Getting Started in a New Year

Deciding to Wait

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

What should you expect?

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

What can you do about it?

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

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

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

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

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

Should I Wait...?

Sometimes the first step is the hardest to take.

Even if you have been considering divorce for a long time, or even if divorce suddenly seems like a necessity, you may have trouble deciding to start a divorce.  We all tend to stay with the status quo unless we become highly motivated to change.

This is a major, life-shaping decision and you should carefully consider the pros and cons.  You certainly shouldn't be forced into deciding to divorce.

Here are some considerations on either side of the start or stay decision.

Why Stay?

• You saw value in this relationship in the beginning.  Can you still find value in it now? Can you can re-build the benefits to you?  Maybe the good still out-weighs the bad.
• You have invested your love, energy and material possessions in the relationship.  You may not want to walk away from it.
• Leaving may be damaging to your children or other family members. Ultimately, the decision comes back to you, but you shouldn't ignore the "collateral damage".
• It might be bad timing right now.  Maybe you're not working or your finances are in really bad shape.  With a little time, you could get a job or save up some money.  Your health also might be bad right now.  You may need to time to heal or recover.  Also, there could be some family obligations, such as a wedding, birth or health crisis for someone else. All of these are legitimate reasons to wait.

On the other hand...

Why Now?

• You can control the initial timing.  You can choose to start now and not give your spouse time to prepare or cause further problems. You wouldn't have to scramble in response to your spouse's surprise move.
• You are able to plan and prepare.  You can set aside money and resources. You can get control of things that you want from the divorce.  You can plan your living arrangements and figure out what you want to start out with.
• You can start on a peaceful basis.  If you want to minimize conflict, you can start with a peaceful, even Collaborative, gesture to try to keep the divorce on a less-destructive path.

Ultimately, you have to decide which path makes more sense to you.  However, if you are seriously considering divorce, you probably should take the first step now so you have more control over the process and the atmosphere that develops. A peaceful divorce is certainly a lot better than a surprise, antagonistic one. 

Whichever way you go, good luck!

Considering Divorce? Maybe You Should Talk About It

Most people start thinking about divorce long before they talk with anyone.

For some, it takes a long time to reach the conclusion that divorce is necessary.  Sometimes a spouse is doing the same thing, quietly thinking about it, and that may be helpful.

Other times, a spouse may be blissfully unaware and think everything is fine.

If you suddenly announce your intention to file for divorce and surprise your spouse, you should expect a number of possible reactions:

• Surprise and hurt
• Anger
• Fear about the future
• Striking back with high demands
• A spouse who wants to hurt and punish you 

There are many reasons for delaying talking about a possible divorce, but the result may be heightened conflict.  Some people react worse than others do to surprises.

To avoid surprises and bad reactions, maybe the key is to find a way to start talking about divorce long before you are planning to file. Naturally, you  need to be  be careful about how your approach the topic. You should also be kind and anticipate your spouse's feelings.

If you just start mentioning that you are considering getting a divorce, there are some downsides to that, such as:

• Retaliation
• Giving your spouse time to plan his/her own strategy
• Hiding of assets by your spouse
• Your spouse giving out false or misleading information to family or friends
• Having to discuss the issues with your spouse over and over while you are still together

The best course of action may be to talk with a counselor, maybe including couples counseling.  If you go to couples counseling, you should probably have a separate counselor for yourself.  You could also suggest a separate counselor for your spouse. A counselor can help you figure out the best way to break the news and start a transition to being divorced.

You may also want to consult with an attorney about different ways to handle the issue and how to prepare.  Experienced Family Law attorneys have seen many different exit strategies and can help you decide the best course of action.

Knowing when and how to bring up a possible divorce is very difficult.  Getting professional help is a great way to figure out what would work best in your situation.

Want to be Divorced by the End of the Year?

About this time of the year, some people finally decide that the time has arrived to end their marriage.  Some people want to put off change until after the holidays, but others prefer to end things quickly and cleanly.  They want to get on with their lives.

If you find yourself thinking of how nice it would be to be free before January 1, here are some things to keep in mind.

1.  You really need to file for divorce by October 15.  The main reason is there is a 60-day waiting period required by law.  That means the earliest you could be divorced would be around December 15, if you filed by October 15. That assumes everything goes smoothly.

2.  Don't make it a surprise.  If you suddenly surprise your spouse with an announcement that "It's all over", don't assume it will be warmly received.  You should expect resistance and foot-dragging, unless your spouse has been harboring similar thoughts.  It is likely that you would be better off having discussions with your spouse early on and breaking the news gently.  A surprise could cause an angry, completely uncooperative response.  This surprise announcement rarely goes well.

3.  Have an agreement.  You need to be cooperative and compromise.  Often the cost of a quick agreement is major concessions.  Make sure you think the cost to you is worth the rush to finish before the end of the year.  If you later have second thoughts after the Judge has signed your Divorce Decree, you probably can't undo the terms of the property settlement.  If you don't have an agreement, you won't be divorced by the end of the year.

How To Do It:  Go see a lawyer and learn about your options.  If you have a fairly uncomplicated situation and you are flexible on some issues, you may be able to finish by the end of the year.  Your plan probably won't work, however, if your spouse is surprised, angry or in shock.  Plan ahead and play fair.

Finally, a word of caution:  If you are in a rush to divorce so you can remarry, you better think twice or three times.  Rebound marriages usually don't work, especially if they happen before the ink is dry on the Divorce Decree.  Slow down and live!

5 Types of Divorce Processes

If you are looking to get a divorce, there are many decisions to be made.  Among them are the type of process you will use.  Yes, there's more than one way to get a divorce.


1st Decision:  Lawyer or No Lawyer?
Hopefully, you will go see a lawyer and get advice, but you do have the option of representing yourself.  While there are free or low-cost forms available to do your own divorce, you should carefully consider your decision.  There are some circumstances where it is difficult to afford to hire an attorney, but I do recommend that you find a way to hire one unless yours is a very short marriage and you have no children and no significant property.

2nd Decision:  You have a range of processes for handling divorces.  How do you want to approach this?

• Kitchen table.  At one end, there is negotiation around the kitchen table, a very informal way of coming to agreements.  In some cases, that works out well -- short marriages, no kids, few assets and a civil relationship between the parties. Hopefully, both parties know all the financial facts and understand them.

• Mediation. Another option is mediation, with or without attorneys.  I have seen enough non-attorney agreements to believe that you really need to have an attorney present at the mediation or at least the advice of an attorney throughout the process.  Otherwise, the result may be appealing but not workable. 

• Litigation.  This is the default approach where the parties file suit and go to court.  They have temporary orders hearings and go through a formal Discovery process to request, receive and exchange information and documents.There are often multiple hearings and various pleadings generated.  Eventually, if the case doesn't settle by discussions between the attorneys, it will usually go to mediation.  If that fails to settle the case, trial is the final step.

• Collaborative Law. Finally, there's Collaborative Law where the parties each have attorneys and agree to not go to court.  Instead, they conduct a series of meetings and work with a neutral therapist and neutral financial expert. The parties work cooperatively with the experts and their attorneys to gather any information needed and then work out agreements based on their specific needs. A lot of the preliminary work is done by the neutral experts which saves money and produces quality results.

How do you decide which process to try?  Talk with an attorney and figure out what best meets your needs and abilities. Be aware that some attorneys don't do Collaborative Law and they may try to steer you away from it.  Make sure you are meeting with a Family Law attorney who actually handles Collaborative cases. You can ask how many Collaborative cases the attorney has handled and when the attorney has attended training for Collaborative Law.

While Collaborative may not work for everyone, if the attorney tries to talk you out of using it, go to a different attorney for a second opinion. You may decide to not use Collaborative Law, but you should at least get good information when you are deciding.

Keep in mind that there's no single right answer on how to proceed.  Do yourself a favor by researching processes and attorneys ahead of time, if you can.  Think about how you want the divorce to end up, and then choose the best process to meet your objectives.

Are You Ready to File?

With the holidays behind us, you may be ready to file for divorce.  Of course, it's one thing to be emotionally ready and another to actually file.  Here are some practical considerations if you think you are ready to file for divorce.

1.  Decide on the timing.  You have already made it through the holiday season and that's usually a good idea.  Now, you need to think about whether you have your life in order.  Do you have a job?  Do you have money available to pay for the divorce?  Do you have information on the finances?  Do you have your personal effects secured so that they don't happen to "disappear" later?  Have you planned where you would live and how you would pay your bills? It's important to plan ahead for many different issues.  Don't start until you are ready.

2.  Decide on the process.  You need to know that, even though every divorce must be filed at the courthouse, you can work through reaching the final terms in a variety of ways.  In extremely rare cases (when both parties are friendly, knowledgeable and cooperative), you can just negotiate directly with your spouse and reach agreements.  At the other end of the spectrum is the standard litigated divorce, which is often the most contentious and expensive approach.  In between is the relatively new process of Collaborative Law in which the parties work out an agreement through a series of meetings out of court.  You can read up on the options and you should probably talk to a trained and experienced Collaborative lawyer.

3.  Find and meet with an attorney.  Although many people are opting for the "do it yourself" approach, that is probably not your best bet if you have children or assets, including retirement plans, real estate or investments, among other things.  Unless you have had an extremely short marriage or you have no assets, you probably should at least meet with a lawyer.  My suggestion would be to meet with an experienced Collaborative Law attorney to find out your full range of options.

Good luck getting started!

Why is it Taking so Long?

There's more to a divorce than the start and finish.

In many divorces, one party is much readier to finish the process than the spouse is.  Usually, that party has been thinking about and planning for the divorce quietly for a long time. The ready party often becomes very anxious to get through the process and start a new single life.

Unfortunately for that person, the spouse can really slow down the process by requesting counseling, doing extensive discovery, having multiple hearings and by refusing to agree on things.  The party in a hurry gets frustrated by how slow the process moves and that's understandable, but basically unavoidable.

Aside from the actions a spouse may take to intentionally slow down the process, there are a number of requirements or actions that typically put the brakes on any attempt to speed through a divorce. Here are some to keep in mind.

1.  Time must pass.  There is a 60-day waiting period in Texas and some sort of waiting period in most states. The petition for divorce must be on file with the court for at least two months before a divorce can be granted.  In addition, if you want to finish right after the 60 days is up, you need to have an agreement with your spouse.  That requires a spouse who is emotionally and financially ready to finalize the divorce, and that doesn't always happen right away.

2. Temporary arrangements are set up.  In most cases, temporary orders are set up by agreement or by going to court.  Experienced attorneys can pretty well figure out what you can get in a given court -- most judges have some standard rules and provisions.  One way or another, temporary orders usually are established for the benefit and protection of both parties.

3. Transitions are planned.  This may take place with the temporary orders, but there are a number of other transitional issues to cover.  The parties need to understand that their lives are changing and one or both will need financial help and time to set up separate households, possibly make career changes and deal with how to share their children.  One may have to go back to school.  Sometimes it's hard to find a job. Courts usually try to provide some help to the disadvantaged party on a temporary basis.

4. Information must be gathered.  This can be done formally through written discovery and depositions, or informally by requesting and receiving an documents that either party wants to see.  It's really helpful to prepare a spreadsheet with the assets and liabilities.  It's also pretty standard to get an Inventory and Appraisement from each party.  It's a formal, sworn statement listing the assets and liabilities in great detail.  An Inventory gets both parties to think carefully about what they have and may reduce the temptation to hide assets.

5.  Creating a strategy.  You need to come up with a strategy for a satisfactory conclusion.  Figure out what you want to end up with and you should try to imagine what your spouse will likely want.  Your strategy should allow both your and your spouse's needs to be met, if you want to settle. That sometimes takes a lot of creativity and some time.

6. Planning to settle.  Almost every divorce settles, so you need to figure out how and when that can happen. Sometimes, settlements come from informal negotiations over time.  That's usually when both parties are fairly rational and both are motivated to get the divorce over with. In more difficult cases, mediation is used and that is a very successful process.  If agreement can't be reached informally or at mediation, then the case is set for court.  Even then, many cases will settle at the courthouse, either just before trial or during trial.  Very few cases go all the way through trial. Of course, your case could be the rare one!

7.  Allow time for paperwork.  Unfortunately, just reaching an agreement is not enough.  After that necessary step, there's still a lot to be done.  A decree of divorce must be prepared and sometimes negotiated.  In some cases, we use an additional agreement incident to divorce to include provisions we don't want in the public record.When there's a retirement account to be divided, we prepare a qualified domestic relations order (QDRO).,  There are deeds, powers of attorney and various other documents to be prepared as well.  Many times it takes 3-4 weeks to get the paperwork drafted, negotiated and signed, and it can take longer if there are serious disagreements.

Every divorce is different.  You may have a friend or a friend of a friend who got a quick divorce in a couple of months, but don't assume that yours will go as smoothly.  That is a very rare exception. Talk to your lawyer at the outset about your hopes and expectations.  Your lawyer can help you get a fairly realistic idea of what your case might entail, but initial thoughts are subject to revision several times as you go through a divorce.  As things change, don't be surprised if you timeline changes.

Please try to be patient.

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.

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!

Be Informed About Alternatives

If you are facing a potential divorce or other family law issue, you should be considering what legal approach you will use to resolve it.  You actually have several choices.  Here are some comments about different options.  Fort Worth divorce and family lawyers should be able to discuss all of these options with you.  If an attorney tries to limit your choices, you should get a second opinion.

1.  Litigation.  The old standard approach is to use litigation, where one side files in court, sets a temporary hearing and serves papers on the other side.  That starts a cycle of hearings, motions, negotiations, conferences with the Judge and the gathering and exchange of information ("Discovery"), and then more hearings. Sometimes you have no choice.  Litigation is the default system that is used.  If the other attorney isn't trained in Collaborative Law, then you can't utilize it.  Your best approach is to search for a trained Collaborative lawyer who can help you decide whether Collaborative or litigation is the better approach.

2.  Collaborative Law.  This process is a way to stay out of court.  Both parties have to agree to be able to use this process.  We normally bring in a neutral mental health professional (MHP)and a neutral financial professional to work with the parties.  This approach is cost-effective because a lot of basic work is done without the attorneys present.  The parties will each meet with their attorney to discuss the financial and child-related issues.  Then the parties meet without their attorneys present with the financial professional to gather and organize financial information and with the MHP to discuss options on taking care of the children.  With information gathering and preliminary work done, the parties then meet again with their lawyers in joint sessions.

Collaborative Law turns out to be a very efficient process.  We use lower-cost, but more qualified experts to lead the effort on the financial and child-related issues, and then the attorneys help everyone consider the legal ramifications of the different options.  There are more choices and better quality decision-making.

3.  Mediation.  In Tarrant County, and most of Texas, parties do not generally go through mediation without lawyers.  In California and some other states, it is common for unrepresented mediations to occur.  In some cases, it may work out, but the more complicated the facts, the greater the need for lawyers is.  When there are retirement benefits, stock options, various investments with different tax considerations  and other substantial financial issues, the parties need more help than they can get from just a neutral mediator who is on neither party's side.  People with significant or complicated assets or liabilities should not attempt to divorce without legal advice.  A mediator cannot give legal advice to the parties.  A mediator only helps the parties come to an agreement, regardless of what the terms are.

4.  Direct negotiations.  This approach can save a lot of money.  All of the people mentioned in 1, 2 and 3 above don't participate.  On the other hand, someone is probably going to be taken advantage of, or someone will make a serious financial mistake because of ignorance.  Unless there's nothing at stake, this is probably not a good option.

5.  Using forms from the Internet.  There are a lot of bad, inaccurate or inappropriate forms out there.  Even the forms recently published by the Texas Supreme Court are not properly drawn, and are actually intended for a very small number of people.  Forms are often misused.  The results can be loss of assets, unenforceable orders and problems in collecting child support or getting to see the kids.  Unless you have no assets, no debts and no kids, you should avoid using forms to do your own divorce.

How Do People Find Us?

We have made suggestions previously in several posts about how to find and choose an attorney.  After some analysis, I figured out out that these methods seem to be the most common used by clients to find us.

1st Method:  Start with names. Potential clients regularly ask others for recommendations.  They talk with:

• attorneys, 
• counselors, 
• religious advisors/leaders/ministers/rabbis/priests, 
• relatives, 
• friends, 
• neighbors, 
• physicians, 
• CPAs, 
• realtors,
• and others.  

Basically, they talk to people they trust or ones they think would naturally know the best attorneys.  Or they may just go to someone they know has had some experience in the legal system.
Once potential clients get some recommendations, and before calling for an appointment, they usually will check up on them on line to see if the information there is consistent with what the client has been told.

2nd Method: Research on line.

• Potential clients will start by searching on line, using Google, Bing, Yahoo,or some other search engine.They may start generally, such as "Fort Worth Divorce Lawyer" (or some other locale).  
• Once clients get some possibilities, they usually will investigate on line to find out about the attorneys' experience and whether they are a Board Certified Specialist in Family Law.
• Clients will also usually look at the attorney's web site.  They want to be sure that the attorney communicates well and can speak understandably in plain English.  They also want to see if the attorney answers questions and provides information in his/her web site.  Of course, if there's a blog, that's bonus information!
• Final step before calling-- check with trusted friends and advisors to get their opinion of the quality of the potential attorney.

As you can see, our experience is that people will generally research on line and ask for recommendations, which is a smart strategy.  It doesn't matter which order the search is conducted.  The main concern is that you check on the attorney and sample his/her written materials before you make the important in-person visit.

Note:  Please tell the attorney who recommended him/her.  Most attorneys are interested in that and like to thank their referral sources.  The sources will be pleased that you trusted their advice as well!

How Not to Start a Divorce

There are many articles about how to do various things, including getting divorced.  This is a "what not to do" article: 10  things to avoid that will save you a lot of grief when you start a divorce.

1.  Don't destroy records, including emails and other electronic information.  Emails and website postings are becoming more and more important in divorce litigation, and you can't destroy information like that. Helpful or hurtful, you need to not delete information. You will get in trouble with the Judge for that.  Check with your attorney if you think you need to delete things.

2.  Don't hide the kids.  A common concern of judges is whether parents are willing to cooperate with each other and share children.  If one parent runs off with the children, that is normally held against the hiding parent.

3.  Don't clean out all the bank accounts.  Each party needs some money to pay bills and survive.  If either party starts to empty bank accounts, the judge will often take money away from the money grabber, and the judge won't be happy with that person.

4.  Don't blow up and get angry with your spouse or make threats.   That will probably only lead to more conflict.  Anger and threats don't lead to compromise and reasonableness.  Fighting costs more money.

5.  Don't hide assets.  Most of the time, the assets will be found.  If a judge suspects you have hidden assets, he or she has ways to even things out, and you can be punished.  It's not worth the effort in the end.

6.  Don't hire the meanest lawyer in town unless you just want to spend a lot of money and reduce the community estate.  Sure, you can whip up on your spouse and make him or her miserable, but it will end up costing you a lot more money than if you tried to work things out.  Fighting is expensive and your aggression will likely lead to aggression in response, which won't be fun for you.

7.  Don't try to represent yourself.  Like it or not, Family Law is complicated.  If you have no assets, no kids and a fairly short marriage, you might get by without a lawyer.  Otherwise, it will cost you a lot more in the long run when mistakes have to be corrected or when you realize you gave up something, or paid for something, that you didn't have to do.

8.  Don't lie to your lawyer.  You may be embarrassed or you may think you can sneak something by, but lies almost always come back to bite you.  Save yourself some time and money and be honest with your attorney all the way through.

9.  Don't lie to the judge or another court official.  Worse than lying to your attorney is lying to the judge or other court official.  When that is uncovered, you will really be in trouble.  In addition to potential criminal liability, see the last paragraph below.

10.  Don't try to poison the children against the other parent.  Keep them out of the middle.  Judges hate to see kids used as weapons.  More importantly, it's damaging to the children.  For their sake, don't do it.

Very Important!  You may have noticed the refrain above about the judge getting mad or unhappy or not liking something.  That's an important factor because judges have a lot of discretion about how things will be divided or allocated or awarded on both a temporary basis and at final hearing.  That gives the judge a way to even things out, or favor someone who the judge may believe was mistreated by the other spouse.  Think about whether you want the judge to be making rulings if he or she is mad at you!

Thinking Ahead

It's the time of the year when many people are holding back on making a decision they really want to make.  They are putting off filing for divorce until after the holidays. Nevertheless, they are still thinking about their options.  If you find yourself considering the possibility of divorce, here are some things to think about until the holidays are past.

1.  Counseling.  It's never too late.  Sometimes counseling for you will help alleviate the problems and stress.  Sometimes couples counseling works, if both sides are willing.  Sometimes the party who needs counseling won't recognize it.  If you think it's your spouse who needs counseling, please consult with a counselor to discuss the situation.

2.  If you are going to divorce, there are a number of process options.  For a current review, see my blog post in the Texas Collaborative Law Blog here for the December 22, 2012 post.

3.  What issues will come up in a divorce?  Here are some to think about:

• Investments
• Retirement funds
• Real estate
• Debts
• Taxes
• Businesses owned by the parties
• Professional careers
• Personal property
• Collections
• Guns
• Household furniture and furnishings
• Child custody
• Visitation
• Child support
• Pets
• Alimony
• Insurance

These are issues that you should start thinking about if you are considering or facing a divorce.  Your attorney will discuss them with you.  It would also be helpful for you to gather any documents that you can find that relate to any of the issues.  That will help you and your attorney prepare for a settlement or court.  It's also a good idea to gather and copy records before they disappear in the confusion once a divorce is filed.

Watch Out for the Side Effects!

I just read about a new App for a smartphone this morning.  This App was developed in California to help people figure out how to divide up their property as they go through a divorce.  It's really intended to replace an attorney's role in the process.

As admirable as that may seem, there is a great potential for creating major problems in some cases.

Full disclosure:  I am a divorce attorney and I am paid to help people undo their marriages.  But, the people who are wanting to do their own divorces don't want to hire me or any other attorney, so their decision has no real effect on me.  I'm not losing any business because they wouldn't have hired me anyway.  I do think people in short-term marriages, with no kids and little or no property, can probably do their own divorces, if they are so inclined.

This post is not to save business for me.   I am writing this so that people with children or some significant assets or debts can make better decisions on the best course of action for themselves.

Here are some possible side effects for an untrained person using some tools and trying to work out their own divorce.

1.  Tax consequences.  No one likes surprises from the IRS.  Unfortunately, tax issues are lurking everywhere in divorces.  Paying the other spouse some money may be alimony or it could be property division.  There can be taxes owed if it's not done right.  Different retirement assets have different tax consequences which can also affect the net value of those assets.  Real estate sales may trigger capital gains taxes, now or in the future, and that may affect the net value of the land. The parties need to consider their tax basis in various investments when they are doing a property division.  Tax consequences probably won't be much of an issue if someone doesn't have any of these assets.

2.  Enforceability.  In divorces, it's not uncommon for disputes to break out post-divorce about whether agreements are being followed.  The terms of the divorce decree must be clearly spelled out with proper language in order for them to be enforced.  In many cases, there needs to be some collateral or something available as a back-up. Again, if there are no significant assets, this is probably not an issue, although people will fight over anything, as you probably already know.

3.  Extra paperwork.  Many people assume a judge will simply divide everything in half.  That's one way to divide things, but it rarely happens in court.  People can decide to agree on their own to do that, but it may cause a lot of extra paperwork to complete the divisions.  There are often simpler ways to do the property division, which can be handled by an experienced attorney, but which a private party may know nothing about.  Extra paperwork means more opportunities to mess things up.

4.  Remaining connected.  As badly as one or both parties may want to be divorced and separate and independent individuals, they may end up connected for a long time due to property or debt issues that are joint.  An experienced attorney may be able to help them come up with ways to be apart.  Doing things on their own, the parties may end up still connected.

5.  Incompleteness.  Maybe the most common problem for people doing their own divorces is the failure to take all the necessary steps.  Forms may be incomplete.  Language in the decree may be incomplete.  And sometimes there are some obvious  problems that are overlooked.  Once again, with no kids and with little or no property, there may not be a problem.  Otherwise, count on problems.

These are not all the problems that can occur when people decide to do their divorce without an attorney.  In very simple cases that may be fine.  In all others, it is risky.  In addition, it is common for one party to take advantage of their spouse when the party has greater knowledge, experience and control.  Divorce is such an important event, it shouldn't be done without a lot of thought and help.

Footnote:  Each state has different divorce laws which can affect the outcome of the case.  Using California, New York or even Oklahoma law for a Texas divorce is virtually guaranteed to be a disaster.

How to Pay for an Attorney

One of the basic issues for someone needing an attorney is how to pay for one.  For some people, it's not really a concern.  For others, it may seem insurmountable.  Keep in mind that courts don't appoint attorneys to represent parties in divorces and most family law cases.  If you want a pro bono attorney, you pretty much have to meet very strict guidelines on income and assets and then find a Legal Aid office or clinic that can take you on.  Legal Aid is normally overextended and underfunded.  They do great work with limited resources, but they can't help very many.  That means  you are probably on your own.  You should probably assume that you won't get a free lawyer.

As you may know, attorneys charge different rates, retainers and total fees.  Some charge flat fees, but most charge hourly.  You should check around to find a financial arrangement that is affordable for you.  The more experienced attorneys charge more, but even a less-experienced attorney is usually a valuable help for you.

Where to find the money:  Attorneys know that the following are some potential sources of funds to pay attorney's fees:

• Cash, from a stash.  Some people do keep a private sum of cash hidden for a rainy day.  Divorces qualify as a rainy day, so that cash can be put to good use, if there is any cash.
• Money from a joint account.  Unless there is a court order prohibiting removing money for attorney's fees, joint accounts may fund you to get started.
• Assets that can be sold.  Be careful about selling things.  Your attorney can tell you whether it is a good idea in your case.
• Getting a loan from somewhere.  If you have good credit, that might be a possibility.
• Family help.  That's usually a good source, although it might run out.  Family members can usually see the importance of helping.
• Credit card.  Most attorneys will be happy to take a charge on a credit card in your name.
• Contribution by your spouse.  You might be able to ask a court to order your spouse to pay some or all of your fees.  The likelihood of this happening increases when you are able to point out cash or an asset that be used to produce the attorney fee needed.  On the other hand, without a ready source for the payment, it is unlikely that a court will order a payment.

Try to be creative and come up with a unique source for your case.

What Should I Expect as I Start a Divorce?

There are some fairly standardized process steps that can be expected in a contested Tarrant County, Texas divorce case. The steps vary, depending upon whether you are in the litigation process or you are using Collaborative Law. Keep in mind that each case is a little different from all others. It is not unusual for cases to veer off course and attorneys will sometimes try different tactics in different cases. In general, here are some common steps that follow the initial attorney-client meeting.

Litigation Process

1. The attorney will prepare and file a petition for divorce. Sometimes, there's a restraining order with the petition. The petition (and TRO, if there is one) must be served on the other spouse unless a waiver of service is signed and returned by the spouse, or the spouse simply files an answer -- which happens sometimes when there is some degree of communication and cooperation between the parties at the outset.

2. A temporary hearing may be scheduled. When the divorce is filed, it is very common for the attorney to get an order setting a temporary hearing to settle basic issues temporarily -- not a final disposition. The issues often include: use of the residence and vehicles, support, responsibility to pay bills, child support, terms for sharing time with the children, control over some financial matters and possibly other issues. While a "hearing" is scheduled, there's rarely a real hearing in Tarrant County. Most of the time, the attorneys are able to work out agreements, sometimes after a conference with the judge. Some judges will have an informal hearing, but most decisions don't result from a process that remotely resembles what is portrayed on TV.

3. The parties operate under temporary orders. The TO's will last until the divorce is finalized, but they are sometimes modified. That could be done by agreement, but it's more common to go back to court for additional temporary orders. There can also be motions for enforcement of the TO's if one party believes the other has violated the orders. In contentious cases, there are often multiple hearings before there's a final hearing.

4. Discovery takes place. This is the stage of the process where information is requested and provided by both sides. Very broad and comprehensive requests are usually sent out. Depositions can be taken of the parties and other witnesses. Sometimes, there are objections to the requests or complaints about the information furnished or not furnished. There can be multiple hearings on those disputes. The gathering, review and organization of the information is very time consuming in most cases.

5. Experts are appointed or hired sometimes. The experts may be used to value real estate or a business or some other asset. Other experts may do psychological evaluations or custody investigations. Drug testing or paternity testing can also be ordered. Sometimes the court will appoint one neutral expert (with each party paying half the cost), and sometimes each party will hire his or her own competing expert.

6. Negotiations occur. In most cases, the parties negotiate. There is usually some effort for negotiations between attorneys, but most often cases get settled in mediation. Almost every time, a family court judge in Tarrant County will order the parties to go to mediation before they can appear for trial. The reason is that about 90-95% of cases settle in mediation and that frees up court time for more difficult cases.

7. There's a trial, if there's no agreement. The trial will normally be 6 to 9 to 12 months, or more, after the case was originally filed. Another option is to request arbitration, which can be a little expedited, if both parties agree, but it is rarely used.

8. Final orders are prepared after a trial or an agreement is reached. The final orders include a decree of divorce and sometimes an agreement incident to divorce (AID). In addition, there may qualified domestic relations orders (QDROs) if there are retirement benefits to divide. There can be a substantial number of deeds and other documents as well to implement the terms of the decree.

Collaborative Law
Assuming that both parties want to use Collaborative Law and that they each have hired trained Collaborative Law attorneys, here are the usual steps that are followed in Texas Collaborative cases. Note: the parties agree to not go to court for contested hearings and don't do formal discovery.

1. Initial meeting. At the first joint meeting, the attorneys and parties review the participation agreement and sign it. The agreement outlines the commitments of everyone to the process and explains how the process works. It also contains a temporary agreement that is usually signed that maintains the status quo regarding financial matters. Sometimes goals of the parties are reviewed at the first meeting; other times, the goals are discussed at the second meeting.

2. Gathering information. The parties begin immediately to gather information. Various specific financial documents are produced and shared. Normally, the financial professional directs and works with the parties to efficiently identify financial concerns and gather information about them. On children's issues, the child specialist or the mental health professional, whichever is handling those issues, will direct the parties in gathering information. Sometimes, joint neutral experts are hired to value a business or real estate or other assets. It usually takes several meetings to gather and review the information. Much of the preliminary work is done by the parties with the respective professionals, but without the attorneys, until there is a joint meeting to review information.

3. Option development. This step takes place after the information gathering. The parties, with their attorneys and the other professionals, brainstorm to create options that address the goals of each party.

4. Negotiations. After coming up with multiple options, the parties take time to review and evaluate their options. In the discussions of the options, new options are often created by modifying other ideas. As a result, the parties usually are able to come up with creative and beneficial solutions to meet their goals.

5. Final paperwork. Once the parties have reached agreement, the final papers are prepared, just like in litigated divorces. The decree and AID are signed by the parties and attorneys and then the judge. Any additional paperwork is prepared as needed to implement the agreements.

Most Collaborative cases can be resolved in a few months, but the process easily allows a longer time period for especially difficult cases.

Caution: "Your mileage may vary" -- Check with a local attorney for information about the cost and timing for a divorce considering the unique facts of your case. For more information about Collaborative Law, check out my Texas Collaborative Law blog.

Getting Started: What Information is Needed?

Overview: This is a quick summary of useful information that you can bring to a meeting with an attorney.

1. Immediate needs. Think about what you need to get by right now. What are your financial needs? Safety needs? Transportation needs? Travel schedule? Kids' needs? You probably have monthly statements, letters, memos, notices, contracts and other records that relate to your immediate needs.

2. What are your end objectives. Consider what you want to end up with and gather any relevant information about that. For example: school costs, transportation needs, insurance, job training, retirement plans, debts to pay, housing, etc. Think about your long-term needs and wishes.

3. Get what you can. On a practical level, you may not have access to a great deal of information, so just grab and copy what you can. If you do have access to a substantial amount of information, go ahead and start copying it. You will likely need it at some time during the litigation process. Don't wait until later because things tend to disappear.

Essentials to Look For

1. Income, expenses and debts. Gather pay stubs, W-2 forms, tax returns and the annual Social Security statement showing your earnings and projected retirement payments. You need to have a budget or two. Preparing a current budget (with everyone living together) would help and you will need a new budget for after separation.

2. Bank statements. Get as many as you can, for all accounts, for up to the last three years.

3. Credit card statements. Ditto. It's amazing what you can find on credit card records.

4. Kid information. If there are children and there may be disputes on custody and access/visitation, you should gather a variety of records. These include school records (attendance, grades, conduct), medical care, dental records, expenses and scheduling.

5. Web information. Please gather relevant web site information that have access to financial, medical and school records, as well as social media sites such as Facebook, YouTube, Google +, Twitter, My Space and others. We need user names and passwords. That should be for both you and your spouse. If you or your spouse have web sites or blogs, please provide that information as well.

How to Choose an Attorney

When you have decided that you either need to file for divorce, need to defend yourself in litigation or want to know your options, the next step is to consult with an attorney. If you know or have worked with an attorney, it may be easy to contact that attorney and set up a meeting.

On the other hand, if you don't have easy access to a lawyer, you may need help in finding one appropriate for your situation.

Preliminary Considerations

1. What is your objective? Think about what you need to end up with. Do you need cash now? Do you want to stay in the house or get money to buy another house? Do you need retirement assets? Can you handle debts? How will children factor in? Figure out what your needs and goals are so you can discuss these ideas with your attorney. If you have special needs in certain areas, it probably isn't in your best interest to try to just get half of everything. You can be more creative and better meet your needs by thinking about specific needs.

2. How much money do you have available? Frankly, this has a major impact on your course of action. Family law is expensive. Some people will try to handle everything without a lawyer and that sometimes works. For people with children, assets, debts, retirement accounts, houses, investments, professional careers and assets from before the marriage, a lawyer is really necessary. Fortunately, there is a wide range of attorneys available.

As you check around, find out the hourly rate, the amount of retainer and whether credit cards can be used. Some attorneys will use a credit card authorization with monthly payments instead of requiring a large retainer to be maintained with the lawyer. Bottom Line: find an attorney who is affordable for you and your budget. There are good attorneys in all price ranges.

3. Do you want a shark, a negotiator or a reasonable litigator? To help you decide that, you need to answer some other questions. Do you want a friendly divorce, a big battle or a private negotiation? Do you want to take care of your soon-to-be ex, or to be taken care of? Do you want revenge or to inflict pain and get retribution for your spouse's misdeeds?

Keep in mind that if you hire an attorney who will take a scorched earth approach to your spouse, you will pay for it. All the extra threats, demands, hearings, depositions, discovery, pleadings and a trial cost a lot of money. You can inflict a lot of pain on your spouse, but it will severely deplete your assets. You have to decide if the revenge or punishment meted out is worth spending an extra $50,000 or $100,000 or more.

Getting Started

Once you have thought about your course of action, you need to consult with possible attorneys. So, how do you find the right attorney?

1. Get referrals. Talk with attorneys, other professionals and trusted friends and relatives, and ask who they like and trust. But, remember that what worked for someone else may or may not work for you. Follow up with the next two steps.

2. Go online. Research attorneys in your area online. Look at their qualifications and experience. Check out their web site. Read their blog if they have one. You can get a pretty good idea about an attorney by reading what he/she has to say and how it is written.

3. Check for chemistry. Meet with one or more attorneys and see if the chemistry feels right. Some very good attorneys work well with some people, but can never please some others. Go with your gut on this. If you feel comfortable and communicate well with the attorney, that's a good sign. If something doesn't feel right, try someone else.

Final Note: Be honest with your attorney. Don't hide the bad stuff. The other side won't and attorneys hate surprises. Be ready to discusses your weaknesses as well as your strengths.

Got Skeletons in Your Closet?

During this Halloween season, we often see skeletons as decorations for parties or businesses or for Trick-or-Treaters. We see so many that they usually lose their fright-invoking powers. It's all in fun for a good time.

However, in other contexts, skeletons in a closet can be a real problem.

What are they?
Politicians and public figures worry that bad behavior may be found out any time of the year. It's sometimes said that everyone has some skeleton in their closet -- something that could be embarrassing, illegal or just private, that they wouldn't want other people to know about. Sometimes the skeletons are from current activities or they might be indiscretions from their youth. Hopefully, the skeletons won't be massive or involving major liability in terms of criminal laws or civil damages.

Skeletons in family law contexts
In family law matters, skeletons sometimes come into play. They can be big or small. Quite often, they get built up in someone's mind so that they appear to that person to be huge, when in fact, they are not a big deal at all. On the other hand, some things really are big deals. Arnold had a huge skeleton uncovered when his love child was discovered. Affairs can become not just a skeleton, but an albatross around someone's neck, to mix metaphors. Criminal activities, financial mismanagement and addictions are all serious issues that can have a major impact on divorces and other family law litigation. In most divorces, there's something each side would prefer to keep quiet or, preferably, unknown. But it always seems to get out!

What should you do?
Rule #1: Tell your lawyer. Don't be worried about whether your lawyer won't like you or respect you. Chances are, your attorney has heard and seen much worse. One thing lawyers hate is to be surprised by the other side. Don't let your attorney first learn about the skeleton by hearing the other side break the news. Prepare your attorney with all the facts. Believe it or not, attorneys can usually put bad news into context and minimize it, if given the chance. If your counsel first hears some bad news as it is being drug out of you, there's not much the lawyer can do for you.

Quick Summary:

Lawyers Don't Like Surprises!

You need to tell your attorney the bad facts as well as the good ones so he/she has a chance to help you. You need to let the skeletons out of the closet.

Zen, Running and Divorce -- Life Lessons

There is an interesting blog, unrelated to divorce or family law, that I like to read that's always full of thought-provoking posts. Yesterday's post in the Zen Habits blog, "Ten Life Lessons from a Reluctant Runner" was about life lessons related to running, but I immediately applied the lessons to divorce situations. I liked the article initially because I am a runner (disclaimer: I admit I'm not fast), but I thought the lessons from running could easily translate into ideas to help ease the stress of dealing with divorce and other family law issues.

I invite you to read the original post. Even if you're not a runner, you can probably appreciate her view of life. For this post, I am taking her lessons and applying them in another context. See if this makes sense to you.

"1. Sometimes things that suck are also awesome." Ever hear the phrase, "behind every cloud, there's a silver lining"? It's often hard to see the silver lining when you go through a divorce or other family law conflict, but change often leads to improvement, even though it's painful at the time. Being forced to confront your financial situation may help you plan better for the future and even change course to look for better opportunities.

"2. It's all mental." I don't know that I would agree that a divorce is 100% mental, but how you approach a situation mentally sure does have a major impact on whether it is upsetting to you or doesn't bother you. People really can choose how they will react to difficult situations. Focusing on the negative and thinking about how terrible you have it will not be helpful. It is much better to be looking forward.

"3. There's a discernible difference between pain and discomfort." Some things are major pains and require a re-analysis and new direction. Most things are more at the discomfort level which you can quickly overcome, if you allow and encourage yourself to do so.

"4. Equipment matters -- find what works for you." This is not a direct comparison, but you need to have a lawyer to help you through the legal process and you should make sure the lawyer has the knowledge and experience needed and that there is good chemistry between you and the lawyer. If you try one attorney and it doesn't seem to work out, go ahead and make a change.

"5. Take joy in small accomplishments." All issues are not alike. Keep in mind that not everything is life or death in divorce. Making small progress toward the outcomes you want should be considered a good thing. You rarely make giant-sized progress toward your goals. You should feel good for every small step that goes your way (and don't obsess about the things that don't work out!).

"6. Inconsistency is OK." Don't expect things to go smoothly or to flow all in the same direction. If judges are deciding issues, there can be inconsistent result on different issues for a variety of reasons. Don't worry about it.

"7. It feels good to pick up your pace at the finish." Most people are anxious to finalize their divorce once they get near the finish. Don't slow it down by bringing up last-minute, annoying issues that simply prolong the fighting. Keep your major objectives in mind and don't get caught up with minor battles.

"8. But, slow down at the beginning, already." Sometimes, you don't have a choice about how fast you have to act at the beginning, but remember that a divorce takes time. Don't be impatient to finish up something too quickly that will affect you the rest of your life financially and in terms of family relationships.

"9. Play is critical. Always." Don't take everything too seriously. Stop and try to relax and not think about the divorce all day long. Get involved in exercise and physical activity. Volunteer and help others. Do something fun occasionally. It doesn't have to cost a lot of money.

"10. It's OK to trick yourself." Sometimes it's hard to face a big project, and that makes it easy to avoid. One way to attack it is to commit yourself to working on something for just 15 or 30 minutes or an hour. If you stop then, you are that much farther down the road. Often, though, it becomes easy to stretch the time as you discover that the work is not as hard as you thought it would be. The trick is breaking it down into small pieces.

Hopefully, you can apply some of these life lessons as you run or work your way through a divorce or family law issue.