Fuzzy Logic

James Gross has another succinct comment in his Maryland Divorce Legal Crier blog that deals with a common misperception of people going through a divorce or of the "advisers" to people going through a divorce. Many people have trouble with the fact that there usually are no clear, definitive answers to most of the questions they have during a divorce.

"Lots of my clients are computer consultants, engineers, scientists, economists, investment bankers or accountants. They ask me questions about their cases and they want clear answers. Before I became a lawyer, I was a chemical engineer, so I know something about how they think.In math class there was usually one right answer and everything else was wrong. They are looking for the one right answer. I remember staying up all night at college with my study group working through the equations to get to that one right answer.

"After math, chemistry and physics classes, law school was a shock to me. I still recall the first day of Contracts when Professor Joe Covington asked me stand up and explain to the class what 'justice' means. I am afraid I did not do a very noteworthy job of it.

"I excelled in classes where the rules were hard and fast, like Civil Procedure, for example. But I did not fair as well in those classes where the concepts were harder to get a handle on, like Torts. I can empathize with the puzzled look on the faces of my 'math and science' clients when I explain divorce law to them. It is a human system and humans are full of flaws. There are no right answers – only probabilities.

"They are uncomfortable with these fuzzy answers. But I sometimes remind them that, even in their world, they deal with unknowns, such as the Heisenberg uncertainty principle, dark matter, string theory and Shroedinger’s cat."

Like James Gross, I often remind clients that they cannot use logic to figure things out in divorces or family law matters. Even when there are "rules", there are often exceptions and ultimately, human beings make judgment calls. Emotions can easily overrule logic when a party to a divorce is making decisions. It's best not to rely on someone else being logical in a divorce context. If you need to persuade someone on a point, you will be more effective if you analyze the other person's motivations and try to appeal to them. Forget about logic!

Children’s Extracurricular Activities: Appropriate Or Excessive?

I just ran across the following post by Robert L. Mues of the Ohio Family Law Blog. For me, because of a case I am involved in, it is a very timely post. I believe a number of parents (and children) can benefit by considering the issues Robert raised. Extracurricular activities sometimes become points of contention during and after divorces, as well as in intact families. I highly recommend the post to help anyone struggling with such issues.

"This is the first of a two-part series dealing with children’s extracurricular activities. Next week, I will address the impact the divorce may take on a child’s extracurricular activity schedule when the parents have conflicts with each other.

"There is no doubt that extracurricular activities can be very beneficial to a child. According to a recent study by the Nellie Mae Education Foundation, children who participate in after-school programs are more engaged and have a better attitude about learning, perform better academically and enjoy an increased sense of accomplishment, competence and self-esteem. Additionally, participation also lowers children’s risk of becoming depressed, using drugs and alcohol, and experiencing other behavioral problems.

"Recently, while researching this topic, I came across an excellent article about how to choose after-school activity(ies) for children at www.scholastic.com. It also gives a breakdown discussing appropriate types and numbers of activities per week which are recommended based on the age and maturity of the child starting with kindergarten through middle school. The article offers advice which will help a parent determine if it is time for their child to start an extracurricular activity, what’s the best option and how to find a good program.

"Recently, Gregory Ramey, Ph.D., a child psychologist at Dayton Children’s Hospital and Dayton Daily News columnist, addressed a similar inquiry from a reader wondering if a child can be too involved with an extracurricular activity. Here the reader was asking about their 15 year old daughter, Maddie, who’s been involved in gymnastics since she was three years old and practices about 16 hours during the weekdays and competes on weekends year round. In response to that background, Dr. Ramey gives advice on how you can tell if your child’s dedication is beneficial or excessive.

• Be mindful of the effects on the entire family. While it’s great that kids are passionate about something, you need to carefully assess the impact on others, particularly siblings. Family life involves endless compromises in trying to balance the needs of adults and kids. In families with a high achieving teen, other siblings may inadvertently pay a high cost. The support of one child shouldn’t come at the cost of other family members.
• Keep the activity in perspective. While we don’t want to discourage kids from their passions, they do need a reality check about the significance of their activity for their future educational and vocational aspirations. Maddie’s mom has made it clear to her daughter that 'school is number one.'
• Be willing to walk away from the activity. There have been times when Maddie has encountered tough times and wanted to end gymnastics. How would her mom and dad have responded if she wanted to stop gymnastics? 'My parents are really into it…they wouldn’t be too happy.' Disappointment and frustration are inherent in the passionate pursuit of excellence. There are times when you should offer encouragement and not allow your child to give up when confronting difficulties. However, you should anticipate and be willing to accept the reality that there may be a time when your child abandons their passion for other pursuits.
• Regularly assess the real value of the activity. Most of our kids will never grow up to be professional baseball players or gymnasts. The value of their commitment is less in the acquisition of athletic skills and more in habits and friendships that persist long after the activity has ended. Maddie’s mom described the peer support that Maddie gets daily in the gym as '…the kind of friendships you don’t often get in life.' Maddie has also learned about discipline, persistence, and time management - habits that will serve her well throughout her lifetime.

"Dr. Ramey concluded that, “The child may never back flip her way to the Olympics, but I suspect she will be a successful person in whatever she does.” Click here to read Dr. Ramey’s full article.
One of the points clearly made in the scholastic.com article mentioned above is that it’s important to watch your child for signs of over-scheduling. “In younger children, this most often takes the form of irritability, avoiding eye contact and tantrums. In older children, look out for mood swings, recurrent sickness, such as stomach aches, and complaints about the activities themselves. At any age, if the school work begins to suffer, it’s time to cut back.” Click here to read the full article, by Toby Leah Bochan, at scholastic.com.

"One of the points clearly made in the scholastic.com article mentioned above is that it’s important to watch your child for signs of over-scheduling. 'In younger children, this most often takes the form of irritability, avoiding eye contact and tantrums. In older children, look out for mood swings, recurrent sickness, such as stomach aches, and complaints about the activities themselves. At any age, if the school work begins to suffer, it’s time to cut back.'

"While balancing children’s extracurricular activities can be difficult in a conventional intact family, read next week’s blog article where I discuss the impact that a divorce may have on juggling a child’s activities and parenting time."

There are some very practical ideas about how to evaluate the impact of extracurricular activities that should be helpful to many people. I also encourage you to read other posts in the Ohio Family Law Blog.

What's in a Name? Can I Take Back My Name from My Ex-Wife?

A question that comes up occasionally is whether a husband can make his ex-wife change her last name so that she no longer uses his last name. The short answer is NO.

While adults can change their own names either as part of a divorce or as a separate action, the Texas Family Code does not provide a means to force someone else to change her name.

So, if you can't force her to change her name, can you talk her into it? Maybe, but there are some difficulties associated with the name change. She would have to change her driver's license and Social Security card. She would need to change over credit cards and loans. In other words, your ex-wife may not want to put up with the aggravation of changing everything, just to make you happy.

One other factor is the presence or absence of children. If you and your wife have children together and they have the same last name as you and your wife, she may not want to change her name. On the other hand, if your wife does not have children with your last name, she may be less tied to your name. Or, if your wife has children with a last name different from yours, she might be interested in changing back to that name.

Another factor is that if a husband is pushing hard for his wife to change her name as part of the divorce, she may decide not to go along with it, just to annoy her husband. (Imagine such behavior during a divorce!)

Conclusion: You just don't have much control over someone else's name.

Finally, everything else being equal, husbands should be aware that wives who have used another last name for a short period of time often will be more inclined to change their name.

Conclusion: You just don't have much control over someone else's name.

Can My 12-Year-Old Decide to Live with Me?

No. One of the most common mis-perceptions about Texas law is that once a child turns 12, he or she can decide where he or she will live, meaning the child can decide who has custody.

I would ask all parents out there to think about how many major decisions a 12-year-old gets to make alone and have the decisions bind his/her parents.

• Whether to attend school?
• Whether to do homework?
• Whether to drink or do drugs?
• Whether to get a tattoo or piercing?
• When to start voting?
• When to start driving?
• What films to view?

Those are all major decisions that parents, generally, don't abdicate to the children. Courts don't either. And state law doesn't either.

The reasons: lack of maturity, lack of experience, lack of knowledge and lack of legal capacity. Basically, we know children are usually not prepared to make serious decisions. Some children may be perfectly capable of making some of those decisions, but usually, that is not the case.

If you read the section of the Texas Family Code dealing with a choice of conservator, the Code does permit a child of at least 12 years of age to file a written statement to name the person the child prefers to decide his/her primary residence. In other words, a child can sign a written statement stating his/her choice for custody.

The key phrase follows that part of the Code: "subject to the approval of the court". In other words, the judge always makes the final decision. The child does not get to make a binding decision.

My suggestion is to keep the children out of the court system. They don't need to be involved in choosing sides. Kids usually lack the maturity to make a good decision. Plus, it puts kids in the middle between the parents, and that's not good. If necessary, the judge can interview a child (at least 12 years of age) to find out some facts about the case. Even then, it is unlikely that a judge will ask the child to name who should have custody. The parents are perfectly capable of finding and presenting all the necessary facts for a judge to make the decision.

What do you think about letting kids have a say on this topic?

Can I Get a Do Over?

Recently, a reader sent a comment in response to a post in this blog. The comment asked for legal advice about what could be done in a specific situation in her case. I do not answer such requests for advice for someone who is not a client, but the comment did raise some interesting points about a situation that many encounter. What can you do if you want to change the terms of the property division in your divorce decree after it is final?

The simple answer is: "Nothing." The real answer is: "It depends." Note -- on kid issues, such as possession schedules, custody or child support, you can simply file a petition to modify. On property issues, it's a different ballgame.

Technically, there's nothing that can be done once the judgment is final. Of course, if the second thoughts hit soon enough, the judgment may not yet be final and you can file a motion for new trial or a motion to reconsider. That generally needs to be done within 30 days of when the judge signs the decree of divorce or signs an order overruling a motion for new trial or takes some similar action. These deadlines are critical. If you figure out on the 31st day or later that you want the ruling changed, you are probably out of luck.

If you realize the need to change the terms, or if your circumstances change dramatically, soon enough, you can file a motion with the court and try to convince the judge to set aside the original decree of divorce. With the economic turmoil we are experiencing, there might be a new situation that is compelling to a judge, but don't expect a judge to reverse a prior ruling just because things haven't turned out the way you expected. Getting the judge to set aside the decree of divorce is still a long shot.

But, whether you can actually do something to change the decree of divorce, outside of the first 30 days of when it is signed, depends. It depends on whether you and your ex-spouse can reach an agreement. In many cases, you're probably out of luck. If you don't get along with your ex, you probably can't get him or her to agree to change the terms unless you can show that the change would be in his or her best interest.

What can you do to avoid the problem of being trapped by property division terms that just don't work? Here are my suggestions.

1. Think ahead. It's hard to see into the future, but be aware of what's going on in the world and try to anticipate your needs in the future. Don't just blindly ask for 50% of everything. Put a little thought into your proposal for property division.

2. Don't burn your bridges. Sometimes, you can't help it, but other times there is a possibility of having a mature, civilized relationship with your ex-spouse. That is especially true when there are children involved. Even though you may strongly dislike your former mate, try to be nice because you may need a favor down the line.

3. Try to be agreeable. If you reach an agreement to settle your divorce, you probably have a better chance of reaching other agreements if you need to change things in the future. You can often do things by agreement that a judge would not, and perhaps could not, do.

4. Don't procrastinate. If you see a problem developing that relates to the property division, consult a lawyer and look at your options. Do so at the earliest possible time so that you might be within the initial 30-day window. If you are well past that time, still act as soon as possible so that your ex-spouse will not be as entrenched as he or she may be later on.

5. Be persistent. If a lawyer tells you there's nothing that can be done, consult with another lawyer. Some attorneys are more creative than others and some are more willing to try out-of-the-box approaches. Lawyers have different experiences and perspectives, so keep looking around until you have exhausted the possibilities.

6. Find a reason for your ex-spouse to agree. Put yourself in your ex's shoes. What would entice him or her to agree to do what you want done? What's the benefit to him/her? Be prepared to sweeten the pot a little and give up a little extra to get the deal done.

7. Put your agreement in writing. If you are able to reach an agreement with your ex-spouse, be sure to get it in writing and spell it out so the agreement is clear. If nothing else, create a contract that is binding for both of you.

I don't mean to create false hope here. If you want to change the terms of the property division in your divorce decree, your chances are slim. But you do have a chance, if you act as soon as possible.

If You Need to Wait Because You Can't Afford to Divorce...

There is a lot of discussion going on about whether the number of divorces being filed is decreasing. Many observers say that is true because of the economy, and it makes some sense. As bad as a family situation may be, many people begin to feel that they can't afford to get divorced.

• Some people are experiencing the mortgage crisis in their lives. Home values are plunging in many areas, although not as much in North Texas. Tarrant County home values, so far, are still doing pretty well and houses are selling, but who knows for how long. Even so, it is harder to get mortgages now.

• Many people are losing their jobs. Again, although Tarrant County seems to be stronger than many other areas, unemployment has greatly increased. Everyone is eventually affected by what is happening everywhere else.

• The stock market fall has badly damaged many retirement accounts and investment portfolios. The values are down by a third to a half, sometimes more.

• With prices rising, even for those people lucky enough to hang onto their jobs, it is hard to pay for food, fuel, utilities and other necessities.

• Insurance costs are going up and coverage is falling. Health care costs are increasing. Anyone with health issues now certainly faces greater difficulty in paying for necessary services.

Given those circumstances, it's no wonder that people may be deciding to wait on a divorce until they can better afford it.

For people choosing to wait, here are some other options:

1. Get a post-nuptial agreement. Many people are familiar to some extent with pre-nuptial agreements. I have written about them before. A post-nup is like a pre-nup, only later. Texas law allows a married couple to sign a partition agreement to divide their assets and liabilities. It can also provide for how present and future income will be managed. While it is not cheap, a post-nuptial partition agreement is probably much less expensive than a divorce and it will accomplish about the same thing as a divorce as far as property division. An attorney would be needed for each side. I would suggest using Collaborative Law to work out the agreement on the best possible terms for both parties, so you would be best served by contacting Collaborative lawyers.

2. Do financial planning. This is a less dramatic step than doing a partition agreement. The couple could meet with a financial planner to brainstorm ideas to find the best way to manage their finances during the downturn and into the future. A lot of the stress people are experiencing is from uncertainty about survival now and in the future. Getting qualified help to plan a strategy may resolve the concerns and leave the parties in a better frame of mind. A certified divorce financial planner or a regular financial planner can probably help you with this.

3. Take steps to enhance your marriage. Getting counseling is a common suggestion, but it makes sense. If you feel like you can't afford a divorce, but one or both of you is miserable in the relationship, then maybe you should try to make the relationship more bearable. Sometimes a marriage retreat can be helpful. There may be some groups around that you could join. Or, you could go to individual and couples counseling. Things around the house might really improve if you and your spouse follow through with counseling. Even if your marriage doesn't survive, at least the divorce later on might be more civilized. First, contact a marriage and family therapist and give it a try.

If you are haveing serious problems at home with your spouse, but you think you can't afford a divorce, you should consider the suggestions above.

Alimony-- Craigslist to the Rescue

Craigslist has become known as a great Internet resource for buying and selling various goods and services. It is also a good place to look for a job or an employee. Apparently, a creative man has tried to find a way to save himself the money he spends each month on his ex-wife's alimony. Thanks to Robert M. Kisselburgh of the Mississippi Family Law blog for the following post:

"Man offers to pay for someone to marry ex-wife

"Imagine sitting at your computer and you are browsing the classified ads on Craigslist and suddenly you come across the following ad:

"'Nice well taken care of ex-wife. Mid 40's. Pretty and loyal. Never smoked and very little drinking. Will make someone a good companion (I know).... Will pay 10K to the man or woman who marries her in a way that stops me from having to pay her alimony.'

"There's the hitch. The man, trying to end his alimony payments to his ex-wife, is offering to pay a potential suitor to marry his ex-wife. Not being totally callous, the guy actually had some 'terms and conditions' for this transaction.

"'1. This transaction offer only valid if she is not aware of it.
2. Must treat her good, no abuse tolerated by me.
3. This offer is null and void if it is determined to be illegal in any way -- I am not a lawyer.
4. The end result must be that I am no longer liable to her for alimony and you make best effort to be good to her
5. This ad is not in any way intended to demean my ex-wife. She is a nice person and is a fine catch for anyone.'

"OOPS. I think the cat's out of the bag on condition #1. With news of the post hitting newspapers, she or some friends might find out. He might also have a problem with condition #3. At least he did not want to 'demean' his ex-wife in any way--what a guy.

"In Mississippi, if you are paying alimony to your ex, don't use this tactic to end the alimony. Not only will it fall flat in front of the judge, but you can be assured your ex will not find the humor in being marketed on Craigslist."

In Texas, there is a common misperception that there is no alimony. Actually, we can have a limited amount of alimony that can be court ordered, or the parties to a divorce can agreed to contractual alimony that is not as limited in either amount or duration. It is not unusual for a spouse to later regret an agreement to pay alimony that seemed like a good idea at the time.

A scheme like the one from the Mississippi blog is obviously doomed to failure, but so is almost any other plan to end alimony early. Alimony may have a lot of tax and income benefits for both parties and that's why we often use alimony in Collaborative cases and in other cases with substantial estates. What you should keep in mind is that an agreement for alimony should not be entered into lightly. The best course of action is for you and your attorney to work with a financial advisor to evaluate the tax consequences and to look for the best combination of settlement terms.

Woman Marries 23 Times

James J. Gross, of the Maryland Divorce Legal Crier, has a knack for finding interesting and offbeat stories that relate to marriage and divorce. I have reprinted the following item from his blog which got the information from nbcchicago.com. The story about a true believer is really appropriate for the Valentine Day season .

"Linda Wolfe of Indiana, born Linda Lou Taylor 68 years ago, holds the Guinness world record for being the most married woman in history. She’s said 'I do' 23 times, according to Matt Bartosik writing for nbcchicago.com.

"Linda’s first husband was George Scott in 1957, when she was 16 and he was 31. This was her longest marriage which lasted seven years.

"Her shortest marriage was for 36 hours to Fred Chadwick.

"In 1996, as part of a publicity stunt, Linda married Glynn 'Scotty' Wolfe in Arizona. Scotty was the most married man in the world. Linda was wife number 29 for him. But Scotty died the next year.

“'I would get married again,' Linda told The Indianapolis Star.

Do you know anyone who can top that?

If You Don't Agree with Your Attorney

When you are working with an attorney to resolve a legal issue, trust and communication are essential to maintain a healthy and productive relationship. Even with those elements present, there can be problems between the client and an attorney. Sometimes there are disagreements between the two and the relationship becomes strained. What can you do about this?

1. Have a discussion. Sometimes the attorney-client relationship is generally fine, but a small problem or disagreement comes up. If it's important to you, talk to your attorney about it. It could be a simple misunderstanding which can be easily fixed. On the other hand, it could be a sign of a major problem and you shouldn't put off dealing with it. Don't let your concern fester and build up. Please address it early on so it can be resolved in some fashion.

2. Get a second opinion. Consult another professional. Most attorneys will not talk with you while you are represented by another attorney, but there may be some things you can discuss with a CPA, a counselor or some other professional. You can research some issues, but there are a lot of limitations and pitfalls involved if you do your own research on the Internet, so I hesitate to suggest it.

3. Change attorneys. There are plenty of attorneys around. If you are unhappy with the job your attorney is doing, it is probably better for both you and your attorney for you to change attorneys. You may have a quality attorney, but there just may not be a good chemistry. Just because the attorney worked well with a friend of yours doesn't mean that the attorney will work well with you. Different personalities may not blend into an effective working relationship. Sometimes communication styles aren't as comfortable for one person as they may be for another. Just change attorneys so that you are satisfied. By the way, an attorney may want to terminate a representation relationship for the same reasons.

The main message here is to take some action and address any issues that concern you. Give your attorney a chance to explain the situation or learn of your concerns. If all else fails, go ahead and make a change before you or your attorney go too far.

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!