Monday, December 31, 2007

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.

Wednesday, December 26, 2007

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!

Monday, December 17, 2007

Internet Legal Information -- Handle with Care!

Years ago, Johnny Cash had a song about building a unique car "One Piece at a Time". In the song, he built a'49, '50, '51, '52...'70 model Cadillac by taking one piece a day from the auto factory where he worked. It's fascinating to try to picture his creation because Cadillac models evolved quite a bit during those years. You know the car would never work in real life, but it made a song that was fun to listen to.

Some people seeking a divorce use Johnny's approach and find out information about legal issues without limiting their search to their home state. That can be a serious problem whether they are just copying or downloading forms or learning about procedures. Piecing together paperwork using other states' forms can lead to problems ranging from wasting your time to having an unenforceable order to having the divorce thrown out of court. Some states, such as California, have standard forms which are readily available for the parties to fill out and file for themselves. Texas does not do that. Although there are some standard software programs used in Texas, there are not any standard state-issued forms that the parties can fill out and submit.

Similarly, trying to act in a Texas case based on New York or Florida or Kansas procedures won't be very effective. In addition, each state will have some variations and unique provisions regarding visitation and child support, as well as property division issues. Texas is surrounded by Lousiana, Arkansas, Oklahoma and New Mexico, but their laws are different in many respects from Texas laws.

The point is that you should be careful to rely on information about family law matters that is based on the law of your state. Don't pick parts of the law from different states and then try to mold them into your pleadings or strategy for your home state. It's fine to research legal issues on the Internet, but just pay attention to the context and what state is being discussed.

Tuesday, December 11, 2007

Does Selling a House Affect Child Support?

James J. Gross of the Maryland Divorce Legal Crier recently had an interesting post about a subject that comes up occasionally in Texas. He discussed how a Maryland judge ruled in a case where the mother sought an increase in child support from her ex-husband, in part because he had sold his house and had realized capital gains. In that case, the Maryland judge granted an increase in child support, but a smaller increase than the mother wanted, and the judge excluded the proceeds from the house sale from income for child support purposes.

The result in Texas would likely be the same for several reasons. Just as in Maryland, capital gains here can be considered part of the net income resources of a parent. Also, like in Maryland, the judge has some discretion in how and whether the capital gains will be included when calculating child support obligations. Here are some of the considerations.

  • If the house equity was considered an asset to be divided in the property division between the parties, then it would be double-dipping to also consider the same equity as income.
  • If the house was bought after the divorce and flipped for a quick profit, then it could be appropriate to count the proceeds as income. They are like a paycheck in that situation, although it would be reasonable to deduct related business expenses.
  • If the sale is a one-time event, it could be considered in setting the support for the limited time when the gain was received, but should not be factored into future support since the gain won't be there again.
  • If capital gains are regularly received, even if the amounts are hard to predict and are not guaranteed, they are more likely to be considered as income for child support purposes.

If capital gains could be an issue for child support in your case, be sure to provide full information to your attorney.

Saturday, December 8, 2007

Divorce is Bad for the Environment

A recent story in the Los Angeles Times reported on a study done by Jianguo Liu, an ecologist at the Michigan State University, on the effects of divorce on the environment. He noted that people in divorced households spent an average of 46% more on electric power and 56% more on water. Although he made some valid points about divorce leading to more power consumption, pollution and waste of resources, I doubt anyone will put off getting divorced in order to save the environment.

Professor Liu mentioned some potential solutions to the problems, including having roommates, remarrying, living in a commune or becoming a polygamist. I guess having many others living in the same household would be more energy efficient, but it doesn't seem likely that some of those options will be very popular.

Actually, the story included some good advice. Divorce is a good time to scale down your living arrangements. Most people have too much stuff anyway. When they get divorced, it provides a great opportunity to live a simpler life with less stuff and a smaller residence. Maybe it could be a time to change lifestyles and be more energy conscious. It could be the beginning of a more environmentally friendly lifestyle, in which case everyone will come out ahead.

Thanks to the Rosen Law Firm and their blog, KraemerVs for their post on the article. They have an excellent blog and web site about North Carolina family law.

Thursday, December 6, 2007

How to Deal with Last-Minute Visitation Issues

At this time of year, and at other times just before holidays and vacation times, it is not unusual to have conflict between parents over visitation/access with the children. A variety of circumstances can lead to the problems:

  • Sometimes the existing court orders are a little vague.

  • Sometimes the parents have been doing things by agreement a certain way and one of the parents decides to change things.

  • Sometimes there is a special event that comes up that doesn't fit into the order or how the parents had been sharing.

  • Sometimes one parent gets mad at the other and starts to use the kids as a weapon.

  • Sometimes other family members interfere and create problems.

  • Sometimes a work schedule or financial issues create a need to change visitation.

  • Sometimes an outside opportunity comes up from school, church, friends, relatives, Scouts or other sources.

  • And on and on. For any number of reasons, conflict can arise and really cause problems at holiday time.

What can be done? Here are some ideas.

1. Prevention is the best approach, if possible. Continually working and communicating with each other can help avoid major problems.

  • Parents should talk early and often so they can avoid unpleasant surprises, hurt feelings and conflict. Discussing plans far in advance can help issues be resolved early or just not even become problems.
  • Establishing a pattern and history of cooperation not only makes it easier to avoid conflict, but also makes it easier to deal with problems if they arise. If one parent has regularly shown a willingness to cooperate over a period of time, the other parent will probably be more willing to "give" somewhere in the future.
  • Be nice. Do unto others as you would have them do unto you.
  • Be flexible. Most plans can be adjusted. In the long run, you'll come out far ahead if you show flexibility and are able to change your plans sometimes. Keep in mind the big picture as far as what's in your child's best interest.
  • Plan ahead. Try not to wait to the last minute to plan or implement changes in your child's schedule. Plan ahead and share the details with the other parent.
  • Listen and be respectful. If you immediately start talking or arguing, you may miss some information and may jump to erroneous conclusions. Listening, just by itself, can defuse tensions. Being courteous and respectful to the other parent may be difficult, but investing in that effort can be rewarding by leading to better communication and relationships.

2. What do you do if you're already not on good terms? It is not unusual for two parents to not get along. Many people have difficulty getting over their divorce or other family conflicts. Parents who don't like each other need to work harder to minimize the conflicts over their children. Here are some tips.

  • Communicate early and clearly. Written notices are good and can help avoid misunderstandings. Direct discussions can also be helpful, if done properly.
  • Don't be accusatory or negative. Avoid using "always" and "never". Think before you speak and choose your words carefully. If you criticize the other parent, they will get defensive and less cooperative. Also, use "I" statements and avoid using "you" when you are speaking with the other parent.
  • Listen and be respectful, even if you don't like the other parent or they don't like you. Being disrespectful will just make the situation worse. Hold your feelings until later.
  • Be willing to compromise. Sometimes you can't persuade the other parent and sometimes you don't have any power or leverage in the situation. Keep your child's best interest paramount and be willing to give up some power if it helps end conflict.

3. What if you are already on bad terms with the other parent? Again, there are several things you can do.

  • Figure out early if you need help. That will give you more time to respond and to find some resolutions.
  • Develop layers of responses which escalate in strength of response and the involvement of 3rd parties. For example, you can start off by contacting a mutually respected friend or family member to be an intermediary. The other parent may listen to such a person when he/she won't listen to you. There might also be a couselor or child specialist who could get involved as a neutral person. A slightly higher step would be to meet with an Access Facilitator at the courthouse. If all of those don't work, you probably need an attorney, but the courts fill up before holidays, so going to court is often a slow and unhelpful process. Sometimes, though, you don't have any other alternatives.
  • When you communicate with the other parent, give clear, non-argumentative messages. Don't be insulting. Think about how you sound to the other parent.
  • Be willing and open to compromise. Even if you are going to court, judges encourage settlement and you often can work out a better agreement than you could get in court. Be flexible.

Last-minute visitation issues are common around holiday times. Knowing that, maybe you can take evasive action to avoid serious collisions over the children.

Monday, November 26, 2007

What to Expect at the First Court Hearing

A common question that clients ask is, "What's going to happen at the first hearing?" The following are some tips about what to expect.

People using the litigation system to resolve marital and family law disputes will generally face at least one or two days in court. The first setting is stressful and is often one of the most important events in a case. The results of the hearing or negotiations will establish the framework under which the case will proceed. While the orders can be modified later, it is often true that the parties must operate under the original temporary orders until the final orders are signed by the judge. Justifiably, parties want and need to know what to expect in court when their case gets started.

1. The case could be postponed on the first setting. If one party has just received notice and has not had time to hire an attorney, and asks for time to hire an attorney, the courts in Tarrant County will almost automatically grant a continuance and reset the case a week to two weeks later. If there is a temporary restraining order, it is normally continued in place until the reset date. Sometimes other orders are made temporarily, if necessary. Usually, the judge will not order one party or the other to vacate the residence without a hearing, so that issue is usually postponed as well.

2. There are usually extensive negotiations. Experienced attorneys will normally immediately begin talking with the other side to try to reach agreements on as many issues as possible. That is the sign of a smart lawyer looking after the client's best interests, rather than an indication that the lawyer is weak. The parties get better results if they participate in the decision-making, rather than leaving everything up to a judge. Negotiations are also necessary because there is not time for the judge to conduct hearings in every case set each day. Good attorneys are very familiar with what the judges usually do in similar cases, so they know what can realistically be achieved.

3. Plan on being there all morning. Parties are instructed to show up at 8:30 or 9:00 a.m., and courts will start up some time after that -- each court is a little different.

4. The initial hearings in most family law cases in Tarrant County are in the Associate Judge's court. There is an Associate Judge for each District Judge. The District Judges hear most final hearings and leave the temporary hearings to the Associate Judges.

5. Attorneys usually meet with the judge to discuss issues in the case. Sometimes, attorneys can work out all the temporary issues and just present an agreement to the judge. More often, the attorneys resolve many issues, but must meet with the judge to get an advisory ruling or a suggestion on how to deal with something. Meeting with the judge will usually save time for everyone.

6. Hearings are most often informal. To help save time and move cases through the system, temporary hearings (if held) are usually very informal. Each judge has his or her own style, but generally the judge will let the attorneys summarize the situation and then the parties will get to answer questions or make statements. Documents can be introduced into evidence if necessary. Formal hearings can be held, but if they are expected to take a considerable amount of time, they are generally specially set in the near future. Even then, most judges usually won't allow enough time to put on really extensive evidence at a temporary hearing.

7. How to Prepare: It's really helpful for each party to have thought through what his/her underlying goals and needs are, and these should be discussed with the attorney. Many people aren't thinking too far into the future, but it can really be helpful. Attorneys need to know what their clients want to accomplish so they can prepare for court and negotiations. The parties also need to provide basic information to the attorneys about financial issues, such as income and expenses, debts and any problems requiring immediate attention. The parties need to have parenting plans in mind covering how the children should be cared for and shared during the court process and after. Each party's attorney can provide a list of information the court and attorneys will want to see. Gathering information will become a regular part of the litigation process, so everyone should expect it and get used to it.

The above comments give some idea of what to expect at the first court hearing in family law cases in Tarrant County, Texas. Each party in a family law case should consult early and often with their attorney to prepare for court.

Wednesday, November 21, 2007

What if We Both Don't Want to Get a Divorce? (But There are Problems if We Stay Together)

This is another question in my occasional series of questions commonly asked by clients. For a variety of reasons, some people want to stay married but "split the sheets" or take some other actions. Some want to stay officially married because of insurance, inheritance, religious reasons or children or for other purposes. Fortunately, there are several actions couples can take without getting divorced.

1. Some couples find protection and assurance by creating and signing a partition or post-nuptial agreement. That agreement can divide assets and liabilities, provide for support and can insulate the assets of a party from the liabilities of the other party. It can also be a tool for estate planning and may help save taxes.

2. If there are minor children, support and visitation issues can addressed in several ways. A partition agreement can provide for contractual child support. Either party can ask the Attorney General to help collect child support. The parties can sign a voluntary agreement for child support or visitation, or either party can file a petition seeking a court order for child support or visitation.

3. Couples can always work with a counselor to try to improve their relationship. Communication problems are common and can be overcome by hard work and commitment.

4. Couples can just continue to live together and informally start creating separate lives and interests. That is not unusual. It often leads to divorce, but some people are tolerant enough to live that way. If there are significant problems, they won't just go away. They usually get worse over time.

5. Annulment is a very limited option and will be discussed more fully in a later post. It usually is not available because of the limited circumstances under which it is allowed by the Family Code.

Sunday, November 18, 2007

How Can a Father Win Custody?

This is another question in my periodic series of common questions from clients. The short answer to how fathers can win custody is: the same way mothers do. There is often still a perception that women automatically always win custody. That is not true. Mothers still end up with custody more often than fathers, but in contested cases that is not necessarily true. While there are still a few judges who automatically favor mothers, there are many other judges who bend over backwards to be fair to both sides. Juries in Texas don't shy away from awarding custody to the more deserving parent, male or female.

The easiest way for a father to get primary custody of a child is to do so through negotiations. Sometimes both parents will agree that the father is the more appropriate parent for primary custody because he is in better financial shape or has more time available or has a better relationship with the child, or for some other reason. Sometimes the parents work out creative arrangements that fit the schedules of both parents and the child. Collaborative Law is very helpful in setting up customized plans for sharing time with a child.

The question, though, really refers to those cases where the parties can't reach an agreement. For those cases, I offer the following seven tips to win custody. They will work for fathers or mothers.

1. Be the primary caregiver. The parent who has always, or recently, been the primary parent taking care of the child does have an advantage with judges and juries, unless the parenting has not benefited the child. When the child is thriving, the primary caregiver has an advantage.

2. Be involved at school and home. This is more than just being present for a time period. Help with homework. Give encouragement to the child. Play with the child. Talk with your child. Read to or with your child. Have meals together. Volunteer and help at school. Keep up with your child's grades and homework. Get to know the teachers and Principal. Know about and deal with any problems when they first show up. Get to know your child's friends and their parents.

3. Be good with kids. Don't be afraid of kids. Loosen up and have fun with them. Be able to talk with other kids. Participate with kids whenever and wherever you can. It's OK to act like a kid sometimes, but don't go so far that you give up appropriate parental authority. Share interests and activities with your child.

4. Be cooperative with the other parent. Be flexible in sharing time with the parent. Share information about activities and plans. Try to help each other where you child benefits. Some parents lose custody when they unreasonably refuse to cooperate to share time with the kids. Children normally benefit when the parents get along. Avoid negativity, blame and name-calling about the other parent, even when you may think it is justified. Take the adult role and set a good example for your child and the other parent. Remember, you may need a favor some day (or weekend).

5. Speak positively of the other parent and be supportive of them. Making critical comments about the other parent when your child is around is inappropriate, even when you are convinced the remarks are "the truth". Since your child is part you and part the other parent, attacking the other parent can feel like an attack on the child. It is much better to take the high road and refrain from negativity when the child is around. It's the same advice you have probably given your child to help him or her deal with peers.

6. Be knowledgeable about parenting. This takes some effort. We aren't usually born with innate knowledge of how to be a good parent. Some learn this as they grow up. Others may not have spent much time (at least recently) around kids, so they need to learn what to do. They can read, take classes and get help from experienced parents. Good parents are constantly learning more about kids, especially as their kids mature and move into new stages of development.

7. Follow the court orders. It's a serious mistake to violate visitation orders, by either the primary or non-primary custodian. Improperly keeping the kids from the other parent never looks good to the court or a jury. Failure to exercise visitation or possession times allocated to you create doubts about how seriously you want to have primary custody. It's also hard to ask the court to award custody to a parent who regularly does not properly pay child support. If the visitation order or child support amount needs to be changed, try to negotiate or file a motion to change it, but don't just take matters into your own hands. Lack of obedience to an order usually has a negative impact on your child, can result in incarceration of the offender and creates a negative impression of you with the decision-maker in a custody case. It's important to comply with court orders as long as they are in place.

These seven tips are all factors often relied on by judges or juries who are deciding custody questions. They all start and end with being a good parent.

Tuesday, November 13, 2007

Record Divorce Settlement!

Recent news reports indicate that Michael Jordan will be paying his wife $168 million in a divorce settlement. This is apparently a new record settlement for a celebrity divorce. Undoubtedly, Michael still retains substantial assets. Even better (for him), he still has exceptional income potential from endorsements and business opportunities for many more years. While he is giving up a lot, he should be able to recoup that without too much trouble in coming years. The Jordans wisely reached an out-of-court settlement and avoided the avalanche of bad publicity that many divorces generate.

Thanks to the Mississippi Family Law Blog for reporting the story earlier.

Friday, November 9, 2007

Children, Divorce and the Holidays- How to make the best out of a stressful time

Thanks to Stephen Worrall of the Georgia Family Law Blog and Mark A. Wortman of the Missouri Divorce & Family Law Blog, both excellent blogs, for this timely posting. We are getting really close to Thanksgiving and there is a strong possibility of encountering various family problems. Even in intact families, there is often stress about where and when adults and children will visit each other during the holiday season. Avoiding a sense of competiton, and seeking cooperation instead, between various family units is essential. For some other worthy ideas, please continue reading. Hopefully, this will help resolve some family issues at a time when family members should be enjoying each other's company.

The holiday season conjures up many images for all of us. The most universal of these images is one that includes happy excited children. However, for children from divorced or separated families, the holidays can be a nightmare. What other children may experience as a joyful time filled with excitement and good feelings, children whose parents are divorced or separated see quite differently. Often the holiday time marks a period of turmoil and chaos, as the estranged parents are forced to negotiate additional child centered issues. Depending on the degree of hostility between the parents, children of divorce approach the holidays with feelings ranging from mild ambivalence to absolute dread. This article will explore what children of divorce experience at holiday time with a focus on holiday visitation, parents' legal rights and ways that parents can help ease the pain and reduce conflict so the holidays can be enjoyed by all.

First, regardless of financial or marital status, we all experience stress around the holidays. We spend too much, eat too much, party too much and always seem to have too little money, too little sleep, and too little time. It is important to recognize that most people feel inadequate around the holidays.

Second, regardless of how good the relationship is between the divorced or separated parents, children and their parents always experience some sadness around the holidays. After all, the holidays are a time for reminiscing and reassessing our lives. The divorced or separated family is always aware of the pain it has suffered and the holidays magnify this pain. Reminiscing is part of the holiday tradition, as we remember holidays gone by with stories or browsing through the family album. For the divorced or separated family this experience is bittersweet, as they reassess how it "used to be."

Third, we have unrealistic expectations. This result is the "post holiday blues" many of us experience in January. We expect more from ourselves and others than is possible, so we feel let down and disappointed.

Fourth, the ability of the children to adjust not just to the holiday visitation schedule, but to the divorce or separation, in general is directly effected by how well the parents have learned to adjust to their new roles as ex-spouses and co-parents. The above four issues give insight into what parents need to do, regarding their children.

Each holiday exists for a limited number of hours. Because parents are divorced or separated does not mean that the amount of holiday time available, doubles. In reality, it means that each parent now only has half the time with the child that they had before. Recognizing that reality is primary in negotiating visitation time.

The bad news for the children is that they are forced to divide their time between two families. The good news is that they experience two celebrations. From the child's point of view this may sound like a lot of fun and it can be, provided that the parents set realistic expectations and don't try to outdo each other or buy the child. Many non-custodial parents feel that they have to make up for their absence by indulging the child's every whim. This is unhealthy parenting. The Disneyland parent will grow to resent it and your child will test your boundaries and try to take advantage. If possible, discuss with your ex-spouse your child's gift list and divide the list, rather than duplicate it. Competing for your child's love and loyalty only confuses the child. The best gift you can give your children this holiday season is permission to love both parents.

Some families avoid splitting the holidays, agree that the children will spend Christmas Eve with one parent and Christmas day with the other. Many divorce decrees provide that parents alternate major holidays yearly. This gives both parents the opportunity to celebrate with the children and avoids rushing the children to two holiday diners. Some families choose to celebrate Christmas Eve and the other parents Christmas Day. Remember holidays are about families and good feelings not the day the calendar dictates. In reality every day should be a holiday!

Older children are not immune to this stress. Children who live on their own may find it difficult to choose where to go and when. Young adults returning home for the holidays have the additional stress of wanting to spend time with their friends. Recently, a young couple, who were married within the last year saw a therapist to negotiate holidays. Both sets of parents were divorced and remarried. They were caught in the trap of negotiating four sets of parents not to mention grandparents. Trying to please their parents, each other and themselves was putting stress on their marriage. They decided to rotate holidays, rather than try to see everyone on every holiday. Now instead of spending holidays driving all over the state, worrying about where they had to be next, they were able to relax and enjoy their time with all members of their families.

For younger children, the decision of where to go, and when should be decided by the parents. Having to choose to spend time with one parent, over the other is a tremendous burden for the child, which may result in the child feeling guilty. It also gives the child more power than is appropriate. Your child does not decide whether he/she wants to go to school, but he/she may decide what to wear. Age-appropriate responsibilities enhance children's self esteem and confidence. Frequently divorced families fall into the trap of giving the children more power than is appropriate. To avoid this, make sure you have a support system you can turn to for advice and encouragement. One of the most difficult aspects of single parenting is not having another adult in the house to offer support and validation.

Divorcing parents are advised to determine where the children will celebrate, in writing, with the assistance of their divorce lawyers. This will prevent parental arguments and involvement of the children. The scheduling of holiday celebrations can be done creatively to fit each couple's unique situation. Parents can alternate Thanksgiving and Christmas, or Christmas Day and Christmas Eve, or allow the parent not having Christmas, the week between Christmas and New Years. It is important to put the agreement in writing to avoid misunderstandings and reneging on the part of either party.

Holidays are a mixed blessing. If we set realistic expectations, focus on the needs of the children, develop a good support system, and take care of ourselves both emotionally and physically, this time of year can be joyful and fulfilling regardless of our individual family structure. Best wishes for a peaceful and happy holiday season!

SOURCE FOR POST: Missouri Divorce & Family Law Blog and Divorce Help Network

Monday, November 5, 2007

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.

Tuesday, October 30, 2007

Tips on Child Support

J. Shannon Cavers of the Houston, Texas Divorce and Family Law Attorney Blog has a recent post about the need to keep good child support payment records. When someone is ordered to pay child support, the best approach is to pay through the court registry. Currently, most payments go through the Attorney General’s office in San Antonio. They do a good job of keeping records and they are able to send the funds back out with a very short turn-around. Their records are taken as gospel in any court, so letting them keep your records by sending payments through their office is a very prudent course of action.

Sometimes, however, for various reasons, a parent paying support does not want to send the payments through that office, or the parent receiving support may request direct payments to him or her without going through the child support office. Sometimes, emergencies come up and the receiving parent may need to get the funds early or just in the quickest manner possible. For any of those or other reasons, the paying parent may make some direct payments outside the child support system. While that may be the best course of action for several reasons, it has the drawback of not creating a reliable paper trail for the payment.

If cash is paid, a receipt should be obtained, but it can be (and often is) lost and memories grow dim as time passes. Even if support is paid by check, a copy of the check should be retained, but those are hard to come by now. Apparently, banks only keep copies of account records for about seven (7) years. Since child support can be enforced well past the child’s 18th birthday, the paying parent can be put at a serious disadvantage if an enforcement action is started years after the direct payments were made.

Another pitfall relating to child support is the common situation where direct payments are made, but the amount is less than the amount ordered. This often happens because a deal was made that gave credit to the paying parent for some other expense he or she paid for the child or the other parent. The record of payment will show an improper amount which could result in an enforcement action.

Not to be too obvious, when child support payments have been made, but there is no reliable record to confirm that, the courts generally consider them unpaid. Likewise, when child support payments are made in a manner different from the way described in the court order that controls the issue, the payments are often completely discounted. In other words, without proof and without following proper procedures, the paying parent likely will not get official credit for payments. The result: the paying parent may be forced to pay the support a second time.

Suggestions to help avoid problems:

1. Always pay the full amount on time.

2. Use a wage assignment to have the payments automatically deducted from your paycheck and recorded by the state.

3. If you make direct payments of child support, keep a copy of the check or a receipt for back-up. Get a receipt signed by the receiving spouse.

4. Keep your child support records in a safe deposit box for each year until your exposure for child support is ended. Show your divorce decree or order to a lawyer so the last day of exposure can be calculated.

5. If you and the other parent agree to do anything different from what is provided in the divorce decree or other court order, memories fade and you could have trouble later. It would be wise to have a brief written agreement which states what was agreed to and why it was. That agreement should be kept in a safe deposit box.

6. If an agreement is reached to change the amount or other details regarding child support, the best course of action is to put it in the form of a Rule 11 Agreement which is then filed with the court. A proper Rule 11 Agreement that is filed with the court can have the effect of a court order.

An extra dose of caution can go a long way in protecting you on the issue of child support payments. It is no longer unusual for paying parents to face a child support enforcement action after a child is 18. Making the payments properly and keeping good records can prevent a lot of problems and help you avoid making the same payments twice.

Wednesday, October 24, 2007

7 Tips for a Better School Year

At the start of a new school year, there are many possibilities for mischief and conflict when parents, step-parents and other relatives are involved in a child's life. Most or all of the problems can be avoided when the parents and others act as mature adults and focus on what would benefit the child the most. Here are 7 tips to help avoid and minimize problems.

1. Let the school know from the beginning who the significant adults in the child's life are. Unfortunately, many parents play games and try to take sole control over the child by omitting mention of the other adults on official school forms. Every school has (and needs) contact information on each child. Many parents try to prevent access to the child and monopolize school information. "Locking out" the other adults can also hinder the teachers' ability to learn about the child and understand his or her special needs or skills. Teachers are used to dealing with blended families (many are step-parents themselves), so they would certainly not be judgmental about various family situations, especially where the adults are cooperative.

2. Parents living apart should share all school and extra-curricular activity information, even if they really dislike the other adults. Parents should always exchange information and should update each other for the child's benefit. Children feel more secure and loved when they see all parents and adults supporting them and showing up for events. Parents should fore go the power they possess when they have exclusive information about the child. The focus should always be on what benefits the child, not what gives more power to a parent or what creates an opportunity to make the other parent look bad. When kids get awards or participate in sports, they would much prefer to see a larger crowd of supporter cheering them on and getting along well (or at least civilly).

3. Parents should set up consistent rules for after school at each home. While it is probably impossible to establish identical disciplinary rules for two or more households, the parents should regularly discuss how to deal with issues and work out a common response to each situation. Parents should not let the child play them against each other and should not use discipline imposed by the other parent as an opportunity to be the good or nice parent by not imposing the same sanctions. After-school schedules should also be coordinated so that the child can develop consistent habits and activities, regardless of where the child is.

4. Organization and coordination are critical when there are two or more homes. Agreements need to be reached about how to handle clothing, shoes, coats, etc. so that they do not collect all at one house or so that they are not to be found when needed. Similarly, books, school supplies, computers, etc. need to be planned for. Things moved from house to house should be kept in easily accessible places where the child will remember to pick them up on the way out. Likewise, the child needs to be sure there will be adequate supplies to do any necessary school work. Sometimes, it works out best to just buy duplicates of some items, but with really expensive items, such as computer equipment, some books and some sporting gear, it may not be practical to have duplicates. In those situations, sharing may require a lot of attention to detail.

5. Disagreements should be resolved away from the child. As in most other issues, disagreements between adults should be discussed where a child cannot hear the discussions. It would be best for the child to even not be aware of the problems. If need be, the parties can meet at a neutral public location (without the child) to talk about the issues.

6. Parents should not allow public displays of anger and bad behavior. If problems come up between the parents, they should avoid creating a scene at any public events. A child will feel much better if he/she sees the adults all getting along well. There will be plenty of opportunities for the adults to talk privately about whatever concerns they have. Each parent should be sensitive to the feelings of the other parent, especially when step-parents are involved. Likewise, an adult should act in a mature fashion and accept that a former spouse may be involved in a new relationship. Keeping in mind how bad adult behavior can embarrass or hurt a child may help parents avoid the craziness.

7. Step-parents should also be able to participate. Like it or not, step-parents often become very involved with their spouse's children and develop deep bonds with the children. Mature parents can understand that a child can have loving relationships with adults other than his/her parents. Children shouldn't be forced to choose sides. Just as they may have many friends their own age, they can develop relationships with several adults at once without diminishing the relationships with other adults. Besides, each adult brings different skills and abilities to the relationship with the child. As long as the child is happy, the parents should not try to establish ownership of the child or limit access to him/her.

These thought-provoking ideas are based on an article in the Fort Worth Star-Telegram on August 28, 2007. They are good advice for any parents, step-parents or other adults involved in raising children. The most important action to take is to always consider what the impact of various behavior choices will be on a child.

Tuesday, October 23, 2007

One More Fee to Pay

Beginning October 1, many families receiving child support will have to pay a new $25.00 annual fee for the state and federal governments' help in collecting the support. States have some options about whether they pay the cost or charge the custodial or noncustodial parent. While it may not seem like much money, the federal government could collect about $172 million over the next five years. The states will receive about half as much as the federal government does. The fee was contained in the Deficit Reduction Act of 2005, according to a recent Associated Press story by Kevin Freking.

The fee is to help pay the costs for record keeping, enforcement and administering the collection and dissemination of child support funds.

Tuesday, October 9, 2007

Where to Turn for Help After It’s Over

Once a divorce or other family law matter is completed, the parties usually begin to feel a sense of relief. Sometimes the case has been bitter and hard-fought, and other times the case may have been rather amicable or even tedious, but the case is rarely completely over. There always seem to be loose ends, unanticipated wrinkles and nagging questions.

To address the situation, several things things can be done to assist people in their transition to living under new arrangements.

1. You can get professional, skilled help for big and small problems. Your attorney can probably recommend other appropriate professionals to assist you to work with the following professionals:

  • Personal counselors: They can help you through the grieving process or help you or your children deal with your new situation.

  • Life coaches: They are not therapists, but they help people determine what they want to accomplish and then the best way to accomplish it.

  • Financial planners: There are different types of financial planners. You should look for someone appropriate for your financial needs and abilities. Some people have to take on management responsibility that they don’t know about and haven’t dealt with before. It helps to have someone on your side in determining how to manage your income, assets and liabilities. Many people appreciate having an expert help them plan for retirement.

  • Parenting programs: Many free or low cost classes on parenting and co-parenting are. Experienced specialists in parenting issues are also available to meet and work with one parent or both parents. It is so important to "get it right" about the kids, that each parent should put in extra time and effort now to be able to receive the benefit of great relationships later, and to make sure your kids get their best possible start in life.

  • Access Facilitation: The Tarrant County Domestic Relations Office offers free Access Facilitation by experienced and trained social workers who help the parties try to resolve parenting conflicts sensibly. It is a free service and it usually is successful, although it may take several sessions.

  • Employment options: If needed, there are specialists who help people decide on career options and transition into or out of the work force.

  • CPA: There are many CPAs who can help with your financial and tax issues.

  • Free seminars and programs: Periodically, there are free programs of many types for clients and your attorney can pass along that information to people who are interested or you can watch for news stories, newspaper articles, newsletters or blogs on your own.

2. Your attorney can probably recommend some books and web sites to look at on a variety of topics relating to various aspects of post-court life.

3. Many attorneys can act as a legal clearinghouse in non-family law matters to help you find excellent attorneys for your needs in your local area, and to some extent all around Texas and even in other states.

4. An after-care program for you, if offered by your attorney once your legal matter is concluded, can be invaluable. Having a consultation within 60 days of the date the final court order is signed could provide an opportunity to:

  • Answer your questions.
  • Explain the language in the order
  • Explain the procedures in the order
  • Discuss your options
  • Recommend any other professionals who should be brought in

Many people have a difficult time after the final court order is signed. Their lives don’t just magically fall back into place. There are a number of things set out above that they can do to get appropriate help as soon as they need it, or even in advance of their need. The transition time after the final order should not be overlooked.

Sunday, September 30, 2007

How Can I Speed up my Divorce?

This is another frequent question, asked by about half of my clients, sometimes at the beginning of a case and sometimes after it has gone on for a while. Actually, most clients eventually get to this question if their divorce lingers long enough. There are a few things that can be done, but they ultimately depend on the goodwill or motivation of your spouse. You can always just wait for a trial, but it usually takes a long time to get into court (often a year or more in Tarrant County). The situation is similar in other (non-divorce) family law matters.

Here's my list of 9 suggestions. You may be uncomfortable and may not enjoy some of them, but they are provided to help you speed up the process, not to make things more pleasant for you; if speed is not your highest priority, you may not want to do some of these. Please remember, they may not apply in every case -- they are possibilities to consider.

1. Don't disagree. That may seem obvious, but the more you and your spouse disagree about things, the less likely an early settlement is. You have to make a value judgment about how important some principles and some issues are. The ultimate position is to "roll over" and let your spouse have everything he or she wants. That rarely seems like a good decision, but it probably comes down to evaluating the matter under discussion. Also, giving in completely sometimes doesn't satisfy the other spouse. Sometimes it is helpful to argue a little about something and then later concede it so your spouse thinks he or she really won something.

2. Be cooperative and nice. Being a bully rarely pays off in a quick settlement. Making demands and setting deadlines may provoke more resistance than agreement. On the other hand, being cooperative and respectful may pay dividends. Looking for common ground and showing effort in working toward that may get a friendlier, more cooperative response.

3. Apologize. This one may be tough for a lot of people, but if your highest priority is to get the divorce over with, it can be helpful if an apology is done appropriately and sincerely. There are always things each spouse can legitimately apologize for. If you have a hard time coming up with something, talk to family and friends, particularly of the opposite sex, and ask their help in coming up with something. A good apology may open up communication and help your spouse feel better about the situation, which can lead to productive negotiations.

4. Figure out your spouse's underlying issues and resolve them. If you can't figure out the underlying issues, get some help. Talk to family and friends, maybe a counselor and maybe your attorney. Once you identify the issues, do some brainstorming with your attorney and try to come up with some acceptable alternatives to present. If you can solve the biggest issues, you have a chance to work out a final settlement a little sooner.

5. Use mediation. This is about the best way to resolve cases (other than Collaborative Law). With a good mediator, you have a high probability of settlement, although there's no guarantee. If the other party demands 85% of the assets to settle, there's little hope for mediation to bring sense to them. Most of the time though, mediation will result in a settlement.

6. Get a mutually respected person to intercede for you. In many cases, there is someone who your spouse respects and/or will listen to who can be an informal mediator for both of you. This could be a friend, relative, minister or someone else who is respected and perceived as neutral by your spouse. You should still be prepared to make some concessions to get the deal done.

7. Don't send mixed signals. Make sure that your spouse understands that you fully intend to finish the divorce. Even as you try to compromise and be nice, be sure that your efforts are not misinterpreted as an effort at reconciliation and make sure that you that you are sincere.

8. Provide all appropriate and needed information. If you drag your feet in providing information that has been requested, or argue over its relevance or value, you are wasting time. If you truly want the divorce over with, take on the burden and do more than your share of the work. If time is not important to you and if your value is on equally sharing the work load in the divorce, then don't cooperate. Providing the needed information in an organized fashion, sometimes even before it is requested, will speed up the settlement process and help establish good will, especially if the information really benefits your spouse.

9. Bring in a neutral expert to help with difficult issues. Sometimes past efforts and common sense are not enough to generate appropriate solutions. It can be a real life saver to bring in a neutral expert to help create solutions about kids or about finances. Someone working for both of you is in a position to help both sides understand the possibilities and to reach an agreement. There is some expense, but it is cheaper than spending money on two attorneys in trial, and it is much quicker. This is something we do in Collaborative cases all the time and it works very well.

Hopefully, these nine suggestions can help you move your divorce (or other family law case) to a satisfactory conclusion within a reasonable time period. You might try just one or two of the techniques, or you might need several. Please discuss your strategies with your attorney before you start with them. Good luck!

Wednesday, September 26, 2007

How Long Does it Take to Get a Divorce?

This is another in a series of questions I am frequently asked. My answer will be in the context of a non-Collaborative divorce case.

There is a minimum 60-day waiting period that is imposed by the Texas Family Code. The time begins when the divorce petition is filed. After the 60 days is up, the divorce can be granted at any time if there is a full agreement. To get to that point, the parties both need to have information about the important issues and facts of their situation. In addition, each needs to be able to trust that the other party will do what he or she says will be done. The attorneys must draft and get agreement on the language of the final decree of divorce, and that occasionally takes more time than expected, or at least hoped for.

Also, both parties need to emotionally be ready to be divorced. If either party wants to try to stay married and refuses to give up on the marriage, they can slow down the process by various means of foot dragging and the insistence on following standard procedures.

A divorce that can be completed right after the 60 days is up is very unusual. It can happen in some cases, such as:

  • a short-term marriage,
  • a very simple set of facts,
  • minimal assets (although sometimes those people are the worst fighters) or
  • where the parties have worked out a lot of the details before the divorce was filed.

Quick divorces may also take place where someone :

  • feels guilty,
  • is scared or
  • is extremely anxious to move on with their life.

Occasionally, one party has enough dirt on the other party that they can force capitulation.

Sometimes, the parties are just realistic, reasonable people who can sit down together and work things out -- but that's very rare.

A better answer would be to estimate that, in Tarrant County, it will take at least 3 to 6 months, if most (not all) things are agreed, and a year or more if one or both parties are not in agreement on the final terms.

Monday, September 24, 2007

Can a Divorce Court Divide Social Security Benefits?

Although not really a frequently asked question, this is still an occasionally asked question. A recent story in Lawyers USA mentioned a Utah Court of Appeals decision that was consistent with Texas law. The answer given in Utah, and in Texas, is "No".

The Social Security Act, which is a federal law, prevents states from considering Social Security benefits as a marital asset, or community property, as we would say in Texas. That means that courts cannot award all or part of one spouse's benefits to the other spouse.

Social Security benefits can be considered in ordering child support, especially in cases of disability. The court can't order Social Security to divide a payment or direct it to anyone other than the beneficiary under federal law. A court can take the benefits into account when considering amounts of income,cash flow and alimony.

Benefits can be considered in negotiating post-divorce support or allocation of resources. While we know that Social Security may or may not be paying as promised in the future, we can consider the possibility or probability of such payments when calculating cash flow to meet projected future needs. It is another possible resource to keep in mind in planning for the future.

Bottom Line: Although a court can't divide the benefits, it doesn't have to ignore them and they can be considered in deciding other issues.

Friday, September 21, 2007

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.

Saturday, September 15, 2007

The Importance of Reading Your Legal Papers

Many times over the years, I have had clients not read documents I sent or gave to them. The documents included letters, our employment agreement, motions, court orders and even final decrees of divorce. Sometimes it doesn’t matter, but often it can lead to problems. Sometimes lawyers send the papers for CYA purposes, but many times the attorney really needs to hear back from a client with feedback. Many documents would just take a few minutes to read, while others could be 40 to 50 pages long and might require quite a bit more time. Either way, it would be helpful if clients would make the effort to read whatever they get from their attorney.

Here are 7 common excuses given for a client not reading over documents sent to him or her:

1. "But I’m not a lawyer – I don’t understand it." That may be true, although I’ve had lawyer clients not read things as well. The problem is that you can be bound by a court order, or get started in a process, regardless of whether you understand something. You should read and understand as much as possible and you can ask a friend or your attorney to help explain things. While you may not understand some words, not everything is done in legalese. Your confusion or lack of understanding may help your attorney uncover some problems with the document, so don’t be shy about speaking up and saying that you don’t understand. It may save you a lot of trouble down the line.

2. "That’s what my lawyer’s for. I trust him/her." Unfortunately, lawyers make mistakes or they may misunderstand something you have told them. Also, sometimes circumstances change and what once was appropriate may not work anymore. Attorneys depend on their clients for information and it often helps to get a client’s perspective on things.

3. "There’s nothing I can do about it, so why should I waste my time reading it?" Actually, there often is something that can be done if problems are discovered early. Remember the old saying, "A stitch in time saves nine." Pointing out a problem early usually makes it easier to correct.

4. "If it’s a problem, I’ll just appeal it later." An appeal can be extremely expensive and slow. Even worse, your chances for success on appeal are usually not good. Appellate courts don’t often reverse the original courts. That’s not a smart gamble to take.

5. "It costs too much – I can’t afford to be charged for talking with my lawyer about it." Remember the old TV commercial that used to say, "Pay me now or pay me later"? It will cost more later to correct the problem. If the cost of legal services is a barrier, maybe you should change attorneys. That’s one reason why you should select an attorney carefully at the outset. One of the important considerations is financial compatibility.

6. "I don’t have time to deal with it now." You get to make your decisions on priorities, but you should be aware of how delays can cause problems which require costly repairs later. Usually, family law issues are among the most important events in someone’s life, so it makes sense to face up to the situation now, rather procrastinating.

7. "My ex and I can work it out." That’s often true when you and your ex are getting along well. When the relationship sours, as sometimes happens, you are left to deal with a problem that probably could have been avoided or corrected if addressed right away.

Please help your attorney help you. Read over any documents he/she sends you. Ask questions and explain your concerns and problems. It will help you get better results and avoid problems in your family law matters.

Wednesday, September 5, 2007

Tips for Success in Settlement Conferences or Mediation

In his South Carolina Divorce blog, J. Benjamin Stevens listed 9 excellent tips for negotiating in a settlement conference or mediation session. A little more explanation is available from the original source, "Settlement Conference Success" by Helene Taylor, published in The Modern Woman's Divorce Guide, but the key points alone are clear and self-explanatory. They are as true for men as women.

Many divorce and family law cases can be settled in various formats of informal settlement discussions. About 90-95% of cases will settle in mediation, if they reach that stage. In either approach, the following tips are useful to prepare for a successful negotiation effort.

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.
6. Be determined.
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing

You will really benefit by taking time to prepare for negotiations by following the first three steps above. That will help keep you on target and realistic. You will know what you have to win or to lose, which is useful information when you are weighing offers and options. Acting consistent with tips 4 -- 9 will help you reach an agreement and have something that is satisfactory to both.

Tuesday, September 4, 2007

Can I Get a "Legal Separation" in Texas?

No. Legal Separation is a distinct process in some states, but not in Texas.

In Texas, you can be married and living together or apart. Separation is a necessary step for a couple to get divorced here. Once someone files for divorce, a court may make, or the parties may agree on, temporary orders which can remain in effect until the divorce is final. The temporary orders generally govern custody, support and possession schedules for children, as well as various financial issues, a determination of who gets to stay in the house, who pays the bills and who uses and controls what property.

You technically remain married until the divorce is granted. If you want to start the divorce process in Texas, you need to file a petition for divorce.

This is the second in a series on common questions we are asked.

Monday, September 3, 2007

Should I Move Out of the House?

This is the first in a series of short postings about common questions we hear.

The direct answer is usually, "It depends."

Moving out of the house in Texas does not mean that you are giving up your legal rights to the house or an interest in the house. It does not mean that you are at fault for anything. It also does not mean that you have given up any claims to anything at the house.

What does it mean? All it really means is that someone moved out of the house. There are many possible legitimate reasons for moving out. Among other reasons, it may mean that:
  • you fear for your safety or the safety of other family members.
  • you are better able than your spouse to obtain new housing.
  • you and your spouse have reached a mature, mutually beneficial agreement to separate.
  • you have no interest in living in that residence.
  • the house belongs to your spouse or someone else and you knew you would be moving sometime soon anyway.
  • another residence may be more convenient for your work, family or other obligations.
  • you can better afford another residence.
  • you prefer to maintain a smaller residence.
  • you want to live in a better neighborhood.
  • you don't care about keeping the furniture and furnishings.
  • you just don't want to stay in the same house with your spouse until the Court rules on it.

Why might you want to stay in the house? Again, there are many possible reasons, including, among others:

  • you don't want the work of packing and moving.
  • you want to keep the kids in the same school.
  • the house was yours prior to the marriage, or you inherited the house.
  • the house is in a great location for your job, family or other obligations.
  • you can't afford what it would cost to live comparably elsewhere.
  • it wouldn't cost less to live anywhere else.
  • you need to stay in a residence of this size.
  • your spouse can better afford the move.
  • the kids' friends and activities are all nearby.
  • your want to keep the majority of the furniture and furnishings.

If you decide to move out, what should you do? Depending on the time available and the circumstances, you should consider the following:

  • Pack carefully and get all of the belongings you will want and need. Don't expect to be able to go back later and get things, no matter how well you and your spouse get along at the time of the move.
  • Document the condition of the house and contents as you move out. Take pictures and/or videos. Have a witness, if possible.
  • Make an inventory of what you remove. Make notes about what you are leaving.
  • Have several helpers, if possible, so the move can be done quickly.
  • Take a reasonable amount of dishes, pots, pans, flatware, towels, sheets, and other everyday items. It costs to replace them. The same is true for furniture.
  • Treat your spouse (and yourself) reasonably as you divide things up for the move.
  • If possible, make arrangements to copy and divide pictures and other family things.
  • Don't damage things as you move out.

Of course, if you are moving out quickly for safety reasons, do your best, but safety must be the most important consideration. You can call a police officer or Constable to supervise, if there is a threat of violence, but you should plan ahead to do that.

There are many possible reasons for moving out or wanting to stay in the house. Think carefully about your situation, both short-term and long-term. Try to be as cooperative as possible with your spouse, but most importantly, protect the safety of you and your family.

Saturday, August 25, 2007

The Pitfalls of Modern Communication

There are more and more ways to communicate. Sometimes we intend to communicate and sometimes we are recorded in some fashion without our knowledge. Government and businesses, as well as some private citizens, are increasingly gathering information about people, even when the people are not involved in litigation. When litigation is on-going, there is even more monitoring and recording of various aspects of our lives. With that in mind, the following warnings may be helpful to keep in mind when you are involved in the court system in some way.

1. Be careful what you say. Voice mail seems to be everywhere when people don't answer their phones. Most people don't think twice about leaving a recorded message, but they really should think about it when they are or might be involved in a court case. It's always best to think about how your message, especially one made in anger, would sound when played in court. In addition, your non-recorded statements made to others can fairly easily be testified about in court. Think about how your words might sound when someone else is repeating them from memory. Also, telephone calls can be recorded, sometimes legally, sometimes not. They also may be played in court. Statements can also be easily recorded by tiny voice-activated recorders or by most cell phones now. Bottom line -- think before you speak.

2. Be careful what you do. Just as in the case of voice recordings, your image may be recorded in various ways, some you may know about and others which you don't know about. Small video or regular cameras are easy to carry and pull out to get pictures. The same is true for cell phones with camera capabilities. It doesn't take long to show up on You Tube. Security cameras are becoming more and more common. Going into some stores permits your image to be recorded.

In addition to your image, your activities are being recorded. Various government agencies keep more and more records. Some may be accessible through the Freedom of Information Act and other means. Toll tags make it possible to track your driving habits. Cell phones can sometimes be traced to find your location. Using credit or debit cards creates a trail. Bottom line -- think before you act.

3. Be careful what you write. There are many ways to send written messages which may come back to haunt you. Among the now-common fairly new means of communication are email, text messaging and instant messaging. Various other computer records are also possible to uncover. Old fashioned methods, such as "snail mail", notes, cards or signs, can be produced in court to embarrass or contract someone. Bottom line -- think before you write.

4. Be careful how you record things. There are still some rules and laws that apply to gathering and recording information on people. There are various federal and state rules and laws that apply. Wiretapping is generally forbidden (although not for the government). Bugging by hidden microphones or cameras may violate laws and the products may be inadmissible in court. There can be civil liability for violation of some laws or someone's right of privacy (which seems to be shrinking). There are different state and federal laws regarding recording phone calls and a local attorney should be consulted before you undertake such actions. Bottom line -- think before you record.

The best advice is to assume that whatever you say, write or do will be recorded and then displayed in court or in public. Act appropriately.

Saturday, August 18, 2007

Should You Leave Your Child Home Alone?

In Texas, we are about to send our children back to school after a longer than usual summer break. The Legislature decided to move back the public school start date to August 27 for most students, so we are down to the last week of freedom (for the students) or the last week until freedom (for parents).

In July, Jeanne M. Hannah wrote in her Updates in Michigan Family Law blog about the problem that will usually face parents at some time: when is a child old enough to be left home alone? She was discussing the issue in the context of summer vacation, but the substance is the same any time during the year. Michigan apparently has a statute that gives some guidance to parents on that issue, but Texas does not. There is no set, across-the-board age when it suddenly becomes legal for a child to be left alone.

As school starts, many parents will have to determine how to take care of a child (or children) after school and before the parent or parents get home from work. It is often a very difficult problem for single parents. It can also be just as big a problem when both parents work in a two-parent family. Safety is the most important consideration, but avoiding mischief and making productive use of time are also very important. Problems can arise even when one or both parents are present, but there are greater opportunities for problems when no adults are supervising.

Creating computer game zombies is really no solution. There are, however, a number of things that can be done to alleviate the problems. Here are some ideas that can be used as starting points:
  • Hire a nanny or babysitter.
  • Work out a cooperative supervision ("kid-pooling") arrangement with other parents.
  • Have frequent and verifiable communications with the children.
  • Enroll children in extra-curricular activities that are run by responsible adults, such as sports, music lessons, martial arts, Scouts, etc.
  • If old enough, a child could get a part-time job.
  • If old enough, a child could volunteer to work in some public service jobs.
  • Hire a tutor.
  • Join community programs at Y’s, Boys and Girls Clubs, or city or neighborhood programs.
  • Find some other relatives who can watch (and help) the child.
  • Have the child attend an after-school program at his or her school, if one is offered.

A little brainstorming with both parents, and maybe even the child, can lead to many ideas and some creative ways to safely and beneficially occupy the child’s time. Each parent might be able to supervise part of the time. If the parents have a good relationship, they may be able to share the responsibility. If the parents can’t work well together, perhaps the more responsible parent can enlist others to help out. Even if parents must leave a child alone, they should stay in close contact and have safety backup plans.

Common sense can go a long way. This is an issue that should be anticipated well in advance. There might be time to develop a good foundation: having a close relationship, mutual trust and excellent communication with the child will be helpful. If the parents model good behavior and habits, it will be easier for a child to act that way as well. As children get older and more mature, it will be easier to leave them home, but parents need to help children keep motivated to get homework done and be productive. Underlying all this, it is important to provide a safe environment for the children and keep them busy.

With just a week before most students go back to school in Texas, hopefully arrangements have already been made. If not, there’s still time to work out plans. Good luck!

Monday, August 13, 2007

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.