Is It Too Soon to Start on a Divorce!

This is written for January 1st since January is a busy month for people deciding to file for divorce.  Many people put off the decision until after the holidays and that's usually a good thing. There's time for second thoughts and it means that the holidays don't get overwhelmed by divorce conflict.

Of course, the holidays don't mean there's a complete "time out". Conflicts continue, but the escalation from litigation is postponed.

However, sooner or later, the question becomes -- is it the right time for you to start the divorce?  To make that decision, consider the following:

1.  What are the problems?

2.  Are they long-term problems or a recent issue?

3.  Have you tried counseling?

4.  How does your spouse feel about divorce?

5.  Are you prepared financially?
     a.  Do you have cash savings?
     b.  Do you and your spouse have your own incomes?
     c.  Do you have a place to live after separation?
   
6.  Are you capable of managing your finances?

7.  Are you prepared for your spouse's reaction?

8.  Are there kids? Would they be fought over?

9.  What do you have to gain?

10. What do you have to lose?

These are questions that you must think about and answer.  If you are leaning toward filing for divorce, please meet with an attorney or attorneys. You need to get professional help for the serious issues that come up in a divorce. You can discuss all these issues with your attorney so you are as prepared as can be for the divorce. Good luck.

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.
 

Why Cases Aren't as Simple as You May Think

Some people get caught up in the "Do it Yourself" movement and decide to represent themselves in a divorce.  After all, how hard can it be? They're thinking:  Texas is a 50-50 property state, so you divide everything equally.  Then you use standard visitation and child support guidelines. You just write down what you want and the Judge will straighten out any problems and then grant the divorce.

Now, back to reality. Life is complicated.  The more assets you have, the more important it is to use a lawyer for a divorce.  If there are children, there are many important issues other than child support and visitation.  Judges don't fix your mistakes.

Here are some issues you may need to consider.

1.  There are parental rights, powers and duties that have to be allocated between the parents.  Some can be shared, some might work with consultation between the parents, some might need a tie-breaker if the parties can't agree, and others are usually controlled by just one parent. These can decide the outcomes of some very important issues.  You need knowledgeable guidance on them.

2.  There are many different variations in the possession (visitation) schedules for the kids.  You have to come up with something that both parents accept and use language that is specific enough to be enforceable in case of future conflict.

3.  Child support can have some issues as well.  Is is really necessary?  Should you use the guidelines or try something else?  Will the Judge approve something else?  How to you calculate it?  You also have to use correct and specific language in creating the order.

4.  What do we need to divide?  What is separate property (which the Court can't divide) and what's community?   Are there any tax consequences? Can all assets be divided?  If not, what do you do?

5.  How do you handle health insurance?  Can one spouse provide it for an ex-spouse?  If so, how?  How do you set up the health insurance for the kids?  Who pays what?

6.  Can we divide retirement accounts?  If so, how?

7.  What do we do with the house?  One party keeps the house -- how do you get the other spouse's name off the mortgage?  Can you refinance the house?  Do you want to sell it now?  If so, you need detailed plans for that.  What do you do with the proceeds?  What if you can't sell it?  What if your ex-spouse won't sell it?  There's a lot at stake with the house.

These are only some of the issues you may face in a Do-it-Yourself Divorce.  If you have children,  more than a little property or a marriage longer than a year or two, you definitely need a lawyer to help make sure you don't make a mess of your financial and family futures.

What's My Worst Possible Outcome?

In almost every attorney-client relationship, there needs to be more and better communication. Unfortunately (or maybe fortunately), attorneys can't read their clients' minds.  We can sometimes anticipate questions, but we can't always provide reassurance and information without being asked questions.

At some point in almost every case, a client will wonder what the worst outcome could be for their case.  Some people think if they know what the worst is, they can prepare for it, while hoping for a better result.  They don't want to be surprised.  While it seems like a reasonable question, it's really the wrong question.

What's the worst that could happen in a divorce?  You could lose all your assets, including things you inherited or had before the marriage; you could be saddled with all the debt; you could lose custody of the kids; you might have to pay exorbitant child support;  you might have little or no visitation; and you might have to pay everyone's attorney's fees.

What's the worst that could happen in a suit to modify a prior order?   Your request could be denied; you might end up with an order limiting your time with the children, paying exorbitant child support and owing money to the other party.  You can also be ordered to pay everyone's attorney's fees.

What's the worst that could happen in an enforcement case?  You could go to jail.  You could owe the other parent a lot of money.  Your access to the child could be restricted.  You could owe everyone's attorney's fees.

Do you see the trend here?  Asking for the worst outcomes will get you some very scary outcomes.

The better questions are something like: 

• What is the realistic range of options for what can happen in my case? 
• Given the facts of my case, what is the Judge likely to do?
• What can I expect if I go to Court?
•  How does a case like this usually work out in this Court?
•  What do you think you can work out with the other attorney?

After you get information from your attorney, follow up with questions about what can be done to get you closer to your objectives.

Finally, keep up the conversation as you go along.  Don't make this a one-time request.  Outcomes may change as the facts change or are developed.  Keep in touch with your attorney so he/she can better help you.  Good Luck!

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.

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.

When is the Best Time to File for Divorce?

If you are thinking about filing for divorce, one of the obvious questions is about timing. There is no simple, universal answer as to when the best time is to file. Sometimes, couples may think about, and even talk about, divorce for years and then finally decide to take the plunge. Other times, a quick decision is necessary. Here are some considerations to help you decide, if you are approaching that step.

1. When You Need to File. There are several situations that may lead to the conclusion that you "need" to file now.

• Safety: If there has been family violence or a serious threat of family violence, you should act. The threat doesn't have to be spelled out. Sometimes, it becomes obvious that a situation is about to turn violent. Or, you may hear something from someone else that contains a credible threat or signs of danger. You should always be careful to protect your own safety and the health and safety of your children. That may require you to file for divorce.

• Protection of Assets: There may be threats or actual steps to hide or dispose of cash, investments or other assets. In some situations, one spouse will remove all or a significant amount of the cash to "protect" it. Sometimes, access to accounts is changed. If any of these actions have occurred, or have been threatened, you should act to get a court to protect your assets. It's hard to get money back, once it's been spent.

• Preventing Runaways: Unfortunately, kids often become pawns in divorces. A parent may think that he/she will be able to get control or move a divorce to a distant county by running away with the kids. If you file before the runaway, most judges (at least here in Tarrant County) will not allow one parent to move away with the kids without the agreement of the other parent. If a parent has already moved away, you can usually get the kids back to Tarrant County if you file right away.

• Access to the Kids: Sometimes, after separation, a parent will just refuse to let the other parent see or talk to the kids without a court order. The parent in control often views the kids as possessions and worries more about how to control the other parent than about the kids maintaining good relationships with both parents.

2. When You Want to File. This refers to the situation where one or both parties have carefully thought about whether to try to save the marriage and have reached the decision that it would be better to end it. Often this follows counseling for one or both parties. That counseling will often help the parties accept the decision to separate and divorce, and the counselor can help the parties plan their futures. Filing at this stage is usually a little easier, but sometimes the other parent hasn't progressed to the point of acceptance, so it can still be difficult.

3. Calendar Considerations. This may come up if there is not an emergency. If there are holidays approaching, many people prefer to wait until after the holidays to separate and file. That is especially true if there are children. You may also want to consider the kids' activities and schedules so that you don't separate just before a big test, a performance or an important game, for example. In addition, you should talk with an attorney to find out if there are any other dates or events that could come into play. For example, the courts are really clogged from mid-July to mid-August with change of custody cases. It is hard to get much court time during that period. Experienced attorneys know when the courts are traditionally busy and can help you plan ahead.

Probably the best approach is to consult with an attorney early when you start thinking about divorce. You will probably have a lot of questions you want to ask, but don't forget to discuss timing.

Waiting on the 60-Day Waiting Period

One of the most common misperceptions regarding divorce is the idea that a divorce is, or must be, completed when the 60-day waiting period is up. Under Texas law, the parties must wait for 60 days, beginning with the date they file for divorce, before they can be divorced. Even then, the divorce doesn't happen automatically.

There is actually much more to be done before the divorce can be finalized. That's not to say that the divorce won't be completed just after the 60 days is up. It only means that you can't just file for divorce, wait for the 60 days to pass and then be divorced without further action.

So, what needs to be done? Start by discussing the situation with your attorney. Make sure he/she knows you want the divorce over with as soon as possible. Here are some things that he or she will need your help on.

1. Your spouse must be notified "officially". You can serve papers on him/her or he/she can sign a Waiver and accept the papers. Most people won't sign a Waiver without having the opportunity to see and sign the final papers (decree). Serving papers is less friendly and more expensive. If you are trying to do a quick and friendly divorce, the Waiver is probably a better bet. If you can't find your spouse, talk to your attorney about your options.

2. You need to gather information and get it to your attorney. The attorney wants to make sure everything is properly covered by the final decree of divorce, so it is important that the attorney gets to review the details of your finances. In addition, the children, if there are any, must be provided for: allocation of the powers, rights and duties for raising the children; visitation; and child support. The attorney depends on you to furnish the information and also to state what terms and arrangements you would prefer.

3. If you want a quick divorce, you and your spouse generally need to agree on the details of how to divide things up and how to deal with the children. It's not enough to just turn over information to the attorney. Your attorney can suggest some terms, but you and your spouse need to agree to those or come up with variations that you both agree on. Usually, the more complex the issues, the longer it takes to resolve them. You can help speed up the process by reaching agreements with your spouse.

Divorces are not automatic in Texas. Attorneys can't just file papers and wait for the time to run. We need to get information and suggestions from clients. If you are anxious to get your divorce completed quickly, you need to help your attorney by providing information and details on how you would like things resolved. You can be divorced in just over 60 days, but plan on actively working with your attorney to accomplish that.

What to Do if Your Spouse Files for Divorce

At this time of year, once the holidays are over, many people decide to begin the process of divorce. Sometimes, their spouse either doesn't expect it or is in denial or doesn't want to get divorced. This post is for those people who are reacting to a situation out of their control -- when their spouse files for divorce. If you find yourself in that position, here's what you can do.

1. If you see it coming, start preparing. Gather records, get control over some financial resources: cash, accounts, credit cards. You need to have some financial resources under your control that you can depend on. Cash and credit cards are very helpful, but cleaning out the accounts and leaving nothing for your spouse probably will hurt you in the long run. You will need to think about the respective living arrangements for you and your spouse. If you have kids, how will you take care of them, pay any necessary bills and share time with them with your spouse? Don't just sit around, start planning and anticipating. Get some help from friends and professionals.

2. If you didn't see it coming, start preparing, but move faster. If you have to play catch-up, do so. You still need to do a lot of planning, even if you get surprised. Start as soon as you can.

3. Research your options. Collaborative Law is always worth considering. (See some of my other posts or my Texas Collaborative Law Blog.) You might have to go into litigation, but mediation is usually an effective way to resolve cases. Talk to an attorney about the best way to proceed.

4. Decide what's important for you. Figure out what you would like to end up with. That includes financial assets, kid issues and any other concerns you have. Spend time at the start of the process to determine what you want and you will have a better chance of being satisfied. Just defaulting to "half of everything" and "standard" possession or child support may not be in your best interest. Think about it and discuss the issues with your attorney and counselor (if you have one).

5. Select an attorney. Look for experience, training, cost and chemistry. Find out how much experience your prospective attorney has with the issues of your case. Is the attorney a Board Certified Specialist in Family Law? Does the attorney have any special training for Collaborative Law or other special needs for your case? Make sure the attorney is affordable. It doesn't benefit you or the attorney to hire the most expensive attorney and hope that you will somehow be able to afford him or her. There are many fine attorneys at different price ranges. Finally, and maybe most importantly, make sure you and the attorney have good chemistry. If you don't feel comfortable and can't communicate well with the attorney, go to someone else, no matter how great the first attorney is. There are plenty of attorneys around and you should be able to work with one you like and feel comfortable with.

I realize that not everyone is willing or able to make the decision to get divorced. If you are someone who's had the decision made for you by your spouse, hopefully these suggestions will help you come up with a plan for response. These are not original, secret or complicated ideas. They are meant to help someone with a sudden need to deal with one of life's most difficult situations.

How to Start a Divorce

Because it's January again and many people are thinking about divorce, it may be helpful to have a brief review of what someone can do to prepare to file for divorce. Some people don't really plan ahead. They just go see a lawyer and turn everything over over to the lawyer to file and come up with a plan of action. Other people may want to do more to have a greater chance of a favorable, or at least acceptable, outcome. Here's what can be done:

1. Start by determining what you what to end up with. What are your goals, needs and interests? The easy way out is to say that you want what is fair or you want a 50-50 split, but that's really superficial and may leave you short-changed. Everybody is different. What's "fair" to someone is not fair to someone else. There may be certain assets that are more important to you than to your spouse. Maybe you need cash now to pay for some immediate expenses, or maybe you need extra retirement assets. If there are four automobiles, you may just need one, not two. Maybe some collections or artwork are more meaningful to you. Whatever the situation, you will feel better and be better off after the divorce if you decide early what your objectives are.

2. Select a method. You actually have choices. You need to decide whether you want to use Collaborative Law, litigation or just try to work out things with your spouse over the kitchen table. Maybe mediation appeals to you. Investigate the options and choose the way that works best for you. In researching the possibilities, make sure that you speak with an attorney with significant training and experience in the different methods. Hint: not all attorneys are trained and experienced in Collaborative Law. For an opinion on that approach, you should make sure the attorney has had experience in handling Collaborative cases.

3. Prepare. Gather records and information about your financial estate and be familiar with any issues regarding your child and your spouse. For a handy checklist, see the prior post from January 2, 2011.

4. Meet with your attorney. Early. It is important to see the attorney before things get heated up. Your attorney will appreciate having time to prepare and you will have more options on how to proceed. You will have time to gather or request records and you can plan different options for where you will live and how bills will be paid.

5. Take the first step. File, set a hearing (if needed) and serve the papers (or hand-deliver them, if that will help). It is generally advantageous to be the one to file first. Once it is inevitable that the divorce will take place, you will be better served by being active and getting things done at your convenience.

These suggestions are not meant to talk you into a divorce. Whether you decide to divorce is an separate and very personal matter. You should carefully consider all the circumstances in your life and in most cases, you should meet with a counselor, alone or as a couple, to get some perspective in evaluating your situation and maybe to get some help in resolving the issues you are facing. Only after careful consideration should you begin the process of divorce. Once you commit to the choice of divorce, you should then follow the above steps.

What are Your Options to Resolve Family Law Cases?

When suddenly (or even gradually) faced with the prospect of a divorce or other major family change, many people begin to wonder what their options are. It is a very common question I hear from prospective clients. Very simply, there is a range of methods that can be employed to resolve family law matters.

Kitchen Table. In some cases, spouses can sit down together and work out agreements on all major issues on their own. Those cases involve relatively mature and intelligent people who are beyond the anger stage of the divorce process. It can be a great way to resolve issues while maintaining family relationships.

Mediation. In California and some other states, it is fairly common for the parties to go to a mediator without using attorneys and work out an agreement. In Texas, that rarely happens, but we use mediation in virtually all non-Collaborative divorces. It usually takes place after some court hearings and the completion of discovery (the exchange of information). Each party attends with an attorney and it is a very effective process in most cases.

Collaborative Law. When both parties want to try this, it can be an excellent method of reaching agreements. The parties agree to not go to court and work toward an agreement by having a series of face-to-face meetings with the parties, attorneys and other professionals. See my other blog for more information.

Arbitration. Although this is not very common in Texas, it can be a means to avoid the delays of the court system. A hired arbitrator hears testimony, reviews evidence and rules on contested issues. It can be expensive, but it is relatively quicker than a litigated divorce and might be cheaper.

Litigation. This is the most commonly used process in Texas. One side files for a divorce and usually serves papers on the other party. A temporary hearing is usually held to set up orders for while the divorce is pending. It usually takes about a year to get a contested divorce in Tarrant County. It often is resolved through mediation, but that most often occurs late in the process.

If you need to resolve a family law issue, you should think about and research the above approaches and then talk with a lawyer to get advice for your specific situation.

A Divorce Fair -- Good or Bad Idea?

A recent post in the Ontario Family Law Blog discussed how there had recently been a "Divorce Fair" in Halifax, Nova Scotia, Canada. It was like a lot of trade shows with a variety of exhibitors and presentations, but they all related to divorce.

It sounded like an interesting idea that potentially could help people considering or facing divorce or possibly recovering from a divorce. I wonder how such a Fair would be received around here. If we had a Divorce Fair in Tarrant County, we could include such things as:

• Information on alternatives, such as Collaborative Law and mediation.
• Information about how traditional litigation works.
• Sources of information so people can search for information they are interested in.
• Tips for how to find and choose an attorney.
• How to benefit from using a financial professional in a divorce.
• How to benefit from working with a counselor.
• Approaches for preparing parenting plans.
• What Tarrant County courts expect from parties to a divorce.
• What programs Tarrant County provides to assist divorcing parties.

I suspect that many people would be reluctant to attend a Divorce Fair. It's just not as enjoyable as a bridal fair or even a boat show. Some people wouldn't want others to know that they were thinking about a divorce, so they wouldn't want to appear in public at a Divorce Fair.

But, I'm curious:

• What do you think about the idea of having such a fair?
• Do you think very many people would attend?
• Would you be interested in attending?

Anonymous answers are fine, but I would like to know how this would be received. Please share your opinions.

Retirement Planning During a Divorce

Most people seem to think that divorce is just about dividing up property and debts and dealing with the parent-child issues. That very broadly describes the process, but it really only touches the surface. One of the issues everyone should seriously consider is retirement, and they should go deeper that just splitting everything equally. To get people thinking about approaches on retirement, here are three questions to examine.

1. Should all retirement assets be divided 50-50? I would suggest that there are a number of factors to consider when dividing assets.

• Big picture. It helps to look into the future to decide what is and will be important to you. Are there short-term needs, such as education and training, buying new housing, starting a new business, etc., that will need immediate funding? How is your health? Are there any special needs for you or any family members? Are there any long-term or later-in-life needs that you are expecting? Are you the beneficiary of a trust? Are you expecting a significant inheritance? Does your spouse have special needs? Is your spouse expected to be a beneficiary of a trust? Are you likely to be able to create more retirement assets, such as adding to a 401K account, after the divorce? Can your spouse create more retirement assets post divorce? You should develop the financial context for your life in great detail so you can act in your best interest.
• Tax aspects. Some assets will come tax-free and others will require payment of taxes when the payments are received. You should look at your projected cash flow and living expenses upon retirement. Taxes need to be accounted for in determining the net resources you will have available. While your tax rate should be lower after retirement, you may have trouble affording the taxes because you will probably have less income then. If, during the divorce, you have the option of choosing an asset with taxes owing vs. an asset that is non-taxable, and the values are considered the same, the you should take the no-tax item, unless there are other disadvantages with the asset, such as being very risky. That brings up another consideration.
• Risk toleration. You probably need a trained advisor to help you determine the extent of your risk toleration. Generally, the higher risk associated with an asset, the greater the possible return, and the safer the asset, the lower the return is. Financial planners often look at your age, you needs, the value and nature of your assets, and other factors, in helping you decide how risky you want to be. Many people have assets with various levels of risk. You should consider how much risk you want or need.
• Employment prospects. Another important factor is your job situation. If you are already employed, it may be fairly easy to project your income into the future. If you are unemployed and/or just rejoining the job market, your future may be less certain and much harder to predict. Even people who have had secure jobs for a long time may be less certain in the current financial crisis. If you are trying to decide on a career after being out of the work force for a long time, you may have trouble just figuring out what to do. Also, quite a few people going through a divorce also go through job changes. For various reasons, there's a lot of job uncertainty during times of family turmoil, and that makes it hard to plan.

2. How do you make decisions on retirement plans during a divorce? The best answer is to get a financial advisor. It may be expensive, but it will pay for itself in the long run. If you are in a litigated divorce, each side usually hires their own expert or experts. There might be more than one if the experts have to testify. In Collaborative cases, the two sides jointly hire a neutral financial planner who works for both parties. In either approach, your attorney should be able to help you find someone, and probably will want to decide who to bring in. While there is cost involved in using a financial advisor, you will probably save money in the long term by being able to make the best possible financial decisions for you.

3. How do you carry out the decision? There are several possible ways to do so.

• Some retirement plans will need a Qualified Domestic Relations Order (QDRO). A QDRO is a court order that divides an existing account in a plan into two separate accounts which are independent of each other. Each of you will manage your own plan and you will separately be responsible for any taxes owed on your share.
• The terms of the agreement will be specified in the Decree of Divorce or in a separate Agreement Incident to Divorce (AID). The decree is the regular final court order that normally spells out the terms of the divorce and has the details of how the assets are divided.
• Sometimes, we use an Agreement Incident to Divorce. That is a separate document that is approved by the parties and then the court, but which is usually not filed with the court papers. It is used most often to protect the privacy of the parties and to give a little extra flexibility to the division of property. You can ask your attorney about whether it is something you would want.
• Finally, some investment accounts can be divided by the companies by the parties signing forms once the companies get a signed copy of the divorce decree. You can check with your agents to find out what they require.

Rather than making a knee-jerk response and just dividing all retirement assets 50-50 each, it would probably benefit the parties if they bring in expert help to figure out the best mix of assets to fit in with the opportunities and needs of the parties. Even if your spouse doesn't choose to think about these issues, you and your attorney should think seriously about your retirement when you are going through a divorce.

Winning

Winning is the subject of innumerable books, movies, lectures, motivational speakers, preachers and web sites. If you believe what you read, it seems that with just a little effort, or maybe with a big effort, you too can be a winner! I've had people ask how many cases I had "won". While winning has its place in sports, games, quiz shows, politics, gambling and many other endeavors, it should not be considered a goal in divorces or family law cases.

It's easy to see who wins an Olympic contest, a Jeopardy game, an election (usually), and most other contests, but how do you determine who wins a divorce? I guess it depends on what standard is used to measure success. Is it who has the greatest value of assets? Or who has primary custody? Is it the party who was able to drag out the divorce for 2 or 3 years? Or the party whose attorney fees and court costs got paid by the other party? Was it the party who managed to get 50% of the assets? Or the one who got 55% or 60% or 65%? What defines victory and defeat in a divorce or family law case?

Do you "win" a divorce if you destroy your spouse? Or if you manage to limit the time your children get to spend with their other parent? Do you have to clean out your spouse to claim a victory? Do you win if you got 40% of the overall assets, but got the single most important item you wanted?

What if you get part of what you wanted, but not all? What if each party gets some of what they wanted, but not everything? Do they both win or both lose? What if you and your ex-spouse end up sharing time and responsibilities with the kids? Who's the winner? Hint: maybe it's the kids!

The answer to all of the above questions: It depends on what you were after. Many times you win by sharing. You can also win by minimizing your losses. One thing you can expect in litigation in family law is that each side normally gets at least some of what they want. It almost never happens that a judge rules 100% in favor of one side -- it normally would be considered "an abuse of discretion" by the court and would probably not stand up on appeal. In other words, you should expect to only prevail on part of what you want.

Why it's hard to be a "Winner"

Americans are a very competitive people. We like to keep score and we usually want to feel like we came out ahead. Unfortunately, in family law matters, it is hard to come up with a clear cut win for several reasons.

• Judges usually will try to give something to each side. They rarely make awards that 100% favor just one party.


• What may be important for one person may be totally insignificant for the other party. How do you score that?


• There are normally multiple issues, so each party will usually win some and lose some. Issues may have different levels of importance; it's rare that every issue would be equally important.


• The facts and situations change over time in a divorce, so what may have seemed extremely important at the beginning may have no value later. If you "win" that issue, so what?

How to become a "Winner"

You may be reading this because you want to learn how to win in the family court system, you want to be a winner. Likewise, I want to have a winner with this post, so here's some ideas on how you can be a winner.

1. Take the time to create your own list of important high level goals. They might include such things as being able to have a good start on your retirement savings or being able to train for a new career once you are divorced. You might want to have an everyday presence in your children's lives. Or you might want to ensure that the children maintain close relationships with the extended families on both sides of the family.

2. Create new ways to accomplish your goals. Don't settle for standardized solutions or formulas. Brainstorm and come up with new ideas. Don't limit yourself to standard guidelines or practices.

3. Create opportunities for you spouse to achieve his or her goals or get what's important to them. If your spouse can feel like a winner, your life sure gets better. And you end up with a better settlement.

4. Take the high road and avoid fighting. From experience, you know how much fighting helps you accomplish your goals. You know how fighting helps you feel so much better. You know how it creates a stable, supportive and safe environment for the kids. Think before you react. Get professional help if needed, but stop fighting!

5. Keep the children away from any conflict between you and your spouse. The kids don't need to take sides. They don't need to experience the anger, frustration and pain you are feeling. They will come out a lot better if they are not caught in the middle.

6. Seek professional help throughout the process. You need to have an experienced attorney, but you may also benefit from using a CPA, a counselor, a financial planner or other professional. A therapist is often a valuable helper in dealing with situations that can be overwhelming. Getting help doesn't mean you're crazy.

7. When you seem to come to an impasse, back up and try a different approach. Don't take "no" as a final answer. There are always other solutions. Start from common ground and move from agreement to agreement. If progress stops, step back and reconsider your overall goals and needs and look for other solutions.

Don't be a Loser

The approach I have not suggested that still might work is for you to decide to spend your children's college funds on your lawyer. If you don't mind giving up your savings or financial security, you can have your attorney out work his or her opponent and wear out your (ex) spouse by creating multiple hearings, doing written discovery and depositions, getting psychological evaluations done and generally hiring multiple experts. Many lawyers don't mind doing that and some actively encourage it. You can decide whether that makes sense for you.

Setting Goals Makes You a Winner

While it's easy to keep score and see who the winner is in a baseball, football or basketball game, it's not so easy to determine a "winner" in a legal case. There are normally multiple issues in a court case and it's not realistic to think that one side will win all the issues. It's much more meaningful to spend some time at the outset and figure out what your goals, needs and interests are. Then figure out ways to achieve the goals and meet the needs and interests you have. Instead of getting into a competition with the other side, spend your time, energy and money focused on what's important to you. Then you'll get a meaningful result, which is winning.

Taking the High Road -- 9 Tips to Guide You

Divorce can be one of life's most stressful events, even in the best of circumstances. Some divorces are handled in a fairly civilized manner (Collaborative Law is a great way to accomplish that), but many divorces, unfortunately, are nasty, drawn-out and expensive procedures. If you or a loved one are about to go through a divorce, here are some tips to help minimize the difficulties of divorce.

1. Don't do things to just annoy your spouse. That's not to say you need to agree to everything your spouse wants. What this refers to is choosing not to antagonize your spouse by demanding the picture he or she has always loved, or by saying things you know will embarrass or humiliate your spouse, etc. Everyone knows buttons they can push -- Just Don't Do It! You may get some brief feeling of pleasure, but your spouse most likely will respond similarly, and maybe at a higher level. There's no real benefit to escalating the conflict.

2. Don't respond when your spouse does something just to annoy you. Take the advice that you may have given kids. Just ignore it and s/he will probably quit doing it. Going back and forth fighting with each other is childish and doesn't help you progress toward a final settlement. You may feel that you are entitled to respond in kind, but it really doesn't help you. To avoid the unpleasantness you sometimes (or often) experienced during your marriage, you have to be the adult and break the cycle of conflict.

3. Keep the children out of the middle. No messages sent. No using them as a pawn. Think long term here. The disputes are between two adult parents, not the kids, but the kids can be damaged by the adults' fighting. Do what you can to keep the kids out of the middle and you will have a happier family.

4. Don't waste money doing unnecessary things, fighting over insignificant things or arguing for things that you will clearly lose. Think about the costs of fighting. Financially, is it worthwhile to spend attorneys' time and your money fighting over inexpensive or easily replaced items? There are many issues in divorces and they aren't all created equal. Some are much more significant than the others. You should focus on the important ones.

5. Act mature even if no one else does. It's harder to fight with a person who doesn't fight back than with someone who seems to relish the contest of wills. Besides, your family, friends and children will recognize and reward your efforts in the long run. Be a model for adult behavior and help yourself in your recovery from the effects of divorce. Keep in mind higher goals for yourself and don't allow yourself to be sidetracked by someone trying to pick a fight. You will come out in better shape and save yourself time and money. You don't have to mimic or match someone else's bad behavior.

6. Don't just complain or whine, figure out constructive steps you can take to get a good result. Sometimes it is hard to figure out how to get out of the ditch. Problems can seem overwhelming and solutions unreachable. If that's the case, get help. Talk with a therapist, a life coach, a mentor, your attorney, a teacher or maybe some reasonable friends. (I added the "reasonable" qualification because sometimes friends aren't the most helpful.) Figure out some goals for yourself and take some action. Even a little step forward is progress. Doing nothing will get you going backwards, if you're not careful. Get some exercise and try to get healthier. That makes it easier to get started.

7. Pay attention to your lawyer more than you do your family and friends. Your friends can give you advice for free, but you get what you pay for. They don't really know all the facts of your case and don't know the law as well as your attorney does. They also don't have the working knowledge of the judge, the local court system and the other lawyer that an experienced attorney will have. Your friends may be well intentioned, but they often can really cause problems by providing bad advice and pushing the wrong actions. Attorneys aren't perfect, but they do generally have a better long-term perspective than friends do.

8. Figure out your goals -- what's really important to you -- and what you need to do to accomplish them. And then take action. When your life is in transition, it's a good idea to set a target, your goals, and plan how you can accomplish them. Think about it some and put your goals in writing. They don't have to be perfect -- you can revise them as you work on them. You may try one thing and then decide that something else is more appealing or important. What's important is to have a purpose and a plan, and then take action. Get help from trusted advisers, if you need to, but get started thinking about the future in specific, concrete ways. Stop just reacting to what's thrown at you. Start planning and initiating your own activities.

9. Don't limit yourself to just standardized solutions to problems. Open up your mind and be creative so that your needs can be met. Setting lofty goals is sometimes daunting, but use your imagination and come up with your own creative solutions. Don't limit yourself. Be open to trying out "ridiculous" ideas. Sometimes they work best and they can be fun.

You Gotta Ask Yourself, "Do I Feel Lucky Today?"

Clint Eastwood, in his Dirty Harry movie, had the famous line about whether you feel lucky, ..."you've got to ask yourself one question: Do I feel lucky? " Luck is, of course, relative. What's lucky for you may have a bad effect for someone else. Many people believe that you make your own luck and that luck is a result of preparation and effort. It's also interesting how some people have the attitude that all they have is bad luck, while others expect to have good luck. The reality probably matches the expectation.

Today's date, besides being an interesting combination of numbers, 08-08-08, is considered a very lucky day in China. Is it an accident that the Olympics begins on a lucky day or was the Chinese Olympic Committee making their own luck? I guess we'll know the answer in about two weeks.

Evidently, many Chinese believe that they can also make their lives luckier by getting married on August 8, 2008. There was a extraordinary number of marriage ceremonies scheduled for today. Maybe we should have tried that in the U.S.

Actually, there are probably a lot of things that can be done to improve your chances of success in marriage. Good communication, respect and maturity go a long way to establishing and maintaining a good marital relationship. Willingness to work hard to maintain the relationship is essential.

Many things can come into the relationship to cause problems, though, so the parties must be willing to work out solutions. Sometimes issues come up which can't be satisfactorily resolved. In those cases, the best option may be divorce, but it should not be a quick decision to leave a marriage. Aside from the good aspects of marriage that are lost, the costs of divorce can be enormous emotionally, financially and physically.

It's fine to pick a "lucky day" to get married, but it takes more than luck to stay married. Any decision to end a marriage should be made carefully and after a great deal of consideration, and it's not unusual to have second thoughts. Unless there is an emergency or safety issue, I recommend that you take time to consider your options and think about whether there are other possibilities for saving the marriage.

To a large extent, I agree that you make your own luck and you can make or break your own marriage. If you work continuously to preserve and improve your marriage, you will have a better chance of success. Of course, it take two to make a marriage, so if your spouse isn't interested in staying married, you need to change course and get ready to move on.

Don't Try This at Home, Folks!

Lots of Dos and Don'ts are posted in blogs on various topics. A recent incident provides an illustration of yet another action to avoid. In case you haven't heard about this yet, please remember to not record and post a video on YouTube complaining about your spouse or ex-spouse or in-laws or anyone else you may be mad about. (I'm sure you're not thinking of criticising the judge -- right?) This is worse than a public spectacle -- it's a world-wide spectacle.

The incident in question is a video prepared by Tricia Walsh-Smith, who is married to a Broadway executive who had the foresight to have her sign a prenuptial agreement before their marriage. A former actress, she shows a range of emotion and impulsiveness that is impressive, in a bad way. If you haven't seen her video, you can see it here.

Needless to say, the video has been by millions around the world and it seems to create the opposite of sympathy for her. While a few people have posted favorable comments, the great majority of comments are highly critical. She went way out of bounds in disclosing personal, intimate details about their relationship. Some people might have felt sorry for her because of the way her husband appears to be forcing her out of their apartment, but even those people are likely to end up disliking her because of what she said.

More importantly, the judge for the divorce will undoubtedly see the video and it will probably unfavorably affect the outcome of the case for her. It's hard to put a good spin on the video. It removes sympathy for her and might give the judge grounds (at least in Texas and probably other states) to give her less in the property division. Any possibility that the husband might have wanted to try to be nice or help her out has disappeared.

Remember: Think before you speak and think twice before you consider making a video and publishing it somewhere.

Thanks to J. Benjamin Stevens of the South Carolina Family Law Blog and Stephen M. Worrall in the Georgia Family Law Blog for the previous posts on the video.

Tips to Help You Get a *Fair* Divorce

Yesterday, J. Benjamin Stevens, in one of my favorite blogs, the South Carolina Family Law Blog, had an interesting post with some good ideas to help you attain a good result from a divorce. There are some differences between Texas and other states' laws, but many of the points are very appropriate for anyone facing a divorce. Here is what he wrote, along with a few comments of mine

"The following tips can help you get a fair divorce and save you a great deal of time, stress, and money:

• "Once you have made the difficult decision to end your marriage, begin to focus on the financial issues as soon as possible." That's excellent advice. It may take a while to gather the records you need and the finances are very important both immediately and in the long run.

• "Get a good attorney to ensure you receive an equitable settlement, and get the best attorney that you can afford." That is very important. I have previously written about how to choose an attorney. You should make sure you have one who is qualified for the type of issues in your case. Experience and local knowledge are very important. Usually, a Board Certified Specialist in Family Law is a very experienced and knowledgeable attorney in that field.

• "Remember that most states determine the value of the marital assets (including retirement accounts) based on the date the case is filed with the Court." That is not correct in Texas. Here, the value is determined at the date of division. If there are losses or gains in value (for example, stocks or retirement accounts) after the date of separation or the date of filing, they are taken into account when the value is determined by a judge on the trial date. If a case is settled in negotiation, the attorneys usually try to use the most recent values of assets and debts.

• "Consider when to file your case and whether it might be worthwhile to file sooner or later if you know when significant financial events will occur, such as receiving a bonus at work." Usually, that is not a factor in Texas since the value of the estate is determined at the time of division and there is a 60 day waiting period, beginning with the filing date, until the divorce can be granted. Occasionally, the date of filing can be significant, but most often timing can be affected by health, safety, emotional stability, financial need, or some other factors which can come into play. Sometimes filing is delayed so that the other party can adjust to the idea of divorce. Someone about to file for divorce should consider the whole situation before jumping into the process.


• "If the mortgage is listed in your name (or both names) and your spouse will receive the house, insist that he/she refinance to remove your name from the mortgage as soon as possible." That is a good way to protect your credit. Leaving the house in both names without changing the mortgage is really dangerous.


• "Make copies of all recent financial statements, so that your attorney will have an accurate listing of the accounts, balances, etc." I would include virtually all financial documents, including all credit cards, bank records, stock information, retirement account records, and any other financial records. Gather up for your attorney all the records you can find and let the attorney decide what is needed and useful.

Original "Source: "Parting Ways? Your Guide to a Fair Divorce" published in the Erie Times-News."

Bonus Comment: I recommend that you avoid using the word *fair* in discussing anything to do with divorce. Aside from the fact that fair is vague and impossible to pin down, courts just don't spend a lot of time evaluating fairness. Most importantly, what's fair to you is not likely to be considered fair by your spouse, and what your spouse thinks is fair would probably not pass a fairness test for you. It's really more useful and practical to figure out what your needs and goals are and try to meet them. That gives you a more specific target and you will know if you came out well.

Preparing for Divorce: 7 Tips on Finances

James J. Gross, in his Maryland Divorce Legal Crier, had two excellent recent posts that included 11 tips for men and 11 tips for women to get ready for a divorce. I have used some of his ideas and some of my own to come up with the following 7 tips on finances for someone facing a divorce.

1. Have some funds available. Make sure that you have some cash or credit or money in the bank that you can use as you go through the transition from married to divorced. You will need money to pay bills, hire an attorney and purchase new things as a second household is created.

2. Prepare a budget and cut expenses. You can figure that most of the time there won't be enough money to go around. You need to be careful how you spend your money and make sure you don't waste it. Preparing a budget helps you decide what's important to you and when and how you will spend money. Part of the budget process should include finding ways to cut expenses. Reducing your spending and focusing on the essential needs will help you meet your basic needs.

3. Get control of you credit cards. Make sure you have some credit cards in your name so that you have something to use in an emergency. Make sure, as much as you can, that your spouse is not able to go crazy charging up the credit cards. That is a common strategy, especially if the cards are joint or the other spouse is the person primarily responsible for the cards. It is not really a good idea to take away all your spouse's cash and credit cards, but it will be a lot safer for you if you have control of the cards for which you are primarily liable. Just make sure your spouse has adequate resources to support himself or herself.

4. Plan to spend money for an attorney. At a time when a 35-50 page divorce decree is not unusual, it is a serious mistake to try to represent yourself in a divorce, rather than hire an attorney. If it is a matter of cost, you should check around for attorneys because there is a wide range of costs and payment arrangements; you can probably find an affordable attorney if you keep looking. The potential cost of not hiring an attorney is enormous!

5. Separate bank accounts. If you have joint bank accounts, they should be divided. Taking all the funds is not generally acceptable. You can probably take half the funds, but even that depends on the needs of both parties and what other assets are available. Separating the bank accounts will prevent your spouse draining all you funds and leaving you in the hole. Using restraint will make you look good to the Judge and the other side.

6. Create a list of your assets and liabilities. Getting started early gives you something to do with the nervous energy you have from going through a divorce. It's a good idea to gather records and prepare the list while everything is available and still fresh in mind. In most divorces, both parties are required to prepare sworn inventories. These are lists, in a standardized format, that include all the assets and liabilities of the parties. They become the basis for negotiation or a summary that often is introduced into evidence at trial (if there is a trial).

7. Keep your insurance in place. Remember why you have insurance. You need it for medical care and for your vehicles and home. Keeping the insurance will help save money on medical treatment, medicine and other related services. Keeping what you have at the outset will help avoid the accumulation of unpaid medical bills or repair bills that can occur if your insurance is canceled or lapses. Usually, the cost of maintaining the policy is not too great, especially when compared to cost of uncovered medical and other services. The insurance will have to be split up eventually, but it can be done later when both parties have time to sort things out.

If you are possibly facing a divorce, you should follow through with the actions outlined above to protect the family finances. Good luck!

Is There a Divorce Season?

Many commentators have discussed the perception that many couples take the plunge and file for divorce in January, right after the holidays. A study in England came to the conclusion that Jan.7 is "D-Day", the busiest single day for filing for divorce. A report in the Pittsburgh Tribune-Review in January 2008 reached a similar conclusion.

Actually, it appears that January is a popular month to file for several reasons. First, many families put off the separation until January so the holidays are not spoiled for their children. Second, some people get caught up in the holiday spirit in December and decide to give the marriage one more try. Third, for some, the stresses of the holidays push one or both parties over the edge. Fourth, some wait to file until January when they have enough money to pay an attorney after spending their extra cash on gifts in December. Fifth, some people get caught up in making New Year's resolutions and decide to make a fresh start without their spouse. And there are undoubtedly other reasons that lead to decisions to file in January.

Actually, January through early Spring is often a time that is popular for filing for divorce. Different people take different amounts of time to decide to file. Some people wait for their tax refunds or wait for their bonus from work to arrive before filing. Some wait for their spouse's bonus to arrive before filing.

There really is no time of the year for filing that is better or worse than any other. No matter when you file, there will likely be difficult times ahead. Planning ahead, working with an experienced lawyer who is compatible with you and staying focused on what's really important will help minimize the problems, but they can't all be avoided. Getting counseling before, during and after a divorce is a wise course of action.

My best advice: Be careful because we are still in the Divorce Season.