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.

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!

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.

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.