It's hard for Tiger to deny what's spoken, not just in his own words, but by his own mouth. When voice mails are saved, they can become evidence in court or in court cases.
And the texting seems to add further proof.

Tiger's image and reputation are taking quite a hit and it looks like the controversy will end up costing him some of his endorsement income. There's a lot of money that is at stake.

I have previously written (here and here) about how emails, texts and voice mail can be and are used in court. It's powerful evidence.

The lesson is clear. Always remember that anything you write or say or do may be recorded and then presented in court. Make sure that you say and do appropriate things that you would not mind showing up in court or in the public media. Think before you speak or write.

Even if you are not Tiger Woods, there will always be people who will use your words and images against you, if you give them the opportunity. It's your decision. Think before you speak, write or act.

Wednesday, December 2, 2009

Five Quick Lessons from Tiger's Crash

It is pretty hard to ignore the firestorm surrounding Tiger Woods, and I won't, but maybe we can all take some positives from his situation. Here are some lessons that we can all try to remember and apply if we ever get into a family crisis. I'm not here to defend one side or the other, or to determine exactly what the facts were. Instead, I suggest that we use this as an opportunity to learn and to think about how we might act if faced with any crisis.

Lesson 1: If you realize you are involved in a seriously escalating argument, leaving is often the best strategy. Let both sides cool off. Avoid physical contact or threats. Let a little time pass before you re-contact the person. If you leave, drive carefully.

Lesson 2:
Apologies may help. A sincere acknowledgement of fault and request for forgiveness may help avoid escalation. It's not a free pass, but it can help minimize the damage.

Lesson 3:
Practice forgiveness. If you think you are the victim, at some point you have to decide whether to wipe out a relationship or salvage it. You should think carefully about it. If you see reasons to continue a relationship, then you may need to be forgiving. That doesn't mean there are no consequences for bad behavior. It just means that there are limits to the consequences.

Lesson 4: Remember there are always at least two sides to every story and every argument. It's very rare that all the fault lies on one side of the issue. Be ready to accept some responsibility. It helps to try to put yourself in the other person's shoes for a while to try to understand their point of view.

Lesson 5: Think carefully before you start telling the world, or the local police or press about what is going on in your personal life. Even a dull story may become prominent on a slow news day. Think before you speak. No matter how bad the other person has been, you may gain more by keeping control over the dissemination of news. If it is a serious situation, it would be a good time to consult with an experienced lawyer for evaluation and advice. Don't try to do everything on your own. With all the new media outlets, news can spread unbelievably fast. Get some advice before you go public.

People in difficult relationships probably spent a lot of time thinking how they would react if they had been in a situation similar to the one faced by Tiger and his wife. If you might get caught up in something like that, it would be a good idea to try to think ahead to the various consequences of your behavior and to consider your options. Better safe than sorry!

Thursday, November 5, 2009

If You Want to Settle Right Away...

In about half my cases, my client is anxious to get the divorce over with as soon as possible. That may be true because of a new significant other, a desire for a fresh start, being tired of his/her spouse, or countless other reasons. Sometimes, a party to a divorce becomes so anxious to finish the divorce that they will concede almost everything. Even with that attitude, sometimes it's hard to move quickly to a conclusion. Many times, though, a party wants the divorce to be completed right away, but remains unrealistic about how to reach an agreement.

A recent post in the Alaska Divorce Blog discussed this situation and recounted some advice from a judge at a settlement conference. That advice is worth considering, so I am reproducing most of that post:

"• In order to reach a settlement in any type of dispute, each party must be willing to make concessions. To make concession means each party must be willing to give up something in order to attain something.

"• It is unreasonable to expect a party to settle for a property division, which represents their worst outcome at trial. It is unreasonable for a party to receive what represents their best outcome at trial.

"• If a case is not settled, then each party gives up all control over the outcome to the judge (a third party) who does not know either party and may view what is important in the case in way, which neither party anticipates.

"• If a case is not settled, then each party gives up the opportunity to get divorce immediately and faces what could be months of delay until the trial date and many more months until the judge finally has time to make a decision.

"The point the judge was trying to make is that to settle a case both sides have to be willing to give up something in exchange for getting something. In addition, even though the parties in a divorce case are dividing one 'pie', frequently, there are other issues involved than how much of the pie each of them will receive in the property division."

Lawyers try to get the best deal they can for their clients, but the clients must seriously prepare for negotiations by analyzing their own bargaining positions and the motivations of their spouse. It really helps if both parties can take their emotions out of the discussions and approach the sessions as a business deal. They have to be willing to concede some issues to the other side. There needs to be a spirit of give and take. Both parties ideally will come out feeling they each won on at least some points. As the judge indicated, a settlement is not likely where a party ends up with the worst possible outcome they might have experienced if they had gone to court.

Remember, both parties will be thinking, "What's in it for me?" Successful negotiators have a good answer for that question.

Tuesday, October 20, 2009

Tips for Saving Attorney's Fees

Peggy Roston, who writes the Alaska Divorce Blog, recently had a brief post with some excellent common sense ways to cut down on attorney's fees. Most people going through a divorce or other family law issue are interested in conserving their funds and not over-spending for the attorneys. Here are Peggy's ideas:

"Divorce litigation is extremely expensive. Your attorney will charge you for the time he or she spends writing and responding to letters, emails, and motions. Some of the time your attorney has to spend on your case is unavoidable. But there are a few things that you can do to help your attorney handle your case in a cost-effective manner.

"• Communicate by e-mail rather than by telephone. Telephone calls tend to be more expensive because of the pleasantries exchanged before you and your attorney get down to business.

"• Keep your e-mails short and to the point. Your attorney may receive hundreds e-mails a day. If you keep your emails short and to the point, your attorney can respond quickly to the issue you have raised without having to wade through a lengthy email.

"• Organize your financial documents before you give them to your attorney. Parties in a divorce case must exchange tax returns, credit card statements, brokerage statements, bank statements, and personal property lists. Respond promptly to your attorney’s request for financial information. If you have personal or work time-constraints, I suggest you call your attorney to ask for a referral to a financial professional who can help you out. Having organized financial documents can save you hundreds or possibly thousands of dollars in attorney’s fees or paralegal fees and can keep your case moving forward."

In general, clients can save money by controlling their urge to call up their attorney to discuss every issue that comes up. It also helps to save money when clients take on as much of the preparation as they are competent to do. Gathering and organizing records is vitally important and can result in a signifcant saving of money.

Has anyone else come up with good ideas on how to save attorney's fees? Please send your comments with suggestions.

Friday, October 9, 2009

Responding to Provocation

I have just run across a new (for me, at least) blog called the Fresh Start After Divorce Blog, run by the National Association of Divorce for Women and Children, which had some really good, practical advice and inspiration for dealing with the transition from marriage to single person. Ellen Kellner wrote a recent post entitled "How NOT to React to Your Ex!" which I reprinted below. Her advice can work equally well for men or women.

"What is the cinching element to The Pro-Child Way? Mindfulness. It’s that moment where you stop reacting to your ex and let the stillness guide your heart. It’s the breath in, before you say something spiteful about your ex in front of your child. It’s the glance downward towards your child, before your eyes start rolling up in aggravation. Mindfulness is an opportunity – an opportunity that opens your awareness to choice.

"Mindfulness leads to the other way: the Pro-Child Way. Whereas another divorced-parenting path may have been previously obscured, mindfulness opens your eyes to other possibilities. Your challenge is to be aware that this other path exists and then recognize the opportunity before you pass right by it. Why bother? Because you have a child who needs to be considered.

"Thankfully, when it comes to divorce, we get many, many opportunities to practice mindfulness. If you’re lucky, your ex may be a jerk several times before noon – all lovely opportunities for mindfulness practice!

"After the first 'ex' incident, when you react with full divorced passion, do you find a moment when you think, 'hmmm, maybe I shouldn’t have said that.' If you do, grasp that moment: this is the call of mindfulness. Reaffirm that inkling, by saying, 'yes, I should have stopped before saying that.' And then move on, this isn’t about guilt trips!

"How much practice is it going to take to shorten the time between your ex’s provocation, and your realization that maybe you shouldn’t blurt out what’s on your mind? If you can come to that conclusion in an hour after the crime, why not in 10 minutes, or in 5 seconds? When you catch yourself reacting BEFORE you do it, not only will the angels sing, but also your ex’s mouth may drop. That’s when you can smile. That’s when you’re recognizing an opportunity for mindfulness.
So what’s next? Your ex just said something and you’re standing there smiling. Clearly, someone’s gotta do something next. This is the real beauty… you can choose! The possibilities are fun. In the flash of your smile your wonderful brain can create a zillion responses. As it discards the ones that will land you in jail, the more caring responses rise to the top. Slightly problematic are the times when the nurturing response is elusive. It happens. Here are two good standbys to have in your 'do' list:

"Do keep smiling, turn, and walk away from your ex.

"When you become better at multi-tasking, add vocal to the smile/turn/walk routine. Do sound 'hmmmm' then smile/turn/walk away.

"In your mindfulness, it’s much better to choose to say nothing than to react with an under-processed thought. It really doesn’t matter if your ex thinks you’ve lost it. It isn’t your ex’s opinion that matters anymore. Your child will benefit from your practice of mindfulness, and you will too. It’s from this point that you can start your journey down The Pro-Child Way."

A special thanks to my friend Sam Hasler of Sam Hasler's Indiana Divorce & Family Law Blog for the tip to read this blog. I agree with him that it is worth watching. I can recommend it to both women and men, despite the title. It won't help some people, but I can imagine a lot of men and women will feel better and more hopeful after reading some posts.

Friday, October 2, 2009

Top 10 Reasons a Premarital Agreement May be Invalid

A topic that comes up periodically is prenuptial agreements. Sometimes people plan ahead, think through the issues and come up with appropriate agreements that actually benefit both parties, or at least don't take advantage of one of the parties. As helpful as they can be, most often we hear about them when a couple is splitting up and there will be a huge fight unless the prenuptial agreement is valid.

Stephen Worrall, who writes one of my favorite blogs, the Georgia Family Law Blog, had a recent post about that issue.

"FindLaw has a list of 10 reasons which may cause a prenuptial agreement to fail. For more details, check out the original post, but this is a list of those reasons:

  • No written agreement.
  • Not properly executed.
  • You were pressured.
  • You didn't read it.
  • No time for consideration.
  • Invalid provisions.
  • False information.
  • Incomplete information.
  • No independent counsel.
  • Unconscionability. "

If you are wanting to end up with an enforceable prenuptial agreement, make sure that the 10 problems are avoided. Taking shortcuts and rushing through the preparation and signing of the agreement will almost guarantee that it will be unenforceable. Clearly, this is something that you need a lawyer to work with you and another lawyer for your soon-to-be spouse. If you invest the time and money up front, you should save a lot more at the end, if there is one.

Monday, September 28, 2009

To Be or Not To Be (Divorced)

Every once in a while, someone decides to file for divorce after a long separation and discovers a big surprise. Shannon Cavers, who writes the always-interesting Houston Divorce & Family Law Blog, had a post about the situation last Spring. In her post, Shannon mentioned a couple who had been separated for 22 years. During that time, the wife bought a house. Because the marriage had not been legally ended by divorce, the house was technically a community property asset which would be divided by the court. The wife evidently thought it was unfair that she had to share some of her house equity with the husband she had not lived with for 22 years.

In California, and perhaps other states, the values of the community estate are set at the time of separation, but that's not the case in Texas. Here in Texas, the community estate can change right up to the date that a settlement agreement is signed or the court announces its decision.

I have seen separations of 2 or 5 or 10 or more years. In each case, there are issues of potential or perceived unfairness if the court just divides everything in existence at the time of the divorce, regardless of whether the items were acquired before or after separation. In those situations, the house and retirement accounts are usually the biggest assets, but there may be investments that have grown in value or someone could have won the Lottery. The community debt situation may have drastically changed, either increasing or decreasing. If your spouse runs up a lot of credit card debt between separation and the date of divorce, you may get stuck for some it.

What can be done to avoid an unhappy result? Here are a few ideas.

  • File for divorce when you separate. That's pretty obvious, but some people don't want to divorce for various reasons. Some people will stay married legally so that their spouse can keep insurance coverage. There may be other religious or moral or legal reasons to stay married.

  • Sign a partition agreement. The parties can divide their assets and liabilities and cover future assets, just like a pre-nuptial agreement sometimes does. A verbal agreement won't work and writing an informal agreement between the parties probably won't stand up, either. A properly drawn partition agreement will protect both parties, but they each need to have attorneys to advise and assist them.

  • Reach an agreement and rely on the honesty and dependability of your spouse. That's usually a bad idea.

My suggestion: Unless there's a need to keep the facade of a marriage, you should go ahead and get divorced. Both parties stand to lose if they just wait around.

Saturday, September 19, 2009

A Recipe for Happiness?

My premise is that, for many legitimate reasons, people going through divorces or dealing with other family law issues frequently are unhappy, stressed out and isolated. (How's that for a break through?) "Normal" may not be the technically correct term, but based on my experience in the field, I would say that it is normal for a litigant to be unhappy during a divorce or family law situation. That is true, from what I have seen, even in a Collaborative case, although usually to a much lesser degree. I feel sure that readers who have not been participants in a family law legal dispute have known or seen friends or family members going through the process and have observed the same unhappy state.

The traditional suggestions that lawyers make are either to "tough it out" or to get counseling. Some people refuse to get counseling because they don't want it on their medical records and don't want to be stigmatized as being crazy. That's somewhat understandable, but I have seen many cases where everyone (the judge, both attorneys, the other party and the kids, if there are any) would have been better off if one or both parties had gotten professional help. But, we generally can't force someone to get help. For the people who choose to get counseling, it can be a god send. But, it can be expensive and time consuming. There are lots of reasons/excuses for not following through with counseling.

So here's a thought coming out of left field. Try becoming active in the social media. There's no guarantee that this will work, but I read an interesting article by Warren Sukemek about happiness and social media and I think it's worth a try. He didn't write about it in the context of litigation, but this seems logical to me. Set up pages with Facebook and Twitter (or other social media sites) if you haven't already. It's very easy to sign up with both. Become a "friend" with an ever-widening circle and "follow" a large group of interesting people. The connections or re-connections you make may help you feel happier. If you're not sure what Facebook and Twitter are, do a Google search on the terms and read up. Then join. I am not a techie and I found it very easy. You can, too.

A word of caution: Think before you write. Your spouse/other litigant and his/her attorney may be able to see your comments. If you join and participate in social networks, what you write and what pictures you post will be in public view. Be careful that you don't say or do something you might regret later, even if you enjoyed saying or doing it at the time. I have posted on the topic before. You should assume that anything you write or show on the web will be shown in court to a judge or jury. Will it look good for you or hurt you? Think before you act.

Facebook and Twitter are only two of many different on line communities you can join and enjoy. Look around and start to make some friends and connections. Besides emotional support, you may get help with a new career or training or products you need. If nothing else, the social media can be entertaining. Enjoy it, but use discretion!

Thursday, September 10, 2009

Who Gets the Tax Exemption for the Kids?

Sometimes, one of the biggest points of contention in a divorce is something the state court has no real power to decide. That's the right to claim the federal income tax exemption for the children. The basic rule is that whichever parent has primary custody of the children gets to claim use the tax exemption. When the parents are designated as Joint Managing Conservators, they sometimes want to argue over the right to claim the exemption.

The Dallas Divorce Law Blog by the May Firm had an excellent, brief post that discussed the issue that came up in a recent Dallas Court of Appeals case. The Court again made clear the following points: (1) state courts have no authority to rule on federal tax matters, (2) the parent with primary custody gets the exemption, and (3) primary custody may be determined by figuring out which parent has more time with the children.

Figuring out who has the kids more can be pretty tricky sometimes, depending on what the possession schedule is. Now, there are a lot of different kinds of schedules. If both parents have the kids for alternate weeks, they could have very nearly equal time. The only difference might come in the holidays. Other schedules appear to have equal time sharing and present a similar problem.

What can be done? (1) You can go through the schedule and count the days or hours to determine the "winner". (2) You could agree to alternate years with the exemption. (3) If there are several kids, you can split the exemptions between the parents. (4) If there is a disparity of income, you could get someone to calculate the actual impact of the use of the exemptions for both parties and then make a rational agreement to maximize the benefit. (5) One parent could pay a sum to the other parent for the right to take the exemption. (6) You could both claim the exemptions and then sort it out with the IRS when they catch it -- THAT's the worst idea. Don't let it go that far. It's not worth it!

There are undoubtedly other solutions. The key to remember is to reach an agreement. Use your best judgment and reach some compromise agreement. It will save everyone money in the long run.

Wednesday, September 2, 2009

Don't Let Your Words Come Back to Haunt You

This post could be called "Think Before You Hang Yourself" or "Pause Before You Put Your Foot in Your Mouth." Peggy Roston, who writes the Alaska Divorce Blog, recently had an excellent post on a topic that seems to need repeating frequently -- the damage your statements, written or oral, can make. She talks about custody cases, but it is also true in just property cases or where there are non-custody kid issues. Judges have a lot discretion in making decisions. When you leave written or recorded evidence that puts you in a bad light, that can hurt you when the judge has to choose between your request and your spouse's request.

You may also have a spouse or ex-spouse who somehow always manages to appear or sound nicer than he or she is in real life. Unfortunately, the judge bases a decision on the evidence brought in before him or her. You want to be sure to avoid creating unflattering evidence about yourself. Here's what Peggy wrote:

"If you are involved in a custody case, you should assume that each text message and email you send to your spouse and each voice message you leave for your spouse will find its way into the file of your spouse’s attorney. If your case goes to trial, you can expect to see text messages, emails, and transcripts of voice messages marked as trial exhibits and used against you at trial. Likewise, your attorney will certainly use damaging text messages, emails and transcripts against your spouse at trial.

"So do yourself and your attorney a favor. Before you hit the send button, you should pause for a second and read over what you have just written to your spouse. Does your email/text message make accusations against your spouse? If so, you had better delete those accusations. Does your email/text message disparage, blame or belittle your spouse? If so, take the negative comments out of the email.

"Sending derisive emails or text messages might make you feel better for the moment. But they can seriously damage your custody case if they become evidence that you are not capable of promoting a good relationship between your children and the other parent."

Keep in mind that the judge will probably not have the whole context available when viewing or hearing derogatory messages. The other attorney will certainly try to use your words against you. Think, before you write or talk. You'll benefit in the long run.

Saturday, August 29, 2009

How to Find Hidden Assets -- Part 3

This is part 3 of an excellent article written by Warren R. Shiell in the Los Angeles Divorce and Family Law Blog with tips about how to find hidden assets. Tax returns were listed with some supporting schedules in the 2nd part of this post. The list below includes a variety of other items that may contain the "smoking gun" proving assets have been hidden.

"10. Safe Deposit Box Activity - Banks maintains safe deposit box records indicating when and who accessed the safe deposit box. These records will not indicate contents of a box or what, if anything, has been removed. If the first spouse was aware of the contents at the point when the records indicate the second spouse opened the box and something is now missing, he or she has a pretty good idea of who took it. This information can be subpoenaed.

"11. Cash Transactions and In Kind Compensation - One spouse may be a physician or a shopkeeper, or in some other work where cash is paid, or he or she may receive in-kind compensation, where something of value – other than cash – is given in exchange for services. Such cash payments or non-cash items are rarely reported on the income-tax return, but if you know of such income in the past and can subpoena current information, it will help in proving available income in excess of that shown on the income-tax returns. If one spouse buys things of substantial value with cash, there is probably a source of cash income somewhere. Most people do not retain cash in a non-interest bearing form unless they are hiding the source of the cash.

"12. Children’s Bank Accounts - Frequently, a spouse who wishes to hide money will open a custodial account in the name of a child. Deposits and withdrawals are made without any intent that the child has use of the account except in case of the spouse’s death. The interest from these accounts is not shown on income-tax returns, nor are returns filed for the children.

"13. Personal Knowledge of Spouse’s Habits - One of the most useful discovery tools is personal knowledge of the spouse’s habits with money. People who are attempting to hide money very seldom do so without making some form of written note so they can have a personal account of what they have done. When things are going well in a marriage, the spouse may tell the other spouse about such records, but you can be sure they will disappear in a case of divorce. The more secretive a person is, the more detailed such notes are likely to be. If a spouse has neglected to declare income to the IRS, the knowledge of hidden income or assets may prove to be a powerful leverage factor in reaching a satisfactory settlement. Be careful you cannot threaten to turn someone in or threaten any legal process to negotiate a better financial settlement that would be a criminal act – extortion.

"14. Phone Income Tax Returns - When the divorce has been filed, some spouses are inclined to alter the copies of their previously filed income tax returns to hide or adjust pertinent financial information. It is always a good idea to ask for copies of jointly filed returns directly from the Internal Revenue Service on Form 4506-T.

"15. Phony Loans or Debts - To keep cash from being divided, a spouse may sometimes attempt to bury the money with a phony loan to a cooperative friend or relative. The loan may be tied up with a long-term note or with a claimed likelihood of not being collectible so as to remove this money from consideration at settlement time. The other spouse, who was never aware of the debt, of course did not sign the note, because it probably came into existence after the divorce proceedings commenced. Sudden payment of debts to out-of-state creditors who are not available for deposition is usually a sign that the debt is a phony.

"16. 'Friends' or Other Phonies on the Payroll - If one spouse is in a position to control the payroll of a sole proprietorship, partnership, or closely held corporation, he or she may be paying salaries to a friend or relative who is not actually providing services commensurate with the compensation. The friend on the payroll may be stashing the money away or they may both be enjoying it. In either case, the profit of the enterprise will be reduced accordingly and your spouse may be drawing a lesser salary. The same ploy can be used for payment to phony independent contractors.

"17. Retirement Plan Abuse - If one spouse has established a pension or profit-sharing plan in connection with a closely held corporation, the plan should be carefully reviewed to determine whether monies that have been contributed to the account are being invested in accordance with the plan requirements. Very often, deductions will be taken for contributions to such plans, and then the money is used for personal living expenses or taken out as loans, which are never repaid.

"18. Defined Benefit Pension Plans - Defined-benefit pension plans are distinguished from defined-contribution plans by the fact that the benefits payable at retirement age are specified within the plan itself rather than by some contribution formula. The amount of the benefits then must be actuarially calculated, based on the age of the intended beneficiary and the point at which benefits are to be paid. A great deal of income can be buried by substantial payments into such a plan during the years preceding or during divorce litigation. The required payments could be a substantial part of the employee-spouse’s income, if that is what is required to achieve the defined goal at retirement. This, of course, leaves little money available for support or division as marital property. Once the divorce is completed, the defined-benefit plan can be discarded, even though a substantial tax loss may result.

"19. Estate, Gift and Inheritance Tax Returns - Much useful information is available from inheritance, estate, or gift-tax returns of relatives you believe have been generous to the spouse. If these returns show that there were substantial gifts or bequests that have not been accounted for in the settlement negotiations, you are alerted that other assets could also be hidden. A tracing will have to be made from the estate’s distribution to see what has happened to the assets."

Obviously, there may be clues to misconduct in a wide variety of contexts. Using the list here, and the prior lists and sources, you can have a good chance of proving that assets are hidden or missing. That should improve your chances of receiving an appropriate share of the assets and you may have the opportunity to shine the spotlight on your spouse's bad behavior. Most judges will get really upset if/when they become convinced someone has been dishonest to them and to the court system.

Saturday, August 22, 2009

How to Find Hidden Assets -- Part 2

This is part 2 of an excellent article written by Warren R. Shiell in the Los Angeles Divorce and Family Law Blog with tips about how to find hidden assets. As mentioned before, it is not unusual to suspect (often correctly) that some assets are not being disclosed. Sometimes, there are clues that an attorney or other layman can find, but other times, it is necessary to bring in an expert forensic accountant to uncover various assets. The following section of the original post by Warren R. Shiell has suggestions about some of the types of financial records that can produce evidence or clues about undisclosed assets.

"The following checklist of research items may assist in determining the whereabouts of hidden assets or if, in fact, they exist at all:

"1. Financial Statements – Any loans from lending institutions require sworn financial statements to be filled out. In most cases, the borrower is trying to impress the lending institution with the extent of assets and may exaggerate these. Looking back five years or so at these statements may put you on the trail of assets which are now unaccounted for, or which show valuations substantially greater than what is now claimed.

"2. Personal Income Tax Returns – A review of personal Federal and State income tax returns and attached schedules filed during the past five years may indicate sources of interest or dividends. The returns may also reveal unknown sources of income or loss from trusts, partnerships, or real estate holdings. You should also review W2’s, 1099’s, 1098’s and K1’s.

"3. Corporate Income Tax Returns – If one spouse is the principal owner of a closely held corporation the corporate tax returns should be reviewed for the following: a. He or she may be manipulating his or her salary by taking less pay and then taking loans from the corporation to make up the shortage. He or she may be charging personal expenses to corporate accounts, which will later be reimbursed or charged to the officer’s loan account.c. Corporate returns should also be reviewed for excessive or unnecessary retained earnings (undistributed profits). These may be disguise available profit distributions or an artificially low salary level.d. Reimbursement of prior capital contributions or repayments of loans to the corporation may also provide hidden cash flow to your spouse.

"4. Partnership Income Tax Returns - Reviewing several years of partnership income tax returns (IRS Form 1065) may reveal sudden changes in the partnership interest or distributions. Such changes often occur at the time of a divorce and then compensating adjustments are made after the divorce is completed.

"5. Canceled Checks and Check Registers from Personal, Partnership, and Corporate Accounts - While time-consuming, it is always revealing to go over all the canceled checks and bank statements from personal accounts for the past few years, and post the expenditures to different columns under utilities, entertainment, loan payments, and so on. You will learn the amount of total expenditures per year, which sometimes exceeds income, and you will have a better feeling for cost of living and where budget cuts should be made. In terms of hidden assets, you may come across canceled checks for the purchase of property, which you never knew, existed. It is important to check off the canceled checks against the appropriate bank statement to make sure that you have all of the canceled checks. It is possible that certain checks were removed before they were delivered to you. For larger amounts deposits and withdrawals you should review the back and the front of the checks.

"6. Savings Account Passbooks
- Acquire the passbooks for any savings accounts open during the past five years or more. Look for any deposits or withdrawals that are unusual in amount, or in pattern. A monthly withdrawal or deposit of money in the same odd amount may reflect mortgage payments or income receipts from sources that you are not aware of.

"7. Security or Commodity Account Statements - If one spouse has been buying and selling stocks or bonds or dealing in commodities, the broker with whom he or she trades furnishes monthly or quarterly statements indicating all transactions. A review of these statements going back a few years could reveal the existence of securities of which there was no knowledge or could raise questions as to the disposition of the sale proceeds. Cross checking securities transactions and bank accounts by date and amount will usually verify the source or disposition of the monies involved. If the securities are sold and the proceeds are unaccounted for, you can be sure the money is out there somewhere.

"8. Expense Accounts - Very often, a corporate employer will allow employees a great deal of leeway in their expense account reporting. A spouse may take advantage of this by exaggerating or even falsifying business expenditures. The employer maintains records as to expense account disbursements to the employee over the year with monthly detail. A check of these records will indicate the extent to which the employee is able to “live off” the expense account.

"9. Deferred Salary Increase, Uncollected Bonus, or Commissions - You should always determine whether a salary increase is overdue, when it will be forthcoming, and how much it is. Employers are sometimes sympathetic to their divorcing employees and willing to bend the rules slightly to defer salary increases, bonuses, or commissions in order to suppress apparent income. Ultimately, these increases, bonuses, or commissions must be paid to keep the corporate books straight, and the employer will rarely lie when put under oath or forced to make a written statement on the subject. Sympathy goes just so far."

By carefully looking at the above sources, you may be able to uncover substantial assets that the other party may be trying to hide. Sometimes, things are just accidentally overlooked, such as a bank account that is inactive. Most of the time, however, during a divorce, it is very unlikely that an unrevealed asset was accidentally overlooked. Follow your intuition and you may find your pot of gold.

Saturday, August 15, 2009

How to Find Hidden Assets -- Part 1

This is the first part of an excellent, extended post in the Los Angeles Divorce and Family Law Blog by Warren T. Shiell, from July 5, 2009. He wrote a thorough review of how assets are hidden and how they may be found. His post gives very practical tips for effectively searching for hidden assets. I have broken his long post into three parts for the reader's convenience. Here's the first section of his post.

"The divorce process is a time of distrust for each spouse, and right or wrong, each may accuse the other of hiding assets.

"Assets are traditionally hidden in one of four ways:

  • The person denies the existence of an asset.

  • Assets are transferred to a third party.

  • The person claims the asset was lost or dissipated.

  • Creation of false debt.

"Tax returns are the first place to look to discover hidden assets. It is a good idea to look at tax returns for the past five years. By reviewing the tax returns you may discover assets that you had no knowledge of or that were not disclosed by your spouse. The first two pages of a tax return can serve as a 'table of contents,' because they list the forms and schedules that are attached to the return.Important forms to review include:

"Schedule A – Itemized Deductions. May help identify unlisted assets or sources of income. For example property taxes may reveal real property or a boat that one spouse does not know exists; and gambling losses would reveal that there are gambling winnings.

"Schedule B – Interest and Ordinary Dividends. This identifies the assets and investments generating interest and dividends. However some interest generating accounts may be non-taxable and may not be listed.

"Schedule C – Profit of Loss From Business. This form may be a place to hide assets or income. For example, depreciation for real estate is generally not a cash outflow and it is added back to net income to determine the actual income. The depreciation schedule may also reveal additional assets in the business.

"Schedule D – Capital Gains and Losses. This form is used to reports gains and losses from stocks, bonds, and real estate.

"Schedule E – Supplemental Income and Loss. This form is used to report income from rental properties, royalties and partnership and s-corporation income. Depreciation should be examined to determine whether this is an expense that should be added back to income.

"Form 1065 is used to report partnership income

"Form 1120 and 1120S are used to report corporate income

"Form 2441 claims child-care expenses. Both federal and state income tax returns, 1099s and W2s, as well as amended returns need to be reviewed.In the course of discovery (sharing documents and financial information with the opposing side), most spouses believe that their counterpart has somehow hidden or failed to disclose the existence of certain assets."

It's an unfortunate fact of life that people are sometimes dishonest as they go through a divorce. (How's that for an understatement?) The list above gives you some paperwork to gather to examine so you or your expert can try to find any missing assets. Fortunately, there is often a paper trail, if you can recognize it. Using an expert to examine the records is usually an excellent investment. If you are able to establish that your spouse is cheating and hiding money, you will be in a much stronger position to get a better settlement or a better decision after a trial.

The next two sections of the post to help you find hidden assets will follow shortly.

Tuesday, August 11, 2009

Divorce and Social Networking - New Rules

A couple of months ago, Daniel Clement posted a nice article with suggestions about how to stay out of trouble during a divorce when you participate in social networking. Here's what he had to say:

"Remember the YouTube spectacle of Tricia Walsh Smith who publicly humiliated her husband and, ultimately, herself. In the age of social networking, new rules of apply to couples going through divorce. The rules, as compiled by Time, can succinctly be boiled to one- 'Discretion is the better of valor.'

[Here are the rules.]

"1. Don’t brag.
Your claims of poverty will ring hollow if you brag on
Facebook about your purchases of expensive items or post photographs of lavish vacations.

"2. Keep the party off-line
Sure you may want to let off some steam, but if you are engaged in a custody fight, the pictures of you holding a bong in one hand and a half empty bottle of “Jack” in the other are not going to win you points with the judge. They probably are not going to be too helpful when lecturing your kids about sobriety or on your next job interview.

"3. Guilt by association.You are who you hang out with. See Rule No 2.

"4. Keep the details of the divorce private.
Don’t fuel the fire with comments and criticisms on the internet. No one likes their spouse’s divorce attorney or the judge after an unfavorable ruling. But remember, the judge is going to make many rulings in the course of a case- some you will win, others you will lose. Do you really want the judge to rule on your case after you publicly criticized him or her?

"5. Don’t Defriend.
As Time points out, unless it is high conflict, 'Don't "defriend" in-laws or your ex's friends right away. People need time to adjust.'"

This should be a good reminder to everyone enjoying social networking while they go through a divorce. As I discussed in a previous post on July 2, 2009, social media are becoming more common-place and are also become a major source of information for interested people. Pictures, statements, profile details and other information that appear in media, such as Facebook, can show up in court and can be very embarrassing, or worse.

And, it's not just your site that you need to be concerned about. If you have friends who take your picture and then post it on a page, or who write about what you and s/he did or what s/he saw, you may have some "splainin" to do. And it may turn into testimony in court. Following the above rules should help everyone to be more careful about their involvement in social media.

Saturday, August 1, 2009

When is the Best Time to File?

Some people say, "It's all in the timing." (Others may say that it's all in the location -- but that's really a different topic!) Timing can make a huge difference in a lot of things in life. One of the most obvious is in financial matters. Investing or selling at the right time can put you in a solid financial position. For example, if I had bought American Airlines stock a few years ago when it was under a $1.00 a share because there was a very real possibility of filing for bankruptcy, and I kept it, even now there would be a nice profit. Likewise, getting out of the market at the right time can ensure a much better position compared to the person who held on to the stock just a day too long.

Apparently, some people have brought the timing issue into the divorce arena. According to the Miami Herald, some attorneys are advising their male clients to file for divorce now while their net worth is low. The idea is that they will have to give their wife less assets now than they would otherwise if the market were up. I understand the logic in that, but I still have some problems with that thinking.

1. The proportions are the same, even if the amounts are different. While it is true that the total amount paid to the spouse in settlement may be less than it would be if the economy were better, the property division should still be in a very similar proportion between the parties as it would be in better economic times. Is a $600,000 -- $400,000 split really a lot better than a $900,000 -- $600,000 since they are both 60-40 splits? Both parties would end up with less than they might in a better economy.

2. It is usually pretty easy to stall and delay in a divorce. The courts are often backed up, which means it will probably take a long time to get to court unless there's an agreement. Faced with a long wait to get to court, many of the wealthier spouses will sweeten the pot to get an earlier deal done. Or, the delay may be long enough for the economy to start to recover.

3. Other financial circumstances could also change that would affect the property division. If one or both parties lose their jobs, or if a company goes broke, that could completely change the situation. If one spouse has been a stay-at-home parent and now has to look for a job, but the economy is failing, that may create the need for lengthy spousal support (alimony).

4. Sometimes, it is the wife who has the more significant investments. She might make the same assumptions and conclusions, and then her husband could be the one losing out.

The bottom line: My suggestion is that if someone wants or needs to be divorced, they shouldn't wait around for the stock market to hit bottom or to reach the top, and they shouldn't rush into a divorce just to save on the pay out. The finances are always an issue, but other personal issues should be primary. Don't let the property division dominate your thinking to the point that you ignore or downplay the other personal issues in the marriage.

Thanks to Tim Evans of the Hattiesburg Divorce Lawyer blog who had a recent post about this topic which had the reference to the Miami Herald article (I don't normally keep up with Miami news). Tim's blog is well worth regular reading.

Tuesday, July 28, 2009

What if the Other Parent is Irresponsible?

I recently saw a report in the American Bar Journal online about a Georgia court case where the issue was whether a father could allow his children to be around his gay and lesbian friends. Apparently, the divorce trial court had issued a ruling preventing the father from letting gay and lesbian friends be around his kids. Apparently, there was no evidence introduced in court that the friends had acted inappropriately in front of the children.

I am not aware of a similar case arising in Texas, but I would assume that the Texas courts would probably reach a similar result. Regardless of whether the issue was about different sexual orientation, race, age, religion or some other factor, it should normally come down to whether there is evidence that something improper has occurred. If there is just a potential for problems, it is not likely that a judge would impose restrictions about who can be around children. If something happened, but no one was injured by some event or activity, there's probably not sufficient evidence to support restrictions.

It can be very frustrating when the other parent seems to be irresponsible or potentially endangering children, but that is not sufficient to support restrictions on the other parent. As bad as it sounds, the courts almost require someone to be hurt before they will intervene. If you have a situation that creates concerns about your children's health or safety, you should discuss them with your attorney. You may not be able to directly impose restrictions at that point, no matter how concerned you are or how reasonable and logical your fears are, but there may be some things you can do to help. Here are some ideas:

1. Discuss the situation with your ex. Don't overlook the obvious, direct solution. But, since you may not have any real leverage, you need to work on being diplomatic and conciliatory, no matter how hard that may be for you. It is certainly cheaper, faster and more effective if you can do something by agreement. There is also less chance of drawing the children into the middle of the dispute. Of course, you will probably be dealing with an emotional issue, so that will make it harder to be "nice". You can get some ideas from your attorney or a counselor to help you plan your approaches for the discussion.

2. Request that you and your ex meet with a counselor to discuss the issues. Hopefully, a few sessions will make it possible to come to an agreement in a safe atmosphere.

3. Here, in Tarrant County, Texas, you can contact Family Court Services at the courthouse and set up a meeting with an Access Facilitator. A Facilitator is a specially trained social worker who helps the parties meet and work out differences in how to raise children and share time with their children. Good News -- they are not only qualified, experienced social workers, but they are FREE!

4. Go to a mediator. This can be done with or without attorneys. You and your ex can split the mediator's fee. If one side uses an attorney, the other party should also bring an attorney to equalize the negotiations. Mediators have a very high success rate, so they are an excellent option.

5. Hire an attorney and go to court. This is the most expensive choice, but could be necessary if your ex is uncooperative.

6. Try using Collaborative Law. Both sides would have to agree to use the process, if it is to be used. Your ex might agree to it to keep the matter private, to get expert help or to be able to deal with the issue on his/her own schedule, instead of a court's schedule. The main point to keep in mind is that both parties would need to utilize attorneys trained in Collaborative Law, so you should ask about that when you are hiring an attorney. Using the process may minimize the damage to the relationships between the parties, which is important for the children.

There are obviously many different ways to approach an issue about the children. What you should not do is just get angry, start accusing your ex of misbehavior and being making demands. You will almost never be in position to solely determine the outcome, and such an approach will almost guarantee an expensive, ugly and protracted battle. Why do that when you have other effective options?

(I want to give credit and thanks to Nancy Van Tine of the Massachusetts Divorce Law Monitor blog for referencing the ABA story. She also has an excellent blog that is worth regular viewing.)

Thursday, July 23, 2009

Why Does it Take So Long?

For at least half of the parties, and often for both, one of the biggest annoyances of the divorce experience is how long it takes. Going through the process, the parties often become very frustrated. Divorces are rarely smooth, completely agreeable transactions. In virtually every case, even when both parties want the divorce and both parties are mature, respectful and cooperative, there will be stages when progress seems non-existent. Why, you may ask, is that the case? There are many reasons for delay, not even including the common supposition that an attorney is neglecting the case. While that sometimes occurs, delay is more often the result of one of the following factors:

1. Local rules. In Tarrant County (and most other counties in Texas and elsewhere), divorce and family law attorneys must follow local court rules in court cases. The rules may require certain steps to be followed and certain amounts of time for notice. They may permit cases to be postponed if short notice has been provided. There are delays for notice that are built in to the process so that everyone can have an adequate amount of time to prepare. For example, it is very common in Tarrant County for a first setting temporary hearing to be postponed if the Respondent has not had time to hire an attorney or if Respondent's attorney did not have time to prepare for court. Rules of evidence that affect whether certain information can be introduced into court sometimes provide for set periods of delay for notice to the other party to give them an opportunity to object to the evidence.

2. There is often a scheduling order which must be followed. Fairly early in a case's journey in the court system, it will likely be the subject of a scheduling order under the direction of the court. It will set up deadlines for all the actions needed to get the case ready for trial. Even though few cases ever go to trial, most cases proceed under a scheduling order. The parties generally schedule their actions according to the scheduling order and that may appear to slow down the case, from the perspective of the litigants. From the attorneys' perspective, they stay right on schedule and they do not consider themselves slow or behind schedule when they are following the scheduling order.

3. A difficult other side. This can be a serious problem that affects timing. If the other side chooses to be slow, that is hard to overcome. If the other side chooses to do as many things as possible, to "punish" or wear down the other side, they can often get away with it. I have seen an attorney create delays by fighting over everything while complaining that the other side is delaying. Simply a lack of cooperation by one side can cause significant delays.

4. Sometimes, a case gets postponed by the court and it's neither side's fault. Court often schedule more than one case at the same time. If one of the cases starts a hearing and takes a long time, that may bump the other cases to a later time. It's also true that a trial or hearing will carry over from a previous day and cause a chain reaction of delays with subsequent cases.

5. Some delays come when the parties are waiting for a ruling after a court hearing. Many courts routinely take several hours or days to issue decisions. A few courts may sit on a decision for months. It's frustrating, but there's not much that can be done to get the court to move faster. An attorney doesn't want to push too much for fear of getting the judge mad and then having the judge take out the anger on the client.

6. Occasionally, there may be scheduling conflicts with one or both of the attorneys in the case. Attorneys usually try to avoid such situations, but sometimes they occur.

What can be done? The best thing to do is to talk with your attorney. Make sure the attorney knows if there are any special circumstance that require a speedy conclusion. If you think there has been too much delay, discuss that with your attorney and find out if s/he agrees with you. Your attorney may be able to give you a valuable perspective that can relieve some of the stress you are feeling. Or the attorney may be able to help you devise a settlement strategy that will end the divorce sooner. The main thing is to act. Don't just sit around and stew about the situation. Divorces are stressful enough without adding unnecessary or unsolvable issues to your burden. Don't keep it in -- let it out to your attorney, before it overwhelms you!

Thursday, July 9, 2009

Why Is There No Free Consultation?

One of the first questions we often hear when a prospective client calls us is, "Do you have a free consultation?" It's a fair question and an important one. Some potential clients assume that they will be paying a fee for their initial visit with an attorney, but others think they should not begin to pay until they have actually hired an attorney. On the other side of the room, some attorneys believe in charging for every conference with a client or potential client, while other attorneys want to encourage people to come see them, so they provide free initial conferences.

Some attorneys choose a middle ground and charge a reduced fee for the initial meeting. Many of them believe charging even a small fee will weed out the non-serious potential clients who are looking for feedback, ideas or affirmation that they are right, without having incurred any cost for the information or support.

For potential clients who have trouble understanding why they should be charged for the initial time they visit with an attorney, here are some explanations some attorneys use.
  • For the attorneys who charge by the hour, time is money. They keep their business open by charging for the time they spend working in some fashion on the client's problems. Real information is provided in real time to the client. For the attorney, the service provided is essentially the same type of service they will be providing once they are hired: listen, ask questions, determine needs or goals, gather information, analyze, strategize and create plans.

  • Other professionals routinely charge for their time and services at an initial assessment. This includes doctors, mechanics and electricians (just to name a few). The time and skills of the professionals are being applied to the problems at hand.

  • For the attorneys who practice what is called value pricing, or use flat fees, they focus on the valuable information, forms and other paperwork they may provide the client. They also add value by listening and counseling with the client. Here is an example on the higher end of service and a corresponding higher fee: There is an attorney in Calgary, Canada who has developed an excellent product for the initial conference. He spends as long as the client wants, usually 2 to 3 hours, records the session and provides a copy of the recording, and produces a customized approach to the client's issues. Other attorneys provide a less robust experience, but nevertheless provide excellent value to the client just by doing the same things some attorneys do as they charge by the hour.

  • In addition, when an attorney meets with a prospective client, the attorney becomes immediately disqualified from representing the spouse. That can result in a loss of income for the attorney.

  • Another consideration is that the attorney is unable to work on other clients' business when they are attending an initial meeting with a potential new client. That means less income for the attorney and no progress on the other client's issues. Even if it only delays the work, the delay can become a problem for the client and then the attorney. Most clients prefer not to be put on the back burner. They want their matter resolved NOW!

Although we are often told that other Fort Worth or Tarrant County divorce and family law attorneys provide a free initial consultation, we choose not to do so. If the client prefers a free initial meeting, then we encourage them to visit one of the free ones. There's no hard feelings on our end. For a beneficial attorney-client relationship to exist, there must be good chemistry and at least some shared values. If there is disagreement between attorney and client on the fee issue from the outset, then the relationship is not going to work out. It is best for the client to find an attorney whose approach to the case is as consistent as possible with the client's approach.

In addition, busier attorneys will charge for the consultation. To not charge for the consultation would subject the attorneys to spending a lot of uncompensated time with the new client. Again, that prevents the attorney from being able to do significant work on other cases.

Conclusion: The fact that an attorney chooses to charge for all initial consultations does not mean that a client is "wrong" for wanting a free consultation. The attorney isn't "wrong" either. There are other attorneys who will provide a free initial consult. The solution is to match up the clients who want a free interview with the attorneys who want to provide them. The way to do that is for the potential client to raise the issue when the initial consultation is being set up. Just speak up and discuss the issue up front.

Thursday, July 2, 2009

The Increasing Role of Social Media in Family Law Cases

One of my favorite blogs is the Georgia Family Law Blog by Stephen Worrall. He has just posted a very timely article that is based on a post in the DaniWeb blog. It is about the increasing role of social media in family law cases. In case you aren't exactly sure what "social media" is, it is a term that includes an ever increasing group of web sites and programs that can be joined. It is a way of communicating freely and easily with member of a group who has signed up. Some sites limit access in various ways and others don't. Social media includes such things as My Space, FaceBook, LinkedIn, Plaxo, Twitter, Classmates and others. They can be easily found and accessed on the Internet. Here is Stephen's post:

"It's been known for a while that current and potential future employers look at people's profiles on social networking sites such as FaceBook. And it's also been known that people are using social networking sites to announce the status of their relationship -- or lack of one. Now the two uses are getting together, with divorce attorneys mining social networking sites for evidence supporting their clients.

"'Lawyers, however, love these sites, which can be evidentiary gold mines,' said a recent article in Time. 'Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party. Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.' One attorney quoted in the article said such research is 'routine.'

"In addition, exes are posting information about their formers -- such as an estranged wife emailing 'friends' of the spouse the additional information that he was married with children, which he had neglected to include in his FaceBook profile. Such messages on a social-networking site can even be part of a harassment campaign that led to the court's issuing a civil order of protection, one attorney said."

There are many different uses for the social media in a family law case. Fort Worth/Tarrant County divorce lawyers may be looking into someone's relationships in various ways through social media. In addition, witnesses can be researched the same way to find out who they associate with and to capture statements and pictures they have published. This is a tool that is really not very difficult or technical to use, which can lead to some very damaging or beneficial information. Everyone should be very careful about what they permit to be written or pictured, especially if there is any litigation threatened or in progress.

Note: As always, think and be cautious about anything you put in writing, including in emails or text messages. All communications are potential evidence in court.

Thursday, June 18, 2009

Toward a Better Father's Day

Too often, parents get into competitions over the kids, and that's usually not a good thing. If you want to be well-remembered as a parent, maybe you should consider treating the other parent nicer and doing what you can to encourage a close parent-child relationship with both parents.

1. Enable and encourage the kids to have regular contact with the other parent. In addition to personal visits, phone calls, texting or computer contacts, initiated by the kids would really be good.

2. Demonstrate a good relationship (if possible) with the other parent. At least be civil. Keep in mind that the kids understand they are part you and part the other parent. They may see you being mean to the other parent as you being mean to them.

3. Help kids learn to show their feelings for the other parent. Help them find gifts, buy or make cards, etc. Encourage the kids to spend some time with their other parent.

4. Help the kids to remember holidays, birthdays and family occasions with the other parent. Kids may not know what to do when they're young, so they need some guidance. When they are older, they may just not think about these events. You can help everyone by talking with your kids about the events and reminding them so they can participate.

Note: All this works equally well for both parents. Moms and Dads should work together to encourage the kids to look forward to various personal and family occasions. Father's Day is coming up, but helping kids stay in contact with both parents is a year-round job. Do your kids a favor and teach them good ways to stay in touch with their extended family.

Thursday, June 11, 2009

Do You Really Want a Mean Lawyer?

Over the years, a number of prospective clients have asked about how mean a lawyer I can be. I used to tell them that I could be as mean as I needed to be. Now, I prefer to discuss some other, related issues.

1. What is the client's overall objective in getting (or getting through) the divorce? Is it punishment for perceived wrongs? Is it to end up with adequate resources to be comfortable after divorce? Is it to have primary custody of the kids or to have a way to share time and responsibility for raising the kids? Is it to end up with certain valuable assets? Is it to come out debt free? Or something else? There's no right or wrong answer. It just helps the lawyer to know what the target is.

2. What kind of relationship does the client want to have with his/her ex-spouse? No relationship, a good one, best friends, neutral relationship or a bad relationship? Again, there's no right or wrong approach. The attorney just needs to know in order to work out the appropriate strategy.

3. What "mean" actions would the client want to take? Some actions are not permissible because they are illegal or unethical for a lawyer to do, and the client needs to understand that. Some actions are legal and ethical, but could be considered "mean" in some circumstances. Within that limited category, what would the client want?

4. How does the client think "meanness" will advance his/her cause? Some clients don't realize that being mean to the other side leads to more hostility and less cooperation. Will that help the client meet his/her needs or achieve his/her objectives?

5. Is the client willing to spend the extra money required to be mean? Unfortunately, for the client, "mean" isn't cheap. The attorney's fees increase dramatically when the attorney sends out numerous letters complaining or demanding action, files numerous pleadings complaining or requesting actions, sets hearings, conducts numerous depositions, demands voluminous discovery and so on. Also, the "tit for tat" strategy comes into play, meaning that whatever one side does to the other is returned again to the first party. The result: more letters, pleadings, hearings, depositions, discovery, etc. Being mean keeps the attorney busy, but it also increases the cost of divorce for both parties.

Often, the desire to hire a mean lawyer is just the natural reaction to pain,anger or fear the client is experiencing. There are certainly times when an attorney must act aggressively and firmly, but most clients just don't need or want a really mean lawyer when they learn how that will affect the case and their lives. And many or most clients can't afford or won't want to pay for a mean lawyer. Having the discussion about taking the mean approach can really be surprising to the client, but it can lead to planning for a better divorce.

Thursday, June 4, 2009

Fuzzy Logic

James Gross has another succinct comment in his Maryland Divorce Legal Crier blog that deals with a common misperception of people going through a divorce or of the "advisers" to people going through a divorce. Many people have trouble with the fact that there usually are no clear, definitive answers to most of the questions they have during a divorce.

"Lots of my clients are computer consultants, engineers, scientists, economists, investment bankers or accountants. They ask me questions about their cases and they want clear answers. Before I became a lawyer, I was a chemical engineer, so I know something about how they think.In math class there was usually one right answer and everything else was wrong. They are looking for the one right answer. I remember staying up all night at college with my study group working through the equations to get to that one right answer.

"After math, chemistry and physics classes, law school was a shock to me. I still recall the first day of Contracts when Professor Joe Covington asked me stand up and explain to the class what 'justice' means. I am afraid I did not do a very noteworthy job of it.

"I excelled in classes where the rules were hard and fast, like Civil Procedure, for example. But I did not fair as well in those classes where the concepts were harder to get a handle on, like Torts. I can empathize with the puzzled look on the faces of my 'math and science' clients when I explain divorce law to them. It is a human system and humans are full of flaws. There are no right answers – only probabilities.

"They are uncomfortable with these fuzzy answers. But I sometimes remind them that, even in their world, they deal with unknowns, such as the
Heisenberg uncertainty principle, dark matter, string theory and Shroedinger’s cat."

Like James Gross, I often remind clients that they cannot use logic to figure things out in divorces or family law matters. Even when there are "rules", there are often exceptions and ultimately, human beings make judgment calls. Emotions can easily overrule logic when a party to a divorce is making decisions. It's best not to rely on someone else being logical in a divorce context. If you need to persuade someone on a point, you will be more effective if you analyze the other person's motivations and try to appeal to them. Forget about logic!

Saturday, May 23, 2009

Children’s Extracurricular Activities: Appropriate Or Excessive?

I just ran across the following post by Robert L. Mues of the Ohio Family Law Blog. For me, because of a case I am involved in, it is a very timely post. I believe a number of parents (and children) can benefit by considering the issues Robert raised. Extracurricular activities sometimes become points of contention during and after divorces, as well as in intact families. I highly recommend the post to help anyone struggling with such issues.

"This is the first of a two-part series dealing with children’s extracurricular activities. Next week, I will address the impact the divorce may take on a child’s extracurricular activity schedule when the parents have conflicts with each other.

"There is no doubt that extracurricular activities can be very beneficial to a child. According to a recent study by the Nellie Mae Education Foundation, children who participate in after-school programs are more engaged and have a better attitude about learning, perform better academically and enjoy an increased sense of accomplishment, competence and self-esteem. Additionally, participation also lowers children’s risk of becoming depressed, using drugs and alcohol, and experiencing other behavioral problems.

"Recently, while researching this topic, I came across an excellent article about how to choose after-school activity(ies) for children at It also gives a breakdown discussing appropriate types and numbers of activities per week which are recommended based on the age and maturity of the child starting with kindergarten through middle school. The article offers advice which will help a parent determine if it is time for their child to start an extracurricular activity, what’s the best option and how to find a good program.

"Recently, Gregory Ramey, Ph.D., a child psychologist at Dayton Children’s Hospital and Dayton Daily News columnist, addressed a similar inquiry from a reader wondering if a child can be too involved with an extracurricular activity. Here the reader was asking about their 15 year old daughter, Maddie, who’s been involved in gymnastics since she was three years old and practices about 16 hours during the weekdays and competes on weekends year round. In response to that background, Dr. Ramey gives advice on how you can tell if your child’s dedication is beneficial or excessive.

  • Be mindful of the effects on the entire family. While it’s great that kids are passionate about something, you need to carefully assess the impact on others, particularly siblings. Family life involves endless compromises in trying to balance the needs of adults and kids. In families with a high achieving teen, other siblings may inadvertently pay a high cost. The support of one child shouldn’t come at the cost of other family members.
  • Keep the activity in perspective. While we don’t want to discourage kids from their passions, they do need a reality check about the significance of their activity for their future educational and vocational aspirations. Maddie’s mom has made it clear to her daughter that 'school is number one.'
  • Be willing to walk away from the activity. There have been times when Maddie has encountered tough times and wanted to end gymnastics. How would her mom and dad have responded if she wanted to stop gymnastics? 'My parents are really into it…they wouldn’t be too happy.' Disappointment and frustration are inherent in the passionate pursuit of excellence. There are times when you should offer encouragement and not allow your child to give up when confronting difficulties. However, you should anticipate and be willing to accept the reality that there may be a time when your child abandons their passion for other pursuits.
  • Regularly assess the real value of the activity. Most of our kids will never grow up to be professional baseball players or gymnasts. The value of their commitment is less in the acquisition of athletic skills and more in habits and friendships that persist long after the activity has ended. Maddie’s mom described the peer support that Maddie gets daily in the gym as '…the kind of friendships you don’t often get in life.' Maddie has also learned about discipline, persistence, and time management - habits that will serve her well throughout her lifetime.

"Dr. Ramey concluded that, “The child may never back flip her way to the Olympics, but I suspect she will be a successful person in whatever she does.” Click
here to read Dr. Ramey’s full article.
One of the points clearly made in the article mentioned above is that it’s important to watch your child for signs of over-scheduling. “In younger children, this most often takes the form of irritability, avoiding eye contact and tantrums. In older children, look out for mood swings, recurrent sickness, such as stomach aches, and complaints about the activities themselves. At any age, if the school work begins to suffer, it’s time to cut back.”
Click here to read the full article, by Toby Leah Bochan, at

"One of the points clearly made in the article mentioned above is that it’s important to watch your child for signs of over-scheduling. 'In younger children, this most often takes the form of irritability, avoiding eye contact and tantrums. In older children, look out for mood swings, recurrent sickness, such as stomach aches, and complaints about the activities themselves. At any age, if the school work begins to suffer, it’s time to cut back.'

"While balancing children’s extracurricular activities can be difficult in a conventional intact family, read next week’s blog article where I discuss the impact that a divorce may have on juggling a child’s activities and parenting time."

There are some very practical ideas about how to evaluate the impact of extracurricular activities that should be helpful to many people. I also encourage you to read other posts in the Ohio Family Law Blog.