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.

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. 

Beware:

• 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.

Five Common Sense Rules for Divorce

Daniel Clement writes an excellent blog, the New York Divorce Report, where he had some good lessons for anyone going through a divorce in a post on October 26, 2010. Because it was so well-written, I have reproduced it below:

"Contemplating divorce or already engaged in one? No matter where you are in the process, five common sense rules apply to all family law cases:

Don't underestimate the fury of a scorned spouse.

" 'Heaven has no rage like love to hatred turned. Nor hell a fury like a woman scorned.' Anger, jealously and feelings of betrayal inspire the need for revenge. A divorce premised on the need for revenge will be costly (economically and emotionally), bitter and damaging to all.

You can listen to your friends, but maybe don’t pay attention to them.

"Divorces are fact specific. The facts of your case are different from your neighbors your friends, and your co-workers. The facts of your case will determine the outcome. So, when a client tells me that 'My hairdresser said that I should do. . . ' or that 'I am entitled to. . . .' I try to find out when the hair dresser started practicing law. By analogy, I don’t tell my mechanic how to fix my car.

Don't write or say anything that you don't want to be read or heard in court.

"Social network postings, pictures, and even causal asides will be used against you in a contested divorce or a custody fight. Your own words could be the strongest evidence against you. If you don’t want something to be used against you, exercise discretion and don’t say it, post it or photograph it.

Don't let any anger, guilt or remorse get in the way of a reasonable and fair settlement.

"Settlements should objectively fair, based upon the facts of the case. The emotions of anger and guilt cloud judgment. For instance, a spouse who feels that he/she betrayed the other by having an affair, may be willing to 'give away the farm' to satiate feelings of guilt. On the other hand, the betrayed party may have a knee jerk reaction rejecting a fair settlement offer because it does not provide for loss of the other’s body parts. Accept the advice of your attorney and financial advisors in order to resolve your case.

Hire a lawyer who practices matrimonial law, not someone who handles divorces only occasionally.

"Due to the complexity of the issues involved in the dissolution of a marriage, ranging from the valuation and distribution of assets to the custody and care of children,you should seek representation from an attorney well versed in this particular area of law, not from someone who dabbles."

Needless to say, divorce has serious consequences. Unfortunately, some people don't consider the long-term effects of what they do and say during a divorce. It is easy to give in to emotion and act irresponsibly in stressful and uncertain times. Instead of reacting quickly and in anger, it is much better to stop and consider your choices and act in ways that will reduce the fighting and put you in a better position to get a good resolution. In other words, stop, think and avoid the temptation to gain temporary, but immediate gratification. Consulting with your attorney before making important decisions is a good way to avoid creating bigger problems.

What are Your Options to Resolve Family Law Cases?

When suddenly (or even gradually) faced with the prospect of a divorce or other major family change, many people begin to wonder what their options are. It is a very common question I hear from prospective clients. Very simply, there is a range of methods that can be employed to resolve family law matters.

Kitchen Table. In some cases, spouses can sit down together and work out agreements on all major issues on their own. Those cases involve relatively mature and intelligent people who are beyond the anger stage of the divorce process. It can be a great way to resolve issues while maintaining family relationships.

Mediation. In California and some other states, it is fairly common for the parties to go to a mediator without using attorneys and work out an agreement. In Texas, that rarely happens, but we use mediation in virtually all non-Collaborative divorces. It usually takes place after some court hearings and the completion of discovery (the exchange of information). Each party attends with an attorney and it is a very effective process in most cases.

Collaborative Law. When both parties want to try this, it can be an excellent method of reaching agreements. The parties agree to not go to court and work toward an agreement by having a series of face-to-face meetings with the parties, attorneys and other professionals. See my other blog for more information.

Arbitration. Although this is not very common in Texas, it can be a means to avoid the delays of the court system. A hired arbitrator hears testimony, reviews evidence and rules on contested issues. It can be expensive, but it is relatively quicker than a litigated divorce and might be cheaper.

Litigation. This is the most commonly used process in Texas. One side files for a divorce and usually serves papers on the other party. A temporary hearing is usually held to set up orders for while the divorce is pending. It usually takes about a year to get a contested divorce in Tarrant County. It often is resolved through mediation, but that most often occurs late in the process.

If you need to resolve a family law issue, you should think about and research the above approaches and then talk with a lawyer to get advice for your specific situation.

Is the Economy Affecting Divorces?

One of my favorite blogs is James J. Gross's Maryland Divorce Legal Crier. James can make a point very succinctly and his posts are usually both entertaining and enlightening. His post today certainly fits that description. I have heard the question over and over about whether the economic downturn/recession/or worse has an effect on divorces. Here is his response.

“'Are divorces going down in these hard times?' The question came from a woman at one of the holiday parties upon learning I was a divorce lawyer.

"I allowed as how many couples are opting to ride out a bad marriage because they can’t sell the house, or they can’t afford the lawyer fees, or their income won’t cover two households.

"'But others,' I said, 'find that now is just the right time to get rid of an unwanted spouse.'

“'What others?' she inquired of me.

“'Why wealthy husbands, for one, with businesses, stock, options and pensions down about 50%, may find this a good time to buy out their spouse for cash at these lower prices, expecting an eventual recovery.'

“'And trophy wives, in the face of layoffs and rumors of layoffs, may decide the right time to leave is while their husbands are still employed.'

“'I never thought of that,' she nodded, and wandered off to get some more punch."

That all fits with the observation about how some people see problems and others see opportunities.

I Want an Uncontested Divorce

I often have prospective clients call and say that they want an uncontested divorce. Most of the time, that means that both husband and wife have agreed that they want to get divorced. When we ask a few other questions about some of the basics of a divorce (custody, child support, who gets the house, how to divide the retirement assets, etc.), we usually find either that no agreements have been discussed or that there are certain issues where there is definitely conflict.

Many people confuse "uncontested" with "no fault". Those people want to have a simple divorce with as little conflict as possible. They don't want mud slinging. Nevertheless, even relatively friendly people can require a lot of help to get to the point of agreement.

Aside from sometimes needing help to be able to be civil with each other, divorcing couples usually need professional help when there are significant assets and/or liabilities to allocate between the parties. Tax considerations may come in where someone may not expect them. For example, $100,000.00 from a retirement fund may not be worth (net) as much as $100,000.00 in house equity. Likewise, the retirement fund may work out better in the long run for one party if s/he isn't able to take care of, and pay for, the house. There are many considerations to be made in reaching an agreement in a divorce. Sometimes both parties are financially unsophisticated and sometimes just one party is unsophisticated, which puts that party at a disadvantage in negotiations.

Quick Summary
1. The Good: True uncontested divorces are cheaper and faster than contested ones, by a longshot. They are also less destructive to family relationships, which is very important when kids are involved. Uncontested divorces can be a great way to get what you want, rather than leave the decision up to a judge who doesn't care about you.

2. The Bad: The parties, or one of them, may agree under duress from the spouse. The result is sometimes an unreasonable deal because of pressure, threats, guilt or a desire to save the marriage by being generous in settlement. Obviously, some of the pressure comes from the spouse or other family members, and sometimes it is self imposed. The problem is that once the deal is done, and the situation changes, the deal can't be undone.

3. The Solution: Not surprisingly, the best step is to get professional help. An attorney may be needed, a financial expert might be beneficial and a counselor may help a party make rational decisions. Unless there are no children involved and there's insignificant property and little or no debt, the parties should get help. When there are significant assets or liabilities, there is enough at stake to at least warrant a consultation, and full representation is advised. Spending a little time and money to protect your financial future is a wise decision. A good attorney will ask questions about the issues and agreements when you come in and will follow that with advice on how to reach a settlement. You can save time, money and grief, even with an attorney involved, but be sure you choose carefully. Make sure the attorney's experience and approach match up with how you want to proceed. It's your choice.

Thanks to Dan Nunnely of Tulsa, Oklahoma who had two thoughtful posts about uncontested divorces in his Oklahoma Family Law Blog.

How to Minimize Frustration in a Divorce

Divorce can be a very frustrating experience. Everyone has expectations about the process and has desires about the outcome. The parties to a divorce often feel isolated and feel like they have no control over what's happening. Well-meaning family and friends often get involved and do what they can to support the husband or wife. Unfortunately, some of their efforts may intensify feelings of frustration that a party may be feeling. A little more understanding of some of the circumstances of what's happening in a divorce may help avoid or at least minimize frustration for the parties to the divorce.

Everyone should recognize that they have some control over their own feelings, but can't control the feelings of others. Spouses get upset, friends and family members get upset and even the attorneys, judge and court personnel may get upset in a given case. A party going through a divorce has enough concerns taking care of himself or herself, without adding the responsibility of keeping everyone else happy. Here are some typical sources of frustration and some suggestions for what can be done to minimize the stress from them.
1. Your spouse. One of the biggest sources of complaints during a divorce is often your spouse. Go figure! If your spouse was already one who freely complained during your marriage, that will probably continue throughout the divorce. If (s)he was big into blaming, it will continue and may increase, and guess who the target of the blame will be. Probably not him or her. So, what can you do?

• Tune out your spouse. Don't listen when (s)he is complaining or blaming. Walk away, hang up the phone and don't read messages if you reach the point where everything is negative and blaming. Avoid any discussions in person, and maybe in other forms as well, if the talks always seem to lead to arguments, blame, scapegoating -- negative attacks on you and others. You may be getting divorced, at least in part, for this very problem, so help yourself by staying out of the situation that drives you crazy.


• Get counseling to learn coping skills or ways to avoid the situations. You don't have to be crazy to benefit from counseling. In fact, counselors can help you keep your sanity and not get upset by what's going on. You're probably dealing with a situation that you have never experienced before and most people don't just naturally have the ability to deal with the stress. Get some help!

• Talk with your attorney about the frustrations and try to work out solutions to the issues complained of or have your attorney help you avoid the discussions. Sometimes understanding what's going on in your case can help reduce anxiety. Working out a plan with your attorney, based on your needs and interests, can also give you more comfort.

2. Your attorney. Unfortunately, one of the biggest complaints clients have is a lack of communication with their attorney. Many attorneys stay very busy and sometimes they just are not available when a client wants/needs to talk with them. What can you do about that?

• Have a good understanding with your attorney from the outset about what your communication needs are and what the attorney can do. Your attorney may know that (s)he will be unavailable at certain times because of other obligations. Since your problems, needs and concerns don't shut off on a schedule, have a "Plan B" worked out with the attorney so you can get help from his/her office. Find out your attorney's communication style and abilities in advance. Equally important, let your attorney know about your expectations and needs as well. Get to know the attorney's staff -- they can be very helpful and are usually much more available than the attorney.


• Adjust your expectations. Yes, you are paying a lot of money for legal representation, but you are not the only client with needs and your attorney may try to maintain some sort of personal life outside of work. It's unrealistic to expect an attorney to be at your beck and call 24/7, but you should be able to find out what is realistic for your attorney. You should be able to get in contact with someone from the attorney's office with a minimal delay. Talking with a staff member is often the best solution.

3. The other attorney. Parties to a divorce often become very critical of the attorney representing their spouse. Sometimes the attorney is rude or inconsiderate. Sometimes the attorney is just doing his/her job. Most of the time, the attorney is acting appropriately for the other side. What can you do about this?

• Adjust your attitude. The other attorney is acting on information provided by your spouse and is trying to help your spouse meet his/her goals and needs. It's not surprising that you wouldn't be happy about what the other attorney does or says. You need to expect the other attorney to act contrary to you interests. Don't take it personally.


• Talk to your attorney about it if you think the other attorney is really out of line. Sometimes an attorney may go to far in advocating for a client, but most likely the attorney is acting properly. It's hard to accept that if some of the attorney's comments are critical of you or are in conflict with how you want things to go. Your attorney can help you understand the situation. Knowing to expect the unfavorable comments or strategies may help reduce your frustrations.

4. What others say. In every divorce there is a group of invisible, but vocal, advisers in the background. Sometimes they are out in the open. They try to help out by giving you advice and support. Their support sometimes takes the form of attacking your spouse, your spouse's family and friends, the attorneys and/or the court system. Some of the "others" may have had previous divorce experience or have some other specialized knowledge or experience that they want to share with you. The problem is that each case is different and the "others" will not know all the details of your case, so their advice may be inappropriate, even if well-intentioned. What should you do?

• Talk to your attorney about what you are hearing. There may be some useful information, but let your attorney help you figure out what helps and what you should ignore. Don't get worked up about what you hear until you talk with your attorney. The advice you receive is often very wrong.


• Tune out a lot of the chatter. Ultimately, you may have to just not pay attention to these well-meaning advisers. If they're giving you wrong information, you can appreciate their concern, but not follow their advice. Often such advice gets in the way of following through with the strategy your attorney had worked out.

5. The judge and the legal process. Sometimes it may seem like you are fighting the judge who seems to be on your spouse's side. Sometimes it seems like the whole legal system is messed up. In almost every case, it moves much slower than at least one party wants, and it sometimes moves much faster than one of the parties wants.

• Recognize that the judge and other court personnel have rules and procedures they must follow. They also have responsibilities for many other parties who are involved in cases in the court system. You need to accept the fact that the judge probably won't agree with you on a lot of things and won't see everything from just your perspective. In the best of cases, you want the judge to understand your case and see both your and your spouse's points of view. You would prefer that the judge ultimately agree with you, but you must be realistic.


• Don't assume certain outcomes or motives. Talk with your attorney about what to expect. Your attorney should be able to explain how the legal process works so that you can determine whether it is operating within normal bounds.

6. When it seems like everything is going in favor of your spouse. That is a common, but mistaken, feeling. It comes from focusing on all the issues that are decided in favor of your spouse and ignoring or discounting the issues decided in your favor. It often results from ignoring the big picture and focusing on just the negative and the small items. This feeling is often made worse by the invisible chorus in the background who may start complaining that everything is going in your spouse's favor. When you start to feel this way, what can you do?

• Focus on the big picture. Think about the major issues. If you get awarded the majority of a retirement plan, but your spouse gets a large number of low-value items, don't start thinking everything is going your spouse's way. Keep things in perspective.


• Talk to your attorney about your concerns. The attorney can remind you of your "victories" and help you be realistic. Ultimately, it comes down to whether you attain your highest level or most important goals. Don't let yourself get down just because your spouse is prevailing on some issues.


• Be realistic in what you want. You will be unsuccessful if your requests are way out of line. A judge is unlikely, in most cases, to give most of the assets to one party and the debts to the other, unless there are special factors. A judge will normally establish standard visitation and child support for children, no matter how mad you may be (justified or not) at your spouse. You will surely be disappointed if you are unrealistic. Your attorney can help you develop appropriate requests and goals.

A common response you may have noticed is to discuss these concerns with your attorney. That is the single best thing you can do. If you don't raise the issue with your attorney, and don't take action to deal with the problems, you may become overwhelmed by frustration. Help yourself by recognizing the situation and getting help.

How to Break the News to Your Spouse

Divorces usually begin one of three ways. Either your spouse tells you that he or she wants to get a divorce, or you tell your spouse you want to get a divorce, or the decision to divorce is mutual after both of you have discussed it over a period of time. Many people have difficulty when they are the one to break the news to their spouse. Most of the time, both spouses realize that the marriage is not working out, but in a significant number of cases, one spouse has been quietly suffering until a breaking point is reached. In those cases, the other spouse is often unaware of the problems and is surprised when the spouse announces a decision to divorce.

Once the decision to divorce has been made by one of the spouses, the other spouse needs to find out about it. This is usually accomplished by using one of several means.

• You can meet with your spouse and tell him or her directly in person. Some people appreciate this and some feel insulted if they aren't told in this way. Some want to be told this way to avoid a public embarrassment. Some want to take the opportunity to plead their case to continue the marriage.

• You can call your spouse and explain the situation over the phone. It avoids the public spectacle and makes it easier to end the discussion quickly.

• Notice can be sent by a letter from you or your attorney. The attorney letter will probably not be taken as a warm or conciliatory gesture, although it may not be bad if your spouse is expecting something to start.

• A mutual friend or relative might be talked into being the messenger. That insulates you from direct contact with your spouse for the time being.

• You could have your spouse served with notice by a process server. Where you choose to have your spouse served (at home, work or elsewhere) can make a huge difference as far as the perception of your attitude toward your spouse and it could affect your spouse's anger level as the divorce gets started. You should discuss with your attorney whether it is necessary and advisable to serve your spouse and whether you should notify your spouse some other way first.

You should discuss with your attorney whether it is necessary or advisable to have papers served by a process server. Here are some other factors for you to consider in deciding how to notify your spouse about an up-coming divorce.

1. Choose an approach that is consistent with your goals and needs. It really helps to decide what your long-term and immediate goals and needs are: having primary custody; setting aside adequate retirement funds; keeping a friendly relationship with your soon-to-be ex-spouse so you can have a flexible possession schedule with the kids; having your debt paid off or minimized; limiting the amount spent on attorney's fees, having enough money to keep or obtain a house; getting an agreement for more or less child support; etc. On the other hand, you may need to act aggressively and quickly to preserve assets or protect the children, and that might indicate the need to serve papers right away. In some cases, telling your spouse before the papers are served may help your spouse avoid service or take other actions that could be detrimental to you.

2. Clarify what your objective is for telling your spouse about the divorce. Is it to be courteous; to start the divorce in a mature, civilized manner; to punish or threaten your spouse; to set up a hearing right away; to speed up the process; or some other reason?

3. Figure out your spouse's most likely response. Look at the situation from your spouse's point of view, whether you think it is valid or not. Do a little mental role-playing to visualize your spouse's reaction. How does your spouse view the relationship now? Is he or she: unaware of your plan to divorce; accepting of the divorce; eager for the divorce to move forward; opposed to the divorce; in denial and not reacting; or experiencing some other feelings? How do you think your spouse would act with each form of notice? What are your concerns? Would he or she be angry; violent; depressed; crying; happy; or experience some other response?

4. If you are discussing the divorce in person, practice what you will be saying. Think it through and then rehearse it. Choose your words very carefully -- they can make a huge difference in the outcome. You can practice with a friend or family member. Be prepared for any possible objections or other responses that you receive.
How, when and where you notify your spouse about your plans for divorce can have a significant effect on how difficult your divorce turns out. Careful consideration of these issues can make your divorce less stressful and less contentious, and you may have a better chance of achieving your goals and meeting your needs. Many people want to maintain their dignity during a divorce. A thoughtful approach at the start may pave the way to more cooperation later on. These are tough decisions, though, and you should think through the consequences of your choice.

The 12 Days of Christmas Divorce

On Christmas Eve, James J. Gross, of the Maryland Divorce Legal Crier, had a very appropriate post for the season and I am reproducing it with thanks.

"The Twelve Days of Christmas Divorce

On the twelfth day of Christmas,My true love sent to me
Twelve demands for relief,
Eleven prayers for property,
Ten thousand for alimony,
Nine hundred for child support,
Eight pages of interrogatories,
Seven requests for documents,
Six requests for admissions,
Five thousand for attorneys,
Four requests to enjoin,
Three pre-trial motions,
Two process servers,
And a complaint for a final divorce!"

I hope everyone has as merry a Christmas and as happy a holiday season as possible as you work through whatever legal issues you face. May your next year be much better and happier!

When the 7-Year Itch Comes Early

A recent study has shown that couples are at their greatest risk of divorce shortly before their fifth anniversary, instead of the seven-year mark traditionally assumed, according to a recent story in the Houston Chronicle. The study was conducted using records from the United States, Germany and Scandinavian countries. Interestingly, the statistics seem to indicate that marriages that last at least 10 years have a good chance of continuing without divorce.

Apparently, couples face a lot of stress around the five-year mark as they think about having children (often a topic of disagreement) or as they deal with radically changed relationships as new parents (combining stress and loss of sleep with the need to make major adjustments in their lives). Sometimes less-committed partners decide to bail out before life gets too complicated or expensive, which can be around the five-year mark. It can also be a time when unhappy couples decide they don't like their relationship and they have given it enough time to work out.

Sometimes, divorce may be the only or the best answer. In other cases, divorce may be avoided by couples working with marriage counselors early on as they start thinking things aren't going so well. Couples need to communicate well, actively listen to each other and be willing to change and compromise on issues. Those are things most people don't do well without skillful help. Couples usually need help in developing communication skills so that they can discuss sensitive topics without getting into major arguments. Those skills, which are utilized to negotiate in Collaborative divorces, include carefully choosing one's words, being respectful to the partner, agreeing not to rehash old arguments and avoiding blaming the other party, among other things.

Sometimes couples can avoid divorce by treating their underlying issues rather than just scratching their itch and causing further irritation. Early sincere efforts by both parties will provide the best chance of success for the marriage.

Keeping Control During Your Divorce

There is an excellent article , entitled "Keeping Control During Divorce", on a website by Lee Borden, a Birmingham, Alabama attorney . He lists some very practical ideas to help you protect yourself from yourself and your spouse.

1. Don't give up control of the divorce to your lawyer. It is your divorce and you are the one most affected by it. You are also better able to make decisions based on your knowledge of how your spouse is expected to react to situations. You are the one to feel the effects of your spouse's emotions. You have to deal with the effects of numerous strategic decisions made in the course of a divorce. Some attorneys have standard ways of dealing with situations, and sometimes those ways may make a situation worse. You have more to lose than your lawyer does in the process, so you should be consulted before major decisions are made.

2. Don't divide the property without a thorough inventory or disclosure of the assets and liabilities. Minimize the possibility of hidden property. If you don't insist on disclosure, your spouse can later say that the (hidden) asset would have been disclosed if someone had asked about it.

3. Don't spend too much time and money doing Discovery. It's easy for too much to be done, which causes attorney's fees to go up. Much information can be exchanged informally or gained by using releases. The more information you gather and present to your lawyer, the less time your attorney will have to spend gathering and organizing the information. A balance must be struck -- you do need a certain amount of information. One way to limit discovery is to insist that the requests be focus on limited targets rather than having the attorney use the standard catch-all requests. Again, the more you can do to handle the information, the cheaper the process will be.

4. Don't Let your family or friends tell you what you need or what you should be feeling. This is your divorce. You are the captain of your own ship. You are the best judge of how you feel and what you want. It's nice to have support, but don't let them take over. Each case is different, so their experiences and stories may not fit your situation.

5. Don't ignore taxes. Pay your quarterly taxes, withhold enough (or a little more) and keep good records. Make sure that you withhold enough if you withdraw funds from a 401 K plan. When you are dividing assets, consider what items could be taxable and which might have no tax consequences. It is prudent to work with a CPA or certified divorce financial planner if you have significant assets. If alimony is part of a package, remember to figure the tax effects on it.

6. Don't try to win back your spouse by being generous, especially if you are not usually generous. You may get taken advantage of and then left behind. Your spouse may see the generousity as weakness or foolishness. You may end up feeling resentment toward your spouse once your effort fails. It's OK to be nice, just don't be abnormally generous.

Following this advice will help you keep your divorce under control and help you get a better result.

Just What the Doctor Ordered: Alimony

One word that evokes strong feelings of love and hate in the divorce world is "alimony". It’s obviously related to that other word with similar connections to love and hate: "money".

In Texas, alimony can be awarded while a divorce is pending or after it is final. Attitudes of judges, lawyers and the parties often make "temporary" alimony a very limited option, and post-divorce court-ordered alimony is very rare in Texas because of both the long-ingrained attitudes and a very restrictive statute that makes it difficult to qualify for alimony and permits only a small amount for a short duration. On the other hand, voluntary alimony paid by agreement can be very flexible and mainly needs to comply with IRS regulations.

In some divorces, clients refuse to consider alimony in voluntary settlements. That is a very short-sighted approach. It is often because of popular misconceptions that assume Texas alimony law is like alimony in other states where it can be almost automatic, substantial and long term.

Wiser and more creative parties discover that alimony can be an excellent tool that helps cases settle. It can enable both parties to meet their goals and needs, while providing tax relief for the paying ex-spouse. The parties need to make sure that it is not used to replace child support and that it is not tied to events or dates relating to children; the IRS really looks for disguised child support. Done properly, alimony can be a cost-effective means to help the other party get on his or her feet, start a new career or deal with other transitional issues resulting from the break-up of the family.

Alimony payments can promote good will within the family which may trigger a willingness to make concessions in other areas. While alimony may not be appropriate in every case, it certainly should be considered for the benefit of both parties in a high net worth divorce situation. In many long-term marriages, one spouse has not worked outside the home for years and that spouse will need some extra help. Providing that help in a thoughtful and creative manner can lead to a win-win situation for both parties, which is the best cure for a family in pain.

Creating an Emergency Fund, or Living with a Reduced Standard of Living

A couple of days ago, Grant Griffiths (Kansas Divorce Lawyer and Attorney) had another excellent post highlighting a continuing problem couples experience. As he noted, many many couples’ problems stem from conflicts over money – needing more, wanting more, how to spend it, who should earn it, etc. One way for couples to avoid problems is to plan ahead by setting up an emergency fund. It takes some resources and a lot of discipline. Grant referred to another blog, Bankrate.com, which is doing a series on Financial Literacy 2007. The Bankrate post had "28 ways to save for an emergency fund" which had some excellent and very practical ideas. Any couple implementing these ideas will really benefit in many ways.

Reading through that list, I was struck by the good advice which could also apply to the common situation arising in divorces, the need to change one’s standard of living. In most divorces, adjustments need to be made because the money and resources originally used to support one household (often stretched tight at that) suddenly must be divided in some fashion between two households. Few families are in a position to split up and still maintain their old standard of living. While not all the suggestions contained in the Bankrate post will work for all families, there are plenty of good ideas that will work for many families. This is a good place to start planning for new financial realities. It’s great advice to help deal with future emergencies, but even more, it’s a roadmap to economic recovery after a divorce.

Divorce Myths

James Gross of the Maryland Divorce Legal Crier blog recently published the following list of divorce myths.

1. A divorce will solve all my problems.

2. The judge will see that I am right.

3. The judge will never believe my spouse.

4. I will get revenge for the way my spouse treated me.

5. The judge will not make any mistakes.

6. I will win my case.

7. My spouse will lose.

8. I can afford the legal fees for my divorce.

9. I will get justice from the court.

10. The meanest and most aggressive attorney wins.

11. It will be over within a reasonable time.

These are just as true way out here in Texas.

Adding a Financial Professional in a Collaborative Divorce

While there are several different versions of Collaborative Law utilized around the country (and now, the world), in Texas we usually at least suggest, and often insist, on bringing a Financial Professional (FP) into the process either at the outset or very early. Understandably, the initial reaction of some people is that they can’t afford the cost of another professional. In reality, there is usually a cost savings as a result of the help provided by the FP. That savings is a result of several factors.

First, a qualified FP who is trained in Collaborative Practice can be invaluable in coordinating the gathering, organization and analysis of the financial facts in the case. Generally, the FP starts out with more knowledge of finances than either of the attorneys and can help the parties focus on the important information, help them locate the information and then put the information into a format that is easy for all to work with. That usually turns out to be a more efficient process than one where the attorneys gather and organize the information.

Second, having a single, neutral FP managing the financial information means that one professional, often charging less than either attorney, is carrying out a major part of the Collaborative process. There is no duplication of effort and the clients end up saving a lot of money. Additionally, one of the major roles of Financial Professionals is to analyze and explain the tax consequences of various courses of action. As a result, the parties can make sensible decisions where both can benefit and save money. Who doesn’t enjoy saving money?

Third, a good FP can not only save time and money – sometimes they save the process and make it possible to successfully complete the case. An FP provides a neutral voice with expertise. Occasionally, near the end of the process when the issues and options have been narrowed, it helps to have a neutral trusted advisor who can explain things to both parties. Sometimes, it is necessary to explain the same issue in different ways to each party so that each understands it. A well-trained FP can recognize that need and will have the Collaborative communication skills to be able to do so. Often a suggestion or question coming from an FP can have a much greater impact than if the same suggestion or question had come from one of the attorneys. The neutral Financial Professional may be in the best position to get the parties to reach an agreement on the final issues when negotiating is often the toughest.

It is important for the parties in a Collaborative Divorce to understand that bringing in a trained Financial Professional will pay off for them in many ways. They can save a lot of time by allowing the FP to efficiently manage the financial information. They can save money by allowing a single professional to handle a lot of the work that otherwise would be done by two expensive attorneys. Finally, they can avoid the cost of failing to reach a final agreement and having to hire new attorneys and go to litigation. Generally, a trained FP can help the parties understand the financial issues and see the benefits of reaching agreements on various issues. Adding a Financial Professional makes success more likely and less stressful for the parties.

A Win-Win Custody Battle Strategy

Many times, at the start of a divorce, parents see custody of the children as an either-or situation: one parent has custody and the other is relegated to a visitation/possession schedule. In situations where both parents sincerely would like “custody”, and it’s not just a strategic move for some ulterior purpose (such as gaining more property or paying less child support), the either-or/win-lose mind set can lead to really damaging actions by both parties. In such an approach, the natural inclination, often encouraged by attorneys and friends, is to attack the other parent. Many people think they should devote a lot of energy to proving the other parent is “unfit”.

Actually, it is often true that both parents are good parents, which makes it really hard to prove each other unfit. Attacking each other is expensive in the short-term, both financially and in terms of relationships, and it’s probably not really very persuasive with a judge or jury. It’s hard to keep a good relationship with someone who is saying terrible things about you in public. Judges want to know what good parenting qualities each parent has. In reality, one of the most important factors is who has spent the most time with the children, although there can be many things that are influential.

Instead of limiting yourself to only two options, winning it all or losing, there is another, more productive way to approach the custody issue. The approach may require more maturity than some parties can muster, but, for those able to shift gears, think rationally and be patient, the following approach can be rewarding for them and their children. These steps can lead to a better solution for all, especially the children.

1. Think about, discuss and decide what your ultimate goals are for the kids. What outcomes would you like to see? Many people would want some of the following (or similar) goals:

The kids having a great relationship with both parents
The kids having a great relationship with their extended families
Financial security for the children
Having a safe, secure home for the children
Having good schools for the kids
Providing for a college education for the children
Providing sports opportunities for the children
The opportunity for the kids to learn music, art or other interests

Each parent can decide what he or she thinks would be important goals for their children. Broader, underlying goals are more helpful and meaningful. If both parents think of goals in broad terms, they often can agree on them.

2. Look at the big picture. What are the resources to work with:

Financial abilities of the parents
Parental/family member time available
What homes and schools are available and affordable
What the parents’ neighborhoods are like
The existing relationships between parents and children and the roles each parent plays with the children
What community resources are available
What special needs, if any, a child has
What interests the child has

3. Brainstorm options. Think up as many different solutions as you can. Sometimes it is helpful to get help from a parenting expert. Spend some time and try to be non-traditional or unconventional. Don’t limit yourself to “standard” solutions. Open up your thoughts to come up with some crazy ideas because they might just turn into good ideas.

4. Evaluate your options. See if they can help achieve your identified goals. Criticizing and testing your options can lead to the discovery of other ideas and can help you narrow down the choices until you are left with an idea or ideas that work.

Implementation: This process can helpful if just you do it, but it is really better if you can do it with the other parent. Collaborative Law is one way to accomplish that. This is actually a very common approach to problem-solving in Collaborative Law. Even in traditional litigation, you can use this system alone or together with the other parent. If you work on this alone, you can create a better plan to present in court or in negotiations. If both parents work together through this process, there’s an excellent chance they will reach an agreement that will be satisfactory to both parents and to the children.

Please give this a try and let me know how it works for you!

The Challenge of Parenting as Families Change

Many divorces, and some post-divorce situations, involve parents who have good intentions and motivation, but just aren’t sure about what they can do to create the ever elusive “quality time” when they are with their kids. The reality is that when families split up, most things are going to be different. On top of that, the kids are getting older all the time, so their needs, interests and relationships are changing, independent of their parents’ situations. We really have two worlds changing in different ways at different speeds at the same time.

Parents can’t stop their kids from getting older, but they can adapt their own approaches to spending time with their kids. We all know that spending time is very important, but how to make the most of the time is what parents sometimes need help with. Following are some ideas about how to change time from a quantity to quality.

1. Participate with kids – be active. Don’t leave the kids alone to always entertain themselves, and don’t just sit around with your children. Do active things, such as: go somewhere interesting (to the kids), play outside with them, play games inside with them, visit friends, go camping, ride bikes, walk, hike, run or do other sports. Don’t just watch and supervise; interact and play with the kids.

2. Share interests with the kids. Either become interested in what the kids are doing or develop new interests with the children in sports, hobbies, art, reading, computers, movies, collecting things, etc. Your kids might even adopt some of your activities if you show how they can have fun.

3. Praise your children. Be sincere and don’t go overboard, but give positive recognition whenever you can, especially to reinforce good behavior or activities. Help them study and praise good work and good grades.

4. Look for opportunities for growth. Find activities that can be physically or mentally challenging. Some kids will respond positively to challenges and competition, so keeping score of things may be helpful. Create a competition for book reading (# of books or pages read), exercise, sports or any other activities that interest you and the children. Encourage your children to put forth their best efforts.

5. Develop routines. This applies to whichever home they are in. It helps in many ways to develop routines. Kids will expect and look forward to activities they enjoy. It’s easy to find fun things like movie time, pizza night, a favorite TV show to watch with you, a visit with favorite cousins or friends, going to garage sales, or taking periodic short trips. While not as appealing to the kids, it’s a good idea to have some other things scheduled that are necessary, but less fun, such as doing homework, chores and practice time for music, sports, dance, etc. Doing those necessary activities will help develop responsibility.

6. Help others. There are always opportunities in communities of any size to help others. Volunteers can help in litter clean-ups, food drives, clothing drives, park projects, serving meals at holidays, working at a library, zoo, museum or other public place, doing fund-raising, etc. Children can actually accomplish good things and feel good for their efforts. It’s also a good way for kids to learn about new things and make new friends. On a more personally pragmatic level, children interested in going to certain colleges or in obtaining scholarships are evaluated on their volunteer hours and efforts. It’s never too early to start.

7. Enjoy your time. Think of things that are fun for you and the kids. Be creative. Research and find new activities by checking on the internet and by reading magazines and newspapers for new ideas and new activities.

As families go through divorces and other changes, parents need to develop new ways of spending time with their children. Trying to maintain or recreate old ways of spending time with kids will not work for long. As the kids keep developing their own lives and move toward more independence, parents have to adapt and be creative in order to share fun and meaningful time with their kids. You can make a difference with your children by planning new and fun activities with them, and you’ll enjoy it, too!

How to Keep Your Child Out of the Middle

Most everyone would agree that it is a good idea to shield children from most parental conflict. Nevertheless, there are many times during and after divorces when children get drawn into family disputes and end up in the middle, with both sides pulling on them. The following is a brief list of 5 "Don’ts" and a "Do" that may help avoid such situations.

1. Don’t ask the children to decide. In the heat of family disagreements, it may seem simple or fair to just let the children decide where they want to live, or what visitation schedule they want to follow, etc.; parents may feel that’s like having a neutral person make the decision. Unfortunately, that puts a lot of pressure on the children and sets them up for guilt feelings and/or angry parents.

2. Don’t disparage the other parent or his/her family. This can be by direct comments made to a child or it can be done indirectly, such as comments made to others, but overheard by a child. It can also include body language and gestures that indicate disapproval or other bad opinions of the other parent. A child will likely take such actions or words as an attack on him or her.

3. Don’t argue around the kids. Disagreements are normal, even in well-functioning, intact families. Discussions and arguments between adults should take place just between adults, if at all possible. The kids don’t need to be drawn in or manipulated by the situations.

4. Don’t ask the children about the other parent. It’s not necessary for you to know everything that goes on when your children are with the other parent. Children will often tell about things they enjoyed or about big events, good or bad. Children don’t like being grilled about what happens when they visit their other parent.

5. Don’t use the children as messengers. If you want to send a message to the other parent, talk directly by phone or in person, send a letter or send an email. Kids aren’t always dependable anyway. And if you send a message by the children and then the other parent reacts badly when the message is delivered, the children are likely going to feel that they caused the problem.

Finally, something you can Do:

Do take a co-parenting class, preferably with the other parent. There are several good classes available in this area in person and even on line. I recommend the "in-person" class because you can learn more and get specific questions answered.

If you can avoid the temptation to put your children in the middle of adult disputes, your children will be happier and you should have better relationships with them (and maybe the other parent as well). If both parents will take a co-parenting class, all of this advice may be unnecessary!

Myths about Collaborative Law

Although Collaborative Law can be considered a breath of fresh air in the legal system, it is still a relatively new process for resolving disputes in Texas. It’s not widely known, but more and more people are learning about it and requesting that it be used. As the public learns about the process, lawyers are also learning about it and getting trained in its methods.


Because most people in Tarrant County are still not knowledgeable about Collaborative Law in Texas, there is a lot of misinformation circulating about it. I will briefly mention some common misconceptions. These will refer primarily to divorces, but Collaborative Law can be used on just about any family law issues.


1. "It only works if everyone is agreeable and wants to be fair." Not true. Like any other divorce, a Collaborative divorce usually involves some serious disagreements. People bring their own agendas to the process and may choose it for a variety of reasons. The reason is rarely that everyone just wants to be fair and agreeable. (See other posts on this blog for reasons why people choose Collaborative Law.) The Collaborative process changes the way people act as they create solutions and achieve their goals.


2. "It won’t work for custody cases." Not true. Actually, Collaborative Law in Texas provides better resources, in a more humane environment, for resolving custody cases, than does traditional litigation. We use neutral experts, when needed, who work for both parties and help them find or create new solutions that are customized to the parties’ unique situation. In comparison, litigation generally relies on a "winner take all" approach and usually closely follows the statutory guidelines and schedules, whether they fit the situation or not.


3. "Both parties must completely trust each other for the process to work." Not true. While there needs to be basic trust between the parties, the process provides more direct involvement by the parties, excellent verification of facts and the assistance of neutral experts who directly work with the parties to gather and interpret information. There will probably never be a divorce with complete trust between the parties – if that existed, they probably wouldn’t be getting a divorce.


4. "The process won’t work if there’s been adultery or other misbehavior." Not true. There have been many successful Collaborative cases which involved adultery or other troubling issues. If people are willing to commit to focusing on their future instead of their past, they can successfully settle a case even with serious past indiscretions.


5. "There’s no ‘Discovery’ or exchange of information." and "Either party can easily hide assets and there’s no way to find them." Not true. The parties fully disclose records and information to each other, we usually prepare a joint sworn Inventory of the assets and liabilities and we utilize various joint, neutral financial and child experts as needed. We don’t do formal written discovery or depositions. Instead, we get a thorough, but focused, overview, and rely on neutral experts to evaluate the facts and help us find and verify the relevant information. No system is perfect, however. The litigation system certainly has its share of hidden assets that "disappear" and are never located.


6. "It’s the way I/we have been practicing law for years." Not true. Some attorneys, particularly in Tarrant County, Texas, have been very cooperative and less confrontational for years, which is great. For a long time, it has been obvious that well over 90% of all divorce cases settled without a trial. Those are similar characteristics, but Collaborative Law is different: the lawyers cannot go to court (except to finalize the divorce and get the agreed order signed); at the outset, we focus on the parties’ goals and then follow a 4-step problem-solving process; we use neutral mental health and financial professionals in most cases; and we meet and talk directly with each other in a series of relatively short meetings. Those are just some of the ways the processes are different.


7. "Most people just need to get the best outcome possible for themselves". Not true. That implies that Collaborative Law won’t help a person as much because it tries to have a good result for two people. Actually, there is no reason why both parties can’t have a good outcome. Collaborative Law’s emphasis on creating new, unique solutions means that the pie to be divided can actually be enlarged. Instead of relying on standard formulas and guidelines, Collaborative lawyers help the parties come up with new approaches "outside the box". While some people are angry and want revenge on their spouse (and are not good candidates for Collaborative Law), a probably much greater number just want to get through the process without breaking the bank. Most people would accept a good outcome for their spouse if they also receive a good outcome.


As more people find out about Collaborative Law, many more will choose the resolve their important family legal disputes by that process. Clearing up myths, like the ones above, will help more people under how Collaborative Law works and can benefit them.

Show Your Love with a Prenuptial Agreement

In spite of the high rate of divorce seen throughout the country, couples keep getting married, some for the second or third time, some even more times. Divorce, however, is not ignored by the soon-to-be-wed partners, especially those who have been married previously. For people with significant assets, one preventive measure often taken is a prenuptial agreement.

There are a number of reasons why prenuptials are considered.

• For some older couples, prenuptials are for estate planning. They are prepared to avoid conflicts with or between adult children. Prenups can also determine how probate issues are resolved. Appropriate planning can result in savings of taxes and legal fees and can provide reassurance that each party will receive the financial support that both parties presently intend. A prenup can also protect the inheritance (if desired) for the children of each party.

• Prenuptial agreements can protect businesses. If there is an existing business run and owned by one of the parties, a prenup can ensure that the owner does not lose control or ownership of the business. The agreement can also provide that an increase in value in a business would be a separate property asset or a community asset. It can also determine how business debts are paid.

• Some people want to avoid repeating an unpleasant divorce experience. Prenuptial agreements can pre-determine various issues from property division to attorney’s fees to alimony, among other things. The result is a shorter, less expensive divorce, although one party may feel taken advantage of. (A feeling which often occurs in divorces for various reasons.)

In cases where a party seeks a divorce after having signed a prenuptial agreement, it’s not unusual for one party to want to break the agreement. Courts examine a number of factors in determining whether an agreement is valid. If you’re thinking about getting or signing a prenuptial agreement, it’s helpful to understand what mistakes to avoid.

What a court looks at in Texas:

• It needs to be a voluntary agreement. In many cases, a party doesn’t want to sign the agreement, but believes the marriage won’t happen unless the prenup is signed. A court will look at all the circumstances to determine if the agreement is voluntary.

• There must be disclosure. If assets are hidden and not disclosed to the other party, a court may set aside the agreement since there is a lack of understanding of the assets and the impact of the agreement.

• The agreement needs to be written and signed.

• Each party should have their own attorney. While it is not essential, it is good practice. A court is probably more likely to set aside an agreement where one party did not have an attorney. (One attorney cannot represent both parties, either.)

• There should be adequate time to discuss the situation, understand the facts and make a voluntary decision. Unfortunately, most people tend to wait until the last minute to start working on an agreement.

One Solution:

If the parties use a Collaborative Law approach to preparing a prenuptial agreement, the stresses of the procedure can be minimized, an enforceable agreement can be reached and both parties will be able to support the agreement because of how the process operates.

Advantages of creating a prenuptial agreement:

While prenups may not seem like a very romantic topic to discuss just before a wedding, there are some solid reasons for doing so and some potential advantages, other than the obvious ones.

• It forces the parties to look into the future and communicate about some important, although not romantic, subjects.

• Done right, the process will reinforce feelings of trust and security while clarifying expectations and values for each party.

• The different communication styles of each party may be demonstrated at a time when there are alternatives available for each person. The good and the bad may come out.

• While attorney’s fees for preparation and signing a prenuptial agreement can be substantial, they are a lot less than a contested divorce or probate case would cost. Spending the money up front to prevent a problem can be well worth it.

• If Collaborative Law is used, the parties will learn about each other’s goals and learn how to work together and communicate better. It may also lead the parties to be more open-minded and creative with each other. A Collaborative approach takes a little while to do, so it probably won’t work if you start three days before the wedding.

Conclusion

For couples getting married, prenuptial agreements can be a valuable tool or they can create hard feelings and put someone at a significant financial or power disadvantage. Agreements can be helpful to both parties, but they cannot be put together properly and effectively in just a few days. Starting work on the process early, and especially using Collaborative Law, can produce a beneficial agreement that will stand up in court and can enhance a relationship.