Tuesday Tip: Phone Calls

Plan Ahead

If you want to save some time and money on your divorce, plan your phone calls to your lawyer before you pick up a phone. Organize your thoughts.  Write down all the questions you can think of.  Try to figure out solutions ahead of time and then you can discuss them with your lawyer. Sometimes it's hard to reach your attorney by phone, so make each call count!

Want An Amicable Divorce?

The stereotype of divorce is a bitter fight between former lovers who now hate each other.  That is an image that often shows up in movies.  While that is what happens sometimes, a more common situation is two parties who have grown apart or who are tired of fighting, whether it's over almost everything or over just a few issues.

What I'm seeing more of is people looking for an "amicable divorce".  There's no single definition of that term, but generally it refers to a divorce where the fighting is minimized and is relatively civil when it occurs.  While that may not seem normal to some people, it is actually pretty common.

Here are some reasons why someone may be looking for an amicable divorce.  The parties ...

• agree that they only want to use 1 attorney, usually to save money, but sometimes just to avoid fights brought on by the second attorney.
• don't want to make the divorce into a big fight.
• need help figuring out a few things even though they have worked through most issues.
• want to hold the costs down.
• want a fairly quick divorce, or at least are not opposed to it.
• have just grown apart over the course of a long-term marriage.
• still love or care for each other.
• have kids (sometimes grown) and they don't want to upset the kids.
• believe in fairness.
• sometimes, mainly are looking for an attorney to act as a scribe to write up the papers based on their agreements.

So, how can you and your spouse get an amicable divorce?

Rule #1:  choose your attorney wisely. Some lawyers don't believe in amicable divorces.  Look for a Collaborative attorney.  He or she will be more open to customizing and creating new solutions.  Plus, a Collaborative lawyer will already be attuned to a peaceful resolution.

Avoid any lawyer you don't feel comfortable with.  Avoid non-refundable retainers.  Also, if someone insists on a course of action that you don't want, for example having a temporary hearing, or tells you exactly what to do or how everything will go.Some lawyers don't listen to their own clients.

Remember, almost no divorce is inexpensive, but you save money by not fighting.  If you have assets or children or any difficulties, there will be some cost associated with it.  Divorce is normally not cheap, but an amicable divorce should cost much less than a divorce with a lot of fighting in it.

Stay on good terms with your spouse. That saves money.

Be able to explain how the deal meets your spouse's needs as well as yours.  The deal must be mutually beneficial if you want to keep the divorce amicable.

Good luck!

Great Expectations: What Do You Have in Mind?

A lot of people contact my office to find out what they can get in a divorce.  That's such a broad question, it's hard to answer.  I normally respond with another question:  What do you want? As a starting point, I think it's better to focus on what's important to you and to not waste time on things you don't care about.

One skill I have learned (one of many, actually) from Collaborative Law is to really focus on my client's needs, interests and goals from the outset.  While some attorneys still prefer to take charge and tell their client what to go after and how to do it, I like to start by finding out what's truly important to my client.  That often involves digging down below the surface to understand why different issue and outcomes may be important.  I don't just make a superficial list.  I work with my client to make sure important and relevant goals are what we are seeking.

Here are some typical approaches we often hear.

1.  For some people, I hear that they want to get the divorce over with as cheaply as possible.  While I believe in handling a case in as cost-efficient a manner as possible, divorces with significant issues involving children or assets are rarely cheap.  Unless both parties are determined to agree on everything and not fight, there will be significant expenses.  There are ways to cut down on some expenses, especially in discovery and in having multiple hearings, but you have to weigh the need for information or court direction versus the cost involved.  In general, you should have discussions with your attorney at the outset and throughout the case about the fees so you are  informed about the amounts being charged and the need for the attorney activities.

2.  In a related vein, clients will sometimes want to get the divorce over with as quickly as possible. That is often a bad idea.  It is usually accompanied by major concessions by the party in a hurry and sometimes shortcuts are taken where discovery isn't fully developed to make the other party confirm some facts or issues.  The result either way is usually the party in a hurry comes out on the short end of the stick.

3. Some people are most interested in getting certain assets or outcomes.  That could be determining that financial support will be necessary for a while post divorce.  It could mean that certain retirement assets are important because the client will not be in a position to build up such an account in the future.  The important issue could be getting as much time with the kids as possible.  When there are significant issues like those, a party should probably not be looking to take a standard solution or just let the Judge decide. If you are in this situation, remember not to tip your hand and let your spouse know how important the issue is to you.  It could put you at a disadvantage in negotiating.

4.  Having a friendly, respectful divorce is very important to some people.  That might lead to using Collaborative Law.  If not, it is still sometimes possible to have a friendly divorce if both parties and the attorneys want to do so.

5.  Some clients want to take a business-like approach to divorce.  They want to cover all the bases and do things right.  They are methodical and not too emotionally involved.  That can be a very good way to proceed, but it's hard to take the emotion out.  If both parties want that approach, it can be very calm and efficient.  If one party is emotional and angry (yes, it happens sometimes!), it makes it hard to deal with everything like a business decision.

6.  Unfortunately, sometimes one party wants to punish the other party.  While there is usually good reason on some level for that attitude, the result is usually delay and a great deal more cost.  It is generally a waste of time and money, but a lot of attorneys won't explain that.  I prefer not to get involved in that approach because it costs the client more, doesn't usually improve the outcome (especially considering the extra attorney's fees involved) and in the end, both parties are unhappy.

7.  Some people will say that they want a certain outcome "as a matter of principle".  They will often say they don't care what the cost is.  Unfortunately, the cost usually becomes a factor and those people end up very upset because of how expensive the divorce has become and how little they got out of the divorce.  It almost never ends happily. When people start talking about principle, they need to pause and think about it and what the principle may cost them.  It's a good discussion to have with their attorney at the outset.

An attorney who tries to control the divorce case often has problems because the attorney makes a number of assumptions which may not match up with the client's needs and expectations.  If you are looking for an attorney, I recommend that you find one who will listen to you and help you define and pursue your specific needs and interests. Listen to the attorney if he/she says your objective may be a bad or costly idea. You will be much happier with the result. 

Why are Divorce Outcomes Different in "Similar" Cases?

When people go through divorces, they usually turn to family and friends for comfort and support.  That's normally good. However, when family and friends also give advice about how to handle the legal issues, there's usually trouble.  Non-lawyers often find it easy to assume that what is true in one person's divorce will also be true in their divorce. And that's usually NOT true!

If you are going through, or are about to go through, a divorce and you are hearing "legal" advice from family and friends, here are some reasons why the advice will probably be wrong.

1.  Beause the facts and circumstances were probably different from your situation.  Some factors that may influence the outcome include:

• Responsibility for the problems.  The outcome can be influenced by one party being primarily responsible for a major problem, such as wasting money or other assets, having an affair or being uncooperative and causing problems regarding the kids, for example.
• Length of marriage.  The shorter the marriage, usually the less spousal support is ordered.
• Actual earnings and earning potential.  If both spouses make similar wages, there probably won't be much support exchanged.  If there is a big difference in earnings, there may be support.
• Children or no children.  That changes the issues and sometimes the resources that can be divided.  Having children also adds a number of potential issues.
• The type and extent of assets.  That has a big effect on how and how much is divided. Bills could be paid and cash could be distributed, if there is cash or cash flow.  If not, finances will be tight.
• Health.  If one or both parties have health issues, that will probably affect the responsibilities they have and the assets to be divided.
• Education of the parties.  More education usually will lead to better jobs and income.  Less education is often associated with less income.  That may have an effect on how the assets are divided.

         There are many other possible facts and circumstances that vary from case to case which will affect the outcomes.

2.  Being in a different court, with a different Judge, may mean a difference in which issues are important.  For example, some Judges will overlook adultery, while others make it a central, determinative issue that greatly affects the division of property.  Each Judge has different hot buttons and focuses on different issues.

3.  Willingness of one party to accept less can have a huge effect. Often, one party is much more anxious to get the divorce over with than the other is.  The more anxious party often will agree to many more concessions than the other party will.

4.  Lack of money can also determine the outcome.  While Judges try to equalize the funds for attorneys usually, it doesn't always work out that way.  Usually the deeper pockets will be able to come out better.

5. Different attorneys approach things differently.  Two attorneys, like Judges, will often see the same case with different issues and outcomes.  One attorney may try to max out the recovery while a different attorney will focus on getting a reasonable amount of assets without breaking the bank or without causing damage to family relationships.

There are always 2 or 3 or a dozen ways to handle a given case.  Don't assume that your case will come out a certain based on how a "similar" case you heard about was resolved.

Instead, hire an attorney you are comfortable with and come to an understanding about how you will approach the case, and then work to stay on target.  Come up with your own plan instead of assuming that the result is predetermined!

How to Prepare for a Peaceful Divorce

Often, people become hurt and angry when it becomes clear they are facing a divorce.  In most cases, the divorce should not be a surprise, but sometimes it is.  While some people can overcome their anger at the situation and their spouse, others can't.  Attorneys will tell the parties that if one person wants the divorce, it will happen eventually.  Many times angry people seem determined to make life difficult for themselves and their spouse as they go through a divorce.

On the other hand, there is a large number of people who have had time to process the emotional issues of their divorce and are more interested in having a peaceful divorce.

For the people wanting to have a peaceful and civilized divorce, here are some suggestions to follow:

1.  Try Collaborative Law. Ideally, if there are issues to be resolved, the parties should use Collaborative Law.  I have written many other posts in this blog and my Texas Collaborative Law blog about how Collaborative Law works and the advantages of it. If there's any way to get your spouse to agree to use Collaborative Law, you will both benefit.

2.  Think about, identify and define your goals.  Figure out what you would like to end up with after the divorce is finished. What would you want your life to look like? There's no automatic plan in the Texas Family Code for dividing property.  Even issues around the children have room for some variations. You will be much happier at the end if you are constantly thinking about your goals, needs and interests while you work on finding or creating solutions.

3.  Be realistic.  Don't ask for more than is even possible.  Consider that your spouse has needs also, even if you are angry at him or her.  If you are realistic and reasonable, you will have a greater chance of reaching agreement and avoiding an expensive battle in court.

4.  Get professional help.  It's no admission of weakness to talk with a counselor and get help with the stresses and emotions of a divorce.  It can make your life easier if you will get counseling and follow through with their advice.

5.  Pause and think before you speak.  You will have many occasions to speak to and about your spouse.  What you say can result in anger, hurt feelings and retaliation.  Holding your tongue and not responding to provocation can pay off in the end.  You don't need to escalate things.

6.  Avoid pushing your spouse's buttons.  You know what you can say and do that will trigger anger in your spouse.  You don't need to strike back like that.  Everything can escalate quickly and that's not good for either of you.

7.  Look for common ground.  It may seem hard, but you can find things you can agree on.  If you start with a few small agreements, it makes it easier to agree on bigger issues.  That's true for both sides.

8.  Gather and share information.  You can try to withhold information, but it will normally come out eventually.  Courts are geared up to enforce the production of information.  They aren't foolproof, but they can sure eat up a lot of cash as the attorneys fight over documents.  Save yourself time and money by being cooperative. It will also help generate goodwill.

9.  Think outside the box.  Don't limit yourself to mechanical, by-the-guidelines solutions.  Be open to completely new ways to work things out.  Get whatever help you need and be creative. A solution doesn't mean someone has to lose.

10. Leave your ego out of the picture.  You don't have to "win".  You can decide what would satisfy you and your needs.  There are always different ways of looking at things.  If your spouse feels like he/she "won" and you are satisfied with the result, that's great!

If you follow these tips, especially the one about choosing Collaborative Law, you will have a peaceful divorce. By the way, a peaceful divorce will be a lot cheaper than a hotly-contested one!

What Does it Take to Finish?

A couple of days ago, I got a call from a woman who was upset because her divorce was taking a long time to finish.  She had an attorney (not me), but was thinking about changing because the divorce wasn't finished up. She thought by now, it should be over.

I found out that she had filed, temporary orders had been made, they had completed discovery by responding to the requests of each party and both parties wanted the divorce to be over with.  I guess she thought everything would easily fall into place.

The missing ingredient seems to be "agreement".  Without that, it will take longer to finish.  

Here's what people in that situation should expect:

• The attorneys will go to Court and prepare a scheduling order with deadlines and a final trial date.  Normally included in the schedule is mediation, a very effective way to settle the case.
• Mediation can be set up soon since discovery has been finished.  If they were still missing some information, the attorneys would probably hold off setting the mediation until the information is produced.  It's hard to mediate and settle with incomplete information.
• Reach agreement.  This is usually accomplished at mediation or in follow-up negotiations.  

Then as they say on TV, "but wait, there's more":

• Paperwork.  There's a final decree or court order.  It's usually very detailed, so it's enforceable.  There may be a wage assignment form and some other forms the attorneys prepare that you don't have to deal with.  There may be a deed or deeds, a power of attorney to change a car title and some other miscellaneous papers to be signed.  Even though attorneys deal with these documents all the time, it is still time consuming to produce and proofread them.
• Prove-up.  One or both parties, with attorneys, will appear at court to briefly prove-up the divorce.  It's a simple hearing, but the Judge needs to hear testimony in most cases to be able to sign the papers.

If you don't reach agreement in mediation, you will have to wait longer for resolution.  Your trial date is very often 9 months to a year after the date of the scheduling conference at Court. After a trial, you still have to do all the paperwork and then get it signed.

By the way, her divorce had only been on file for about 3 months when she called me.  I had to tell her that her divorce was still a very young one, that if they didn't agree, it would probably take another 6-12 months to get to trial.

If you're in a hurry,  you need to settle. 

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!

Don't Forget the Kids!

In divorces, children are often fought over and fought about.  Sometimes there are responsible parents and often one or both parents are not responsible.  As a reminder for parents going through divorces, or starting to think about going through a divorce, here are some of the major concerns that children may experience when their parents are divorcing. You need to be prepared with reassuring responses.

1.  Where will we live?  Will we have to move?  Can we stay in this house?

2.  Who will I live with?

3.  Will I still have the same friends?

4.  Can I still play with ________?

5.  Will I get to see (my mother, or father)?

6.  Do I have to go see ________?

7.  Will I stay in the same school?

8.  Will there be enough money to pay the bills?

9.  What if I don't like the new house, neighborhood, school, etc.?

10. How will I get around?

11. Will my parents stop loving me?  Will they leave me, too?

12. Will my parents move away?

13.Did I do something wrong and cause the divorce?

If you are approaching a divorce, or going through one, think about these concerns.  You should do your best to minimize the problems for your children.  It would be a good idea to get a counselor for your children, as well as for you. No one is really prepared for the emotional and other issues that crop up during a divorce.

Do yourself and your children a favor and get some help from a professional counselor, in addition to the legal help from your attorney!

Can I Have My 12-Year-Old Child to Talk with the Judge?

The quick answer:  Yes.  

This is one of the most common  questions for Internet  searches that bring people to this blog, so I want to update my previous response. 

The Texas Family Code has been revised  -- no more written statements or battles of affidavits by a child.  It used to be that a parent who wanted his/her child to come live with him/her would talk it up over time with the child and then get the child to sign a statement saying he/she wanted to live primarily with a certain parent.  Naturally, the original parent would then pressure the child and get a similar written statement signed favoring the original parent.  Thankfully, that is no longer allowed.

Now, we can have a child talk directly to the Judge in most cases.  Hopefully, people will stop and consider whether that is a good idea.

Why do it?  People think it will help their case.  If their kid chose him/her, surely the Judge will go along with that.  It might work out that way, but it may also backfire and the Judge may figure out some undue influence has been exerted, or the Judge may figure out that the child has been manipulating everyone.  In any event, the Judge is not bound to do what a child requests.

Another problem: Stress.   Having to talk with a Judge will put a lot of stress on the child, not to mention the stress of having to choose one parent over the other.  Children often tell  each parent  that they want to live with  them.  Kids generally don't want to chose one parent over the other. They want to live in peace and usually want good relationships with both parents.

A different type problem is sometimes created:  empowering a child who then believes he/she can call the shots.  Some children realize the power they have and take advantage by holding out for rewards like a car, phone, video games, computer or other expensive item that the other parent won't or can't provide.

Finally,  when either or both parents try to influence the child, Judges have been around the block a few times and they can usually sniff that out.  If Judges detect that activity, they don't appreciate it and they will probably hold it against whoever chooses to do it.

Better choices: try a Collaborative approach and work together, or work with a counselor to generate ideas, or go to mediation, or have both parents go to a counselor (maybe include the child)

My bottom line:  Keep the kids out of the middle!  The adults can pursue their preferences for custody without trying to get the kids to take sides.

Why an Aggressive, Mean Lawyer will Cost More Money

The other day, I was visiting with a highly educated man who started to tell me about his experience with divorce.  That's not an unusual situation.  Everyone has stories from their own experiences or their family or friends' experiences.

Anyway, as it turned out, he was happy with the second attorney he used.  It seems the second attorney was a "barracuda" and the man is now convinced that's the way to go.  The first attorney wasn't aggressive enough.  I know and respect both attorneys, but I would rarely ever agree that the barracuda approach is the best.  Let me explain.

1.  Reasons for wanting a mean lawyer.  The most common reasons I have heard are the following:

• For revenge or out of anger:  In a divorce, emotions can be raw and revenge is quick to appeal to someone with hurt feelings.
• To get a more favorable result:  Some people think the only way to get a great result is to "beat up" or overwhelm the other party.  Those people assume that the aggressive lawyer will have the client's goals in mind and will attain them.
• To counteract the lawyer on the other side:  Many people believe that it takes fire power to fight fire. That may be true if the other attorney is a mean, aggressive attorney, but there's no need for that approach if the other attorney is just a regular, reasonable attorney.

2.  How does it work?  The mean, aggressive lawyer will be constantly attacking.  The attorney will file motions and set numerous hearings.  Conducting a war in discovery is a common tactic.  The aggressive lawyer demands a lot of information and is very stingy in giving out information.  The attorney tries to focus on what the other side has failed to produce or failed to do.  The idea seems to be to batter the opposing party and wear them out so that they will settle on terms favorable to the aggressive side.

3.  What are the results?

• Many times, a party will get some revenge and work out some of the anger.
• Almost always, there will be a smaller pot to divide.  The constant battling is very expensive, which means the attorneys get a good share of the community property and the parties divide a significantly smaller amount.
• The process will take extra time.  Fighting takes time.  To do a good job, the aggressive attorney will generally set the case for trial, about a year away, and spend the interim time whaling away at the other side.  Plenty of attorneys' fees get earned in that year.
• The fighting is pretty stressful on you.  At first, it might seem wonderful, but after a while, it just feels tiring and stressful.  Keep in mind that the other side will always fight back.
• Financial pressures rise.  So much time and effort are devoted to the fight, that the attorneys' fees keep rising.  In almost every divorce, there are financial problems because suddenly there are two households trying to live on a budget that often barely covered one household.  Then, add two attorneys and various experts, and you will really begin to feel financial pressures.

 4.  Consequences

• Cost -- at a time when cash is in short supply, it gets burned quickly in attorneys' fees and the estate to be divided between the parties is greatly reduced in size.
• Destruction of relationships -- if there are children, there will be future occasions when both parents need to be near each other and be civil or even friendly.  That can be hard to do if really nasty things are said and done during a divorce.
• Lost opportunities -- oftentimes, people will cooperate and sacrifice voluntarily in a divorce if they are treated respectfully.  Working with the other party, compromising and listening to the spouse can all lead to cooperative efforts to settle a case and try to salvage relationships and assets.

5.  Are there alternatives to going into battle mode and using a really mean, aggressive lawyer?  Of course! Almost every case ultimately settles.  There can be direct 1-on-1 negotiations between some parties. In most litigated cases, a court will order mediation at some point.  That's usually successful, but it often occurs late in a case, just before trial.  Finally, there's Collaborative Law, a relatively new process where the parties agree to not go to court.  Instead, they have a series of direct discussions with the help of a lawyer for each party and a neutral therapist and neutral financial advisor who work with both parties.  Collaborative is my preference, but if we can't do that, mediation is certainly a good option.

If you are facing a divorce and someone tells you that you need to hire the meanest lawyer in town, think about whether you want to spend that money and whether you want to further damage or destroy relationships.  You owe it to yourself and your family to at least talk with a trained Collaborative lawyer to find out if Collaborative might work in your case.

Just so you know, in my opinion, Collaborative Law could work in almost any case, as long as there are two trained Collaborative lawyers representing the parties. For more information, see my Texas Collaborative Law blog.