What to Do if Your Spouse Files for Divorce

At this time of year, once the holidays are over, many people decide to begin the process of divorce. Sometimes, their spouse either doesn't expect it or is in denial or doesn't want to get divorced. This post is for those people who are reacting to a situation out of their control -- when their spouse files for divorce. If you find yourself in that position, here's what you can do.

1. If you see it coming, start preparing. Gather records, get control over some financial resources: cash, accounts, credit cards. You need to have some financial resources under your control that you can depend on. Cash and credit cards are very helpful, but cleaning out the accounts and leaving nothing for your spouse probably will hurt you in the long run. You will need to think about the respective living arrangements for you and your spouse. If you have kids, how will you take care of them, pay any necessary bills and share time with them with your spouse? Don't just sit around, start planning and anticipating. Get some help from friends and professionals.

2. If you didn't see it coming, start preparing, but move faster. If you have to play catch-up, do so. You still need to do a lot of planning, even if you get surprised. Start as soon as you can.

3. Research your options. Collaborative Law is always worth considering. (See some of my other posts or my Texas Collaborative Law Blog.) You might have to go into litigation, but mediation is usually an effective way to resolve cases. Talk to an attorney about the best way to proceed.

4. Decide what's important for you. Figure out what you would like to end up with. That includes financial assets, kid issues and any other concerns you have. Spend time at the start of the process to determine what you want and you will have a better chance of being satisfied. Just defaulting to "half of everything" and "standard" possession or child support may not be in your best interest. Think about it and discuss the issues with your attorney and counselor (if you have one).

5. Select an attorney. Look for experience, training, cost and chemistry. Find out how much experience your prospective attorney has with the issues of your case. Is the attorney a Board Certified Specialist in Family Law? Does the attorney have any special training for Collaborative Law or other special needs for your case? Make sure the attorney is affordable. It doesn't benefit you or the attorney to hire the most expensive attorney and hope that you will somehow be able to afford him or her. There are many fine attorneys at different price ranges. Finally, and maybe most importantly, make sure you and the attorney have good chemistry. If you don't feel comfortable and can't communicate well with the attorney, go to someone else, no matter how great the first attorney is. There are plenty of attorneys around and you should be able to work with one you like and feel comfortable with.

I realize that not everyone is willing or able to make the decision to get divorced. If you are someone who's had the decision made for you by your spouse, hopefully these suggestions will help you come up with a plan for response. These are not original, secret or complicated ideas. They are meant to help someone with a sudden need to deal with one of life's most difficult situations.

How to Start a Divorce

Because it's January again and many people are thinking about divorce, it may be helpful to have a brief review of what someone can do to prepare to file for divorce. Some people don't really plan ahead. They just go see a lawyer and turn everything over over to the lawyer to file and come up with a plan of action. Other people may want to do more to have a greater chance of a favorable, or at least acceptable, outcome. Here's what can be done:

1. Start by determining what you what to end up with. What are your goals, needs and interests? The easy way out is to say that you want what is fair or you want a 50-50 split, but that's really superficial and may leave you short-changed. Everybody is different. What's "fair" to someone is not fair to someone else. There may be certain assets that are more important to you than to your spouse. Maybe you need cash now to pay for some immediate expenses, or maybe you need extra retirement assets. If there are four automobiles, you may just need one, not two. Maybe some collections or artwork are more meaningful to you. Whatever the situation, you will feel better and be better off after the divorce if you decide early what your objectives are.

2. Select a method. You actually have choices. You need to decide whether you want to use Collaborative Law, litigation or just try to work out things with your spouse over the kitchen table. Maybe mediation appeals to you. Investigate the options and choose the way that works best for you. In researching the possibilities, make sure that you speak with an attorney with significant training and experience in the different methods. Hint: not all attorneys are trained and experienced in Collaborative Law. For an opinion on that approach, you should make sure the attorney has had experience in handling Collaborative cases.

3. Prepare. Gather records and information about your financial estate and be familiar with any issues regarding your child and your spouse. For a handy checklist, see the prior post from January 2, 2011.

4. Meet with your attorney. Early. It is important to see the attorney before things get heated up. Your attorney will appreciate having time to prepare and you will have more options on how to proceed. You will have time to gather or request records and you can plan different options for where you will live and how bills will be paid.

5. Take the first step. File, set a hearing (if needed) and serve the papers (or hand-deliver them, if that will help). It is generally advantageous to be the one to file first. Once it is inevitable that the divorce will take place, you will be better served by being active and getting things done at your convenience.

These suggestions are not meant to talk you into a divorce. Whether you decide to divorce is an separate and very personal matter. You should carefully consider all the circumstances in your life and in most cases, you should meet with a counselor, alone or as a couple, to get some perspective in evaluating your situation and maybe to get some help in resolving the issues you are facing. Only after careful consideration should you begin the process of divorce. Once you commit to the choice of divorce, you should then follow the above steps.

10 Things to Do to Prepare for Divorce

At this time of year, many people start thinking seriously about filing for divorce. When you decide you need to see an attorney to discuss that prospect, here's a list of things that are helpful to attorneys when they are getting an overview of your case.

• Personal household budget with supporting documents. Your attorney needs to know the average monthly amounts for all of your usual expenses. Copies of the latest statement for each bill would be helpful.

• Income tax returns. Please provide the complete returns, with all schedules and attachments, for the last 3 years.

• TAD appraisal. You can get and print off the latest appraisal of your real estate from the Tarrant Appraisal District on line.

• Bank account statements. It is helpful to have your bank records for the last 3 years for every bank account of any type, checking or savings or other, for you, your spouse and your children. You can probably download those from your banks or go to the bank and get them. You need information for every account that you or your spouse have a connection with.

• Pay stubs. You should bring pay stubs for you and your spouse for the last 6 months, or some other record showing the pay checks for that time period.
  

• List of debts. Please prepare a list of all the debts you are aware of, including but not limited to, mortgage, car loans, leases, credit cards and other loans. The list should include the total balance for each and the monthly payment amounts.

• Medical insurance card and information. Please bring a copy of your insurance card and any information you have about the policy, specifically about the coverage and cost.

• Personal property information. It helps to have a list of the personal property (such as furniture, household items, personal effects, etc.) that you want on an immediate and temporary basis. Think about what you need every day.
  

• Internet presence. Please make a list of all web sites and social media sites used by you and your spouse, and the names and passwords, if you know them. This should include Facebook, YouTube, My Space, LinkedIn, Twitter and other sites, including any blogs. Do a Google search on yourself and your spouse and then download the results.
  

• Special needs. Please tell your attorney if there are any special needs that you or a family member have.

If you bring all this information to your first meeting with a lawyer about a divorce, you will be much more helpful to the attorney and much better prepared for court or negotiations.

Bonus item: If you can think about what you would like to end up with and what your goals would be, that can be a very big help for you and your attorney. Take a little time and bring some ideas in writing. Everyone can benefit from planning ahead.

Getting a "Quiet" Divorce

There are quiet divorces and then there are the ones you hear too much about -- the celebrities with their binges and affairs caught on film, tape and the Internet, and your friends and relatives who go through the gauntlet fighting against all odds against the most overbearing spouse imaginable. You hear the horror stories all the time, but it doesn't have to be that way.

Collaborative Law is one way to have a quiet, peaceful and civilized divorce or resolution to another family law issue, but sometimes you can have a low-key litigation experience if the parties show maturity and stability to cooperate to end or change a relationship that isn't working. Many people start out with almost everything agreed. They may not need the full menu of legal services employed to work through a difficult and contentious divorce.

If you and your spouse are on fairly good terms and want to work together informally, Collaborative Law may be a good option, but it may not be needed in some less complex or mostly-settled cases. If you are in that situation, you should talk to an attorney about the following:

• Use minimal pleadings and don't make inflammatory allegations. You don't have to have a temporary restraining order or a temporary hearing. Discuss the situation with your attorney and determine the minimum that is needed.

• Insist on limiting your court appearances. You may not even need to appear in court to get the final decree signed.

• You don't necessarily need a deposition taken of your spouse, especially if everything is worked out.

• Likewise, you don't need formal, written discovery. Attorneys have numerous ways of gathering and sharing information.

• You can control the timetable, if everything is agreed, although there is still a 60-day waiting period in Texas.
  

• You also control the terms. Most judges will approve agreements made by the parties as long as the terms are written in a way that makes them clear and enforceable.
  

Not every divorce or family law procedure needs to be handled the same as all others. As the party most affected by the process, you have the right to tell your attorney to limit the steps you follow. Have a frank discussion and make sure that you do not just blindly follow an attorney's advice to do everything a "standard" way. Standard isn't always the best.

Dealing with Depression

I'm no therapist, but...

Unfortunately, depression seems to be becoming more common-place during holidays, especially when there's a divorce or other family law procedure pending or recently completed.

The fact that depression isn't discussed much in most divorce and family law cases doesn't mean that it's not a significant factor in many situations. When people think about, or discuss, how people act during a divorce, it's very common for one or both parties to be described as angry. Sometimes more colorful terms, often describing personality disorders, are tossed about. But aggressive actions by a party often mask an underlying depression.

Depression is an under-treated condition that is actually pretty common in divorces. At different times, almost everyone going through a divorce will experience feelings of depression. The good news is that it's not necessarily a permanent condition and there are some things you can do to minimize or avoid depression.

Health.com recently had an excellent article entitled "10 No Cost Strategies to Fight Depression". The article wasn't about divorce, but I thought the suggestions were excellent (but remember that I'm no therapist...) and they could very easily apply to the divorce context. Here's what they suggested:

• Don't blame yourself.
  
• Talk about it.
• Get regular exercise.
• Postpone major decisions.
• Take care of your health.
• Maintain a daily routine.
• Eat a healthy diet.
• Avoid drugs and alcohol.
• Try to sleep well.
• Don't overschedule.

I would add a corollary: If you think you may be depressed, please tell your lawyer so that s/he can either help you find a counselor or can work out a strategy to compensate for the issue.

The suggestions sound pretty simple, but it is sometimes hard to admit that you are depressed and it may be hard to put aside anger so that you can think rationally. If you sense you are experiencing some symptoms of depression, get help. Seeing a real therapist (not me), staying physically active and maintaining good health can get you started on the road to recovery. Depression usually won't go away by itself. If you avoid treating your depression, it can overcome you and cost you a lot in your divorce or other family law matter. When and if you are depressed, you probably aren't functioning very well and others, maybe including a judge, will notice, and that can affect the outcome of your case.

By the way, even if you aren't depressed and even if you aren't involved in a court case, following the 10 suggestions above will still benefit you by allowing you to be happier and healthier.

If you know of any other effective ways to deal with depression, please add a comment below.

What You Should Tell Your Attorney

Most divorces and other family law issues don't wrap up in one or two or three months. Unfortunately, the issues involve complicated and changing facts that take time to uncover and understand. Attorneys and clients must work together closely and communicate well, and that usually happens. In a surprising number of cases, however, some highly relevant information is not conveyed to the attorney.

Some Matters That Should Be Disclosed to Your Attorney

• You are buying or selling a house, or if you are moving.
• You are having surgery.
• You lost or will lose your job, or you are starting a new job, or your pay has changed.
• You are getting counseling, or you stopped or never started counseling that was ordered by the court or expected by your attorney.
• Your arrest or criminal history.
• You are dating or have a boyfriend or girlfriend.
• You have a roommate.
• There has been a significant financial change.
• You have been served with legal papers.
• You are being threatened with litigation.
• You have had an argument, or made an agreement, with your spouse.
• You plan to dispose of some of your assets or your spouse's assets.

That is not a complete list. When in doubt, tell your attorney.

Problems The lack of communication can result in problems when the news comes out, which it inevitably does. Some of the results can include:

• Violations of court orders that could have been avoided. Timely notice to the attorney might have enabled the attorney prevent the action or minimize the impact.
• The client's attorney being caught unprepared in a hearing when the issue is brought out in front of the judge. It is usually better to volunteer the unflattering information instead of leaving the impression that you are trying to hide something.
• The other party or other attorney becoming upset because of the unilateral action. That often can be prevented or minimized. When the other party is upset, you can count on less willingness to be reasonable or settle on other issues.

Why don't clients inform their attorneys?

Attorneys sometimes have a hard time understanding why their clients don't tell all. In reality, there are many different reasons why it can occur. A few of them are:

• Embarrassment. Clients are human, too. They don't want their attorney to think badly of them. They may hope that no one else discover the silly or stupid or malicious thing they did. Unfortunately, word almost always gets out.
• Avoidance. A client may fear the response or rebuke that is expected when a course of action is proposed. They want to avoid the unpleasant experience, so they just don't talk about it.
• Not thinking. Some clients just don't think it matters if they do certain things or they forget about some things. It's no big deal to them.
  
• Desire to save money. Clients know that it costs them to talk to their attorneys, so they decide to save the up front attorney's fee costs, not thinking that the situation can turn into a bigger problem.
• Secrecy. They may fear that the attorney will tell. Sometimes, clients know something is wrong, but they want to do it anyway. To protect themselves, at least in the short term, they try to hide the action from their attorney. But, the facts will usually come out anyway.

What's the Solution? Talk to your attorney and let him/her figure out how to best handle difficult or embarrassing facts. Let your attorney advise you on what actions to take or to avoid. It's really pretty simple.

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.

The Top 10 Reasons Why People Don't Hire an Attorney

Many people facing difficult decisions have a hard time making the decision that they often know, down deep inside, that they need to make. Some people, at the beginning of a divorce or other family law issue, face that dilemma. Intellectually, they know what they need to do -- get started. They also know the first step is to hire an attorney. But, for a variety of reasons, they may have a really difficult time taking that step.

The following are 10 common reasons that people will use to convince themselves, or to give permission to themselves, to delay hiring an attorney. They know that once the attorney is hired, the process will begin. It's sometimes hard to face the changes that will follow, so they take the "easy way out" and put off the decision. If you are in that limbo, check the list here to see if any apply to you as you mull over your options and decide whether to hire an attorney.

1. You have now calmed down after you had gotten very upset following a discussion/argument with your spouse. It is a good idea to make important decisions when you are calm and rational, instead of while you are in the heat of a battle. Maybe it would have been a bad idea to start a divorce. On the other hand, you can think through a decision and carefully weigh the issues, looking at the pros and cons of different courses of action. If you decide against legal action after careful thought after you have calmed down, that likely is the right decision for you.

2. It could be a situation where someone else was pushing you to get started and they are not around now. Everyone has well-meaning "advisors", usually family and friends, who are willing to advise you and try to help you manage your life. Sometimes, without their encouragement and support, it's easy to change course and not do what you probably should be doing.

3. A very common affliction for people needing to make major decisions is procrastination. It seems like some people procrastinate more often than others, but everyone will put off difficult or momentous decisions at one time or another. Sometimes people get caught up in trying to gather all the information they can before deciding or they may come up with other reasons. Get help, if you need it, but make a decision.

4. Some aren't sure what they want to do, so they just want to think about it some more. That may be a form of procrastination, but it can be for other reasons. Leaving a marriage is an emotional decision as well as an rational decision. If a person has not reached the point of deciding that there is no hope for marriage, for example, it is very hard to take the step of hiring an attorney. This is a situation where the person may have to wait a little while and work through the emotions.

5. You can't get off work or you're sick or you have a sick child or other family member. Those are just excuses. You can figure out how to get off work. A sick person will get well or will improve to the point where you can take time away from them, or you can get someone to temporarily relieve you.

6. You don't want to be the one to file first. That is an important decision for some people. They are usually not aware of the fact that there are some advantages in court for being the one to file first. You should consult with an attorney and determine whether the advantages are important enough to you to go ahead and file.

7. You don't think you can get the money together to file. That can be a realistic consideration because attorneys can't work for free. On the other hand, different attorneys charge different retainers and hourly rates. Some may charge flat fees, although flat fees are not bargain rates or cheap -- they are just predictable because the attorney sets the total fee at the outset. The attorney may look over your situation and figure out where your fees can come from. Judges in Tarrant County divorce cases are pretty good about equalizing the fees available to each party. Don't let your perceived lack of funds keep you from talking to attorneys.

8. Your spouse said s/he would try to work out things with you informally or would s/he would "change" and the problems would go away. Maybe those things will happen, and maybe not. It's still best to have an attorney working with you to protect your interests.

9. You're not sure your family will want you to do this or you don't want to look bad to them. That could happen, but your family isn't the one living with your spouse or experiencing the problems you are experiencing. Your family probably doesn't know all the nitty-gritty details and they don't have the same consequences you see.

10. You trust your spouse and believe s/he and her/his attorney won't take advantage of you. Sometimes that works out, but why risk it? Your spouse, and especially her/his attorney, will understand your desire to have someone on your side. If they act upset, chances are they were planning to take advantage of you.

The bottom line is that if you are facing legal action for a divorce or other family law matter, you should consult with an attorney right to learn about your legal rights and opportunities and to discuss possible legal strategies. It is much better to plan ahead and be prepared. I have had people come in a month, two months or six months before filing, and they leave feeling better because they understand what's going on now and what their options are. You should meet with an attorney whenever you are in a similar situation.

Hopefully, this will provide some encouragement so that people will feel strong enough to take the step that will help them in the long run.

Gay Adoption -- Not an Issue in Texas?

A recent court decision in Florida has highlighted an issue that could be coming to Texas. As reported by NPR, the court found that a Florida statute prohibiting gay couples from adopting children was unconstitutional. In Florida, gay couples can be foster parents, but they were unable to legally adopt simply because of their sexual orientation.

Texas does not have a similar statute. There is no such automatic disqualification from adoption because of sexual orientation, but a judge in Texas might disapprove of such an adoption for reasons relating to the "best interests of the children".

It is possible that the Texas Legislature might try to outlaw gay adoption, but they don't need to now and there are certainly budgetary issues to be resolved next Spring, so it is unlikely that such a law will be passed in Texas in the next Legislature. It's likely that the Florida case will go to the Florida Supreme Court and could end up in the U.S. Supreme Court, so we will have to wait for the final word on the issue until the appeals end. In the meantime, don't expect much activity on the issue in Texas.

Thanks to Harry Tindall of Houston for the tip about the Florida story.

Divorce Insurance -- What Will be Next?

James Gross, who writes the Maryland Legal Crier blog, always comes up with interesting posts, and the following is one of the best. Here is a recent post by James:

"Want to buy some divorce insurance? Jennifer Saranow Schultz reports in the New York Times that SafeGuard Corp. of North Carolina is offering the world’s first divorce insurance called WedLock. For each $15.99 per month you pay, you can buy $1,250 in coverage. The benefit covers the costs of divorce such as lawyer fees or setting up a new home.

"Then, if you get divorced, you send Wedlock proof, and they’ll send you a check for the amount of insurance you purchased. You have to be married at least four years, however, before the payout. You can buy riders to shorten that to three years or get your premiums back if you don’t make it that long. Every year the company automatically adds another $250 to the coverage for each unit you buy.

"The company helpfully provides calculators on its site for Divorce Probability and Divorce Costs to help you figure out much insurance you need."

I don't know if the company is any good or if the insurance is worthwhile, but it's fun to use the calculators. You can do the calculations from your point of view and from your spouse's point of view. If you accurately record how your spouse would respond on the questions, you might be surprised at the difference in scores. It might get you thinking about things.

Since we now have these tools to predict the future, maybe someone will come up with a test you can take so you can learn how to correct your mistakes and fix any problems in your marriage. We can always hope!