Planning Ahead

People think about getting divorced at various times during the year.  It's usually good advice for people to take their time and make sure divorce is the right decision for them.  Once they reach that conclusion, then they need to decide on when to take the first step.

If pros and cons of divorce are being considered in November or December, timing can become an important factor, especially when there are children in the picture. Here are some topics to ponder when facing a possible divorce at the end of the year.

1.  Delaying the filing until January or February may be best for the children.  If you have children, you should think about how the stress of separation and divorce proceedings will affect their holidays.  No matter what age they may be, it is often better to delay filing until later, if you can.

2.  You need some time to consider the alternative processes for getting a divorce.  You shouldn't assume that litigation is the way to go.  In most cases, Collaborative Law is a better alternative. Mediation is also a great way to work out agreements. Do a little investigation, on line and by consulting with an attorney, before you jump in.

3.  Sometimes discussing the situation with your spouse can be effective.  Some couples are able to act like civilized adults and work out reasonable agreements informally at home.  If you are one of those couples, that's a great start.  Then you need help with the paperwork.

4.  Take time to learn about your finances.  In the near future, you will be living on your own and you and your soon-to-be-ex both need to have the financial means to survive.  While you have time, review your living expenses, debt and income possibilities.  Figure out a budget and think about how you would like assets divided.

5.  Consider attorneys.  Ask friends and professionals for referrals.  Research on line to find out as much as you can so you can decide who you might be comfortable with.  Look at the attorney's web site and blog (if he/she has one).  Check directories like AVVO, Yelp and Google+ for reviews. You can also find information about Collaborative attorneys on the web sites of Collaborative Divorce Texas and the International Academy of Collaborative Professionals.  It helps to research before you go meet a prospective attorney.

If you have the time to think about a divorce before you file, you should carefully consider the issues listed above.  Meet with several attorneys and find out who you would like to work with and what to expect.  Mainly, don't rush in,  Educate yourself about the possibilities.  Good luck.
 

Can One Attorney Represent Both Parties in a Divorce?

NO!!!

Attorneys are trained to see both sides of an issue. Experienced attorneys have represented someone on each side of most common issues, but not at the same time and not opposing each other.

Here's a simple example.  If the parties own a house and each one wants it, there's no way to simultaneously help both parties try to end up with the house.

That happens on all the issues:  Custody, visitation, child support, dividing the assets, dividing the bills, who pays the taxes, and on and on.


Why does the issue come up? 

• People want to save money. 
• They think a divorce is simpler than it is.  
• They may have agreed on all issues, except one or two. 
•  Or, sometimes one spouse will approach the other spouse and suggest that they can both use the first spouse's attorney who is a nice and friendly person.  It doesn't matter how nice the attorney is, the attorney cannot represent both parties.

An attorney can tell you what a Judge might do in a certain situation, but that might not be satisfactory to at least one of the parties.

Bottom Line:  An attorney cannot ethically represent both parties against each other.  If you think you and your spouse hired an attorney to represent both of you, you are mistaken and someone will probably end up unhappy.  The attorney will only be working for one of you. You need to make sure you hire your own attorney.

Do You Have a Common Law Marriage?

I am writing this to be Texas-centric. I recently read an article in a national publication which confidently stated that there is no common law marriage.  That's probably true in about 42 other states, but not so in Texas.

Common law marriage is an old concept that has withstood many attacks over the years.  It has changed is some ways, but it is still in effect and it can lead to problems or benefits, depending on your point of view.

1.  Is there common law marriage in Texas?  Yes.  It's even spelled out in the Texas Family Code, the statute that governs family law issues in Texas.

2.  How does someone become common law married?  There are three requirements which all have to be met.

• A couple must live together as spouses.

• They must have an agreement that they are married.

• They must hold out, or represent, to others that they are married.   

All three events must be present for there to be a common law marriage.

3.  Things that alone don't automatically create a common law marriage:

• A couple living together.  The most common mistaken belief about common law marriage is that if a couple lives together for "a certain period of time" (the length varies from story to story), they are common law married.  Not True. You need all three requirements.
• Giving the partner a ring.  It's not one of the three requirements.  It could be some evidence of the agreement, but it's not conclusive.
• Having kids together.  It's not one of the three requirements. It happens all the time outside of marriage.  It could create some sympathy, but it doesn't do much for a case.
• Having joint bank accounts. It's not one of the three requirements. 
• Sharing expenses. It's not one of the three requirements. 
• Buying a house together. It's not one of the three requirements. Engaged and non-engaged couples buy houses frequently.  It doesn't do much for the case, unless the paperwork mentions that the couple is married.
• Photos showing the couple together at various events. It's not one of the three requirements. 
• An agreement that the parties will get married in the future. The agreement must be that they are now married, not in the future.  Also, both people must agree that they are married, not just one of them.

 4.  Facts that can support a finding of a common law marriage:

• Filing joint tax returns.
• Buying real estate or other major purchases where the paperwork refers to the couple as married.
• Any signed affidavits stating the couple is married.
• Statements to third parties about the couple being married.
• Job applications and other important documents where the marital status is designated as married.
• Insurance records showing a marital status of married.
• Retirement asset paperwork referring to a spouse or indicating a marital status of married.

Conclusion:

There are a lot of misconceptions about common law marriage.  If you think you may have a common law marriage, you should meet with a lawyer to find out if you have a case.  A trial about common law marriage can be complicated and difficult.  You definitely will need a lawyer to help if you get into litigation about common law marriage.

Bonus Information:  If you have a common law marriage, you can use Collaborative Law to do a divorce.

Lessons From a Day at Court

I have heard innumerable people say that the one thing they want the most is to have their "day in court".  They want to spill the beans and tell the truth about everything.  They believe that they will feel better and justice will be served once they have their day in court.

I hear the comments from people who are in slow-moving litigated divorces.  To most of these "day in court" people, the issues are simple and crystal clear, and they are convinced the outcomes must favor them.  No other view is conceivable.

For the people who are anxiously looking forward to their day in court, I would like to share some reality. I recently spent all morning and into the afternoon trying to work out temporary orders on a case.  It was not a unique experience; I have done it many times before.

Here are some observations from that "day in court":

1.  It can take a long time.  This one was from 8:30 a.m. to about 2:00 p.m., five and a half hours.  I have have had some go all day.  My average is about three hours. We usually work through lunch on those cases.

2.  People can become very irritable. Hanging around and negotiating or being in a hearing or just waiting can be very stressful if one or more of the players is upset.

• Clients:  You and your spouse will probably be under high stress.  Many people are nervous and don't sleep well the night before.  It is very common for both sides to get angrier as the day goes on. Think how well you and your spouse act when you are tired and hungry!
• Attorneys:  Sometimes they maintain control, but sometimes they don't.  The other day, the other attorney acted very irritated and that did not help settle the case.
• Judge:  Often they are very busy and they express annoyance if they are asked to resolve issues like splitting up pots and pans.  Judge prefer making decisions on significant issues and not spending time on issues that mature adults should be able to resolve.
• Bailiff:  Usually, they are very even-keeled, but sometimes they get snappy.  They don't like wasting time and they don't like seeing their Judge having to deal with insignificant issues.

3.  Both sides may be very unhappy with the results.  The other day, I saw both parties after the hearing/negotiations.  They both appeared to have lost everything! Here are some reasons why that can happen.

• The facts may not be what someone expected or believed.  People are often mistaken, but they come to believe in an incorrect version of the "facts".
• There may be stronger resistance than expected on some issues.  Where someone expected a quick agreement, there could be a huge disagreement. The result often is that someone doesn't get something that they had counted on.
• Someone may be greedy and unreasonable.  It would be great if everyone approached negotiations with an attitude of cooperation and fairness, but it doesn't usually happen.
• The Judge may have very different ideas about how things should be resolved.  Guess how that comes out!
• Usually, there's not enough to go around.  Instead of meeting the needs of both sides, Judges or agreements often only partially meet the needs of each side.  Everyone gets less than they wanted or needed.
• Both sides can't have the same thing at once.  Usually, there's sharing or one side gets less and feels "cheated".  

4.  It's still not over.  Even when you spend a long day at the courthouse, the case is still not finished.

• Normally, there must be a written order, which may just be a temporary order. The written order will usually take several weeks to finish and get signed.
• Often, there will be further clarifications needed.  Even though the attorneys and Judge may have spent hours putting together an order, some things may need to be more specific.
• There are often changes with new provisions.  The attorneys and Judge may not have anticipated everything.  It is normal to make some changes after the fact to cover some issues that were overlooked.

5.  It's expensive.  Think about paying $400 to $800 per hour, or more, for three to five or more hours, for attorneys to be negotiating or in a hearing, or even waiting around to get into court, which is not uncommon.  Can you think of any more efficient or less expensive way to get issues resolved?

Sometimes, you have no choice.  The other side demands a hearing, the Court may schedule a hearing or you may be forced into Court because the other side won't work with you.

Most of time, though, you do have a choice.  At the outset, you should consider using Collaborative Law where you negotiate and agree to not go to court.  Another option if you are in a litigated divorce is to go to mediation which is a great process that is almost always successful. You can also try having the attorneys informally negotiate an agreement.

If you are tempted to want to go to court, think back on these Lessons from a Day at Court.  Having your Day in Court is probably not a good way to get your issues resolved.

Should I Wait or Can I Do it Now? A Short Quiz for People Going Through Divorce --Part 2

Many temptations come up when people are facing divorce.  Many opportunities also come up then.  Depending upon timing, some things are good ideas and others are not.

If you are facing divorce, or already involved in a divorce, here are some situations that commonly arise, along with some suggestions for you to think about when you are deciding whether to do something now or wait. 

Part 1 of this Quiz dealt with property or financial issues.  Part 2 has some financial matters, but it's more about personal relationships.


1.  Should  start dating?  NO!       That also includes:

• Don't list yourself on a singles dating web site, 

• Don't get engaged, 

• Don't have a boy friend/girl friend move in,

• Don't move in with a romantic interest, and

• Don't set a wedding date.

Those actions can cause emotional upset to your still-current spouse, which may damage relationships, slow down the divorce and make it more expensive.  They can also open additional financial issues to fight over.  It's not worth it.

2.  Should I introduce the kids to my new dating interest?  Hopefully, you're not dating while the divorce is pending.  Generally, you need to be very cautious about this.  Probably, you should wait until you have dated for at least 6 months and you should also coordinate this with your ex-spouse. Ideally, you and your ex would work with a family therapist to coordinate the timing and wording of how to make that introduction.

3.  Should I change my will or beneficiaries on insurance, retirement plans or anything else?  Normally, there will probably be a court order saying you can't make those changes.  Judges like to keep everything the way it has been.  They would probably order you to change those documents back to the way they were before you changed them. Consult with your lawyer on this, and don't do anything on your own.

4.  Is it OK if I buy gifts for my new girl friend or boy friend?  No.  I know it's not good for your new relationship, but spending community funds on a new romantic interest is always going to cause problem with your spouse and with the Judge.  At the least, the expenditure will probably be added to your column as an asset in the property division. Your spouse will be angry and less cooperative than if you had not done this. It's also possible the Judge could sanction you for violating a court order.  It's not worth the trouble that follows when you get found out, and you will get found out.

5.  Should I give away things I don't need or want?  Talk to your attorney.  The answer will likely be No! You would probably violate a court order and you would probably be disposing of community property.  Don't take a chance on it.

If you are thinking of taking some financial or relationship actions while the divorce is pending, do as our British friends would do.  Stay Calm and consult your attorney.

Should I Wait or Can I Do it Now? A Short Quiz for People Going Through Divorce --Part 1

Many temptations come up when people are facing divorce.  Many opportunities also come up then.  Depending upon timing, some things are good ideas and others are not.

If you are facing divorce, or already involved in a divorce, here are some situations that commonly arise, along with some suggestions for you to think about when you are deciding whether to do something now or wait. (Hint:  you will probably see a pattern.)

1.  Should I buy a house before the divorce is final?  If you do, it will very likely become a community asset which is subject to division in the divorce.  Title companies will usually insist on listing both you and your spouse on the deed and the mortgage company may want to bind both parties to the mortgage, including the party not getting the house.  There will be all kinds of complications.  Of course, some very good deals may go away if you don't go after them immediately.  You should certainly consult with your attorney.

2.  Should I spend large amounts of money?  If you do, you will likely be held responsible for the money and you may have to repay it or count it in your column as part of your community property when things are divided.  There will be a cost to spending the money.  Consult with your attorney.

3.  Should I make new investments?  You should be aware that the Court will probably include in the community property any new investments you make before the divorce is finalized.  That means that they will probably be considered in the mix of the property to be divided upon divorce. Even though you make the investments, they will probably be community property unless you use solely separate assets to pay for it, or they could be part separate and part community. Certainly, consult with your attorney before making any investments.

4.  Should I take a major vacation?  No.  Especially with a boy friend or girl friend. Even without the romance, your spouse may get angry that you are "wasting" assets or doing something he or she doesn't get to do. The cost of the trip will probably come from your side of the spreadsheet. It's not worth the grief. If you think you should go, please consult your attorney.

5.  Should I sell or get rid of any assets?  This is complicated.  Usually, you should avoid selling or getting rid of things unless there's a compelling financial reason to do so and unless the Court or your attorney and your spouse's attorney have both signed off on the deal.

If you are thinking of making some financial moves while the divorce is pending, do as our British friends would do.  Stay Calm and consult your attorney.

Should You Wait to Start the Divorce?

People often struggle with the decision whether to file for divorce.  It's hard to give up on a marriage.  Divorce impacts the kids in many ways.  There are financial concerns and sometimes safety concerns. There are many things to consider when deciding to divorce.

Once a decision is made to get a divorce, the next decision to make is when to start the process.  Again, there are many factors to consider on the timing.

Why hold off on starting a divorce?  Here are some reasons:

• A delay gives you more time to reconsider your decision.  You can make sure it is the right decision for you.  Many people go back and forth changing their mind about whether to go forward.  A slower decision can help you be comfortable with you choice.
• Your spouse might become more accepting.  There can be an issue if you surprise your spouse by announcing your intention to divorce. Quite often a surprised spouse goes into denial and will promise and do many things to try to talk you out of divorcing.  If you discuss your thoughts early with your spouse, it may give him or her the opportunity to process the idea of divorce and maybe come to accept it.
• Waiting can give you time to prepare.  You may need to save some money. You may want to gather up things like jewelry, photos, personal papers, financial documents, collections or other things that may be significant to you.
• Using the time for planning is smart.  For such a major change in your life, you need to think through what you want to do and how you will do it.  
• It may help to let things cool off.  You may have decided to divorce because of some major arguments.  Even if there is now a good reason to divorce, the process will be a little easier if both parties have cooled off before they are faced with divorce.
• You may want to wait for a family event before filing.  Events such as graduation, wedding, illness, funeral or holidays could be a lot easier to deal with if you haven't just started a divorce.
• Delay might give you or your spouse time to get a job.  When both parties are meaningfully employed, it makes a divorce go a lot easier.

Can there be some problems with a delay in filing?  Of course.

• Your spouse also has time to prepare.
• Your spouse can work on convincing you to not file for divorce.
• You might end up postponing the divorce to avoid facing it.
•  Your spouse might file first and try to take advantage of you. 

You have to decide what's best for you.  There's not huge advantage in being the first to file.  If you and your spouse are talking, you may find out his/her plans in time to go ahead and file, if it is important to you. If you are talking, maybe the divorce will work out a little better. 

My suggestion:  meet with an attorney early on. Find out about the process options.  You and your attorney can decide what's best for you regarding timing.  You should be well informed and be able to tap into your attorney's experience in similar cases to help your decision. Don't over-think it and don't worry.  You can figure out your course of action by planning ahead.  Good luck!

How to Impress the Judge

If you have to go to Court, you are likely going to appear in front of the Judge.  You may stand in front of the bench where the Judge sits, or you may be at a counsel table with your lawyer, or you may be on the witness stand.

When you are in Court like that, you certainly want to get as favorable a ruling as possible.  The facts and law matter, but a third factor that can't be overlooked is how you appear to the Judge.  When you are in Court, you are being evaluated by the Judge as well as the other side's attorney.  Making a good impression can help your cause.

Here are some things to keep in mind when considering how to favorably impress the Judge.

1.  Appear reasonable.  You are much more likely to get what you want if you don't come across as crazy or unreasonable.  The Judge is very likely to not side 100% with either party and Judges tend to split things fairly evenly.  If you start out wanting all of the most valuable things or a high percentage in the property division, that may hurt your chances of getting what you want.

2.  Appearances count.  Come to Court in nice clothes, something you might wear to church or work.  Don't be flashy or trashy.

3.  Be Prepared.  It's a good idea, even if you're not a Boy Scout.  Bring what you need.  Don't say you can bring it later; now is probably your only opportunity.  Work with your lawyer to know what you need to bring.

4.  Be under control. That's especially true in front of the Judge, but also true outside of the courtroom.  What you do and say away from Court is often reported in Court, so think about how your actions and words might sound in Court.

5.  Don't interrupt.  If you are in Court, don't interrupt attorneys, other witnesses and especially not the Judge. You're not in charge. Your attorney and the Judge know what's important.  Follow their lead, even if you don't get to share something you think is important.

6.  Don't react or be rude.  Notice that almost every time an attorney loses a ruling, he or she will usually say, "Thank you, Judge."  It is a courtesy.  Your should also be courteous.

7.  Turn off your cell phone.

Going to Court can be very stressful, but sometimes is necessary.  Do yourself a favor.  Be prepared and keep your emotions under control.  Most of all, talk with your attorney and follow his or her advice.  Good luck!

Looking for Encouragement?

If you are on the receiving end of divorce news, things may look pretty overwhelming.  The legal system is obviously expensive.  Legal consequences of actions in a divorce may last a lifetime.  And, divorce is always difficult for you and your spouse.

If you haven't been thinking and planning for a divorce, suddenly confronting the situation can be frightening and confusing.  You may be wondering what your first step should be, what to expect from the court and what will it all cost.  Those are all reasonable questions. 

You have a choice about where you get information to answer your questions.  You can talk to friends, you can look on the internet or you can go see a family lawyer.  Not surprisingly, my suggestion is to see a family lawyer. 

Your friends may have good intentions, but they don't usually know the law and what happened in their case may not apply in yours.  The internet sometimes has good information, but often people start reading articles about divorce in California, New York, Florida or some other state.  Laws vary from state to state, so what is good advice in California might not make any sense here in Texas.

So, where is the encouragement?

1.  You have choices in attorneys.  There are many attorneys in Fort Worth and Tarrant County, Texas, who are very good at handling divorces.  You can choose one in your price range and you can get one with experience appropriate to your case.  Some cases don't need highly experienced and expensive attorneys. Others may need an attorney with special experience or training.  In addition to focusing on experience and cost, you should meet with the attorney and decide whether the personal chemistry between the two of you works well.  If it doesn't, check other attorneys until you feel really comfortable.

2.  You can affect how much fighting there is.  Each divorce is different.  Some people go looking for a lawyer who will be a shark, rake the spouse over the coals or otherwise inflict pain on the other side.  I don't believe that is productive in the long run, but there are lawyers around who will happily accommodate that request.  But watch the fine print:  all of that battling is very expensive.  Don't assume your spouse will have to pay for everything. 

You can choose to spend your money on lawyers or you can keep it peaceful and have more money to divide up.  It's your choice.

3.  You have a choice of processes.  You can possibly work out an informal agreement with your spouse, you can go into traditional litigation or you can choose Collaborative divorce.

Informal negotiations are good if there's little to discuss. 

Litigation is the most common process, but relies on standard guidelines for children's issues and it usually involves costly Discovery if there are significant assets.  While most cases usually settle before trial, litigation is divisive, slow and expensive.

Collaborative divorce is my preference, but it won't work for everyone.  Some people just insist on fighting and going to court.  Collaborative is great where there are serious issues, including custody, sharing parenting time and responsibilities and dividing complex assets.  For a lot of information about Collaborative Law, check out my other blog, the Texas Collaborative Law Blog.

What should you do?  Go talk with attorneys and explain your financial situation and any concerns about kids or preferences or needs on property division.  Be sure to talk with an attorney who is an experienced and trained Collaborative Law attorney so you can get accurate information on that option.  Good luck!