Monday, December 1, 2014

Having Happy Holidays!

December can be one of the best times of the year or one of the worst. With the holiday season comes  opportunities for families to get together and spend extra time together.  When families are split up, the time has to be divided. Often one parent feels short-changed, and sometimes events don't fit neatly into court-ordered possession schedules. Usually, however, with the passage of time parents can get into a rhythm of sharing time with the kids and everyone can operate in that system.

Here are some suggestions to help avoid major child-related problems around the holidays.

1.  Avoid possession fights. Do what you can to avoid court fights.
  • Review your court orders early.  If there are no orders in place, you need to make plans, as does the other parent.
  • Talk well in advance if you need a change. If there are court orders, you can still work out something different if both sides agree.  If there aren't court orders, you both need to  plan ahead.
  • Be willing to compromise.  You don't have all the power. Neither does the other parent.
  • Keep it away from the kids. Even if you don't like what your ex does, don't discuss it with the kids.
  • Model good behavior.  Bad behavior will make it harder to get an agreement with your ex.  Good behavior shows your kids how adults can deal with adversity and still be friendly.

2.  Don't make court your first option.  Courts are crowded and you may have trouble getting in during December.  It's also expensive to go to court.  Don't count on getting the other side to pay your fees. If you go to court, you lose control over the outcome.  You're generally better off to work things out somehow.

3.  Consider other options.
  • Work with a therapist.  More and more, we refer clients to a neutral therapist who helps them come to a reasonably quick, less expensive agreement that both sides can feel good about. Working with a therapist who is experienced with these type issues is a great solution and you may be able to deal with some longer term issues as well.
  • Use a mediator.  Even without attorneys, for the limited issues of some holiday time-sharing, mediation can be a quick, relatively economical alternative.
  • Have attorneys negotiate.  This can be a little expensive, but experienced attorneys can come up with compromises that work and that are similar to what a judge might order. If you meet with an attorney who just recommends filing and going to court, please get a second opinion. You are usually better served by negotiating.
Good luck in working with difficult issues.  Happy Holidays!

Monday, September 1, 2014

Who Do You Want to Decide Your Future?

Here's a simple rule for divorces:  Despite what some people think, divorces are not simple or clear cut, unless there are literally no kids and no assets.  That eliminates cases where there kids, but you think you can agree on everything; they are still complicated.  That rule also eliminates cases where there's a retirement plan, real estate, debts, jointly owned assets or many other complications.

For most divorces, that means that someone has to make some decisions.  The possibilities are you, your spouse, you and your spouse together or a judge, in most cases.  So who do you want making the decisions?

1.  You?  That would be easy, but it's not likely your spouse will agree.

2.  Your spouse?  You wouldn't want to agree to let your spouse make all the decisions.

3.  You and your spouse?  That might work, depending on how you do it.

4.  A judge?  Most people, when they really think about it, don't want a stranger who doesn't know them or care about them making decisions to determine their financial and parenting futures.

So how can you and your spouse keep control of the decision-making?  Here are three options:

1.  On your own.  This sometimes works, but the most common outcomes are lop-sided agreements where one party has taken advantage of the other, or the parties get mad at each other and the discussions blow up.  You are lucky if this approach works, but someone is probably going to be taken advantage of.  If this approach doesn't work, you still have two other options.

2.  Mediation.  Mediation is a great process, but parties can still be taken advantage of if they don't have attorneys.  I am a mediator and strongly believe in the process, but everyone needs to be prepared and the parties really benefit from working with an attorney before and during mediation.  Without attorneys, the parties may overlook some important rights, issues or solutions.

3.  Collaborative law.  This is a process that requires that the parties have attorneys from the outset, but everyone also agrees to not go to court.  They agree to have a series of meetings, to work toward announced goals, and follow a logical process of working through issues to reach agreements. In Texas, we usually bring in a neutral therapist and a neutral financial advisor to help both parties. They actually help the process move along more smoothly and efficiently.  For complicated matters, this is the best process, in my view.

Consult before you commit.  If you are faced with a divorce, you should meet with an attorney to discuss the issues, even if you plan to not hire an attorney to represent you.  It would be a good opportunity to discuss the above options and pick out what works best for you.

Friday, August 1, 2014

DIY -- Danger!

For various reasons, more and more people are choosing to handle divorces and other family law issues without using an attorney.  Sometimes it's just to save money.  With so much information available on line, many people decide they can produce their own legal documents.

Sometimes, it works out fine.  That's especially true when the parties have a short marriage or have virtually no assets.

However, when there are children involved, or when there are assets such as retirement accounts, real estate, bank accounts, investments or separate property, you need a lawyer.  If you don't know what separate property is, you need a lawyer.

If you are so inclined, there are different levels of possible lawyer involvement. You can have an expensive or inexpensive lawyer.  You can have full-service representation, someone who prepares documents for your negotiated settlement or just someone to look over the paperwork you created.

Problems:  If you choose to handle legal issues without attorneys, here are some things that can happen.

1.  The right words or wording are not used.  There are words in divorce paperwork that have specific legal meaning and impacts.  A big problem is enforceability.  Without the right wording, a wonderful agreement cannot be enforced.  It's worthless.  The underlying idea and commitments may have been great, but later on, the agreement is unenforceable which matters a lot when the parties stop being cooperative with each other.

2.  Negotiations are less effective if you don't know or understand strategies in negotiating.  That can make all the difference.  If an issue is not approached appropriately for the parties involved (and their egos and their motivations), you may not get an agreement at all.  Negotiating with a soon-to-be-ex spouse can be very difficult even when things aren't too heated.

3.  A dominant party may run over the other side.  In many marriages, one party tends to dominate the other and one party is often much less informed about the finances than the other party is.  An attorney can manage the information gathering and the discussions, which can reduce or eliminate the domination by the other party. 

4.  It may be nearly impossible to undue a preliminary agreement.  A review after a partial agreement has been reached may be meaningless.  Many people want to negotiate with their spouse, reach some agreements and then ask a lawyer if the agreements are good.  That's obviously a way to reduce attorney's fees, but most people tend to be reluctant to give up benefits they bargained for and got.  In other words, a preliminary agreement is often considered a final, binding agreement by one or both parties.  There may be no revisions.

5.  Parties may reach agreements that will cause tax or other problems.  If alimony isn't done right, the IRS may disallow it and impose taxes, penalties and interest on one of the parties.  A homestead exemption may be lost if real estate is mishandled.  There are many potential problems that parties unrepresented by an attorney might miss until it's too late.

6.  "Common Sense" is not a legal procedure.  A common sense solution may not work at all or may not be enforceable at court. Law is complicated and people often get advice and forms from people in other states and the forms and approaches won't work in Texas.

7.  Agreements may not be binding.  If they aren't properly prepared and approved, they will be worthless.  For example, agreements to allow for direct payment of child support, without going through the State Disbursement Unit, usually cause a great deal of trouble for the person paying, who often gets stuck paying twice.

Solution:  It's so much better to get a lawyer's advice and assistance! If you have assets or kids, you should try to protect what's important to you.

Tuesday, July 1, 2014

Should You Keep your Plans a Secret?

If you are considering filing for divorce, one decision you have to make is how and when to break the news to your spouse.  Sometimes your partner wants a divorce also. Sometimes he or she may know it's coming, based on prior discussions or actions. And sometimes your spouse is clueless (about this topic).

So, should you keep your plans secret until you are ready to spring into action, or should you wait until it is to your advantage to spring it?  That can actually be a difficult decision and it certainly depends on the facts and circumstances of your case.

Here are some considerations for you.

1. A surprise may catch the other party unprepared.  That could give you an early advantage in court if you have already invested time in preparation.

2. Early notice could give the other party time to act badly.  They could hide things, get angry or retaliate in various ways.  They could also prepare for court.

3. Delaying notice could give you an advantage in a custody fight.  You would have more time to prepare for an early hearing.

4. Waiting would give you time to gather records you may need.  Sometimes you have to order things or it may take a while to review records and organize them for court.

5. You can take time to save up cash if you delay for a while.  You might meet with an attorney, find out what you will need and then save money for several months before you start spending it.

6. Surprise may lead to anger and a bad reaction.  If your spouse feels ambushed, he or she will likely get very mad and make the divorce a lot more adversarial.

7. Sometimes it takes a while for the other side to process the news that there's going to be a divorce.  Letting them know early may help them prepare and adjust and may help avoid some fighting.

As you can see, there are many ways to look at the issue.  You have to make the best decision you can, given the personality and relationships involved.  Talk this over with your attorney and think carefully.  There's no single right answer or strategy!

Tuesday, April 22, 2014

Tuesday Tips: Deadlines

Who likes deadlines?  Raise your hands. Sometimes they motivate us and sometimes they are a pain.

Like them or not, we are often stuck with them in life.  If you get into the legal system,  you will run into many deadlines and you really do have to pay attention to them.  There are serious consequences, if you miss deadlines.  Here are a few to watch for:

  • Answer date.  If you are served with papers, they often require an answer.  If you don't respond in time, you may lose.
  • Discovery deadline.  There may be deadlines for sending discovery requests out and deadlines for responding to requests.  If you send it out too late, it may be ignored.  If you answer late, your answer may be ignored.
  • Scheduling order.  This is a court order that contains a number of deadlines.  Be sure you pay attention to it, or you may be in trouble.
  • New trial.  If you are unhappy with the result of a trial, you have a limited amount of time to file a motion for a new trial. 
  • Collaborative Law.  Even Collaborative Law has some deadlines, but they are fairly easy to manage.  After a notice of Collaborative Law is filed with the court, the attorneys have to report every six months about whether the process is continuing, and they have a two-year period where the court cannot impose deadlines or take actions.
Your lawyer is aware of the deadlines and should keep up with them.  If you have questions about timing, be sure to consult with your lawyer.

Bonus Note:  The 60-Day Waiting Period is Not a Deadline -- There is a 60-day waiting period that begins when a divorce is filed in Texas.  NOTHING Happens automatically when the 60 days is up. The 61st day after filing is simply the earliest that a divorce could be granted.

Tuesday, April 15, 2014

Tuesday Tips: Death and Taxes

On April 15, it's easy to remember the old saying that the only things certain in life are death and taxes.

Maybe it's also a good time to remember why people get married (other than the more favorable tax treatment!).  If you are married, talk to your spouse today, or any day or everyday, about why you're glad you're married.  You might get a nice dividend!

Tuesday, April 8, 2014

Tuesday Tips: Don't Threaten Divorce

Just Do It! (As a famous apparel seller used to urge us.)

     Once you start threatening divorce, you start to weaken the bonds of marriage.

     Some people, who want to remain married, threaten to divorce their spouse to get the spouse to change some behavior -- stay home more, quit drinking, pay attention, etc.

     What the other spouse focuses on, though, is that the first spouse wants a divorce.  This feeling becomes stronger as the threat is repeated over time.

     If you want a divorce, go ahead and file, or discuss it if you want.

     If you really want something else, skip the attempted pressure tactics and have a discussion about what can be done to improve a problem area.  Threatening divorce will not solve the problem and will probably result in divorce.

Tuesday, April 1, 2014

Tuesday Tips: No Fooling!

If you are facing going to court for a divorce or other Family Law matter, you need to be aware that most everything is taken seriously in the court system.

Here are some things to remember that are Not Joking Matters!

1.  Notice of Hearing:  When you get a notice of a hearing, that's a real obligation.  You and your attorney will probably have to be there.  If you ignore it, there will be consequences.

2.  Deadlines for Discovery:  If you get discovery sent to you, there will be due dates for your answers.  If you miss the deadlines, you may not be able to introduce or even discuss the evidence later.

3.  Child support payments:  They must be made on time.  If they are late, interest will be added.

4.  Pick up and return times for visitation:  There's no reason to play games with visitation.

5.  The need to update and supplement:  As things change, please let your attorney know right away so your pleadings and discovery responses can be updated.  Otherwise, you may not be able to get into those issues.

6.  Being honest with your attorney:  This is absolutely essential.  We need to even know the bad details so we can be prepared.  The other side will certainly know and use them!

7.  Being honest with the court:  Since the makes so many discretionary decisions, it's crazy to lie to the Judge and get the Judge mad at you. Plus you could be found in contempt, sent to jail and criminally prosecuted.  It's your choice.

8.  Don't hide information:  It will probably be found and it will make you look bad.  Plus, don't forget all the Judge's discretion on issues.

9.  Don't hide assets:  If you hide assets, they will likely be found and you will almost certainly lose them.

10.  Fighting: Remember, the more you fight, the more it costs.

Tuesday, March 25, 2014

Tuesday Tips: Listening Well

Do You Hear What I Hear?

When a client meets with an attorney for the first time, the client is often stressed and emotional.  That's natural. Many clients have later reported that they can't remember what was said or done at the meeting.

If you're that client, what can you do?  There are several things you can try.

  • Make a list of questions and issues before the meeting.
  • Tell the attorney that you are nervous and may need help keeping everything straight.
  • Make detailed notes of the discussion. 
  • Put away your phone so you aren't interrupted.  
  • Concentrate on the discussions we are having.
  • Ask questions and get clarifications as you go.
  • At the end, review the issues and answers with the attorney.
If you really work on your listening skills, it will help you achieve whatever legal goals you have in mind.  (Of course, you will have to act on the discussions as well.)  Good luck!

Tuesday, March 18, 2014

Tuesday Tip: It's All in the Timing!

Planning Ahead

Save time and avoid phone tag.  Avoid wasted money.  How, you may ask?

Check with your attorney about when the best time to call would be.  Good attorneys (and even bad ones) get busy.  They have court appearances, they meet with clients, and they prepare for court and other activities.

You may discover that your attorney is not always sitting by the phone, waiting for you to call.

How can you plan calls so that they have a good chance of getting through?

Ask the lawyer or the legal assistant when a good time to call is.  They may have an answer and it could save you a lot of time. You might even ask to set up a telephone appointment that shows up on the calendar.

It could be the beginning of a beautiful relationship!

Tuesday, March 11, 2014

Tuesday Tip: Efficiency

Avoiding Phone Tag

Everyone knows how unproductive telephone tag is, not to mention frustrating.  At one time or another, we all get caught up in calling, missing the other person, leaving a message, waiting for a return call and missing the return call, and then starting over.

Here are three things you can do to short-circuit phone tag.  (1) Leave a specific message .That is, say what you were planning to say.  Don't stop after name and number. (2) Talk with your attorney's assistant if the attorney is not available.  Often, the assistant can answer your questions.  (3) If the assistant can't immediately answer your question, let him./her call you back with the answer or information you need.

Don't get locked into the pointless exercise of telephone tag!  Save time and money.

Tuesday, March 4, 2014

Tuesday Tip: Phone Calls

Plan Ahead

If you want to save some time and money on your divorce, plan your phone calls to your lawyer before you pick up a phone. Organize your thoughts.  Write down all the questions you can think of.  Try to figure out solutions ahead of time and then you can discuss them with your lawyer. Sometimes it's hard to reach your attorney by phone, so make each call count!

Saturday, March 1, 2014

Want An Amicable Divorce?

The stereotype of divorce is a bitter fight between former lovers who now hate each other.  That is an image that often shows up in movies.  While that is what happens sometimes, a more common situation is two parties who have grown apart or who are tired of fighting, whether it's over almost everything or over just a few issues.

What I'm seeing more of is people looking for an "amicable divorce".  There's no single definition of that term, but generally it refers to a divorce where the fighting is minimized and is relatively civil when it occurs.  While that may not seem normal to some people, it is actually pretty common.

Here are some reasons why someone may be looking for an amicable divorce.  The parties ...
  • agree that they only want to use 1 attorney, usually to save money, but sometimes just to avoid fights brought on by the second attorney.
  • don't want to make the divorce into a big fight.
  • need help figuring out a few things even though they have worked through most issues.
  • want to hold the costs down.
  • want a fairly quick divorce, or at least are not opposed to it.
  • have just grown apart over the course of a long-term marriage.
  • still love or care for each other.
  • have kids (sometimes grown) and they don't want to upset the kids.
  • believe in fairness.
  • sometimes, mainly are looking for an attorney to act as a scribe to write up the papers based on their agreements.
So, how can you and your spouse get an amicable divorce?

Rule #1:  choose your attorney wisely. Some lawyers don't believe in amicable divorces.  Look for a Collaborative attorney.  He or she will be more open to customizing and creating new solutions.  Plus, a Collaborative lawyer will already be attuned to a peaceful resolution.

Avoid any lawyer you don't feel comfortable with.  Avoid non-refundable retainers.  Also, if someone insists on a course of action that you don't want, for example having a temporary hearing, or tells you exactly what to do or how everything will go.Some lawyers don't listen to their own clients.

Remember, almost no divorce is inexpensive, but you save money by not fighting.  If you have assets or children or any difficulties, there will be some cost associated with it.  Divorce is normally not cheap, but an amicable divorce should cost much less than a divorce with a lot of fighting in it.

Stay on good terms with your spouse. That saves money.

Be able to explain how the deal meets your spouse's needs as well as yours.  The deal must be mutually beneficial if you want to keep the divorce amicable.

Good luck!

Tuesday, January 21, 2014

Great Expectations: What Do You Have in Mind?

A lot of people contact my office to find out what they can get in a divorce.  That's such a broad question, it's hard to answer.  I normally respond with another question:  What do you want? As a starting point, I think it's better to focus on what's important to you and to not waste time on things you don't care about.

One skill I have learned (one of many, actually) from Collaborative Law is to really focus on my client's needs, interests and goals from the outset.  While some attorneys still prefer to take charge and tell their client what to go after and how to do it, I like to start by finding out what's truly important to my client.  That often involves digging down below the surface to understand why different issue and outcomes may be important.  I don't just make a superficial list.  I work with my client to make sure important and relevant goals are what we are seeking.

Here are some typical approaches we often hear.

1.  For some people, I hear that they want to get the divorce over with as cheaply as possible.  While I believe in handling a case in as cost-efficient a manner as possible, divorces with significant issues involving children or assets are rarely cheap.  Unless both parties are determined to agree on everything and not fight, there will be significant expenses.  There are ways to cut down on some expenses, especially in discovery and in having multiple hearings, but you have to weigh the need for information or court direction versus the cost involved.  In general, you should have discussions with your attorney at the outset and throughout the case about the fees so you are  informed about the amounts being charged and the need for the attorney activities.

2.  In a related vein, clients will sometimes want to get the divorce over with as quickly as possible. That is often a bad idea.  It is usually accompanied by major concessions by the party in a hurry and sometimes shortcuts are taken where discovery isn't fully developed to make the other party confirm some facts or issues.  The result either way is usually the party in a hurry comes out on the short end of the stick.

3. Some people are most interested in getting certain assets or outcomes.  That could be determining that financial support will be necessary for a while post divorce.  It could mean that certain retirement assets are important because the client will not be in a position to build up such an account in the future.  The important issue could be getting as much time with the kids as possible.  When there are significant issues like those, a party should probably not be looking to take a standard solution or just let the Judge decide. If you are in this situation, remember not to tip your hand and let your spouse know how important the issue is to you.  It could put you at a disadvantage in negotiating.

4.  Having a friendly, respectful divorce is very important to some people.  That might lead to using Collaborative Law.  If not, it is still sometimes possible to have a friendly divorce if both parties and the attorneys want to do so.

5.  Some clients want to take a business-like approach to divorce.  They want to cover all the bases and do things right.  They are methodical and not too emotionally involved.  That can be a very good way to proceed, but it's hard to take the emotion out.  If both parties want that approach, it can be very calm and efficient.  If one party is emotional and angry (yes, it happens sometimes!), it makes it hard to deal with everything like a business decision.

6.  Unfortunately, sometimes one party wants to punish the other party.  While there is usually good reason on some level for that attitude, the result is usually delay and a great deal more cost.  It is generally a waste of time and money, but a lot of attorneys won't explain that.  I prefer not to get involved in that approach because it costs the client more, doesn't usually improve the outcome (especially considering the extra attorney's fees involved) and in the end, both parties are unhappy.

7.  Some people will say that they want a certain outcome "as a matter of principle".  They will often say they don't care what the cost is.  Unfortunately, the cost usually becomes a factor and those people end up very upset because of how expensive the divorce has become and how little they got out of the divorce.  It almost never ends happily. When people start talking about principle, they need to pause and think about it and what the principle may cost them.  It's a good discussion to have with their attorney at the outset.

An attorney who tries to control the divorce case often has problems because the attorney makes a number of assumptions which may not match up with the client's needs and expectations.  If you are looking for an attorney, I recommend that you find one who will listen to you and help you define and pursue your specific needs and interests. Listen to the attorney if he/she says your objective may be a bad or costly idea. You will be much happier with the result. 

Tuesday, January 7, 2014

Why are Divorce Outcomes Different in "Similar" Cases?

When people go through divorces, they usually turn to family and friends for comfort and support.  That's normally good. However, when family and friends also give advice about how to handle the legal issues, there's usually trouble.  Non-lawyers often find it easy to assume that what is true in one person's divorce will also be true in their divorce. And that's usually NOT true!

If you are going through, or are about to go through, a divorce and you are hearing "legal" advice from family and friends, here are some reasons why the advice will probably be wrong.

1.  Beause the facts and circumstances were probably different from your situation.  Some factors that may influence the outcome include:
  • Responsibility for the problems.  The outcome can be influenced by one party being primarily responsible for a major problem, such as wasting money or other assets, having an affair or being uncooperative and causing problems regarding the kids, for example.
  • Length of marriage.  The shorter the marriage, usually the less spousal support is ordered.
  • Actual earnings and earning potential.  If both spouses make similar wages, there probably won't be much support exchanged.  If there is a big difference in earnings, there may be support.
  • Children or no children.  That changes the issues and sometimes the resources that can be divided.  Having children also adds a number of potential issues.
  • The type and extent of assets.  That has a big effect on how and how much is divided. Bills could be paid and cash could be distributed, if there is cash or cash flow.  If not, finances will be tight.
  • Health.  If one or both parties have health issues, that will probably affect the responsibilities they have and the assets to be divided.
  • Education of the parties.  More education usually will lead to better jobs and income.  Less education is often associated with less income.  That may have an effect on how the assets are divided.
         There are many other possible facts and circumstances that vary from case to case which will affect the outcomes.

2.  Being in a different court, with a different Judge, may mean a difference in which issues are important.  For example, some Judges will overlook adultery, while others make it a central, determinative issue that greatly affects the division of property.  Each Judge has different hot buttons and focuses on different issues.

3.  Willingness of one party to accept less can have a huge effect. Often, one party is much more anxious to get the divorce over with than the other is.  The more anxious party often will agree to many more concessions than the other party will.

4.  Lack of money can also determine the outcome.  While Judges try to equalize the funds for attorneys usually, it doesn't always work out that way.  Usually the deeper pockets will be able to come out better.

5. Different attorneys approach things differently.  Two attorneys, like Judges, will often see the same case with different issues and outcomes.  One attorney may try to max out the recovery while a different attorney will focus on getting a reasonable amount of assets without breaking the bank or without causing damage to family relationships.

There are always 2 or 3 or a dozen ways to handle a given case.  Don't assume that your case will come out a certain based on how a "similar" case you heard about was resolved.

Instead, hire an attorney you are comfortable with and come to an understanding about how you will approach the case, and then work to stay on target.  Come up with your own plan instead of assuming that the result is predetermined!