Social Security -- Your Safety Net?

Don't Ignore Social Security
While there often seems to be talk about cutting  back on Social Security, it seems pretty clear that it will be around for a while. If you are 55 years old or older, you have a good chance of collecting under the program. Even if you are younger, there's still a good chance that you will receive payments.

I won't get into a discussion of whether it is good or bad or undependable. For now, it's a fact of life and we are all (or most of us) are under its umbrella. It's not really likely to run out of money unless someone takes a drastic step to terminate it, which feels very unlikely.

Income for the Retirement Years
The point of bringing up Social Security is that it is an often overlooked source of income later in life. "Gray divorces" are becoming more common as Baby Boomers are getting divorced later in life.

A big part of the focus in gray divorces is the retirement years. If one or both of the parties have not retired by the time of the divorce, there's still time to add to retirement funds.  Otherwise, the parties just have to split a set pot of money for retirement.

Financial Planning
That's where a financial planner can come in handy. A good planner can help you decide on a mix of assets and Social Security to take you through the retirement years. You may need to generate new income to cover your expenses. That should be coordinated with your decisions on when to start Social Security and whether you are eligible to draw on your spouse's earnings record.

Divorce Financial Planning
If you go into litigation for a divorce, instead of having a Collaborative Divorce, your options are a little more limited. Courts typically just mechanically divide the assets on the table. In Collaborative, we work with a divorce financial planner who usually helps you plan a future cash flow. Then you can be smarter in negotiating the asset and debt division.

Using Social Security for the Maximum Benefit
With the Collaborative process, you can incorporate more planning for the future, including getting the best possible revenue from Social Security.  Postponing the start of drawing Social Security will result in a higher payment each month. Sometimes the big issue is how to get from here to 70 years old so you can start drawing at the maximum level.

If you are in the "gray area", talk to your attorney about using Collaborative Law to work out the terms of the divorce. If the attorney doesn't do Collaborative or recommends against it, you should get a second opinion.

Find an attorney you are comfortable with who has substantial experience with Collaborative Law so you can be guided through the process. It's your divorce and you should be able to choose the process most beneficial to you.  Good Luck!

Is It Too Soon to Start on a Divorce!

This is written for January 1st since January is a busy month for people deciding to file for divorce.  Many people put off the decision until after the holidays and that's usually a good thing. There's time for second thoughts and it means that the holidays don't get overwhelmed by divorce conflict.

Of course, the holidays don't mean there's a complete "time out". Conflicts continue, but the escalation from litigation is postponed.

However, sooner or later, the question becomes -- is it the right time for you to start the divorce?  To make that decision, consider the following:

1.  What are the problems?

2.  Are they long-term problems or a recent issue?

3.  Have you tried counseling?

4.  How does your spouse feel about divorce?

5.  Are you prepared financially?
     a.  Do you have cash savings?
     b.  Do you and your spouse have your own incomes?
     c.  Do you have a place to live after separation?
   
6.  Are you capable of managing your finances?

7.  Are you prepared for your spouse's reaction?

8.  Are there kids? Would they be fought over?

9.  What do you have to gain?

10. What do you have to lose?

These are questions that you must think about and answer.  If you are leaning toward filing for divorce, please meet with an attorney or attorneys. You need to get professional help for the serious issues that come up in a divorce. You can discuss all these issues with your attorney so you are as prepared as can be for the divorce. Good luck.

Are You Really Saving Money by Not Hiring an Attorney?

Sometimes there are good reasons to not spend money. Maybe you don't have much money available. Maybe you are worried about the total commitment once you start spending. Maybe you think it is unnecessary to spend the money.

For important matters, the reasons to spend should outweigh the reasons to not spend. That's not always the case, however. 

If you are facing a divorce or other legal issue, the possible outcomes are so serious you should usually go with the option to hire an attorney for help.

In weighing things to make that decision, maybe you should consider, "what can go wrong" if you don't work with an attorney.  Let me list a few ways.

1.  Your Petition could omit an important issue. It might be retirement, real estate or separate property. Those can be significant factors and could cost you a lot of money.

2.  The Decree could omit something. It might be payment of medical bills, support start dates, assets or many other things.

3.  You might give up more than you should. You might divide your separate property. You could agree something is your spouse's separate property when you don't need to. You might give up retirement earned before or after the marriage, and that's not necessary.

4.  You might trigger tax consequences you did not expect.

5.  You could lose your homestead rights if the real estate is not handled correctly.

6.  Alimony might be omitted even when it is needed and justified or you might pay too much for the circumstances.

7.  You might not get a proper order dividing the retirement accounts.

8.  In negotiating, you might cut off the community estate too soon and lose out on property.

9.  You might end up negotiating without sufficient knowledge of the facts, possibilities and common terms for settlement.

10. Negotiations could turn into a protracted battle with your spouse, a very unpleasant and unproductive situation for you and your spouse.

These are common situations for people representing themselves. They are also very avoidable. These are matters that could impact the rest of your life, including your retirement years. Wouldn't you hate to look back later and wish you had worked with a lawyer to get a better deal?

This is not like the old commercial with the tag line, "Pay me now or pay me later". Here, it's closer to "Pay now or lose out forever.".  You can't undo the property division terms of the divorce decree.

You need to do it right the first time.  On legal matters, you should consult with an experienced attorney to learn the issues and plan your strategy for the best possible outcome.

I Don't Want to Use Mediation!

Both kids and adults usually don't like to be forced to do something they don't want to do. If you're an adult dealing with children, you know sometimes you need to force the children to do things that really are beneficial for the children.

That happens all the time for adults going through divorce. Your attorney or the court or the other attorney may tell you that you have to do certain things you don't really want to do.

Sometimes, one of those things is attending medication. There are many objections, such as the cost, taking time off work or you "know" it won't work. But those objections are easily overruled by a court system that now favors mediation as an intermediate step before going to trial.

The simple answer is that you usually have to do mediation regardless of your preferences, but there is some good news. The process usually works. 

Here are some benefits of using mediation:

1.  It's faster than waiting for a trial date. Mediation can usually be scheduled within 1-2 months.  Trials are usually set 6-9 months out.

2.  It's usually cheaper than a trial.  It takes a whole lot less time to prepare for a mediation than to prepare for a trial. That translates into  a big savings for you.

3.  You get to make the decision. When you and the other party reach an agreement, that becomes the final agreement. If you go to court, you turn over all the decision making to the judge who may or may not like you and your ideas. Most people prefer to make their own decisions.

4.  Privacy. Many people prefer to keep their private business, including finances, out of the public view. Mediation is confidential and done in privacy, usually away from the courthouse. Trials are open to the public and you never know who may show up.

5.  Informality. Because mediation takes place at someone's office, things can be a lot more casual. You also don't have to jump through hoops to introduce evidence. You tell or show the mediator anything. Everyone is a lot more comfortable meeting informally with the mediator, rather than following standard courtroom and evidence procedures.

Most attorneys understand that mediation usually settles cases and that it is good for their clients.  Talk to your attorney if you have doubts or if you're just in a hurry to get to court. Mediation is the better path in most cases.

Don't Rely on What You Hear

When people start thinking about divorce, they often talk with family and friends to get information about it.  Naturally, they look to people who have had divorce experience or know someone who has. That is often a mistake.

Briefly, this is why it is a mistake to rely on what people tell you.

1.  Every case is different. This cannot be overemphasized.  Normally we only get part of the story from someone else. Some facts are forgotten. The legal issues may have been different. The history between the parties may be different from yours. The attorneys may have chosen to focus on or ignore certain legal issues. The way people get along with each other and other people is probably different. The goals and needs of the parties will be different. This list could go on and on.

2.  People sometimes get the facts mixed up. Probably unintentionally, but still a problem.  The more times a story is told, the  more it changes.

3.  Often people are basing their opinions on the law from other states. Believe it or not, laws are different in each of the states. Many times people suggest a course of action that is totally inappropriate in Texas. That happens with research online.

So, what can a person do?  Simple. Talk to an experienced attorney.  If it's a divorce case, talk to a divorce lawyer. If it's a criminal case, see a criminal lawyer. If it's a probate matter, go see a probate lawyer.

The common element is: go talk to a lawyer for important legal issues. Don't gather your information informally and start off on your own.  Talk to an experienced lawyer for your issues and take the advice. You will come out ahead.

Misconceptions about Mediation without Attorneys

In talking about options with prospective clients, I have discovered a number of misconceptions relating to how mediation works. Many people become interested thinking they can settle a divorce and don't have to pay attorneys. Unfortunately, that is not always a great bargain when people make uninformed, bad decisions for themselves.

Working with an attorney in some capacity can help avoid or minimize problems.  You can hire an attorney and have him/her represent you throughout the divorce process. You can consult with an attorney prior to mediation, or you can hire an attorney to be with you just for the mediation.

As you are deciding whether to hire an attorney, let me point out some common misconceptions I have heard about how mediation supposedly works.

1.  The mediator will listen to both of you and then recommend terms for  a settlement. No. The mediator must remain neutral. Making those decisions for you and your spouse would violate impartiality and lead to the mediator siding with one of you on some issues. You have to make your own proposals.

2.  There's little or no preparation to be done.  Actually, there's often a lot of preparation that is needed. You should gather documents, prepare charts and exhibits and outline the issues and your proposals. You need to have a clear picture in mind for what you want to end up with.

3.  The mediator will make sure you don't make any bad decisions or bad agreements. Wrong. The mediator cannot be neutral if he/she is advising you or your spouse to accept or reject a proposal. I have seen a number of bad decisions come from mediations where attorneys did not participate.

4.  The mediator can prepare the paperwork. No. Again, the mediator must be neutral. Judgment calls must be made numerous times in preparing paperwork for a divorce, and that would violate neutrality.

5.  You can change your mind later after you have agreed. Wrong. Once the agreement is written and signed by the parties, assuming it also contains the statutory warning that the agreement is binding, then the agreement is binding.

6.  You won't be surprised by facts, issues or proposals during the process. No, it happens all the time. With an attorney, you will have an opportunity to respond effectively.

7.  The mediator will make sure you don't overlook something. They cannot take on that role and remain neutral.

Bottom Line:  The 7 statements above are false assumptions made by many parties who try mediation without an attorney's help. Your divorce will have enough financial and family significance that you should hire an attorney so you can settle your case under the best terms for you.

How Fast Can We Finish a Divorce?

Some people come to see me and they are in a big hurry to be divorced. Sometimes, both spouses are at that point. More often, it's just one spouse and that can lead to problems (= slower divorce).

Here's the starting point.

There's a 60-day waiting period required by the Texas Family Code.  It begins the day after the Petition for Divorce is filed. That's day one.

You count the next 60 days, including weekends and holidays.

You cannot get divorced until at least the 61st day after the filing.

Another disappointment for some people: 

The divorce is not automatically granted on the 61st day.

To get the divorce granted, you normally must appear in Court with your attorney and the proper paperwork.  Your attorney will tell what he or she needs from you and will prepare the documents needed.

If you are trying to get your own divorce without an attorney, you can do it, but it will take longer. Please contact the Court Clerk for instructions on setting a Court date.

All of the above is about how fast you can be divorced. In a normal case, it will take longer than 61 days. Please talk to your attorney to find out if you can either speed up or slow down your divorce.

Bonus Tip:  If you are in a hurry to be divorced, please tell your attorney when you first talk to him or her. Then you can talk about a realistic timetable.

When Not to "Do It Yourself"

You may have friends who did their own divorce. You figure, if they could do it, so can you. 

Or you may think you don't have much, so why hire an attorney?

Maybe you don't like attorneys.

Maybe you don't have a lot of money to spend on attorneys.

Or you have researched online and discovered forms. You're pretty sure you can do your own paperwork and handle your own divorce for next-to-nothing.

Maybe, maybe not. While I am a divorce attorney and probably have a bias, I can tell you I discourage a number of possible clients from hiring me. I always want to be sure that the parties have tried (with professional help) to work things out. I also don't want someone to hire me if it will cause a financial strain.

Should you hire an attorney? I would say yes, if any of the following are true in your case.

1.  There is a disagreement on how to share time with the kids.  Or, where they should live or go to school.  This issue takes people to the courthouse.

2.  There are retirement assets to divide. It can be very complicated and someone may lose out on a lot of future income when they really need it. Plus, some people may not even realize what they are entitled to.

3.  If there is a house and you have to figure out how to handle some house issues:

a.  Who gets it?
b.  How much should each party get from the house?
c.  Can you get 1 name off the deed and mortgage?
d.  Does the house need to be sold?
e.  How to pay off the party leaving the house.

4.  If someone wants or needs alimony.  How much can they get and for how long? Can a spouse avoid having to pay alimony?

5.  You can't agree on the amount of child support to be paid or the non-custodial parent wants to pay no child support.

6.  You can't agree on how to divide the debt.  

7.  One party fears for his or her safety. 

If any of these issues exist in your divorce situation, you should not try to get your divorce without the help of an experienced Family Law attorney.  These are not simple issues and they can have a major impact on the rest of your life.

Preparing for the Holidays with the Kids

In Texas, most divorce court orders have very detailed and explicit plans for how holiday time with the children is divided between the parents. The standard language has been developed over time and is based on common problems and the best solutions that had been developed over the years.

Some of the provisions are a little unwieldy -- not surprising since they came out of the legal system. Still, they provide a good standard for people to consider. Keep in mind that almost every possession schedule order says that the parties can follow any plan they come up with, as long as they agree. The formal order is the backup in case they are not in agreement.

What should you do if you anticipate a possible issue?

1.  You need to start now. The holidays are approaching. In November, we have anywhere from 2 or 3 days off to 10 days off from school and sometimes work. The standard order allows each parent to have Thanksgiving every other other year. In December, in addition to various family gatherings, we have an extended time off from school that extends into January.  Families have different traditions and preferences regarding the holidays and usually can make accommodations that work for both parents. Usually the December vacation time is split approximately in half.

2.  Situations change.  As time passes, circumstances change. There are new marriages, moves, new jobs, new kids and kids may age out -- moving out for college or work or relationships. These changes, or even new events, create a need to sometimes modify what has worked in the past.  The first of November is a great time to look ahead and do some planning if you see the possible need to adjust the possession times for the holidays.

3.  Time to consult.  This is a good time to meet with your attorney if you anticipate you or your ex needing to make some changes in the holiday schedules.  You can get an interpretation of the current order and plan how to approach your ex or how to respond if your ex approaches you.  It is so much better to deal with these issues early in November than to wait until Thanksgiving week or the week the kids get out of school in December.

Holidays are emotional times. Everyone, especially including the kids, will benefit by the parents planning ahead and working together to make any necessary adjustments.

A Fresh Start

There are a lot of difficult and unpleasant aspects to divorce.  How's that for an understatement?

But, you can work to make something positive about divorce.  In any marriage, there are positives and negatives. During a divorce, the negatives become the focus and it's often hard to see anything good coming out of it.

The longer you stay in the negatives, the more depressing a divorce can become. The solution is to shift gears and change your focus, which is often easier said than done.

Here are three little tips to help you start your divorce and post-divorce life in a better direction.

1.  Remember what went well during your marriage. Sometimes, it's hard to remember anything positive, but you should be able to with a little effort.  Maybe there were some fun family events or travel, or maybe you learned some fun or useful skills. Maybe you helped someone else.  Whatever it was, it will help you now to focus on those good times rather than the bad aspects of your relationship. Acknowledging your successes will help reinforce your confidence that you can do good things with your life.

2.  Make a few goals.  You can improve your focus by planning for the next year, two or three years or five years.  If you have difficulty with that much time, plan the next 30, 60 or 90 days.  Make some plans and have something positive to work on that you will enjoy and which you can look forward to. The planning can help you change your attention away from the negativity of a divorce.

3.  Be optimistic.  Work on changing your expectations.  Instead of thinking of all the bad things that can happen, start thinking about the good things that can come your way.  You will see a lot more happy things if you are looking for them. Also, don't hang around with or talk to friends who constantly focus on how bad things are. I'm not suggesting you ignore reality, but I am suggesting you should put most of your attention on good things that are happening or which can happen. It will help make your life happier!

Going through a divorce makes you start over in many ways. You can choose a lot about your outcome in the divorce.  Make it a positive, fresh start!