What are My Chances of Winning?

The one question everyone asks, or wants to ask, when starting out in almost any kind of litigation, is "What are my chances of winning?". Maybe in the movies or on TV, an attorney will answer with a percentage chance of success. If you hear an answer in real life in a family law case where the attorney actually gives the odds of winning, you should be concerned about the quality and experience of the attorney.

I can understand that it is a rational question to ask. Many people don't want to waste their time or money, don't want to unnecessarily alienate other family members and most of all, don't want to lose.

Why, you may ask, can an experienced attorney not give the odds of success? The answer is simple: each case is different. There may be two custody cases where both parents want primary custody. What are the odds of the father winning in either one? There's really no way to answer because the outcome depends on all the facts of the case, who the judge is, how the facts are presented, the quality of the witnesses is for each side, how well the attorneys do and many other factors. The same is true for every other type of case. No two cases are alike and there's no set formula to determine who the winner is. It's all up to the judge or maybe a jury. There are no objective standards to rely on.

Instead of pressing the attorney to give a prediction of success, a more productive conversation would be about these issues:

• What is my real goal? Sometimes the real goal is to get a better visitation schedule or reduction in child support even though someone starts off asking for custody. Some reflection by you and the attorney about this issue can lead to the development of a plan that really relates to what's important to you.
• Is it possible to achieve? If the goal is paying no child support, it may not be possible in one set of facts while it may be likely under a different scenario. Likewise a 50-50 arrangement of time with the children may be feasible if the parties work together well and live pretty close together. On the other hand, if the parents constantly fight (even post divorce) or if they live a considerable distance apart, for example, it is unlikely that the parents can share equal time with the children.
• What can I do to improve my chances of attaining my goal? Doing some brainstorming for steps to take and then implementing the ideas can really improve your chances of success. If you are really committed to success and work in constructive ways, you will have a better chance of prevailing. (Of course, I can't tell you how likely it is that you will succeed.)

What should remember from all this? First, forget about calculating the odds of success for you case. Second, help yourself by following the above three steps. Good luck!

What If You Can't Sell Your House?

Divorce doesn't happen only in the best of economic times.

Last fall, the economy replaced wars and foreign affairs as the most important topic for most people during the Presidential campaign. The "housing crisis" is a major component of the economic downturn. While the stock market has been going up and down (mostly down), house values have been steadily going down. Add to that the "mortgage crisis" and we have suddenly gone from an environment of steadily rising house prices and readily available mortgages to falling house values and a very restricted mortgage market. I know this isn't news to you and you aren't interested in rehashing current problems. Actually, I'm writing to suggest some solutions.

So, what do you do if you what to get divorced, but you can't sell your house? Here are five ideas to consider.

1. Stay together. This may not be what you want to hear, but counseling is cheaper than paying for two households. While this won't be appealing to a lot of couples, others may see the logic. If it is not a dangerous situation, maybe the economy will encourage some couples to try harder to save their marriage. There are excellent counselors available everywhere. They can be effective, if you make the commitment and really try hard to adjust and make changes. For many people, there is still value in their relationship and often there are kids who can benefit from an intact family, if the parents try to resolve their differences.

2. Refinance. If you don't want to stay together, maybe you can refinance. The key is to work with a mortgage specialist who is well connected in the mortgage industry. If you can find a mortgage specialist who focuses on people who are going through a divorce, you may discover that there are several different ways to solve your financing problems. You might be able to get some cash out or maybe you can lower the monthly payments so that one of you can afford to keep the house.

3. Lease your house. If you can't sell it and don't want to stay in it, maybe you can lease your house to someone else. There can be tax benefits from that and it can help your cash flow as well. It does take either a professional property manager or a willingness to provide or supervise the property maintenance and make sure the rent is received on time.

4. Sell creatively. Some couples are selling their homes by having a lottery. They sell a large number of inexpensive chances to win the house. You might be able to get some free publicity by donating some of the proceeds to charity or by using the money in some fashion that would be appealing to the public. Another approach is to have an auction. Don't let yourself be limited to selling in the traditional manner. Talk to some marketing people for ideas!

5. Wait for Congress. There is a huge push in Washington to come up with new programs to help solve the mortgage/housing/economic crisis. There will probably be some new programs in the very near future to help avoid foreclosures. The new programs could include ways to help you sell your house (by improving the credit markets) or make it more affordable so you don't need to sell it.

Couples going through divorce often need to sell their homes for various reasons. If you are facing that issue, consider using one of the approaches mentioned above. If you have any other ideas for solutions, please share them by sending a comment.

Don't Try This at Home (Without a Lawyer): The Perils of Representing Yourself

Sometimes people decide to try to represent themselves in a divorce case. That's almost always a serious mistake. If you can't afford a lawyer, and if you have any assets or debts to divide, you might be better off waiting to file for divorce until you can afford to hire a lawyer. In Tarrant County, courts don't have the legal authority or resources to provide free attorneys for people who can't afford them, except in very narrow circumstances, which don't usually include divorce cases.

If you find yourself in a divorce and you don't have the funds to pay an attorney, you are probably better off negotiating a settlement than you would be in going to trial. If you try to negotiate without an attorney to help you, keep in mind that you probably don't have the leverage to get much of what you would like in settlement. Nevertheless, you would probably come out worse if you went to trial.

There are many problems you will likely encounter if you go to trial representing yourself in a Fort Worth, Texas family law court. In general, you will be required to act like an attorney in many ways, even though you don't have the training or experience. Here are some of the obstacles you will face, especially if there is an attorney on the other side.

1. Local rules of court. Tarrant County family lawyers are required to follow a set of local rules of court that were set up specifically for Tarrant County family law courts. The rules set out duties and deadlines, among other things. Failure to comply can result in penalties and possible exclusion of evidence and issues.

2. Procedural rules. In addition to the local rules, there are other rules that must be observed. The Texas Rules of Civil Procedure and various sections of the Texas Family Code, as well as some other Texas and federal statutes, must be complied with. Like with the local rules, failure to follow the other procedural rules can result in penalties and possible exclusion of evidence and issues.

3. Knowing how to present or object to evidence. Simply put, you may not be able to get evidence accepted for consideration by the court if the evidence is not properly offered. There are different predicates (preliminary requirements), procedures and authentication steps which must be followed. Texas law has a number of rules of evidence which must be complied with. For example, if evidence is considered to be "hearsay", you probably won't be able to present that evidence in court, no matter how much you want the court to hear it. Watching a lot of TV or movies will not prepare you for getting evidence into a trial.

4. Knowing what is realistic to expect a court to do. In a slightly different vein, it really helps to have an attorney who is experienced in Tarrant County family law courts because that attorney will have a pretty good idea about what is realistic to expect a court to do. Part of the strategy of a case is evaluating the possibility of an outcome that a party wants. Sometimes it hurts your case if all or part of what you ask the court to do is unrealistic. That may be based on the law (what the law permits) and/or on the judge's preferences. Judges are human and can get upset or annoyed if they feel like their time is being wasted. There are so many cases pending that judges cannot afford to waste time on trials that are absurd. Asking for something the judge won't or can't do may result in adverse ruling in other areas as well.

5. Properly dealing with experts in court. Whether the expert is there for financial testimony or psychological issues or something else, there are certain ways to properly ask questions of experts. There are also many improper and objectionable ways to ask questions. This is a specific area where a non-lawyer may not know how to get admissible evidence in front of a judge. An experienced attorney can often tie up another attorney on issues involving experts. It would not take much for an attorney to block a non-attorney from getting expert testimony in.

6. Making the best impression possible. With experience, an attorney learns skills and gains insight about persuasion and communication. Knowing how trials proceed and often knowing something about the judge's preferences give an attorney a great head start in making a good impression in court.

7. Avoiding upsetting the judge. Judges are human and they can get ticked off, some easier than others. With experience, attorneys usually learn what they can get away with and what they should avoid with certain judges. A person representing him/herself lacks that insight and runs the risk of offending a judge and that can affect the outcome of a case.

Divorce is a very serious matter. It is life changing. There can be huge consequences financially. Children's issues are being determined by a stranger. If you are facing a divorce, you should only represent yourself as a last resort. Instead, you should explore every financing option available, including taking a loan or maybe using some home equity, so that you can hire an attorney. In Fort Worth, and throughout Tarrant County, Texas, there are many fine family lawyers who charge a variety of rates and make many different fee arrangements. If you can't find one you can afford, keep looking.

Finally, as another alternative, if you end up representing yourself, try being realistic, be reasonable and be ready to compromise. Even with your own attorney, those are things you need to do. For some reason, parties who represent themselves frequently seem to be unrealistic, unreasonable and uncompromising. Help yourself by being aware of what you are doing and try to act in a manner that will lead to settlement. In almost every case, settlement is preferable to a trial for many reasons.

If you would like to share your experiences representing yourself or with your spouse representing him/herself, please send in a comment.

It's Tax Time!

Once the calendar flips over to January, people inevitably start thinking about filing their income taxes. Some look forward to getting a nice refund. Others start worrying about how they will pay whatever taxes they owe. Still others don't have any idea where they stand. When couples go through divorce, their tax lives often become much more complex. I'm not going to try to give tax advice here, but there are some things for you to look for and think about as you start planning your taxes.

Let me start with my conclusion: You need to see a CPA to make sure the taxes are done correctly and that you don't end up paying more than your share. Here are some of the issues to consider:

1. Especially this year, in the midst of the economic crisis, there are many changes in the tax laws. It takes a professional to keep up with the changes.Tax breaks come and go. It would take a lot of time and study for an amateur to correctly know all the changes.

2. While it is tempting to just rely on tax software and do your own taxes, especially if you have done it in the past, you may not be up to the task this year. If you are in the middle of a divorce, there are many decisions that have to be made on the taxes and it would pay you to get help. President Obama's new Treasury Secretary, who was a high official with the Federal Reserve Bank in New York, used a software program, made a major mistake with his return and almost didn't get confirmed as Secretary. He could have avoided that problem if he had used a competent professional.

3. Make sure you and your spouse both don't claim the same deductions, exemptions and credits. That frequently happens during divorces. That requires communication and a professional to help find the best course of action.

4. Be careful if any of the following happened, or you think may have happened, in the last year:

• a house was sold,
• debt was forgiven,
• someone was unemployed,
• funds were withdrawn from a retirement plan, or
• a family business went under.

You should have a CPA help you analyze the situation. There are many other potential traps in the tax laws.

5. If you are separated, but not divorced, you should figure out whether it is to your advantage to file a joint or separate return. A CPA is best able to look at all the factors and recommend a course of action.

Hopefully, these comments will persuade you to seek guidance from a CPA for the tax issues you run into when you file a tax return during a divorce.

Are "Sleep Overs" Allowed?

Fans of the just-ended series, Boston Legal, will remember the silly question that Alan and Denny frequently asked, "Sleep over?". On that show, it was often part of the end of the episode banter between the two lawyers. If you enjoyed the unusual humor of the show, you probably chuckled when the question came up.

In real life, the sleep over question comes up sometimes in post-divorce relationships where there are minor children still in the home. Sam Hasler, who writes an excellent blog called Sam Hasler's Indiana Divorce & Family Law Blog, had a recent post about the sleep over issue in Indiana and how their new visitation schedule will deal with the issue.

The issue still arises in Texas when a parent begins a relationship with someone new and wants to have the new romantic partner spend the night when the children are present. Our standard visitation schedule doesn't address the problem. There is actually no absolute answer to the question in Texas. Most often, it comes down to what the local judge will permit and the judge will have a lot of latitude to decide. There are, of course, moral issues which are paramount and clear cut for some people. Others may not hold the same moral position and that's where the courts come in.

If you are not dealing with this as a moral issue, the bottom line becomes what's in the children's best interest. Most judges, in Tarrant County at least, discourage ("prohibit") sleep overs until the parent is married to the new person, although that can vary a little based on the children's ages and the length of the relationship with the new adult. Some judges and child specialists will recommend not even bringing around a new paramour until the parent has been dating that person for 6 months to a year. Some parents will be impatient with that, but it normally will be in the children's best interest to avoid bringing a variety of new prospective step-parents.

Sometimes the court will explicitly order no sleep overs. Even without such an order, parents should think twice about bringing strangers around their children and keep in mind how confusing and upsetting the experience may be for the children. If regular visitation is taking place, or if time is being split pretty equally (which is getting to be more common), there will be plenty of opportunities for the parent to pursue dating activities with one or more adults without the children present. When the parent has the children, it's probably going to be better to focus on the children instead of splitting one's attention between the children and a boy/girlfriend.

If you think about what's best for the children, instead of just what would be more fun for you, the answer is pretty easy. What do you think?

Is the Economy Affecting Divorces?

One of my favorite blogs is James J. Gross's Maryland Divorce Legal Crier. James can make a point very succinctly and his posts are usually both entertaining and enlightening. His post today certainly fits that description. I have heard the question over and over about whether the economic downturn/recession/or worse has an effect on divorces. Here is his response.

“'Are divorces going down in these hard times?' The question came from a woman at one of the holiday parties upon learning I was a divorce lawyer.

"I allowed as how many couples are opting to ride out a bad marriage because they can’t sell the house, or they can’t afford the lawyer fees, or their income won’t cover two households.

"'But others,' I said, 'find that now is just the right time to get rid of an unwanted spouse.'

“'What others?' she inquired of me.

“'Why wealthy husbands, for one, with businesses, stock, options and pensions down about 50%, may find this a good time to buy out their spouse for cash at these lower prices, expecting an eventual recovery.'

“'And trophy wives, in the face of layoffs and rumors of layoffs, may decide the right time to leave is while their husbands are still employed.'

“'I never thought of that,' she nodded, and wandered off to get some more punch."

That all fits with the observation about how some people see problems and others see opportunities.

How to File for Divorce in Tarrant County, Texas

A common question I see is about how to file for divorce. Here is a general, simple explanation of several of the steps that go into filing for divorce. Each case may be different and your case may involve more steps or fewer steps. This is just to give you a general idea about how to file for divorce in Tarrant County, Texas.

Step 1. Do your homework and come prepared. When you go to your attorney's office to start the process, you need to bring various types of information. The attorney will need information on you, your spouse and all the children: full names, dates and places of birth, driver's license and Social Security numbers, and date and place of marriage, among other things. The attorney will probably have a long form for you to fill out and you might be able to request a copy in advance so that you can fill it out before you come in.

You also need to be able to explain your immediate concerns and needs. You should also think in advance about your short-term and long-term goals. You may have financial or custody issues, or both. There may be personal safety concerns as well.

Step 2. Decide how you want to proceed -- Collaborative Law or full litigation. You can start in litigation and switch to Collaborative Law, but it's really better to try to start in Collaborative if your spouse is willing. It doesn't hurt to try to get an agreement to use Collaborative Law and many people will welcome it once they learn about it. On the other hand, in some cases, Collaborative Law may not be appropriate, so litigation must be used. You and your attorney can choose the best course of action.

Step 3. Your attorney will get specific information from you to prepare the pleadings. "Pleadings" are the court papers that are filed -- the petition and sometimes a temporary restraining order (TRO) are filed at the outset. The petition is usually fairly brief and has the basic background information about the parties. It may also contain specific requests for your case and may include grounds for an unequal division of property or special terms for child custody of support. The person filing for divorce is the "Petitioner".

Step 4. The attorney files the petition with District Clerk. If a TRO is requested, the order must be taken to a judge to be signed and then we go to the Court Coordinator to schedule the hearing. If a TRO is issued, it is not in effect on the Respondent (your spouse) until a copy is actually delivered to your spouse by an authorized process server, which can be an approved civilian process server or a deputy sheriff or constable.

Step 5. Your spouse gets notice of the lawsuit. This can be accomplished either by having the papers served by an authorized process server or by handing the papers to the Respondent (your spouse who will respond to the petition) and then having him or her sign a "Waiver". The waiver is a document that says that the party has received a copy of the court papers and does not need to be formally "served" with a copy by a process server. A waiver must be notarized and should be carefully read before signing.

These are some of the common steps followed in initiating a divorce in Tarrant County, Texas. The process should be about the same anywhere in Texas, but there may be some differences from county to county. You should consult with your lawyer about how he or she normally proceeds.

Remember that these are only the first steps in what can be a long process!

Checklist to Prepare for Divorce

January is traditionally the busiest month for filing for divorce. If you are thinking about filing, or preparing to file, for divorce, here are some steps you should take.

1. Gather all the financial records you can. Make copies and download all the financial records you can for at least the last year, or even better, for the last three years. These include pay stubs from work, investment account records, credit card statements, phone and utility bills, bank statements, mortgage records, insurance information and tax returns. There may be other relevant financial records as well. When in doubt, keep a copy. Put the copies in a safe location where your spouse cannot get them.

2. Plan ahead so you don't just react to your spouse or the situation. Plan when to start (file). It's usually a good idea to be the first one to file, and you need to carefully consider whether you should file and then notify your spouse or if you should discuss divorce and then file later. The first approach is a little more aggressive than the other one. Sometimes it's appropriate and sometimes it can lead to bad feelings. You have to try to anticipate your spouse's reactions.

3. Put yourself in your spouse's position and try to understand his/her point of view. You need to think about what s/he wants, how s/he will react, what s/he will say and how to motivate him/her. If you only consider what you want or need, you will have a harder time getting the divorce resolved on favorable terms. Unfortunately, perhaps, the system takes into account both parties to the divorce. You can do better in proposing a settlement or in court if you know what matters to your spouse.

4. Find a good, experienced attorney you are comfortable with.

a. Where? Referrals from other attorneys, other related professionals or the Internet. It's a good idea to get information from several different sources and then compare the suggestions. You should not hire someone sight unseen.

b. Interview the attorney and ask questions that you have thought about in advance. It's a good idea to write down the questions so you don't forget them. Feel free to disagree or question the attorney. Ask lots of questions. The attorneys don't mind. In fact, the interaction can help the attorney decide whether or not s/he thinks the client would be appropriate.

c. Find out the attorney's suggested approach and decide if that is the way you would want to proceed. Some attorneys take basically the same approach to every case. Sometimes it is very aggressive and some may be very conciliatory. Other attorneys will explain a wide range of options and help you evaluate which benefits you in your unique situation. Some attorneys try to make all the decisions and tell their clients how things will be handled. That may be great for certain clients. Other attorneys will let their clients make informed decisions after the options and ramifications have been explained. You must decide which approach you like.

5. Have access to some money to get started. You will need money for an attorney, but you will also need money to pay your bills. You may need funds to pay for new housing. You might need the money right away, or it could be in the future. Many people going through divorces end up charging expense, including attorney's fees, on credit cards, and many also end up borrowing from parents, other family members or friends. Be creative and think about as many sources as you can so that you are prepared for difficult times.

6. Be certain and be comfortable with the decision. Getting counseling for yourself before you file could be very helpful. That would allow you the opportunity to explore your options and make sure the decision and the timing are right. But, you should expect second thoughts and doubts about your decision. Divorces rarely start out with both parties fully and irrevocably committed to divorce. Work with any professionals necessary until you reach your comfort point, whether it is an emotional decision or one made after you learn how the legal process works. If your spouse if committed to getting a divorce, your lawyer will probably tell you that the divorce is inevitable unless the spouse changes his/her mind. In that case, you may need to take steps to protect yourself even if your heart isn't in it.

7. Figure out how to tell:

a. Your kids. Coordinate with your spouse. You may want to talk to a counselor about this before you have the discussion with your children. Make it age appropriate. Don't give more information than the kids need. Reassure the kids that they will be loved and cared for. Make it clear that the divorce is not the kids' fault.

b. Your spouse. Here's a good post I wrote a while back (12-15-07) about this topic. It's specifically about Collaborative Law, but the approaches apply to divorces in general as well.

c. Your family and friends. Decide on the timing and the message. Usually, the less information that is passed around, the better. You can clue in the especially important people with more information, but don't assume that you can "win" the divorce by convincing your friends by giving them one-sided information. On the other hand, you may be pleasantly surprised by the support you receive from people who didn't previously express their opinions to you.

There may be some other things you need to do to get ready for a divorce, but this checklist will give you a head start. Good luck.

A Few Quick Questions -- Divorce Deadlines

There are several issues that have different ending dates in Texas divorces. Here are some that people often wonder about.

1. What is the cut-off date so that anything earned or acquired belongs to just one of the parties? Using some legal terminology, when does the community estate end?

Answer: It ends when the divorce decree is signed by the judge. That means that community property can change in value, up or down, even after the parties are separated. That is true whether the parties are separated for 60 days, 6 years or longer. It used to be that we talked about the increase in value since the parties separated. Now, we have to consider the real possibility of a decrease in value since separation.

Example: Many people continue to make contributions to a retirement plan after they are separated from their spouse. Those contributions and any increase in value (generally) will be community property and are subject to division by the Court, up to the date the decree of divorce is signed by the judge.

2. When is new debt created by my spouse no longer my responsibility? Can I put a notice in the newspaper to terminate my responsibility?

Answer: New debt created by your (ex)spouse after the decree of divorce is signed by the judge is not your responsibility. Up until the decree of divorce is signed by the judge, any debt may be a community obligation which both parties may be held responsible for. After the decree is signed, you are each on your own.

Example: If either spouse charges on a credit card after separation, those charges may be a community obligation up until the decree of divorce is signed.

Publishing a newspaper notice saying you are no longer responsible for your spouse's debts doesn't help you.

3. Why is there a 60-day waiting period and how does it work? Why can't we get divorced immediately if we both agree?

Answer: It is a cooling off period mandated by state law. It begins the day after someone files for divorce. The idea is to give people time to think over the major decision they are working through. A divorce cannot be granted until the petition for divorce has been on file with the court for at least 60 days. That waiting period cannot by waived by a judge or anyone. Wait means wait.

4. When is the Answer due?

The Short Answer: It depends.

The Slightly More Helpful Answer: There are actually different answer dates for different documents. Each pleading, request, etc. should spell out the answer date. You should carefully read over anything you receive to determine when the answer is due. The documents should say when an answer is due or they may explain how to calculate the due date. If you are represented by an attorney, you should show the attorney any documents or notices you receive. The attorney can tell you when and if an answer is needed.

Reminder: These are superficial comments and are not intended as legal advice. Please consult with an attorney to review the application of the law to your unique situation. Divorces always have their own special characteristics that need to be considered when deciding how to proceed. Be aware, though, that courts take deadlines very seriously, so you should, too.

5 Creative Tips for Using Home Equity During Economic Uncertainty

In many marriages, one of the biggest assets is the equity in the house. Even thought we are in the midst of tremendous financial uncertainty, there are still several options that can be considered when dealing with home mortgages when it comes time to divide marital property in a divorce.

1. Sell the house and split the equity. The house can be sold and then the equity can be divided between the parties. Of course, in various parts of the country, house values have drastically plunged, which reduces the net equity upon sale, if the house can even be sold. Fortunately for us locally, the Fort Worth and Tarrant County housing markets have felt minimal effects from the housing downturn. For the immediate future, it looks like it will be possible to sell a house and still come out in pretty good shape, at least as compared to other parts of the country. Of course, a relatively new house for sale in an area with continued (or recent) new building will be hard to sell, so the local market isn't good all across the board. Still, Tarrant County house sales are reported to be pretty strong.

2. Consider the equity as just another asset. If one party wants to keep the house, it may be possible to keep the house and just offset the equity with other assets. In other words, the other party can keep other assets that total the same in net value as the house equity, so both parties are happy. It is pretty easy to get a house appraised and to find out the current mortgage balance on the house. The difference, which is hopefully positive, is the equity. Be sure to consult with your attorney or CPA about the tax implications of various assets when you are thinking about how to divide them up.

3. Refinance with cash out. There can still be refinancing, although the rules are tighter and there is less cash available. If you want to refinance, check with your attorney for a reference for a mortgage broker who may be able to help you. With the tighter credit market, a higher credit score will probably be required, but brokers are still anxious to work deals within their guidelines.

4. Cash out through an owelty loan. A specialized form for refinancing is to get an owelty payment from the house equity. This is a form of refinancing utilized in Texas that provides flexibility and a fairly easy way to withdraw cash from house equity. Again, your attorney may be able to recommend a mortgage broker who can help you.

5. Reverse mortgage. It may also be possible to get a reverse mortgage if you are at least 62 years old and there's sufficient equity in the house. Cash is paid out to you and you don't have to repay it as long as you live in the house. Various lenders provide this service which is relatively new in Texas. Make sure you understand how it works before you sign up for it. It can provide cash even when you are retired or have low wages.

If you are in the situation where your house is the major asset, you can consider using one of the above approaches for getting cash or the value of cash for your interest in the house. Talk with your attorney about who to contact. It helps to have a budget and to plan for your future wants and needs. Do you want the house? Can you afford to pay for it? Can you afford the extra cost if more money is borrowed against it? Would cash be better for you? What are the tax consequences? These are all issues you need to carefully consider with your attorney and possibly a financial advisor, such as a CPA.