Saturday, January 14, 2012

What Should I Expect as I Start a Divorce?

There are some fairly standardized process steps that can be expected in a contested Tarrant County, Texas divorce case. The steps vary, depending upon whether you are in the litigation process or you are using Collaborative Law. Keep in mind that each case is a little different from all others. It is not unusual for cases to veer off course and attorneys will sometimes try different tactics in different cases. In general, here are some common steps that follow the initial attorney-client meeting.

Litigation Process

1. The attorney will prepare and file a petition for divorce. Sometimes, there's a restraining order with the petition. The petition (and TRO, if there is one) must be served on the other spouse unless a waiver of service is signed and returned by the spouse, or the spouse simply files an answer -- which happens sometimes when there is some degree of communication and cooperation between the parties at the outset.

2. A temporary hearing may be scheduled. When the divorce is filed, it is very common for the attorney to get an order setting a temporary hearing to settle basic issues temporarily -- not a final disposition. The issues often include: use of the residence and vehicles, support, responsibility to pay bills, child support, terms for sharing time with the children, control over some financial matters and possibly other issues. While a "hearing" is scheduled, there's rarely a real hearing in Tarrant County. Most of the time, the attorneys are able to work out agreements, sometimes after a conference with the judge. Some judges will have an informal hearing, but most decisions don't result from a process that remotely resembles what is portrayed on TV.

3. The parties operate under temporary orders. The TO's will last until the divorce is finalized, but they are sometimes modified. That could be done by agreement, but it's more common to go back to court for additional temporary orders. There can also be motions for enforcement of the TO's if one party believes the other has violated the orders. In contentious cases, there are often multiple hearings before there's a final hearing.

4. Discovery takes place. This is the stage of the process where information is requested and provided by both sides. Very broad and comprehensive requests are usually sent out. Depositions can be taken of the parties and other witnesses. Sometimes, there are objections to the requests or complaints about the information furnished or not furnished. There can be multiple hearings on those disputes. The gathering, review and organization of the information is very time consuming in most cases.

5. Experts are appointed or hired sometimes. The experts may be used to value real estate or a business or some other asset. Other experts may do psychological evaluations or custody investigations. Drug testing or paternity testing can also be ordered. Sometimes the court will appoint one neutral expert (with each party paying half the cost), and sometimes each party will hire his or her own competing expert.

6. Negotiations occur. In most cases, the parties negotiate. There is usually some effort for negotiations between attorneys, but most often cases get settled in mediation. Almost every time, a family court judge in Tarrant County will order the parties to go to mediation before they can appear for trial. The reason is that about 90-95% of cases settle in mediation and that frees up court time for more difficult cases.

7. There's a trial, if there's no agreement. The trial will normally be 6 to 9 to 12 months, or more, after the case was originally filed. Another option is to request arbitration, which can be a little expedited, if both parties agree, but it is rarely used.

8. Final orders are prepared after a trial or an agreement is reached. The final orders include a decree of divorce and sometimes an agreement incident to divorce (AID). In addition, there may qualified domestic relations orders (QDROs) if there are retirement benefits to divide. There can be a substantial number of deeds and other documents as well to implement the terms of the decree.

Collaborative Law
Assuming that both parties want to use Collaborative Law and that they each have hired trained Collaborative Law attorneys, here are the usual steps that are followed in Texas Collaborative cases. Note: the parties agree to not go to court for contested hearings and don't do formal discovery.

1. Initial meeting. At the first joint meeting, the attorneys and parties review the participation agreement and sign it. The agreement outlines the commitments of everyone to the process and explains how the process works. It also contains a temporary agreement that is usually signed that maintains the status quo regarding financial matters. Sometimes goals of the parties are reviewed at the first meeting; other times, the goals are discussed at the second meeting.

2. Gathering information. The parties begin immediately to gather information. Various specific financial documents are produced and shared. Normally, the financial professional directs and works with the parties to efficiently identify financial concerns and gather information about them. On children's issues, the child specialist or the mental health professional, whichever is handling those issues, will direct the parties in gathering information. Sometimes, joint neutral experts are hired to value a business or real estate or other assets. It usually takes several meetings to gather and review the information. Much of the preliminary work is done by the parties with the respective professionals, but without the attorneys, until there is a joint meeting to review information.

3. Option development. This step takes place after the information gathering. The parties, with their attorneys and the other professionals, brainstorm to create options that address the goals of each party.

4. Negotiations. After coming up with multiple options, the parties take time to review and evaluate their options. In the discussions of the options, new options are often created by modifying other ideas. As a result, the parties usually are able to come up with creative and beneficial solutions to meet their goals.

5. Final paperwork. Once the parties have reached agreement, the final papers are prepared, just like in litigated divorces. The decree and AID are signed by the parties and attorneys and then the judge. Any additional paperwork is prepared as needed to implement the agreements.

Most Collaborative cases can be resolved in a few months, but the process easily allows a longer time period for especially difficult cases.

Caution: "Your mileage may vary" -- Check with a local attorney for information about the cost and timing for a divorce considering the unique facts of your case. For more information about Collaborative Law, check out my Texas Collaborative Law blog.

Tuesday, January 10, 2012

Getting Started: What Information is Needed?

Overview: This is a quick summary of useful information that you can bring to a meeting with an attorney.

1. Immediate needs. Think about what you need to get by right now. What are your financial needs? Safety needs? Transportation needs? Travel schedule? Kids' needs? You probably have monthly statements, letters, memos, notices, contracts and other records that relate to your immediate needs.

2. What are your end objectives. Consider what you want to end up with and gather any relevant information about that. For example: school costs, transportation needs, insurance, job training, retirement plans, debts to pay, housing, etc. Think about your long-term needs and wishes.

3. Get what you can. On a practical level, you may not have access to a great deal of information, so just grab and copy what you can. If you do have access to a substantial amount of information, go ahead and start copying it. You will likely need it at some time during the litigation process. Don't wait until later because things tend to disappear.

Essentials to Look For

1. Income, expenses and debts.
Gather pay stubs, W-2 forms, tax returns and the annual Social Security statement showing your earnings and projected retirement payments. You need to have a budget or two. Preparing a current budget (with everyone living together) would help and you will need a new budget for after separation.

2. Bank statements. Get as many as you can, for all accounts, for up to the last three years.

3. Credit card statements. Ditto. It's amazing what you can find on credit card records.

4. Kid information. If there are children and there may be disputes on custody and access/visitation, you should gather a variety of records. These include school records (attendance, grades, conduct), medical care, dental records, expenses and scheduling.

5. Web information. Please gather relevant web site information that have access to financial, medical and school records, as well as social media sites such as Facebook, YouTube, Google +, Twitter, My Space and others. We need user names and passwords. That should be for both you and your spouse. If you or your spouse have web sites or blogs, please provide that information as well.

Friday, January 6, 2012

How to Choose an Attorney

When you have decided that you either need to file for divorce, need to defend yourself in litigation or want to know your options, the next step is to consult with an attorney. If you know or have worked with an attorney, it may be easy to contact that attorney and set up a meeting.

On the other hand, if you don't have easy access to a lawyer, you may need help in finding one appropriate for your situation.

Preliminary Considerations

1. What is your objective?
Think about what you need to end up with. Do you need cash now? Do you want to stay in the house or get money to buy another house? Do you need retirement assets? Can you handle debts? How will children factor in? Figure out what your needs and goals are so you can discuss these ideas with your attorney. If you have special needs in certain areas, it probably isn't in your best interest to try to just get half of everything. You can be more creative and better meet your needs by thinking about specific needs.

2. How much money do you have available? Frankly, this has a major impact on your course of action. Family law is expensive. Some people will try to handle everything without a lawyer and that sometimes works. For people with children, assets, debts, retirement accounts, houses, investments, professional careers and assets from before the marriage, a lawyer is really necessary. Fortunately, there is a wide range of attorneys available.

As you check around, find out the hourly rate, the amount of retainer and whether credit cards can be used. Some attorneys will use a credit card authorization with monthly payments instead of requiring a large retainer to be maintained with the lawyer. Bottom Line: find an attorney who is affordable for you and your budget. There are good attorneys in all price ranges.

3. Do you want a shark, a negotiator or a reasonable litigator? To help you decide that, you need to answer some other questions.
Do you want a friendly divorce, a big battle or a private negotiation? Do you want to take care of your soon-to-be ex, or to be taken care of? Do you want revenge or to inflict pain and get retribution for your spouse's misdeeds?

Keep in mind that if you hire an attorney who will take a scorched earth approach to your spouse, you will pay for it. All the extra threats, demands, hearings, depositions, discovery, pleadings and a trial cost a lot of money. You can inflict a lot of pain on your spouse, but it will severely deplete your assets. You have to decide if the revenge or punishment meted out is worth spending an extra $50,000 or $100,000 or more.

Getting Started

Once you have thought about your course of action, you need to consult with possible attorneys. So, how do you find the right attorney?

1. Get referrals. Talk with attorneys, other professionals and trusted friends and relatives, and ask who they like and trust. But, remember that what worked for someone else may or may not work for you. Follow up with the next two steps.

2. Go online. Research attorneys in your area
online. Look at their qualifications and experience. Check out their web site. Read their blog if they have one. You can get a pretty good idea about an attorney by reading what he/she has to say and how it is written.

3. Check for chemistry. Meet with one or more attorneys and see if the chemistry feels right. Some very good attorneys work well with some people, but can never please some others. Go with your gut on this. If you feel comfortable and communicate well with the attorney, that's a good sign. If something doesn't feel right, try someone else.

Final Note: Be honest with your attorney. Don't hide the bad stuff. The other side won't and attorneys hate surprises. Be ready to discusses your weaknesses as well as your strengths.

Monday, January 2, 2012

When Should I File? 10 Signs to Watch For

Everyone facing a divorce will wonder to some extent if it's the right time to file. If any of the following conditions exist, you should seriously consider filing for divorce -- after talking with an attorney. It is best to get the professional opinion of an experienced attorney to review your situation and make sure it is in your best interest to take that step and do it now.

If any of these things are happening, you should probably consider filing right away.

1. Violence. If there has been violence directed against you or your children, you probably need to get out. You may be able to get your spouse kicked out, but you should take whatever steps are necessary for the safety of you and your kids.

2. Abandonment. If your spouse has left, that's a pretty clear signal that the marriage is over. You should file to protect yourself financially and to take care of your kids (if you have any).

3. Hiding of Assets. If you discover, or suspect, that your spouse is hiding assets from you, a consultation with an attorney can help you decide what action to take to prevent the loss of assets.

4. Wasting or Disposing of Assets. If your spouse is spending money irresponsibly or getting rid of assets, you need to put a stop to it. Consult with an attorney about getting a restraining order.

5. Your Gut Feeling. Sometimes you just know that the time is right. You may not be able to put your finger on a specific reason or cause, but you know it's time.

6. Counseling Doesn't Work. You've tried counseling and you just didn't get the issues resolved. Often the party not initiating counseling is resistant and won't put in the effort to make changes. It's usually a good idea to try working with a counselor, but (as you undoubtedly know) you can't make your spouse change unless he or she wants to.

7. Hiding the Kids. If this is going on, you need to act right away. Go see an attorney!

8. Alienating the Kids. This is less obvious, but you may start seeing signs if the kids suddenly start avoiding you or saying hateful things to you. You need to get into court, get the kids into counseling and get some controls over your spouse. It is very difficult to stop and undo such behavior.

9. Running Away. If your spouse has run away with the kids, you need to get into court and get an order to get the kids back. Go see an attorney right away. You don't want to wait and allow your spouse to establish legal residence somewhere else.

10. Spouse is About to File. If you find out your spouse is about to file for divorce, you need to meet with an attorney and decide whether to try to beat your spouse to the courthouse or just prepare for a first court hearing. Either way, you need to consult with an attorney.

Hopefully, this list will help you think about the decision of when to file. The most important part of the decision is talking with an attorney to evaluate the situation. Good luck!