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!

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.