Getting Started in a New Year

Deciding to Wait

You may be one of the many people who want to get divorced near the end of the year, but you just don't want to mess up the holidays. A common solution is to put your thoughts and concerns aside until January. Then you are ready and anxious to file for the divorce.

What should you expect?

 1. A slow process.  Even though you have now had plenty of time to plan what, when and how you want to do, you will run into the court system. You can count on it being slow. There's a 60-day waiting period built into the system. And now, the courts move even slower than before. There's a huge backlog in most courts because the courts were shut down for a while and then started up slowly.  It often takes a long time to get into court for a contested hearing.

What can you do about it?

2. Come to agreements.  It's easy for me to say, but that's your best answer.  Mediation is required for almost any case nowadays. As a mediator, I'm a little biased for it, but it works.  

Without the formality of mediation, motivated people can work out final agreements by informal settlement conferences, attorney negotiations or just the parties talking directly (and respectfully!). Settlement conferences can happen at the courthouse or at one of the attorneys' offices. Attorneys talk all the time and with cooperative clients can come to agreements.  You and your spouse talking without the attorneys present is a little trickier -- you both have to be on your best behavior.

Despite the difficulties, people do come to agreements.  It may take while, but it will still be quicker than going to court.

3. The best way to reach agreement?  You can do a lot of research and hope you figure out the right answers. Or, you can hire an attorney and follow the attorney's advice. Every case is different, no matter what your friends, relatives or others tell you. You need to work with an experienced attorney who can help you choose the best possible outcomes and the strategies to reach them.  Going to court is just not the best answer.  Talk to your attorney!

Before you jump into the divorce process, it's best to hire an attorney to help you. Good luck!

Expect More Delays from the Pandemic

I just heard that the State Fair of Texas has been cancelled this year. That's the first time since WWII. The cancellation is a pretty big deal.

This cancellation is a clear indication that there is no expectation of the pandemic ending anytime soon. The State Fair run ends near the end of October. Obviously, the expectation is that the pandemic will still be strong then.

The reason I mention all that is to remind people that the courts will be mostly operating remotely through the Fall, and probably into next Spring or even Summer. Remote hearings are an awkward way of resolving legal disputes.

If you want a faster and more personalized way to settle divorce or other family law issues, you should seriously consider trying Collaborative Law. You will need two trained Collaborative attorneys, one for each party; not all attorneys are trained or interested in doing Collaborative cases. It is a different skill set and some people don't want to change or try something new.

Caution: If you interview an attorney and the attorney tries to talk you out of using Collaborative, please do yourself a favor and get a second opinion from a trained and experienced Collaborative attorney. The first attorney probably doesn't really handle Collaborative cases.

Good luck and stay safe!

You Can Choose How to Respond

Issues Don't Wait
Unfortunately, family issues don't wait to pop up only at the most convenient times. Many people are having marital problems while the coronavirus is going stronger than ever. (That's not a political statement -- it's just statistics.) 

Difficult Factors
Marriages are being affected by the sudden downturn in the economy, the layoffs, school being cancelled, people staying home more and restaurants and other businesses being closed. Suddenly, our lives are different in many ways. Some marriages are not strong enough to withstand the changing conditions.

Just like with the virus, you have some choices on how to respond to marital issues. 

• You can ignore it and hope it goes away. 
• You can isolate yourself and maybe your family. 
• You can read up on it and try to treat your own problems/ resolve your marital issues. 
• You can wear a mask and be extra careful  -- like counseling for the marriage. 
• You can go to the doctor (or lawyer) for treatment and help.

There are a number of escalating steps you can follow, depending on how much effort you want to invest. To some extent, you can choose how to respond, but sometimes, things get out of control.

Here’s the Important Message – Start with the Experts
My suggestion:  get the expert help immediately so you can rationally decide which path to take. Rely on the knowledge and experience of your professionals.  Get the best medical help you can find and get the most knowledgeable and experienced attorney for advice on how to deal with your marital issues.

Good luck.

Expect Delays at Court -- What Can You Do?

Courts Shut Down
For at least the next four months, and likely longer, the Family Law courts are going to be backed up everywhere. In Texas, our courts statewide have been shut down since about the middle of March. They may re-open June 1, 2020, but it could be later.

Backlog of Cases
When the courts finally re-open, there will be a rush to the courthouse. By then, there will have been about 2 1/2 months of no court. Most of the issues don't go away. At best, a bandaid is devised with the idea that the issue will be resolved later.

Greater Number of Cases
You should expect a big log jam of cases on June 1. We will have the 2 1/2 months worth of cases, plus new cases starting up. On top of that, we may have a larger volume of cases being filed as the Covid-19 quarantine may have been too much closeness and stress for some marriages to continue.

What Can You Do?
1. You can wait in line to be heard. That could take weeks or a month or two instead of the usual days. If your issue isn't too urgent, waiting won't hurt. If there is urgency, you could have a hard time.

2. You and your attorney can negotiate. In the old days, that's the way a lot of cases were resolved. It may be an attractive choice so you can get some decisions made, but you don't get your day in court to be heard by a judge (if that matters to you).

3. You can try mediation. Although mediation most often occurs closer to the final trial date, there's nothing wrong with using mediation to work out temporary orders, final orders and even other disputes. In Tarrant County, we have a strong group of mediators, including some former judges, who would be available to mediate.

A Final Thought:
Maybe you should consider the Collaborative process. It's not for just the easy or agreeable cases. It's an excellent approach for resolving all divorce issues, including temporary matters.
You can always switch to Collaborative, if you have a trained Collaborative lawyer.  Better yet, start the case in the Collaborative mode.

Would a Therapist Help?

Disclaimer (naturally, I'm a lawyer):  This is not intended to be counseling or therapy for your situation. It is information for you to consider if you are facing a divorce.

The end of a marriage (or other relationship) can be one of the toughest events anyone has to go through. Dreams end. Plans change. You lose friends and connections.Feelings of failure often surface.  Doubts start to dominate. 

If can all be pretty overwhelming.

Most people initially believe they can handle the situation. They talk with friends and family. They self medicate. Many bury themselves in their work.  Some just try to ignore the situation.

For many, there's a better alternative:  counseling.  You don't have to be crazy to benefit from counseling. There are all types of counselors around.  You just need to find one with whom you are comfortable.

If any of the following is happening to you, it would be a good idea to meet with a counselor. This is not a complete list of all possible reasons to see a counselor. These are common situations that warrant attention. You may have other reasons that warrant counseling, so please be open to that.

1.  You may have strong anger toward your ex because of the breakup. The anger may start to affect your life. Your relationships with other people may suffer and your ability to work could be impaired. If your anger controls your life and behavior, you should seek relief through counseling.

2.  It may be that you can't stop thinking about the breakup. It dominates your thoughts. You may not be able to focus on anything else. That interferes with your life, work and friendships. You need to find peace and balance.

3.  You may start to feel physically ill.  Stress can cause headaches or stomach issues. You may start feeling constantly tired. Before your health starts to seriously suffer, please talk to a therapist.

4.  You may lose interest in your close friends and favorite activities. Not being able to enjoy life is a signal that you need help. If you are at this point, it's probably not something you can just work through yourself.

5.  If your family or friends start talking to you about their concerns for you,  it may be time to seek help. Family and friends can be more objective than we are sometimes. They may notice if:

• You seem depressed.
• Your drinking has increased.
• There's drug use or it has changed.
• You seem disconnected from your family or circle of friends.
• You show a lot of anger.
• They observe other behavioral changes.

If any of the above circumstances may be occurring, please meet with a counselor to see if there's some help you can get. It doesn't mean you are crazy or weak or a failure. It means that you're smart and you care. Please take care of yourself!

Why You Need a Lawyer for Mediation

Mediation is a great process for resolving disputes. I am a mediator and an advocate for it. However, I strongly believe mediation works better with attorneys involved.

My comments are applicable to mediations in Texas which are usually done as a day or half-day event, usually with attorneys for each party. In family law cases, it is usually done where the two sides sit in separate rooms, each with their own attorney. The mediator goes back and forth from room to room, asking questions and conveying information and proposals.

Here are some ways attorneys can be very beneficial to their clients in the process.

Preparation

There are a number of things your attorney can do to help you prepare for mediation.

• Gather the documents you need.
• Prepare charts or exhibits to help your case.
• Review information from the other side.
• Plan strategy.
• Explain the issues for you.
• Explain procedures in mediation and in your case.
• Discuss the legal context with you.
• Discuss and develop possible outcomes.

During Mediation

Mediation is a slow-moving process, with lots of time for thinking, discussion and just plain waiting. During the down times, when the mediator is not with you, your attorney can be doing things to help you.

• Reassure you if you start thinking the mediator is on your spouse's side (a common feeling). That often comes up when the mediator spends a lot of time with the other side, but it's never the case because the mediator remains neutral. Sometimes it's just hard to get someone to make a decision, as you may know from experience.
• Remind you that the mediator is just playing the devil's advocate when he/she asks you a lot of questions about your position, your proposal or the facts. The mediator will not take sides, but will challenge both sides with questions.
• Help you with ideas and new possibilities for settlement, or new ways to view the situation.
• Watch out for unexpected consequences for you.
• Remind you of your most important goals and needs.  It's easy to get caught up in emotions or conflict in mediation.  Remember, you are there to settle and end the litigation!

The Agreement

When mediation is successful in reaching agreement, the next (equally difficult) step is to agree on the wording of the Mediated Settlement Agreement which will be binding on everyone once it is signed. There is no standard Mediated Settlement Agreement. A new one must  be created for each case.

• Keep in mind, no matter what was discussed or noted, this document controls. Prior discussions or wording have no effect unless they are explicitly included in the Agreement.
• The Agreement must be very precise and you must be careful to make sure everything is included and correctly stated.  You can't go back later and change or correct things.
• Your attorney should explain the wording and the Agreement to you to make sure you understand it and really agree. The attorney should make sure to check on whether you are assuming anything that is not included in the Agreement. 

Why is All This Important?

Mediation is required for almost all family law cases in Texas before they can go to trial. Most mediations are successful. Even if they don't settle on the mediation date, a significant number will later settle before trial. Almost no cases go to trial. Therefore, it makes sense to take the process seriously and take advantage of the opportunity to save time and money through settlement!

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.