Tuesday Tips: Help Your Attorney Help You!

In every divorce, there are financial issues.  They may be about a home, investments, a business or businesses, retirement assets, bank accounts, employment benefits, debts or taxes, among other things.  Dividing assets and liabilities is at the heart of every divorce.  Some cases are more or less complicated than others, but finances are always involved.

In addition, when there are children, child support is often a consideration and that brings up the income of each party.  You will need pay stubs, tax returns and a monthly budget.

All of that means when you are getting divorced, plan on gathering and producing financial records for your attorney.  Those records are generally going to be shared with the other side, either voluntarily or in response to formal Discovery.  You will need bank and credit card statements, retirement account statements, mortgage statements, investment records and probably many other records.  Your attorney can tell what will be needed.

The sooner you provide financial information to your attorney, the sooner your attorney can understand the marital estate and start helping you meet your needs and interests.

Remember, there's no 50-50 rule in Texas for dividing assets.  You need to think ahead and decide what you want to end up with.  Your attorney can try to help you achieve you goals if the attorney knows your goals and needs and if you have provided the information the attorney needs.

Sometimes you may not have access to all or some of the financial information.  Your attorney can request that information from the other side, but you need to give your attorney some information to know what to look for and ask for.

Be an active partner in your own divorce.  Help your attorney by providing financial information as soon as possible!

Tuesday Tips: Don't Try to Do-It-Yourself Without Your Own Attorney!

In these days with a contagious "do-it-yourself" attitude about so many things, many people have taken that approach to getting divorced.  That may be a mistake, unless it is a very short marriage, with little or no assets, and no kids.

Part of the motivation is to save money.  That's understandable, but keep in mind that you don't have to hire a high-priced lawyer to get good representation.  For smaller estates and parent-child issues, and even for more complicated estates,  younger, less-expensive attorneys can be fully capable of providing quality representation for you.  Just because an attorney charges a higher fee, that doesn't guarantee quality and doesn't mean that attorney is a good match for you.

So you can hire a good attorney and not break the bank. Should you hire an attorney or just go all out to save the money and do it yourself?

If any of these conditions exist, you should probably have an attorney assist you in resolving your divorce:

• You have children with the spouse.
• You or your spouse have retirement assets.
• You have investments.
• You have a house, with positive equity or negative equity.
• You have significant debts.
• You have been married for at least several years.

There are many different ways to handle those issues and you may not even realize the significance of some matters.  There are lots of rules in Family Law. It may not be easy to translate your ideas into legally-acceptable court orders.  If orders aren't drawn properly, they may not be enforceable.  You may lose all rights to some things if you don't deal with them correctly.

Don't assume that common sense applies to the law.

At the very least, you  should have a consultation with an attorney (or several) to check out your options and what their consequences are.  It may save you money in the long run.

Tuesday Tips: Don't Contact the Attorney General Without having Your Own Attorney!

In Texas, and many other states, the state Attorney General is very involved in collecting child support.  This activity is a result of a number of federal statutes that have given the AG the power to take various actions to assure that child support is being paid and is paid in the proper amount.

Although the AG technically does not represent either parent in child support matters, they are hardly neutral.  In reality, the parent receiving child support has a strong ally in the AG.  Their interests tend to coincide.
 
In addition, the Attorney General has certain responsibilities, ordered by federal and state laws, that they follow up on in most cases.  They often follow predetermined steps when a case is opened up.

Over the years, I have had several clients come to me after their contacted the AG on their own or responded on their own when the AG contacted them.  They came because there were problems.

Here are some potential problems when the paying party goes to the Attorney General:

1.  You probably don't know what you are doing, while the AG knows the law, their regulations and their procedures.  You may agree to something without knowing the consequences. Or, because no one was looking out for your interests,  you may not do something that you could have done to help yourself and save yourself money.
2.  When you go to the AG for help, they will probably open a file, but  they won't necessarily help YOU.  You are not their client.  They are not neutral in a helpful sense to you.
3.  You can start a chain reaction of events that leads to the opposite result of what you were seeking.  For example, your child support could be increased, you could be found in contempt and you might end up paying your ex-spouse's attorney's fees and costs.

The safest course of action is to spend a little money up front, have an attorney review your situation before you communicate with the AG. Then use your attorney if you take action regarding the child support.  Don't depend on the Attorney General to help you.  It's not their job.

April 1st -- Summer Possession Notice Deadline -- No Fooling!

A Reminder and Word of Warning:

In Texas, the standard possession schedule has a provision that the parent who is given the right to have the children for up to 30 days in the summer must notify the other parent of the dates when he or she wants the children.  That notice needs to be sent by April 1 each year.

If the parent with the possession schedule does not send out the notice by April 1, the standard provision then says that the parent's time is automatically the month of July, July 1-31.

If you don't want your time in July, you better send out your notice by April 1 or you better be able to negotiate a trade of time with the other parent.  Hopefully, you and your ex have a decent relationship and can talk.  If not, you need to adjust your plans.

Also Note -- your possession schedule order may not be standard. 

Always look at your order to determine your rights and obligations, and deadlines.

Why is it Taking so Long?

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

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

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

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

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

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

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

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

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

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

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

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

Please try to be patient.

An Expensive Way to Save Money

When the Texas Attorney General's Office gets involved in a family law matter, you better be prepared to defend yourself.  The AG will not represent mother or father officially, but can tilt the scales in favor or one side or the other.  When the AG is involved, you need your own attorney.

The Attorney General is required to act in some circumstances to collect child support, establish parent-child relationships (paternity), make sure medical support is provided for children, re-coup state money that may have been paid to a parent or child and modify child support orders, among other things.  The AG acts under federal and state law.

Important rights and obligations are affected by actions in court initiated by the AG.  Parental rights are assigned to parents, including custody, the powers to make educational, medical and residence decisions, and possession  (visitation) schedules.  Retroactive and future child support are ordered.  Judgments are granted for past-due child support.

Parents and alleged parents sometimes receive various notices from the AG about some of the issues mentioned above.   You may be required to appear in court or you may be notified to come to the AG's office to negotiate an agreement for paternity and support, or just support.

If you receive such a notice from the AG, don't ignore it.  You need to immediately hire an attorney and prepare for court or negotiations.

You are mistaken if you think the AG will spend a lot of time with you, listen impartially to your side of the story or take time to develop a special possession schedule for your special circumstances.  The Attorney General has thousands of cases and is understaffed.  They will efficiently deal with your case like they deal with thousands of others, unless you have an attorney present to help you.

If you think you can't afford to pay an attorney, shop around for a less expensive one.

Without an attorney, you can end up with the wrong amount of child support, a terrible visitation schedule and without the rights and powers of a parent that are important to you.  You may have lost custody without realizing what you were agreeing to.

Without an attorney, there is a lot of pressure to settle and sign.  That same pressure is there when you have an attorney, but then you have someone who can slow things down and do it right.

Don't think you get a "do-over".  If you make a deal with the AG and it's written up as a court order, it will be quickly signed by a Judge and it will be very hard and EXPENSIVE to undo, if you are even able to do so.

Bottom line:  You need to spend a little money to protect yourself and your children.  It will save you money in the long run!

New Year. New Start.

With a new year upon us, you may be deciding to take charge of your life.  You may be in a marriage that you know is going nowhere and which is slowly draining you of your energy and happiness.

Even with that realization, change can be tough.  People get comfortable in the known situation even if they aren't really happy.

Should you stay in a bad relationship that you know and understand, or should you file for divorce and enter a new and unknown stage of your life?

That's a question that you have to answer.  As long as you stay in a bad relationship, you will see the question again and again.  Maybe you can go to counseling or make other changes, or maybe it's time to leave.  Again, your decision.

January is the frequent filing month for divorce.  Many people decide in advance and wait until after the holidays.  Others make it through the holidays and then decide enough is enough.  If you are tempted to separate and file for divorce in January, here are some suggestions for you:

• Plan the timing.  Decide when it is safest to separate and when you are prepared.
• Plan where you are going to live.  You could stay in the same house, you could move out or you could try to get your spouse to move out.  Have a definite plan, including when, where and how you will make the transition.
• Plan your finances.  Work out your post-separation cash flow plan, with both income and expenses.  Have as much money as possible set aside for your expenses and security.
• Tell essential family members ahead of time.  You may need their help and you don't want them to be shocked and trying to talk you out of it when you separate.
• Safeguard what's important to you.  Secure and remove personal things that are important to you, regardless of value.  This can include jewelry, photos, books, personal papers, family items and other things that have sentimental or other value.  These type items often are held hostage or "lost" during the course of a divorce. You can avoid that with planning and acting early.
• Plan how to break the news.  If your spouse doesn't realize that you are thinking separation or divorce, decide whether it's safe or advisable to discuss the move in advance. Sometimes it's good and sometimes it works out badly.
• Research for the right attorney.  Consider things like:

1. Chemistry -- Interview the attorney and decide whether you feel a connection.  Plan to pay for the initial interview. 
2. Communication -- Talk with the attorney about whether you want frequent communication and what method of communication you prefer.  
3. Affordable -- Different attorneys charge different amounts, both in hourly rates and in retainers.  There are good attorneys who can handle your case at different costs.  Try to be realistic about what you can afford.

• Gather financial documents for your attorney to review.  My blogs and website have information about what is helpful.  You should ask your attorney what he/she needs.
• Finally, try a little empathy.  Spend a little time in your spouse's shoes.  How will he/she react? With anger, relief, agreement, revenge, blame or rationality?  Try to anticipate the reaction and that will help your attorney and you be more effective.

There's a lot to do  if you are wanting to get a fresh start.  Divorce is serious and you will do a lot better if you look and think before you leap!

Having Happy Holidays!

December can be one of the best times of the year or one of the worst. With the holiday season comes  opportunities for families to get together and spend extra time together.  When families are split up, the time has to be divided. Often one parent feels short-changed, and sometimes events don't fit neatly into court-ordered possession schedules. Usually, however, with the passage of time parents can get into a rhythm of sharing time with the kids and everyone can operate in that system.

Here are some suggestions to help avoid major child-related problems around the holidays.

1.  Avoid possession fights. Do what you can to avoid court fights.

• Review your court orders early.  If there are no orders in place, you need to make plans, as does the other parent.
• Talk well in advance if you need a change. If there are court orders, you can still work out something different if both sides agree.  If there aren't court orders, you both need to  plan ahead.
• Be willing to compromise.  You don't have all the power. Neither does the other parent.
• Keep it away from the kids. Even if you don't like what your ex does, don't discuss it with the kids.
• Model good behavior.  Bad behavior will make it harder to get an agreement with your ex.  Good behavior shows your kids how adults can deal with adversity and still be friendly.

2.  Don't make court your first option.  Courts are crowded and you may have trouble getting in during December.  It's also expensive to go to court.  Don't count on getting the other side to pay your fees. If you go to court, you lose control over the outcome.  You're generally better off to work things out somehow.

3.  Consider other options.

• Work with a therapist.  More and more, we refer clients to a neutral therapist who helps them come to a reasonably quick, less expensive agreement that both sides can feel good about. Working with a therapist who is experienced with these type issues is a great solution and you may be able to deal with some longer term issues as well.
• Use a mediator.  Even without attorneys, for the limited issues of some holiday time-sharing, mediation can be a quick, relatively economical alternative.
• Have attorneys negotiate.  This can be a little expensive, but experienced attorneys can come up with compromises that work and that are similar to what a judge might order. If you meet with an attorney who just recommends filing and going to court, please get a second opinion. You are usually better served by negotiating.

Good luck in working with difficult issues.  Happy Holidays!

Who Do You Want to Decide Your Future?

Here's a simple rule for divorces:  Despite what some people think, divorces are not simple or clear cut, unless there are literally no kids and no assets.  That eliminates cases where there kids, but you think you can agree on everything; they are still complicated.  That rule also eliminates cases where there's a retirement plan, real estate, debts, jointly owned assets or many other complications.

For most divorces, that means that someone has to make some decisions.  The possibilities are you, your spouse, you and your spouse together or a judge, in most cases.  So who do you want making the decisions?

1.  You?  That would be easy, but it's not likely your spouse will agree.

2.  Your spouse?  You wouldn't want to agree to let your spouse make all the decisions.

3.  You and your spouse?  That might work, depending on how you do it.

4.  A judge?  Most people, when they really think about it, don't want a stranger who doesn't know them or care about them making decisions to determine their financial and parenting futures.

So how can you and your spouse keep control of the decision-making?  Here are three options:

1.  On your own.  This sometimes works, but the most common outcomes are lop-sided agreements where one party has taken advantage of the other, or the parties get mad at each other and the discussions blow up.  You are lucky if this approach works, but someone is probably going to be taken advantage of.  If this approach doesn't work, you still have two other options.

2.  Mediation.  Mediation is a great process, but parties can still be taken advantage of if they don't have attorneys.  I am a mediator and strongly believe in the process, but everyone needs to be prepared and the parties really benefit from working with an attorney before and during mediation.  Without attorneys, the parties may overlook some important rights, issues or solutions.

3.  Collaborative law.  This is a process that requires that the parties have attorneys from the outset, but everyone also agrees to not go to court.  They agree to have a series of meetings, to work toward announced goals, and follow a logical process of working through issues to reach agreements. In Texas, we usually bring in a neutral therapist and a neutral financial advisor to help both parties. They actually help the process move along more smoothly and efficiently.  For complicated matters, this is the best process, in my view.

Consult before you commit.  If you are faced with a divorce, you should meet with an attorney to discuss the issues, even if you plan to not hire an attorney to represent you.  It would be a good opportunity to discuss the above options and pick out what works best for you.

DIY -- Danger!

For various reasons, more and more people are choosing to handle divorces and other family law issues without using an attorney.  Sometimes it's just to save money.  With so much information available on line, many people decide they can produce their own legal documents.

Sometimes, it works out fine.  That's especially true when the parties have a short marriage or have virtually no assets.

However, when there are children involved, or when there are assets such as retirement accounts, real estate, bank accounts, investments or separate property, you need a lawyer.  If you don't know what separate property is, you need a lawyer.

If you are so inclined, there are different levels of possible lawyer involvement. You can have an expensive or inexpensive lawyer.  You can have full-service representation, someone who prepares documents for your negotiated settlement or just someone to look over the paperwork you created.

Problems:  If you choose to handle legal issues without attorneys, here are some things that can happen.

1.  The right words or wording are not used.  There are words in divorce paperwork that have specific legal meaning and impacts.  A big problem is enforceability.  Without the right wording, a wonderful agreement cannot be enforced.  It's worthless.  The underlying idea and commitments may have been great, but later on, the agreement is unenforceable which matters a lot when the parties stop being cooperative with each other.

2.  Negotiations are less effective if you don't know or understand strategies in negotiating.  That can make all the difference.  If an issue is not approached appropriately for the parties involved (and their egos and their motivations), you may not get an agreement at all.  Negotiating with a soon-to-be-ex spouse can be very difficult even when things aren't too heated.

3.  A dominant party may run over the other side.  In many marriages, one party tends to dominate the other and one party is often much less informed about the finances than the other party is.  An attorney can manage the information gathering and the discussions, which can reduce or eliminate the domination by the other party. 

4.  It may be nearly impossible to undue a preliminary agreement.  A review after a partial agreement has been reached may be meaningless.  Many people want to negotiate with their spouse, reach some agreements and then ask a lawyer if the agreements are good.  That's obviously a way to reduce attorney's fees, but most people tend to be reluctant to give up benefits they bargained for and got.  In other words, a preliminary agreement is often considered a final, binding agreement by one or both parties.  There may be no revisions.

5.  Parties may reach agreements that will cause tax or other problems.  If alimony isn't done right, the IRS may disallow it and impose taxes, penalties and interest on one of the parties.  A homestead exemption may be lost if real estate is mishandled.  There are many potential problems that parties unrepresented by an attorney might miss until it's too late.

6.  "Common Sense" is not a legal procedure.  A common sense solution may not work at all or may not be enforceable at court. Law is complicated and people often get advice and forms from people in other states and the forms and approaches won't work in Texas.

7.  Agreements may not be binding.  If they aren't properly prepared and approved, they will be worthless.  For example, agreements to allow for direct payment of child support, without going through the State Disbursement Unit, usually cause a great deal of trouble for the person paying, who often gets stuck paying twice.

Solution:  It's so much better to get a lawyer's advice and assistance! If you have assets or kids, you should try to protect what's important to you.