Sunday, December 23, 2012

Thinking Ahead

It's the time of the year when many people are holding back on making a decision they really want to make.  They are putting off filing for divorce until after the holidays. Nevertheless, they are still thinking about their options.  If you find yourself considering the possibility of divorce, here are some things to think about until the holidays are past.

1.  Counseling.  It's never too late.  Sometimes counseling for you will help alleviate the problems and stress.  Sometimes couples counseling works, if both sides are willing.  Sometimes the party who needs counseling won't recognize it.  If you think it's your spouse who needs counseling, please consult with a counselor to discuss the situation.

2.  If you are going to divorce, there are a number of process options.  For a current review, see my blog post in the Texas Collaborative Law Blog here for the December 22, 2012 post.

3.  What issues will come up in a divorce?  Here are some to think about:
  • Investments
  • Retirement funds
  • Real estate
  • Debts
  • Taxes
  • Businesses owned by the parties
  • Professional careers
  • Personal property
  • Collections
  • Guns
  • Household furniture and furnishings
  • Child custody
  • Visitation
  • Child support
  • Pets
  • Alimony
  • Insurance
These are issues that you should start thinking about if you are considering or facing a divorce.  Your attorney will discuss them with you.  It would also be helpful for you to gather any documents that you can find that relate to any of the issues.  That will help you and your attorney prepare for a settlement or court.  It's also a good idea to gather and copy records before they disappear in the confusion once a divorce is filed.

Wednesday, December 12, 2012

Watch Out for the Side Effects!

I just read about a new App for a smartphone this morning.  This App was developed in California to help people figure out how to divide up their property as they go through a divorce.  It's really intended to replace an attorney's role in the process.

As admirable as that may seem, there is a great potential for creating major problems in some cases.

Full disclosure:  I am a divorce attorney and I am paid to help people undo their marriages.  But, the people who are wanting to do their own divorces don't want to hire me or any other attorney, so their decision has no real effect on me.  I'm not losing any business because they wouldn't have hired me anyway.  I do think people in short-term marriages, with no kids and little or no property, can probably do their own divorces, if they are so inclined.

This post is not to save business for me.   I am writing this so that people with children or some significant assets or debts can make better decisions on the best course of action for themselves.

Here are some possible side effects for an untrained person using some tools and trying to work out their own divorce.

1.  Tax consequences.  No one likes surprises from the IRS.  Unfortunately, tax issues are lurking everywhere in divorces.  Paying the other spouse some money may be alimony or it could be property division.  There can be taxes owed if it's not done right.  Different retirement assets have different tax consequences which can also affect the net value of those assets.  Real estate sales may trigger capital gains taxes, now or in the future, and that may affect the net value of the land. The parties need to consider their tax basis in various investments when they are doing a property division.  Tax consequences probably won't be much of an issue if someone doesn't have any of these assets.

2.  Enforceability.  In divorces, it's not uncommon for disputes to break out post-divorce about whether agreements are being followed.  The terms of the divorce decree must be clearly spelled out with proper language in order for them to be enforced.  In many cases, there needs to be some collateral or something available as a back-up. Again, if there are no significant assets, this is probably not an issue, although people will fight over anything, as you probably already know.

3.  Extra paperwork.  Many people assume a judge will simply divide everything in half.  That's one way to divide things, but it rarely happens in court.  People can decide to agree on their own to do that, but it may cause a lot of extra paperwork to complete the divisions.  There are often simpler ways to do the property division, which can be handled by an experienced attorney, but which a private party may know nothing about.  Extra paperwork means more opportunities to mess things up.

4.  Remaining connected.  As badly as one or both parties may want to be divorced and separate and independent individuals, they may end up connected for a long time due to property or debt issues that are joint.  An experienced attorney may be able to help them come up with ways to be apart.  Doing things on their own, the parties may end up still connected.

5.  Incompleteness.  Maybe the most common problem for people doing their own divorces is the failure to take all the necessary steps.  Forms may be incomplete.  Language in the decree may be incomplete.  And sometimes there are some obvious  problems that are overlooked.  Once again, with no kids and with little or no property, there may not be a problem.  Otherwise, count on problems.

These are not all the problems that can occur when people decide to do their divorce without an attorney.  In very simple cases that may be fine.  In all others, it is risky.  In addition, it is common for one party to take advantage of their spouse when the party has greater knowledge, experience and control.  Divorce is such an important event, it shouldn't be done without a lot of thought and help.

Footnote:  Each state has different divorce laws which can affect the outcome of the case.  Using California, New York or even Oklahoma law for a Texas divorce is virtually guaranteed to be a disaster.

Monday, December 3, 2012

5 Top Myths about Litigation

I often run into a client or potential client who seems unreasonably confident about the outcome of his or her divorce case.  The reason usually is that they have heard and believed some common myths about how the divorce litigation system works.  At the risk of damaging some happy feelings, I find it's necessary to expose some of the worst myths.  Better to be disappointed now than to continue to count on something that will never happen!

1.  The Court will figure out/discover the "truth".  Unspoken is the assumption that the truth found by the Court will be the same one believed in by the party.  In reality, Courts often find facts to be different from what one or both of the parties believe, or a Court may decide it hasn't been convinced by sufficient evidence one way or the other.  Truth is usually in the eye of the beholder, and Courts very often disagree with the parties about what the truth is.  What is obvious to a party may be completely invisible to a Judge, so don't count on a Judge automatically agreeing with your view of the truth.

2.  Justice will prevail.  Just like with truth, there is no universal, indisputable "justice".  Don't assume that a Judge's decision will coincide with your view of justice.

3.  The Court will divide everything 50-50.  There's nothing in the law that requires a 50-50 split of property or debts.  The Family Code calls for a division that is "just and right", a  standard equally as vague and undefined as "justice".  The Judge actually has a lot of discretion about how things are to be divided.  There is no concrete, black-and-white answer.

4.  The easiest solution is to just go to court.  HA!  There's a lot of preparation for both sides and you can expect to wait many months for your day in court.  Settlement, while sometimes emotionally difficult, is much better than preparing and going to court.

5.  I know what will happen because of what happened in my sister's (or best friend's or neighbor's or hair dresser's, etc.) case. No two cases are alike.  The facts are different and the cases are probably in different courts, with different parties, different attorneys and different issues.  Don't assume that what worked for someone else will work for you.

So, what can you do if you can't rely on these handy my?  Talk with an attorney and get some qualified advice.  Follow your attorney's advice.  Do yourself a favor.

Monday, November 26, 2012

How to Pay for an Attorney

One of the basic issues for someone needing an attorney is how to pay for one.  For some people, it's not really a concern.  For others, it may seem insurmountable.  Keep in mind that courts don't appoint attorneys to represent parties in divorces and most family law cases.  If you want a pro bono attorney, you pretty much have to meet very strict guidelines on income and assets and then find a Legal Aid office or clinic that can take you on.  Legal Aid is normally overextended and underfunded.  They do great work with limited resources, but they can't help very many.  That means  you are probably on your own.  You should probably assume that you won't get a free lawyer.

As you may know, attorneys charge different rates, retainers and total fees.  Some charge flat fees, but most charge hourly.  You should check around to find a financial arrangement that is affordable for you.  The more experienced attorneys charge more, but even a less-experienced attorney is usually a valuable help for you.

Where to find the money:  Attorneys know that the following are some potential sources of funds to pay attorney's fees:
  • Cash, from a stash.  Some people do keep a private sum of cash hidden for a rainy day.  Divorces qualify as a rainy day, so that cash can be put to good use, if there is any cash.
  • Money from a joint account.  Unless there is a court order prohibiting removing money for attorney's fees, joint accounts may fund you to get started.
  • Assets that can be sold.  Be careful about selling things.  Your attorney can tell you whether it is a good idea in your case.
  • Getting a loan from somewhere.  If you have good credit, that might be a possibility.
  • Family help.  That's usually a good source, although it might run out.  Family members can usually see the importance of helping.
  • Credit card.  Most attorneys will be happy to take a charge on a credit card in your name.
  • Contribution by your spouse.  You might be able to ask a court to order your spouse to pay some or all of your fees.  The likelihood of this happening increases when you are able to point out cash or an asset that be used to produce the attorney fee needed.  On the other hand, without a ready source for the payment, it is unlikely that a court will order a payment.
Try to be creative and come up with a unique source for your case.

Wednesday, November 14, 2012

How to Decide Which Family Law Attorney to Hire

Once you have made the decision to hire an attorney, you need to look around to find out who is available.  There are many attorneys and there are many different personalities and approaches to handling a family law case.  How do you decide who to hire?  Here's how you move forward in your quest.

Where to find attorneys.
  • Get references or referrals from friends, relatives, other lawyers or any other professionals you know.  It helps to get some information from someone who knows or knows of the attorney, but even a glowing report doesn't mean a good fit for you. Ask for some recommendations from someone who knows one or more family lawyers, and then investigate.
  • Check on line.  There's lots of information you can find by doing searches on line.  If you don't know how to do it, get someone to help you.  You can get lists of attorneys, reviews of attorneys, web sites and writing (such as blogs) to help inform you about the attorneys.  Read what you can about each attorney to get a feel for their approach.
What to look for in attorneys.
  • Experience.  The more complicated the case, the greater the value of experience.  You can decide how much experience is needed for your case.
  • Expertise. Some attorneys are Board Certified Specialists.  That means that they have met rigorous standards of the State Bar.  The requirements include a significant caseload of family law cases, involving a wide variety of issues and extensive involvement with various  courts.  It also requires much more continuing legal education than most attorneys get and it includes a requirement of passing an extremely difficult test.  After becoming Board Certified Specialists, the attorneys must maintain a significant practice in the area and continue the education requirements.
  • Meeting and exceeding the continuing education requirement of the State Bar.  The law changes and attorneys need to keep up with the changes and find ways to practice more effectively.  Generally, attorneys who attend a lot of continuing legal education will be up-to-date and will have new and creative ways to help their clients.
  • Convenient location. Location may or may not matter to you.  For some people, they want a lawyer close to home.  For others, the location doesn't matter.  You can decide how important it is for you.
  • Compatible personality.  This may be the most important difference-maker for many people.  There are many highly-qualified, experienced and well-trained attorneys around.  Choosing between them may come down to a matter of personality.  Talk with more than one and decide who you feel more comfortable with.
 With all of the above in mind, hopefully you can find an attorney who fits your needs.  If not, keep looking!


Thursday, November 1, 2012

Do I Need to Hire an Attorney for my Divorce?

Divorce is rarely easy or pleasant.  In most cases, trying to get divorced without an attorney is harder or has a worse outcome.  Lawyers can be expensive, but not having one when you need one is potentially FAR more expensive.

Here's a brief answer to the headline question.

When You Need a Divorce Lawyer:
  • When you have kids.  Some of the worst post-divorce headaches come from disputes over the children.  Child support needs to be calculated correctly and ordered precisely so that the obligation is clear and enforceable.  Visitation/possession periods need to be clear and specific.  General language won't be enforceable and vague language will lead to disputes.
  • When one spouse is domineering.  That can be physically, emotionally, or financially.  Where one spouse can demand and get whatever he or she wants, the other spouse needs a lawyer to help equalize the power in the negotiations.
  • When there are assets or liabilities.  Normally, there will be assets and liabilities that have to be divided between the parties.  The division is not automatically 50-50.  It can significantly favor one party over the other if there is a big difference in income or income earning potential, or if a party has health issues, or if any of a number of other factors exist.  Plus, some assets are overlooked if the parties don't have legal experience or understand how the law applies to their situation.
When You Don't Need a Divorce Lawyer:
  • When you have a very short marriage.
  • When there are no assets, liabilities or children.
Those circumstances are rare in divorce cases.  Usually, people stay together long enough to acquire things or children before deciding to pull the plug.

The bottom line is that you almost always need a divorce lawyer, if you want to get things done right.

The answer to the title question is -- Yes!

Monday, October 22, 2012

What If You Don't Really Want a Divorce?

Just like it takes two to tango, it takes two to have a marriage.  If one person wants out of a marriage, the other one can't really prevent a divorce.  Both parties have to be committed to keep a marriage together. 

It often happens that one spouse decides to seek a divorce before the other spouse is even aware of that possibility.  People frequently think through their marital problems and come to the conclusion or realization that a divorce is what they want, all without involving their spouse in the deliberations.

The result is that one party is often surprised and unprepared for a divorce.  That party also often wants to try to preserve the marriage.  If you find yourself in that position, here are some things to think about.

1.  Get some counseling with a good professional counselor.  Look within yourself and your marriage.  Do you really not want a divorce?  Is it possible, after the shock wears off, that you also might be better off ending the marriage?  Have you overlooked the signs of discontent or problems in the relationship?  How committed is your spouse to the divorce?  Try to review the situation as objectively as you can, but depend on help from a good counselor.  This is not something you should try to deal with on your own.

2.  Is your marriage past the point of no return?  If you want to save the marriage, don't burn the bridges by your reaction to your spouse. You need to figure out if there's still something valuable to salvage and build upon.  If you spouse is having an affair or living with someone, the odds are that you can't resurrect the marriage.  Be realistic.  If your spouse has hurt you financially, emotionally or physically, it may be best to cut the ties.

3.  If you want to preserve the marriage, here are some ideas. 
  • Recognize that divorce is inevitable, if either one of you wants it.  You may be able to slow it down, but you really can't stop it, if your spouse is persistent.
  • Don't burn your bridges.  Be nice to your spouse.  Being mean or destructive is not going to win back your spouse. You may have to work on the divorce while you are trying to get your spouse to reconsider.
  • Be fair to yourself.  Don't rollover in a settlement.  Giving your spouse everything, or most things, will not win him or her back.  That strategy just doesn't work.  Don't give away the farm.  I have seen that happen and then the other spouse still goes through with the divorce.
  • Make it clear that the door is open and you're willing to work on issues, if your spouse is.  It must be a two-way street.  Your spouse has grievances against you, at least some of which are legitimate, and you will also have grievances against your spouse, at least some of which are legitimate.  If your spouse takes the position that you must unilaterally make all the changes, that's not going to work and you won't like the outcome.
Reconciling is a huge up-hill battle.  Don't expect an easy or smooth trip.  Be prepared to invest a lot of emotion and effort and even then, it may not work. 

  • If your spouse says it's all your fault.
  • If your spouse has acted dishonestly.  Or,
  • If your spouse demands a deal very unfavorable to you, before he/she will talk with you.
If any of those situations occur, go see a divorce lawyer.

Sunday, October 7, 2012

Divorce Over 50: Checklist of Financial Issues

For various reasons, many Baby Boomers seem to be facing divorces even after long marriages.  Sometimes both parties reach the point where they want to end their marriage.  Other times, it's one spouse or the other who takes the lead in deciding to divorce.  Even if just one spouse wants the divorce, in Texas the divorce will ultimately be granted if that spouse persists.

Whether divorce represents welcome relief or a distasteful experience that can't be avoided, both parties need to prepare.  The following is a list of financial issues that come up in most divorces after long-term or later-in-life marriages.

1.  Planning for Retirement.  While not everyone has a retirement plan or assets set aside for retirement, it should be a concern for everyone over 40.  The degree of urgency may vary, depending on how far away from retirement each party is.  The tax aspects must also be considered for each type of asset.  Preparing a future budget and working with a financial advisor will be helpful.

2.  Planning for Transition.  This is the transition from being married to single and also may include the transition from working to retirement.  Very often, one spouse has stayed home to take care of children.  That spouse may need some time to get back in the job market and get hired, and may need some education.  Our economy is not yet back to full speed, so finding a job is not as simple as it was a few years ago.  That means that support may need to be a component of the settlement.

3.  Dealing with Health Issues.  Being part of an older age group naturally means that there will be health concerns.  Additionally, health insurance will have to be provided for.  Health issues can affect whether one or both spouses are able to be employed.

4.  Making Living Arrangements.  The divorce may be coming at a time when the parties might have been downsizing anyway, but selling a house is often part of the discussion.  One or both parties may have to find suitable and affordable housing.

5.  Taking Care of Children.  Depending on the children's ages, there may be private school, tutors, college or other education-related expenses.  Then  there's extra-curricular activities.  They have to be coordinated and paid for.  If the children are young, child support and visitation will have to be resolved.

6.  Separating Credit.  Often, one spouse has a better credit record or more income and the credit purchases have been made primarily in that spouse's name.  Joint credit cards need to be separated.  Some debts might be paid off, or they may be allocated in the property division.  A spouse might need to set up some new separate credit cards or accounts while they are still married and there is joint credit to qualify for the accounts.

7.  Managing Debt.  The  parties both need to prepare budgets for the interim while they get divorced and for their post-divorce lives.  Splitting debt 50-50 doesn't make sense if one person has very little earning potential and the other one has high earnings.  The parties need to be realistic.

8.  Allocating Investments.  Each party will probably want or need some investments, if there are some.  They should carefully evaluate the level of risk with each investment.  The parties also need to consider whether the investments promise short-term income or long-term value, and try to fit the investments with each party's needs.  Another factor to consider is how capable each party is to manage the assets.

9.  Updating Financial Planning.  Everyone should have a will and the wills have to be revised after divorce.  Other instruments, such as trusts, insurance, retirement assets, stocks and bonds, real estate and other investments will need to be revised or reconsidered.  You should work with a financial planner who helps people going through divorces.

10.  Providing for Legal Fees.  Since you will be going through a divorce, you will need a divorce lawyer.  Unfortunately, sometimes one party will try to prevent their spouse from hiring a lawyer.  Even in the most agreeable divorces, each side should have their own attorney to review the situation and advise the client.  One way or another, there's usually money available in assets, bank accounts or credit cards that can be used to hire an attorney.  Don't let your spouse talk you out of it.

Most people do a little research and think about the issues before they go see a lawyer about  a divorce.  This list will give you a starting point.  There are probably some issues not covered that may come up in your case.  Be prepared to discuss these and other issues with your lawyer at your first meeting.  Good luck!

Sunday, September 30, 2012

It's Not Too Early to Plan for the Holidays!

Even though Thanksgiving and the holiday season seem a long ways off, you could make things a lot easier for yourself and your kids if you start thinking and planning for the end of the year now.  If there's any travel involved, you need to be getting tickets or arranging time off or taking care of various other details.  You will need to coordinate with your ex and it should be easier to do it now without the time pressure of being nearer to the holidays. It's also easier if your ex hasn't put his/her plans in stone yet.  You  would also have time to get reduced fares and to grab the time off before others at work claim it.

Here are some things to think about:

1.  Look at the schedule. Make sure you even need to have a discussion, before you get started.   In Texas, we have a standard possession schedule that covers the holidays.  Start off by looking at the specific language of your court order.  You and your ex can agree to change the schedule, but neither can force the other to do so.  It's better to find out now if you or your ex needs a change.  There's still time to get things done.

2.  Talk or email or text (politely) with your ex.  Don't demand or threaten.  If you don't need a favor now, you will need one later.  Don't burn your bridges by being unreasonable.

3.  Be clear and specific with what you need.  Beating around the bush wastes everyone's time.  What you want to do may not be too difficult, especially if your ex needs you to change something.  Spell out exactly what change you need.  Be clear so you can have a clear discussion and understanding.

4.  Listen to the other side.  Your ex may not be able to agree or may not be able to do all that you request.  If that is the response, you might discuss other options.  Always have a Plan B.  Your ex may have good reasons for not agreeing to what you request, but maybe you can still come to some agreement.

5.  Follow the Golden Rule.  Be willing to compromise.  You may need a big favor next year.  Until the last child is out and married, and maybe even after that, you need to keep a decent relationship with your ex.  You will be dealing with your kids for a long time, so don't be enemies with your ex.

So, be nice, be prepared and start early!

Friday, September 28, 2012

Changes Are Here!

After over five years with the same format and colors, we are trying a little different arrangement and different colors on the blog.  We may make a few other changes in the near future.

Please let us know what you think about the changes.  Thanks for reading!

Friday, September 21, 2012

How to Tell Your Kids About the Divorce

One of the hardest things parents going through a divorce have to face is telling their children about the divorce.  There are no easy answers and no single answer on how to do it.  The parents need to plan how and when to talk with the kids about the divorce.

Here are 7 tips about how to tell your children about an impending divorce:

1.  Right mood.  Timing is important.  Make sure both parents and the children are not tired, hungry, busy, upset or preoccupied. 

2.  Right time.  The conversation should be before someone moves out.  It shouldn't be too long before the move-out and not too close to the time, either.  A discussion at the start of a weekend, when both parents will be around for the weekend, can be a good time.  That allows the children to process the information and be able to talk with each parent, if they want to.

3.  Right people.  Both parents should be there and involved in the discussion.  "We"  should be used, rather than creating a blame situation, as appealing as that might seem to the "leavee".

4.  Right reasons.  Blame should not be discussed.  It's better to say something like, "We aren't getting along and we can't fix it."  That's a true statement and it doesn't attach blame.  There's no need to be too specific.

5.  Right response.  Listen to the children and respond to their questions.  Use age appropriate words and statements.  Answer their questions truthfully, but without assigning blame or giving a lot of details.

6.  Right (amount of) information.  Don't explain too much or give many details about what's wrong.  But, don't leave any hope of reconciliation.  If it is a surprise to the kids, they will need time to work through the idea of divorce.

7.  Right planning.  Be able to explain how it will affect the children.  That will probably be their biggest concern.  Will they have to move?  Where will they go to school?  Will there be enough money? Etc.  Don't over-promise and don't discuss issues that are undecided.  It's OK to not have everything figured out.

Most kids probably have friends whose parents have divorced.  Your kids have likely discussed divorce with other children at different times and may have thought about how it might affect their lives.  Don't be surprised if you get some strange, specific questions, or no questions at the start.  The discussion will probably extend over some time, so just keep these suggestions in mind.

Friday, September 7, 2012

Don't Listen to Bad Advice!

At the intersection of someone looking for support and someone wanting to be helpful, bad advice often rears its ugly head.  People going through a divorce are naturally anxious and vulnerable.  They worry about what is happening, what could happen and what didn't happen.  Many people worry a lot.

At the same time, other people are natural caregivers and supporters.  They want to give emotional support to their friend who is obviously struggling in a difficult situation.  They have good motives, but end up being unhelpful in most cases.

I have witnessed many times the combination of a needy person going through a divorce and a friend who wants to help who gives advice. The result is usually confusion and actions conflicting with what the attorney would recommend.

Here are the common actors in that situation; Don't Listen to These People!

Law-related:  Current or former court personnel, legal assistants, legal secretaries, law students, lawyers who don't practice family law, therapists and other professionals who sometimes work in the legal arena.  Sometimes such people who operate or worked on the fringe of the legal system may carry an impression of being knowledgeable, but they're not!  These not only are not your attorney currently representing you, but each one is not really qualified or appropriate for giving legal advice in a case they are not involved in.  What may (or may not) have been true or worked in another case may be ineffective or inappropriate in your case.  Their experience makes them seem qualified to help, but they're not.

Close by-standers:  Relatives, neighbors and friends.  The intention is usually good, but their experience or what they heard 2nd, 3rd or 4th-hand doesn't really work for you.

Non-law-related professionals:  Police officers are a prime source of unintentional misinformation.  Other professionals generally don't have good information for you either. 

What all of these have in common is that they are not the lawyer representing you in your family law matter.

Some common, problematic advice can include such topics as:
  • A suggestion to take an action without discussing with your attorney.
  • Telling you that you shouldn't, or don't need to, comply with a court order.
  • Directing you on what to say or write to someone.
  • Suggesting what you can do with some asset.
  • Advising whether or not you should go to court.
The Best Advice:  Please just get legal advice from your attorney handling your family law case.

Monday, August 20, 2012

Divorce Over 50: Breaking Free

Divorce after a long-term marriage requires a lot of adjustments.   All the legal changes, living arrangements, family connections, financial uncertainty and a myriad of other issues can be overwhelming.  It all comes down to one word:  change.

Change can be very difficult for many people, especially at a time when they are looking for something to hold onto.  The reaction for some people is to slow down or shut down, to try to make the world move slower.  It's easier to understand things if they change slowly.

Some people will take slowing down to an extreme and will try to do nothing while they process what's going on and what they will need to do.  Sometimes, it's easier to hunker down and stay home in a quiet safe environment.  That can give people time to emotionally catch up with what's happening legally.

But, becoming immobilized can be dangerous over the long run.  If you find yourself in this situation, you cannot adequately take care of your own needs.  You can stay home and avoid people for a while, but soon, you will have to get on with your life. 

What if you get stuck in a rut and can't figure how to get out?  Here are some tips to help you break free of the physical and emotional paralysis that can easily overtake someone dealing with intense personal changes.

1.  Go outside.  Get some fresh air.  Take a walk.  Go to the mall.  Shop without spending money --just look.  Move around in public.  Don't be isolated.

2.  Exercise.  Join and use a gym.  Run, bike, climb or walk.  Getting exercise will have lots of benefits, from mental alertness to losing weight to meeting new people.

3.  Hang out at a coffee shop with a friend.  You can look around and take turns making up the life stories of the other people hanging out there.

4.  Go to a modern art gallery or museum.  Look for some art that you can understand or like.   If you already like modern art, go to a gallery or museum with some other type of art that you may not appreciate.  Have some fun with it.

5.  Go see a live play.  If you regularly go already, pick out a  theater that's a different type than what you usually attend.  Bonus points if you go with a friend and discuss the play afterwards.

6.  Go listen to a different genre of music.  Go hear classical music, if you don't usually listen to it, or go hear blues, country, reggae, bluegrass or something else you aren't familiar with.

7.  Fly somewhere on a whim.  Take a weekend trip on a "last-minute" special.  Go see a friend or a place you have been meaning to see.

8.  Help a friend with a problem.  You'll be amazed at how much that will help you.

9.  Try an activity from your youth.  Go dancing, swimming, boating, bowling or playing miniature golf, if you haven't done so for years.  You'll feel younger and act younger.

10.  Try an unusual restaurant.  Go to one that serves a different type of food than you are used to.  Expand your tastes.  Tell your waiter that it's your first time and you need some help and suggestions.

If you are a Baby Boomer exiting a long-term marriage, you need to expand your horizons.  You have a lot of choices and opportunities ahead of you.  To get a jump start, try some of these ideas.  Have some fun!

P.S.  If you have some suggestions, please send us a Comment (below).

Wednesday, August 8, 2012

Choosing an Attorney: Should You Get a 2nd Opinion?

If, after talking with a prospective attorney, you feel uncomfortable with the attorney, you should definitely go see another lawyer before you hire one to represent you in a family law matter.  

If you are considering using Collaborative Law to help resolve your family law issue, you need to have a trained Collaborative lawyer.  If you visit with an attorney who says he or she does Collaborative Law, and that attorney says you shouldn't use the process, you should get a second opinion.

You should start with the understanding that Collaborative Law won't work for everyone or in every case.  There may be legitimate reasons why it might be inappropriate, such as someone having serious emotional issues, one or both parties having unreasonable expectations or if one of the parties is untrustworthy, for example.

Sometimes, unfortunately, an attorney  may claim to do Collaborative work just to draw in business, and then the attorney talks the client out of using the process.  Trust your gut on this.  If something doesn't quite feel right, go talk to another Collaborative attorney and get his or her opinion about the suitability of your case for Collaborative.

Warning Sign:  There's a concern if the attorney tries to talk you out of using Collaborative Law, especially if  you and your spouse have investigated it and jointly decided to give it a try.  It's really suspicious if your spouse has already hired a Collaborative attorney.

What Can You Do?  Ask some questions.

1.  Ask if the attorney is a member of the Collaborative Law Institute of Texas, the International Academy of Collaborative Professionals and/or a local practice group.  An active Collaborative lawyer will probably be in at least two of the organizations.

2.  Ask if the attorney has attended at least a 2-day basic training.  If he or she hasn't, they aren't trained properly and probably aren't able to work in the process.

3.  If the attorney has been to a 2-day training, ask when he/she last attended a Collaborative training.  You want someone who stays current.

4.  Ask how many Collaborative Law cases the attorney has handled.  If none, one or two, you should talk with someone who is more experienced.

Caveat:  Don't assume that an attorney who wants to use Collaborative Law in a case, but who has very few Collaborative cases completed, would be unable to competently represent you.  That's not necessarily the case.  Enthusiasm, current knowledge and the cooperation of the other professionals in the case will likely lead to a good result anyway.

Bottom Line:  Check qualifications, go with your gut feeling.

Sunday, July 22, 2012

Are There Shortcuts to Divorces?

One of the biggest concerns of  people going through a divorce or other family law process is how long it takes to complete it.  Initially, it may just be one of the parties who is upset about the slow pace, but after a while, both parties often are very anxious to end it.  The parties often ask their attorneys to speed up the process, but that is difficult.  Your only avenue for quick action is to come to an agreement.  That involves the other side in the case, which means compromise.

If you find yourself looking for shortcuts in the divorce process, here are some things to keep in mind.

1.  Be clear with your attorney about what your objectives and priorities are. If you prefer speed over thoroughness or over cost considerations, tell your attorney.  If there are certain outcomes that are most important to you, such as getting primary custody or having an expanded visitation schedule or keeping the house, be sure to discuss those with your attorney.  To end the divorce quickly, your attorney needs to know what you absolutely need to end up with.

2.  Be prepared to pay more to your attorney in the near future.  If you want to speed up the process, that probably means that your attorney will get very busy and put in a lot more time on your case right away.  That means much more cost to you, so be prepared for that.  There is a trade off.  More work = higher attorney's fees.

3.  "Haste makes waste."  Benjamin Franklin's saying applies here.  You may miss something if you and your attorney are speeding through the process.  Attorneys will usually look through the information the get and try to figure out if anything is missing.  If you rush, you will probably not get a complete or accurate picture of the finances or other important facts.  That could cost you in the long run.

4.  Pushing hard to speed up the case could derail the process.  People need time to process issues and decisions dealing with family matters.  If you push too hard or push in the wrong way, your spouse may just stop.  It takes both sides together to move quickly through the legal system.  Your spouse could just freeze up if he or she feels too much pressure.  You have to think about the most effect way to motivate your spouse or ex.

5.  You may have to give up something you really want or expect.  It's normally not possible for you to force the other side to move quickly and to do things your way.  Quite often, you trade value for speed.  You have to decide if your spouse is demanding too much to come to a quick agreement.

Here are three points to remember if you think you want to try a shortcut so you can finish up your family law issue:
  • Shortcuts aren't always short.  Sometimes they backfire.
  • Shortcuts aren't always effective.  Your spouse or ex has a say in whether an agreement is reached.
  • Shortcuts may turn into a bumpy road.  Getting to an agreement can be a very unpleasant process.

Friday, July 13, 2012

Overcoming a Friday the 13th!

Divorce is usually a tough process emotionally, so it's sorta like piling on to be going through a divorce, or any other litigation, and also have to deal with a Friday the 13th!

One of my favorite blogs is the Positivity Blog  and they have a post today that doesn't mention Friday the 13th, but it seems like it would be good medicine for someone having a tough day.  By the way, I think their ideas would also work on other days, but psychologically, some people may really worry about a Friday the 13th.  If you're one of those, here are some quick ideas for trying something a little different to just shake up your life.

If you're just going through a divorce or other litigation, and you're having a hard time, these little steps might help get you out of a funk.  Do something different and see if you feel better!
  • Try listening to some music that you don't normally listen to on your iPod or whatever music source you use.  Try classical, blues, classic rock, country, bluegrass, zydeco or some other type that you don't usually tune in to.  You might really enjoy a little variety.
  • Try eating a different kind of food if you go out to eat.  Most people get in a rut and eat the same type of food whenever they eat out.  Surprise yourself and your taste buds!
  • If you cook, try a new recipe at least once a week.
  • For a day, smile at everyone you see.  They may wonder why you are smiling, and they may ask, but that's not a bad way to start a conversation.  You'll notice a friendly response from most people.
  • Stay off the Internet for a weekend.  Go no tech.  You will survive and you may discover an  interesting  new world co-existing with the electronic world.
If you have some tricks to beat the blues or break a bad luck streak, send us a comment.  Otherwise, have a good time today in spite of it being Friday the 13th!

Saturday, July 7, 2012

Ending a Long-Term Marriage -- 5 Fallacies

Many couples, later in life, are facing the end of their marriages.  It seems to be more and more common for Baby Boomers to decide to divorce in their 50s and 60s and later.  That decision creates many new challenges for both parties, but especially for one party if she or he was not the initiating party.  Divorcing is not too difficult if both parties are emotionally ready for it and want to be divorced.  The biggest problem comes when one party is surprised by the other party's decision to start a divorce.

When one party reaches the point of committing to a divorce, and the other party doesn't know it's coming, there can be some big problems for both parties.  Sometimes the signs are there, but a spouse just doesn't want to acknowledge them.  Hiding one's head in the sand will only work for so long.  Eventually, everyone has to face the situation and start making difficult decisions.  Acceptance doesn't come easily for many people.  They deny that the divorce is going to take place, or that it should, and then later will fight to punish their departing spouse.

The spouse initiating a divorce, when the other spouse is surprised, often has some very wrong ideas about what to expect.  The initiator often has spent a lot of time reviewing the situation and has some up with some very logical plans for ending the marriage.  Sometimes, the plans are very selfish, which makes them a hard sell.  Other times, the plans are generous, but even those may be hard to promote.  Unfortunately, logic usually doesn't work, at least initially, when dealing with a very emotional spouse.

Here are some false expectations that are common at the outset of a Baby Boomer divorce later in life.

1.  This can be quick.  It almost never is, and it won't be if the other spouse isn't ready emotionally.  Unless there have been a lot of productive discussions in advance, it will probably take quite a while -- a year or so in litigation; probably less in Collaborative Law.  Aside from the emotions, there's a lot to unravel after a long marriage.  Quite often there are children, some minor and some adult, and provisions are usually made for them.  In addition, planning for employment and retirement for the spouses can be very challenging, especially if one has been a stay-at-home parent.

2.  It can be cheap.  That partly depends on how much fighting is going on, which is affected by the emotional readiness of each spouse. In addition, the parties will be dividing up assets and suddenly will be facing the "golden" years without half the gold they accumulated and planned with over the years.  Retirement plans and housing get drastically changed.  In addition, the costs of a divorce can be substantial if there is a lot of fighting or there are a number of assets that require expert valuations.

3.  It's easy.  After a long-term marriage, there are many, many connections and dependencies which have to be undone or compensated for.  Over the years, parties make a lot of assumptions about their future, and now new plans have to be made.  Complications come from age, health, unemployment, outdated job skills, shrinking  retirement funds and insurance issues.  It will not be simple.

4.  It can be painless.  Sure, if everyone agrees to get the divorce and instantly agrees on the terms.  Of course, that never happens.  Most often, the "leavee" is angry and out for revenge, or at least a lopsidedly-favorable settlement.  Usually, the initiator pays for the break-up, even if the the other party is partly or wholly at fault.  Remember, logic has little or no place in divorces.

5.  A party can just walk away.  It's never that easy.  There will always be ties -- financial connections, family relationships, children, and friends, among other ways.  Unless both parties are emotionally on the same page, expect trouble!

Suggestion:  Consider using Collaborative Law to help deal with the emotions and the varied financial issues that Baby Boomers face when they divorce later in life.  That's smarter than trying to handle this by yourself or going through litigation.

Friday, June 22, 2012

What to Expect in Mediation

This post is a very broad look at mediation as it is practiced in Texas, specifically in Tarrant County, Texas.  Please don't assume that my comments accurately describe mediation as it is practiced in other states.

1.  Who is the mediator?  The attorneys in the case will normally choose the mediator, although the judge in the case might make the decision.  They consider mediators they have had success with, ones with personalities compatible with the parties or ones with special knowledge or experience with the issues that will come up.  Most often, the mediators are local attorneys.  Sometimes they are retired judges.  In some cases, two mediators are used.   Mediators are specially trained in mediation and family law.  They normally have strong communication skills and are very good listeners.

2.  What is the format?  In Texas, most cases  use the caucus system which means that each side is in a separate room and the two sides don't usually come into contact with each other during the mediation.  Each side has their own attorney who actively participates in the process.  In other states, the mediation takes place in joint sessions and attorneys don't participate in some areas.  Mediators can work under either system.  In the beginning, the mediator introduces himself or herself to the parties and gets some general information.  The mediator asks one or both sides for opening offers which are then conveyed to the other side.  The mediator goes back and forth, meeting with the parties, asking questions and keeping the discussion moving.  Part of the mediator's job is to get the parties to consider other points of view.  That's helpful in breaking through impasses.  After many trips back and forth, the mediator can usually help the parties reach agreements.

3.  How do you know what to ask for?  It's a good idea to spend time prior to the start of mediation in figuring out what you want to end up with.  Once you are clear on what you want, then you can come up with some opening and secondary positions to use to start the process and keep it moving.  Equally important is to think about the motivations and interests of the other side.  If you can figure out what they are likely to be aiming for, you can plan your moves to maybe achieve both your and their objectives.  Maybe you can come up with some trade-offs.  Planning ahead will make it easier to come up with ideas that can work.

4.  What should be your strategy?  Keep your goals in mind.  Leave yourself room to compromise.  You should never start off requesting your best result.  No matter how logical or reasonable you think it is, the other side is not going to accept your opening offer.  Some people take an almost opposite approach, which is also usually a bad idea:  start off with the toughest issues to test the other side and find out if they are willing to compromise.  It's usually better to start with some easier issues and create momentum in coming to small agreements.  That can lead to bigger agreements.  Special warning:  Don't expect logic or rationality to plan much of a role in settling a family law case.

5.  Is the result binding?  Yes, if it's properly prepared and signed.  It must contain special wording saying that the agreement is binding and irrevocable.  With that, courts ill enforce mediated settlement agreements.  Be sure you really approve of all the terms before you sign, because there's no backing out or changing your mind.

Be sure to talk with your attorney and prepare ahead of time.  The attorney can answer any questions you have about how mediation works.  You should go in expecting to be successful!

Thursday, June 7, 2012

How to Prepare for Mediation

Once the decision has been made to go to mediation, each side and their attorney should prepare.  Some attorneys spend a good amount of time getting ready and others spend little or no time.  The better practice is for the client and the attorney to put in time preparing since there is so much at stake.  The opportunity to work out a favorable settlement should not be squandered.

So, what can you do to prepare?  Here are some tips for the attorney and party to meet and work on.

  • Identify the important issues.  Hopefully, the attorney already knows what the goals, needs and interests of the client are.  Sometimes, however, a goal may change in the course of the case.  For example, at the beginning, a party may want revenge or to punish the other party (not necessarily a course of action I would endorse, by the way).  After time passes, sometimes the anger cools and the party decides he or she just wants to get the case over with.  It is actually very common for goals and needs to change. A client should tell the attorney about any changes of attitude or plans.
  • Figure out the other side's goals, needs and motivations.  You can put together a series of positions you might be able to take to compromise and come to an agreement.  You probably need to build in room to make some concessions so the other side will feel like he or she has won something.
  • Gather needed paperwork.  Find out what paperwork you may need and then have it ready for the mediation.  It usually helps to have updated print-outs of all financial accounts so you can work with current and accurate numbers.  Your attorney can tell you what you need.
  • Adjust your attitude.  Don't dwell on emotional issues, especially anger.  Think of the negotiations as a business deal.  Don't let personalities into the mix.  You can make a better deal if you can stay calm and rational during the mediation session.  Think of the advantages of getting the dispute resolved and being able to move on with your life.
  • Ask questions.  Your attorney has probably done lots of mediations and may not explain every detail or may assume that you know or understand something that is confusing or foreign to you.  Take the time to ask questions.  Your attorney wants to help you, so help yourself by seeking clarity for you and your attorney.
Communication with your attorney before and during the mediation session will be key to you being comfortable, prepared and successful.  Good luck!

Wednesday, May 30, 2012

Why Does Mediation Work?

Mediation is encouraged/required in most family law cases filed in Tarrant County, Texas.  Courts want to have hearings only when necessary, and they know that mediation settles almost every case where it is used.  There are certainly some cases where nothing will help the parties to agree, but all experienced attorneys have mediated cases that reached agreements where it seemed like there was no chance ahead of time.  Mediation sometimes almost feels magical in its ability to help parties come to agreements.

Here's a non-magical explanation of why mediation works.

1.  There's a focus on problem-solving.  When mediation is scheduled, the goal is usually to reach a final agreement on a divorce or on a modification order relating to children's issues.  Sometimes, mediation is used on other issues or at different stages in disputes, but most commonly, the goal becomes to reach a final resolution.  In contrast, much of litigation is about investigation, making temporary arrangements, dealing with discovery disputes and other interim issues.  When you show up for mediation, everyone knows it's time to get down to business.

2.  A specially-trained neutral person helps both parties.  Judges are neutral, but they have a different job.  They listen to evidence and arguments and then make a decision which the parties must live with.  In mediation, the mediator does not impose any decisions.  The mediator keeps the parties talking and considering alternatives until the parties themselves reach an agreement about how they want things done.  The mediator helps the parties come to the agreement.  The mediator has been trained in communication skills to be able to listen better, ask questions and be supportive as the parties think and work through the issues.

3.  Each party gets heard.  This is a huge benefit of mediation.  Even though each side theoretically can testify and present evidence in court, there is no free flow of communication.  Rules of evidence and procedure constrict the flow of information.  Those rules are necessary for court, but they don't feel good to the parties who want their say in court.  In mediation, the mediator will listen to both parties and give them plenty of time to express what they want to convey.

4.  The process is safe and private.  Many people aren't happy about having to testify, or to be testified about, in open court.  They don't want their private lives exposed in public.  Court hearings are open to the public.  Mediations are not.  In Texas, the parties most often work in the "caucus" style, meaning that each party remains in a separate room and they normally don't see or hear the other party directly during the mediation.  The mediator goes back and forth, carrying information, offers and responses.  Most people seem to appreciate not having to confront the other party in the stressful situation of mediation.

5.  There's an end in sight.  Mediation almost always works.  When there is an agreement, the mediator prepares a written agreement which is signed by both parties and their attorneys.  The agreement is very detailed and always contains the magic words that the agreement is binding and irrevocable.  With that, judges will uphold and enforce the agreement.  The parties need to make sure they are satisfied with the agreement, because it will be binding once everyone signs.  After that, there's no backing out.

In the ordinary case, magic isn't required.  Mediation provides a safe, controlled, private forum where each party gets to be heard by a neutral third party.  Some people feel validated and some just need to let off steam.  Whatever is needed can usually be provided in the mediation process.

Monday, May 21, 2012

Should You Try Mediation?

Simple answer:  Yes!  

Here are some reasons why you should plan on using mediation:

  • Judges almost always require it, at least in Tarrant County, Texas divorces.  If you can't quickly get your case settled otherwise, your Judge will almost always order the parties to go to mediation prior to trial.
  • The process works.  In my experience, it seems to work about 80-90% of the time.  Even in the cases where we don't end the session with an agreement, the parties almost always come to an agreement shortly afterwards on their own.  In most cases, if there's no final agreement, at least some issues get disposed of or at least narrowed.  That will save time if you ever go to court.
  • Mediation is good for the parties.  It's a private and confidential process.  Negotiations take place away from the courthouse and information is not so publicly exposed as it would be in a trial.  It's also good because it brings an end to the legal dispute and the parties get to be the ones deciding how it is resolved.  It's also usually cheaper than preparing for, and going to, trial.
  • Mediation is often better than the alternative.  Sometimes, clients fear testifying in court, so mediation sessions become very appealing.  Sometimes, clients just don't make good witnesses, or they may be unsympathetic people, or  they may have some bad history they don't want brought out.  Sometimes, clients run out of money and can't afford to get experts, and pay for the preparation for trial.  For all those people, mediation is a safer alternative.
  • The result of a successful mediation is an enforceable agreement.  Courts are unanimous in supporting and enforcing properly signed and prepared  mediation settlement agreements.  You don't have to worry about someone changing their mind.  CAVEAT:  Be sure you understand and agree to everything, exactly as written, before you sign off on the mediation agreement.

Wednesday, May 2, 2012

Don't Write on Original Documents!

One of the best, appropriately brief  posts I have seen in a while comes from Mark Chinn's blog from April 30, 2012. Mark is an outstanding Family Law attorney in Jackson, MS and has been producing a very nice blog on Family Law issues.  It has excellent advice for something that comes up once in a while.

Sometimes, while preparing a case, it becomes important for a client to bring a document to the lawyer to help prove a point.  Documents include tax returns, various applications, certificates, old court pleadings, accounting records, letters and many other things.  The documents need to be in good condition and hopefully, be originals.  Which brings us to the advice:

PLEASE don't write on original documents!  Your writing can make the document hard to read, but more importantly, it may become inadmissible because it contains hearsay and because it is no longer authentic.  The extra writing is considered hearsay, which is generally inadmissible, and the document has been changed into something new by the writing.  It may seem like a trivial technicality, but that writing does cause a problem.

HOW TO AVOID THE PROBLEM?  There are several simple solutions:
  • Make a copy and write your notes on the copy.
  • Scan the document and make a PDF.  Then print the document and put your comments on that copy.
  • Use a sticky note for your comments.
  • Just make notes on a separate page.
  • Use self restraint. Don't write comments. Just tell your comments to your attorney. 
Your attorney will be much happier and your case will be in better shape if you follow this advice!

Saturday, April 21, 2012

Should We Do Informal Discovery?

Discovery is a necessary stage for most divorces.  It is the process of gathering and sharing information about different aspects of the parties going through a divorce or other Family Law issue.  There are some standard steps that attorneys often follow, written questions, requests to turn over specific documents and requesting other information and basic information about the witnesses and issues that are expected to be used in a trial.  Sometimes one or both sides will want to take a deposition of various witnesses.  That involves having a court reporter and doing an audio and/or video recording, usually with a typed transcript of the questions and answers.

Attorneys must decide not only which discovery processes to use, but how formal to make the process.  In many divorces, informal discovery can be perfectly adequate.  Informal discovery can be faster and cheaper than formal discovery, but there is also a risk that something may be overlooked, although that can also happen in regular, formal discovery.

In Tarrant County divorces, when the attorneys know and trust each other, informal discovery is often done.   

Just like in some diplomacy, however, we generally follow the approach of "trust, but verify".  Here's a way to do it:
  1. Each side determines what information they need and whether they will  need an expert or some other third party.  The parties figure out what specific items they need to request.
  2. The two sides will talk about what they have and what they can provide to the other side.  Talking with the other side during informal discovery is a rational, common-sense way of working that doesn't often occur during formal discovery.
  3. Sometimes, the two sides hire a joint expert to give a value or some other opinion.
  4. Each side will almost always prepare a sworn Inventory and Appraisement listing all the assets and liabilities, along with values.  It also is a way to confirm that everything has been identified and listed.  In other words, it states that there are no undisclosed assets and liabilities.
  5. At mediation or in settlement, we often also request that the other party sign a statement under oath saying that everything has been disclosed.
If informal discovery doesn't work out, the parties can always resort to formal discovery, so there is a back-up.

The alternative to informal discovery is to start with a costlier, slower and more labor-intensive process, formal discovery.  Sometimes, if the attorney is unknown or not known to be  trustworthy, or if the party is untrustworthy,  formal discovery is the only way to go.

Caveat:  There may not be an option to do informal discovery if the other attorney has been hired and directed to make life difficult for your client.  If there's an angry party on the other side who wants to punish or hurt their spouse, there won't be a choice.  Unfortunately, the people wanting to use that strategy often don't realize the extra cost that involves for themselves as well.  You just can't make people be reasonable.

Saturday, April 7, 2012

Why You Shouldn't Be a Jerk!

Some people just can't help it.  They are jerks.  I prefer to think that anyone and everyone can behave well if they choose to.  For some, it takes a lot of concentration, and then some occasional backtracking to undo an initially rude or inappropriate reaction.  I believe that almost everyone can act right, if encouraged and reminded, and if they understand it is in their own best interest.

In general, everyone will need a favor, such as getting a hearing reset, an agreement to allow more time to respond to something, leniency or the benefit of the doubt.  Jerks don't often get the favors.  

Here are some specific ways being a jerk can affect you in the legal system.

1.  You may face stronger opposition from the other side.  They are less understanding or forgiving.  If you (figuratively) slap them in the face, they probably won't turn the other cheek in litigation.  Mad people fight back!

2.  The Judge won't like you.  The Judge is bound to follow the law, but he/she is not a robot.  There will always be matters, especially in Family Law, where the Judge is allowed a wide range of discretion to decide outcomes.  You need the Judge to like you when he/she is deciding property division, allocation of bills, support, visitation and other issues. Like it or not, most legal decisions are not precise applications of the law which produce mechanical results.  Most decisions are discretionary.  You don't need to fight the Judge.

3.  Other important officials who don't wear robes may not like you.  Humans fill the roles of court clerks, court coordinators, bailiffs, child support office workers, employees of the Domestic Relations Office and employees of the Texas Attorney General's Office.  You may not ever think about some of them, but they see, know and talk about you (that's not just paranoia) and they can influence how easy or how difficult your life is in the future.  You are better off if they don't remember you, because they normally just remember the "problems".

4.  Your own attorney may not stick around.  Most attorneys are busy.  Very few want to waste time and put up with aggravation from a difficult client.  

5.  It will be harder to find witnesses and allies willing to help you out.  Forcing someone to come to court and testify is usually a bad idea.  Yous want voluntary witnesses.  You want people coming forward and wanting to help you out.  An ungrateful, vindictive, mean person usually has a hard time getting help from others.

Bonus Point:  The more you fight, the longer it will take and the more it will cost.  Don't complain about those things if you choose to be a jerk!

Wednesday, March 21, 2012

You Can Both "Win"

Or, why it's OK for your spouse to come out of the divorce in good shape, too.

For many different reasons (competitiveness, anger, revenge, control or mental illness, among others) parties going through a divorce often feel like they have to "win".  But, as Charlie Sheen showed us, "winning" isn't everything.  In fact, in divorce, the drive to win can be very destructive and certainly raises the cost of the process.

Here are some ideas to consider as you start out in a divorce.

1.  If there are children, both you and your spouse will remain the parents of your children, and the kids should feel good about their parents.  Unless your spouse has done something really heinous, he or she will be a part of the children's lives forever.  The children feel like they are a part of you and a part of your spouse.  You certainly don't want the kids feeling bad about a part of themselves.  Destroying your spouse will hurt your children.

2.  Making your  spouse mad at you can lead to more problems for yourself.  Sure, everyone gets upset during a divorce, but you can try to limit the damage by limiting how rough you act.  If you (and your attorney) always play hardball, your spouse will probably be much angrier than he or she would have been if you had taken a more reasonable approach.  Think about how your spouse acts when he or she gets mad.  You don't have to rollover and let your spouse get everything, but there is certainly a middle ground between that and hardball.

3.  A bad result can cause financial problems for one or both of you.  One or both of you may have credit problems. Savings and credit lines are often used up. Struggling financially post divorce, especially if you have kids, can lead to problems for the other spouse:  joint bills not being paid, extra expenses having to be covered by the other spouse, tight budgets, etc.  Even after the divorce, there is still some financial connection for at least a while, and often longer.  Going overboard with the divorce fight can drain the resources of both of you.

4.  You will look good to your family, friends and the community.  That's a good thing.  Whether you believe in Karma or not, the good you do will come back to help you later in life.

5.  A happy ex-spouse may help you later one.  You know that from experience in other contexts.  You don't have to become life-long enemies.  Ex-spouses often work together better post divorce.  It happens all the time.  Yes, your spouse may be the one who never gives you a break, but it's worth it to try.  If you have kids, you will need help and cooperation from your spouse.

CAVEAT:  Sometimes one party wants to "play nice" and the other one wants to take a scorched earth approach.  If you want to be the nice one, you may not be able to be as nice as you want, but you don't have to go all the way in to the opposite extreme to counteract your spouse.  All the above points are still true.  You will do better and feel better if you can look at things from a long-term perspective, rather than just an immediate battlefield point of view.  Good luck!

Wednesday, March 7, 2012

7 Bad Strategies for Divorces

Attorneys handling divorces hear and see a lot of things that are signs or symptoms of problems for their clients. If you are going through, or about to go through, a divorce, and you say or do any of the following, you are going to make your life more difficult and probably more expensive.

1. Saying that cost is no object. That's literally true for very few people. For most people, there will be a point when they realize the cost is starting to exceed the expected benefit. As that scale tips, people become unhappy. They realize that they have spent a lot of money and still haven't accomplished all that they wanted. It's better to be realistic from the beginning and put limits on your spending for attorney's fees and other litigation expenses.

2. Being too cheap. "Nickel and diming" everything. If you can't afford reasonable costs, you should reassess your approach or just stop for a while, if you still can. While being frugal is often good, you should not cut back too much on essential expenses. Work with your attorney to come up with a reasonable budget for what you need to do.

3. Listening too much to others. That can be a serious problem, especially if you decide that you want to do something or not do something because of what someone (other than the lawyer) has told them. Each case is different. Laws are different from state-to-state. It's much better and safer to strategize with your attorney.

4. Being in a hurry. Most legal matters take much longer than clients want or expect. If you are in a hurry, and especially if the other side becomes aware of that, you will be at a significant disadvantage in negotiating. The party who's not in a hurry can easily put pressure on the other party by simply slowing everything down. When your goal becomes a speedy resolution to the issue, you lose a lot of your bargaining power for getting a good result.

5. Having another significant other waiting in the wings. The "other" will probably encourage you to be in a hurry to settle. See #4. In addition, if you ex finds out about the "other", your ex may become angry and uncooperative. Finally, people tend to make bad decisions on the rebound. Be careful.

6. Using the kids as a weapon. This is such a "no-no". Don't threaten to keep the kids away from the other parent. Don't trade visitation or money for time with the kids. Try to focus on what's best of the children.

7. Signing an agreement without legal advice. Sometimes people try mediation without attorneys or negotiate or go to court without attorneys. Be sure to take any proposed agreement to a Family Law attorney to review before you are finally committed to a deal. It's safer to have an attorney advising you all the way so you can avoid problems that you may not even be aware of.

If you will avoid these seven bad strategies, your life will be much better. If you think about taking any of these approaches, be sure to discuss your ideas with an attorney. Good luck!

Wednesday, February 29, 2012

New Tarrant County Family Courts' Rule on Electronic Devices

There's an important new rule that the Tarrant County Family Law Courts are enforcing.

Everyone entering a courtroom must make sure that all electronic devices are turned off. That includes phones, smart phones, computers, electronic readers and any other electronic devices.

The rule applies to attorneys, parties and witnesses. It also applies to the audience.

Apparently, there have been some secret recordings made of court proceedings which were then published on the Internet, which is obviously easy to to. Most likely, the recordings were intended to embarrass or harass the other party, or maybe to influence other witnesses. Also as we all know, recordings can be manipulated and distorted. There is no legitimate need to make those personal court proceedings even more public than they are.

The posting of the recordings, audio or video, in the future will have serious consequences to whoever participates in the recording or posting.

Attorneys will have to ask permission to be able to turn phones or computers back on, and they are still subject to the no-recording rule.

For good cause, which is up to the Judge to decide, a party might be able to turn a phone or computer on, but the no-recording rule remains in effect.

For what it's worth, you can still talk about what happened in court, after it's over, unless the Judge places some restrictions on the parties. Nevertheless, it would be wise to think before you speak. Whatever you say can and will be used against you!

Tuesday, February 21, 2012

How to Settle a Litigated Divorce Case

Although every case is different, there are some steps that you can follow to try to settle a divorce case in litigation. I say "try" because one side alone cannot control the outcome. Approaching the case in a logical and rational manner may help move you to a reasonable solution, but keep in mind that rationality is often in short supply in divorces. Still, it should help to know what to expect.

1. The first step is to establish your objectives. What do you want to accomplish? How do you want this to turn out? How do you see your life after the divorce? You should broadly define your interests, needs and goals regarding assets, paying bills, living expenses, housing, child support and visitation (if you have minor children) and retirement plans. Knowing where you want or need to end up will help determine your course of action.

2. Gather information. There are a number of posts in this blog and others dealing with information you need to gather. In litigated cases, there is often formal discovery, which consists of written requests for providing documents and other material, written questions to be answered and possibly depositions, among other things. Your attorney will direct you on the specifics, but you should expect to need information for at least the last 3 years, including tax returns, bank statements, credit card statements and financial statements, among other things. It would also help to prepare both a current budget and what you would expect your budget to be post-divorce, to help with planning and determining your needs. Sometimes experts are hired to determine the value of certain assets, including businesses, pensions or real estate.

3. Consider the motivations and interests on both sides of the case. Analyze what you think would motivate your spouse to come to a reasonable agreement with you. Sometimes, it seems like nothing can make your spouse reasonable. In reality, there's always something that each party really wants or needs, or fears. When you figure that out, you will be better able to get the case settled. Hopefully, you can figure out how to meet your spouse's interests at the same time yours are being met.

Sometimes, you need to mix in a dose of reality. No matter what you or your spouse wants, the judge may never order it or approve it. That should be taken into account. At the same time, there may be some issues that the judge has clear, standard rules about and you will need to conform to his/her approaches.

Also, some battles are limited by the fact that one or both parties lack the money or motivation to continue a fight. Real practical considerations should come in here, although some people insist on fighting even when they have run out of money.

In addition, encouragement to fight may be coming from the other party, the other attorney or the collection of unofficial advisors that everyone going through a divorce gets advice from. You need to figure out the source of the advice to fight so you can try to counteract it.

4. Work out a comprehensive agreement. You need an attorney with experience in negotiations. Rarely does the process go smoothly or quickly. That can be very frustrating, especially when one side is really stuck on one position. Don't expect your spouse to see things the way you do. Compromise is a necessary element on both sides.

One way to improve your chances of success is to use a mediator. Your attorney can help pick out a mediator who is appropriate for your case. Mediators generally have a success rate of 90% or better. Most Tarrant County divorce courts order cases to go to mediation before being able to go to trial. Obviously, it is a very effective way to settle cases. Your attorney will help you prepare for mediation.

5. Final steps: prepare the paperwork and get it signed. The more complicated the case, the more paperwork there is, but there will always be more than you would expect. It sometimes takes a while for the attorneys to agree on the wording, so don't be surprised if it takes a while to complete the paperwork. Even though attorneys use somewhat standard forms, there are always changes to be made to match the terms that were agreed upon.

Note: If you are lucky enough to be able to use Collaborative Law to settle your case, the steps are similar: Set Goals; Gather Information; Develop Options for Settlement; Negotiate to Agreement; Prepare the Paperwork. BUT, the tone and atmosphere are very different in Collaborative. Check it out on this blog and my Texas Collaborative Law blog for more information.