Thursday, November 5, 2009
If You Want to Settle Right Away...
In about half my cases, my client is anxious to get the divorce over with as soon as possible. That may be true because of a new significant other, a desire for a fresh start, being tired of his/her spouse, or countless other reasons. Sometimes, a party to a divorce becomes so anxious to finish the divorce that they will concede almost everything. Even with that attitude, sometimes it's hard to move quickly to a conclusion. Many times, though, a party wants the divorce to be completed right away, but remains unrealistic about how to reach an agreement.
A recent post in the Alaska Divorce Blog discussed this situation and recounted some advice from a judge at a settlement conference. That advice is worth considering, so I am reproducing most of that post:
"• In order to reach a settlement in any type of dispute, each party must be willing to make concessions. To make concession means each party must be willing to give up something in order to attain something.
"• It is unreasonable to expect a party to settle for a property division, which represents their worst outcome at trial. It is unreasonable for a party to receive what represents their best outcome at trial.
"• If a case is not settled, then each party gives up all control over the outcome to the judge (a third party) who does not know either party and may view what is important in the case in way, which neither party anticipates.
"• If a case is not settled, then each party gives up the opportunity to get divorce immediately and faces what could be months of delay until the trial date and many more months until the judge finally has time to make a decision.
"The point the judge was trying to make is that to settle a case both sides have to be willing to give up something in exchange for getting something. In addition, even though the parties in a divorce case are dividing one 'pie', frequently, there are other issues involved than how much of the pie each of them will receive in the property division."
Lawyers try to get the best deal they can for their clients, but the clients must seriously prepare for negotiations by analyzing their own bargaining positions and the motivations of their spouse. It really helps if both parties can take their emotions out of the discussions and approach the sessions as a business deal. They have to be willing to concede some issues to the other side. There needs to be a spirit of give and take. Both parties ideally will come out feeling they each won on at least some points. As the judge indicated, a settlement is not likely where a party ends up with the worst possible outcome they might have experienced if they had gone to court.
Remember, both parties will be thinking, "What's in it for me?" Successful negotiators have a good answer for that question.
Tuesday, October 20, 2009
Tips for Saving Attorney's Fees
Peggy Roston, who writes the Alaska Divorce Blog, recently had a brief post with some excellent common sense ways to cut down on attorney's fees. Most people going through a divorce or other family law issue are interested in conserving their funds and not over-spending for the attorneys. Here are Peggy's ideas:
"Divorce litigation is extremely expensive. Your attorney will charge you for the time he or she spends writing and responding to letters, emails, and motions. Some of the time your attorney has to spend on your case is unavoidable. But there are a few things that you can do to help your attorney handle your case in a cost-effective manner.
"• Communicate by e-mail rather than by telephone. Telephone calls tend to be more expensive because of the pleasantries exchanged before you and your attorney get down to business.
"• Keep your e-mails short and to the point. Your attorney may receive hundreds e-mails a day. If you keep your emails short and to the point, your attorney can respond quickly to the issue you have raised without having to wade through a lengthy email.
"• Organize your financial documents before you give them to your attorney. Parties in a divorce case must exchange tax returns, credit card statements, brokerage statements, bank statements, and personal property lists. Respond promptly to your attorney’s request for financial information. If you have personal or work time-constraints, I suggest you call your attorney to ask for a referral to a financial professional who can help you out. Having organized financial documents can save you hundreds or possibly thousands of dollars in attorney’s fees or paralegal fees and can keep your case moving forward."
In general, clients can save money by controlling their urge to call up their attorney to discuss every issue that comes up. It also helps to save money when clients take on as much of the preparation as they are competent to do. Gathering and organizing records is vitally important and can result in a signifcant saving of money.
Has anyone else come up with good ideas on how to save attorney's fees? Please send your comments with suggestions.
Friday, October 9, 2009
Responding to Provocation
I have just run across a new (for me, at least) blog called the Fresh Start After Divorce Blog, run by the National Association of Divorce for Women and Children, which had some really good, practical advice and inspiration for dealing with the transition from marriage to single person. Ellen Kellner wrote a recent post entitled "How NOT to React to Your Ex!" which I reprinted below. Her advice can work equally well for men or women.
"What is the cinching element to The Pro-Child Way? Mindfulness. It’s that moment where you stop reacting to your ex and let the stillness guide your heart. It’s the breath in, before you say something spiteful about your ex in front of your child. It’s the glance downward towards your child, before your eyes start rolling up in aggravation. Mindfulness is an opportunity – an opportunity that opens your awareness to choice.
"Mindfulness leads to the other way: the Pro-Child Way. Whereas another divorced-parenting path may have been previously obscured, mindfulness opens your eyes to other possibilities. Your challenge is to be aware that this other path exists and then recognize the opportunity before you pass right by it. Why bother? Because you have a child who needs to be considered.
"Thankfully, when it comes to divorce, we get many, many opportunities to practice mindfulness. If you’re lucky, your ex may be a jerk several times before noon – all lovely opportunities for mindfulness practice!
"After the first 'ex' incident, when you react with full divorced passion, do you find a moment when you think, 'hmmm, maybe I shouldn’t have said that.' If you do, grasp that moment: this is the call of mindfulness. Reaffirm that inkling, by saying, 'yes, I should have stopped before saying that.' And then move on, this isn’t about guilt trips!
"How much practice is it going to take to shorten the time between your ex’s provocation, and your realization that maybe you shouldn’t blurt out what’s on your mind? If you can come to that conclusion in an hour after the crime, why not in 10 minutes, or in 5 seconds? When you catch yourself reacting BEFORE you do it, not only will the angels sing, but also your ex’s mouth may drop. That’s when you can smile. That’s when you’re recognizing an opportunity for mindfulness.
So what’s next? Your ex just said something and you’re standing there smiling. Clearly, someone’s gotta do something next. This is the real beauty… you can choose! The possibilities are fun. In the flash of your smile your wonderful brain can create a zillion responses. As it discards the ones that will land you in jail, the more caring responses rise to the top. Slightly problematic are the times when the nurturing response is elusive. It happens. Here are two good standbys to have in your 'do' list:
"Do keep smiling, turn, and walk away from your ex.
"When you become better at multi-tasking, add vocal to the smile/turn/walk routine. Do sound 'hmmmm' then smile/turn/walk away.
"In your mindfulness, it’s much better to choose to say nothing than to react with an under-processed thought. It really doesn’t matter if your ex thinks you’ve lost it. It isn’t your ex’s opinion that matters anymore. Your child will benefit from your practice of mindfulness, and you will too. It’s from this point that you can start your journey down The Pro-Child Way."
A special thanks to my friend Sam Hasler of Sam Hasler's Indiana Divorce & Family Law Blog for the tip to read this blog. I agree with him that it is worth watching. I can recommend it to both women and men, despite the title. It won't help some people, but I can imagine a lot of men and women will feel better and more hopeful after reading some posts.
Friday, October 2, 2009
Top 10 Reasons a Premarital Agreement May be Invalid
A topic that comes up periodically is prenuptial agreements. Sometimes people plan ahead, think through the issues and come up with appropriate agreements that actually benefit both parties, or at least don't take advantage of one of the parties. As helpful as they can be, most often we hear about them when a couple is splitting up and there will be a huge fight unless the prenuptial agreement is valid.
Stephen Worrall, who writes one of my favorite blogs, the Georgia Family Law Blog, had a recent post about that issue.
"FindLaw has a list of 10 reasons which may cause a prenuptial agreement to fail. For more details, check out the original post, but this is a list of those reasons:
- No written agreement.
- Not properly executed.
- You were pressured.
- You didn't read it.
- No time for consideration.
- Invalid provisions.
- False information.
- Incomplete information.
- No independent counsel.
- Unconscionability. "
If you are wanting to end up with an enforceable prenuptial agreement, make sure that the 10 problems are avoided. Taking shortcuts and rushing through the preparation and signing of the agreement will almost guarantee that it will be unenforceable. Clearly, this is something that you need a lawyer to work with you and another lawyer for your soon-to-be spouse. If you invest the time and money up front, you should save a lot more at the end, if there is one.
Monday, September 28, 2009
To Be or Not To Be (Divorced)
Every once in a while, someone decides to file for divorce after a long separation and discovers a big surprise. Shannon Cavers, who writes the always-interesting Houston Divorce & Family Law Blog, had a post about the situation last Spring. In her post, Shannon mentioned a couple who had been separated for 22 years. During that time, the wife bought a house. Because the marriage had not been legally ended by divorce, the house was technically a community property asset which would be divided by the court. The wife evidently thought it was unfair that she had to share some of her house equity with the husband she had not lived with for 22 years.
In California, and perhaps other states, the values of the community estate are set at the time of separation, but that's not the case in Texas. Here in Texas, the community estate can change right up to the date that a settlement agreement is signed or the court announces its decision.
I have seen separations of 2 or 5 or 10 or more years. In each case, there are issues of potential or perceived unfairness if the court just divides everything in existence at the time of the divorce, regardless of whether the items were acquired before or after separation. In those situations, the house and retirement accounts are usually the biggest assets, but there may be investments that have grown in value or someone could have won the Lottery. The community debt situation may have drastically changed, either increasing or decreasing. If your spouse runs up a lot of credit card debt between separation and the date of divorce, you may get stuck for some it.
What can be done to avoid an unhappy result? Here are a few ideas.
- File for divorce when you separate. That's pretty obvious, but some people don't want to divorce for various reasons. Some people will stay married legally so that their spouse can keep insurance coverage. There may be other religious or moral or legal reasons to stay married.
- Sign a partition agreement. The parties can divide their assets and liabilities and cover future assets, just like a pre-nuptial agreement sometimes does. A verbal agreement won't work and writing an informal agreement between the parties probably won't stand up, either. A properly drawn partition agreement will protect both parties, but they each need to have attorneys to advise and assist them.
- Reach an agreement and rely on the honesty and dependability of your spouse. That's usually a bad idea.
My suggestion: Unless there's a need to keep the facade of a marriage, you should go ahead and get divorced. Both parties stand to lose if they just wait around.
Saturday, September 19, 2009
A Recipe for Happiness?
My premise is that, for many legitimate reasons, people going through divorces or dealing with other family law issues frequently are unhappy, stressed out and isolated. (How's that for a break through?) "Normal" may not be the technically correct term, but based on my experience in the field, I would say that it is normal for a litigant to be unhappy during a divorce or family law situation. That is true, from what I have seen, even in a Collaborative case, although usually to a much lesser degree. I feel sure that readers who have not been participants in a family law legal dispute have known or seen friends or family members going through the process and have observed the same unhappy state.
The traditional suggestions that lawyers make are either to "tough it out" or to get counseling. Some people refuse to get counseling because they don't want it on their medical records and don't want to be stigmatized as being crazy. That's somewhat understandable, but I have seen many cases where everyone (the judge, both attorneys, the other party and the kids, if there are any) would have been better off if one or both parties had gotten professional help. But, we generally can't force someone to get help. For the people who choose to get counseling, it can be a god send. But, it can be expensive and time consuming. There are lots of reasons/excuses for not following through with counseling.
So here's a thought coming out of left field. Try becoming active in the social media. There's no guarantee that this will work, but I read an interesting article by Warren Sukemek about happiness and social media and I think it's worth a try. He didn't write about it in the context of litigation, but this seems logical to me. Set up pages with Facebook and Twitter (or other social media sites) if you haven't already. It's very easy to sign up with both. Become a "friend" with an ever-widening circle and "follow" a large group of interesting people. The connections or re-connections you make may help you feel happier. If you're not sure what Facebook and Twitter are, do a Google search on the terms and read up. Then join. I am not a techie and I found it very easy. You can, too.
A word of caution: Think before you write. Your spouse/other litigant and his/her attorney may be able to see your comments. If you join and participate in social networks, what you write and what pictures you post will be in public view. Be careful that you don't say or do something you might regret later, even if you enjoyed saying or doing it at the time. I have posted on the topic before. You should assume that anything you write or show on the web will be shown in court to a judge or jury. Will it look good for you or hurt you? Think before you act.
Facebook and Twitter are only two of many different on line communities you can join and enjoy. Look around and start to make some friends and connections. Besides emotional support, you may get help with a new career or training or products you need. If nothing else, the social media can be entertaining. Enjoy it, but use discretion!
Thursday, September 10, 2009
Who Gets the Tax Exemption for the Kids?
Sometimes, one of the biggest points of contention in a divorce is something the state court has no real power to decide. That's the right to claim the federal income tax exemption for the children. The basic rule is that whichever parent has primary custody of the children gets to claim use the tax exemption. When the parents are designated as Joint Managing Conservators, they sometimes want to argue over the right to claim the exemption.
The Dallas Divorce Law Blog by the May Firm had an excellent, brief post that discussed the issue that came up in a recent Dallas Court of Appeals case. The Court again made clear the following points: (1) state courts have no authority to rule on federal tax matters, (2) the parent with primary custody gets the exemption, and (3) primary custody may be determined by figuring out which parent has more time with the children.
Figuring out who has the kids more can be pretty tricky sometimes, depending on what the possession schedule is. Now, there are a lot of different kinds of schedules. If both parents have the kids for alternate weeks, they could have very nearly equal time. The only difference might come in the holidays. Other schedules appear to have equal time sharing and present a similar problem.
What can be done? (1) You can go through the schedule and count the days or hours to determine the "winner". (2) You could agree to alternate years with the exemption. (3) If there are several kids, you can split the exemptions between the parents. (4) If there is a disparity of income, you could get someone to calculate the actual impact of the use of the exemptions for both parties and then make a rational agreement to maximize the benefit. (5) One parent could pay a sum to the other parent for the right to take the exemption. (6) You could both claim the exemptions and then sort it out with the IRS when they catch it -- THAT's the worst idea. Don't let it go that far. It's not worth it!
There are undoubtedly other solutions. The key to remember is to reach an agreement. Use your best judgment and reach some compromise agreement. It will save everyone money in the long run.
Wednesday, September 2, 2009
Don't Let Your Words Come Back to Haunt You
This post could be called "Think Before You Hang Yourself" or "Pause Before You Put Your Foot in Your Mouth." Peggy Roston, who writes the Alaska Divorce Blog, recently had an excellent post on a topic that seems to need repeating frequently -- the damage your statements, written or oral, can make. She talks about custody cases, but it is also true in just property cases or where there are non-custody kid issues. Judges have a lot discretion in making decisions. When you leave written or recorded evidence that puts you in a bad light, that can hurt you when the judge has to choose between your request and your spouse's request.
You may also have a spouse or ex-spouse who somehow always manages to appear or sound nicer than he or she is in real life. Unfortunately, the judge bases a decision on the evidence brought in before him or her. You want to be sure to avoid creating unflattering evidence about yourself. Here's what Peggy wrote:
"If you are involved in a custody case, you should assume that each text message and email you send to your spouse and each voice message you leave for your spouse will find its way into the file of your spouse’s attorney. If your case goes to trial, you can expect to see text messages, emails, and transcripts of voice messages marked as trial exhibits and used against you at trial. Likewise, your attorney will certainly use damaging text messages, emails and transcripts against your spouse at trial.
"So do yourself and your attorney a favor. Before you hit the send button, you should pause for a second and read over what you have just written to your spouse. Does your email/text message make accusations against your spouse? If so, you had better delete those accusations. Does your email/text message disparage, blame or belittle your spouse? If so, take the negative comments out of the email.
"Sending derisive emails or text messages might make you feel better for the moment. But they can seriously damage your custody case if they become evidence that you are not capable of promoting a good relationship between your children and the other parent."
Keep in mind that the judge will probably not have the whole context available when viewing or hearing derogatory messages. The other attorney will certainly try to use your words against you. Think, before you write or talk. You'll benefit in the long run.
Saturday, August 29, 2009
How to Find Hidden Assets -- Part 3
This is part 3 of an excellent article written by Warren R. Shiell in the Los Angeles Divorce and Family Law Blog with tips about how to find hidden assets. Tax returns were listed with some supporting schedules in the 2nd part of this post. The list below includes a variety of other items that may contain the "smoking gun" proving assets have been hidden.
"10. Safe Deposit Box Activity - Banks maintains safe deposit box records indicating when and who accessed the safe deposit box. These records will not indicate contents of a box or what, if anything, has been removed. If the first spouse was aware of the contents at the point when the records indicate the second spouse opened the box and something is now missing, he or she has a pretty good idea of who took it. This information can be subpoenaed.
"11. Cash Transactions and In Kind Compensation - One spouse may be a physician or a shopkeeper, or in some other work where cash is paid, or he or she may receive in-kind compensation, where something of value – other than cash – is given in exchange for services. Such cash payments or non-cash items are rarely reported on the income-tax return, but if you know of such income in the past and can subpoena current information, it will help in proving available income in excess of that shown on the income-tax returns. If one spouse buys things of substantial value with cash, there is probably a source of cash income somewhere. Most people do not retain cash in a non-interest bearing form unless they are hiding the source of the cash.
"12. Children’s Bank Accounts - Frequently, a spouse who wishes to hide money will open a custodial account in the name of a child. Deposits and withdrawals are made without any intent that the child has use of the account except in case of the spouse’s death. The interest from these accounts is not shown on income-tax returns, nor are returns filed for the children.
"13. Personal Knowledge of Spouse’s Habits - One of the most useful discovery tools is personal knowledge of the spouse’s habits with money. People who are attempting to hide money very seldom do so without making some form of written note so they can have a personal account of what they have done. When things are going well in a marriage, the spouse may tell the other spouse about such records, but you can be sure they will disappear in a case of divorce. The more secretive a person is, the more detailed such notes are likely to be. If a spouse has neglected to declare income to the IRS, the knowledge of hidden income or assets may prove to be a powerful leverage factor in reaching a satisfactory settlement. Be careful you cannot threaten to turn someone in or threaten any legal process to negotiate a better financial settlement that would be a criminal act – extortion.
"14. Phone Income Tax Returns - When the divorce has been filed, some spouses are inclined to alter the copies of their previously filed income tax returns to hide or adjust pertinent financial information. It is always a good idea to ask for copies of jointly filed returns directly from the Internal Revenue Service on Form 4506-T.
"15. Phony Loans or Debts - To keep cash from being divided, a spouse may sometimes attempt to bury the money with a phony loan to a cooperative friend or relative. The loan may be tied up with a long-term note or with a claimed likelihood of not being collectible so as to remove this money from consideration at settlement time. The other spouse, who was never aware of the debt, of course did not sign the note, because it probably came into existence after the divorce proceedings commenced. Sudden payment of debts to out-of-state creditors who are not available for deposition is usually a sign that the debt is a phony.
"16. 'Friends' or Other Phonies on the Payroll - If one spouse is in a position to control the payroll of a sole proprietorship, partnership, or closely held corporation, he or she may be paying salaries to a friend or relative who is not actually providing services commensurate with the compensation. The friend on the payroll may be stashing the money away or they may both be enjoying it. In either case, the profit of the enterprise will be reduced accordingly and your spouse may be drawing a lesser salary. The same ploy can be used for payment to phony independent contractors.
"17. Retirement Plan Abuse - If one spouse has established a pension or profit-sharing plan in connection with a closely held corporation, the plan should be carefully reviewed to determine whether monies that have been contributed to the account are being invested in accordance with the plan requirements. Very often, deductions will be taken for contributions to such plans, and then the money is used for personal living expenses or taken out as loans, which are never repaid.
"18. Defined Benefit Pension Plans - Defined-benefit pension plans are distinguished from defined-contribution plans by the fact that the benefits payable at retirement age are specified within the plan itself rather than by some contribution formula. The amount of the benefits then must be actuarially calculated, based on the age of the intended beneficiary and the point at which benefits are to be paid. A great deal of income can be buried by substantial payments into such a plan during the years preceding or during divorce litigation. The required payments could be a substantial part of the employee-spouse’s income, if that is what is required to achieve the defined goal at retirement. This, of course, leaves little money available for support or division as marital property. Once the divorce is completed, the defined-benefit plan can be discarded, even though a substantial tax loss may result.
"19. Estate, Gift and Inheritance Tax Returns - Much useful information is available from inheritance, estate, or gift-tax returns of relatives you believe have been generous to the spouse. If these returns show that there were substantial gifts or bequests that have not been accounted for in the settlement negotiations, you are alerted that other assets could also be hidden. A tracing will have to be made from the estate’s distribution to see what has happened to the assets."
Obviously, there may be clues to misconduct in a wide variety of contexts. Using the list here, and the prior lists and sources, you can have a good chance of proving that assets are hidden or missing. That should improve your chances of receiving an appropriate share of the assets and you may have the opportunity to shine the spotlight on your spouse's bad behavior. Most judges will get really upset if/when they become convinced someone has been dishonest to them and to the court system.
Saturday, August 22, 2009
How to Find Hidden Assets -- Part 2
"The following checklist of research items may assist in determining the whereabouts of hidden assets or if, in fact, they exist at all:
"1. Financial Statements – Any loans from lending institutions require sworn financial statements to be filled out. In most cases, the borrower is trying to impress the lending institution with the extent of assets and may exaggerate these. Looking back five years or so at these statements may put you on the trail of assets which are now unaccounted for, or which show valuations substantially greater than what is now claimed.
"2. Personal Income Tax Returns – A review of personal Federal and State income tax returns and attached schedules filed during the past five years may indicate sources of interest or dividends. The returns may also reveal unknown sources of income or loss from trusts, partnerships, or real estate holdings. You should also review W2’s, 1099’s, 1098’s and K1’s.
"3. Corporate Income Tax Returns – If one spouse is the principal owner of a closely held corporation the corporate tax returns should be reviewed for the following: a. He or she may be manipulating his or her salary by taking less pay and then taking loans from the corporation to make up the shortage. He or she may be charging personal expenses to corporate accounts, which will later be reimbursed or charged to the officer’s loan account.c. Corporate returns should also be reviewed for excessive or unnecessary retained earnings (undistributed profits). These may be disguise available profit distributions or an artificially low salary level.d. Reimbursement of prior capital contributions or repayments of loans to the corporation may also provide hidden cash flow to your spouse.
"4. Partnership Income Tax Returns - Reviewing several years of partnership income tax returns (IRS Form 1065) may reveal sudden changes in the partnership interest or distributions. Such changes often occur at the time of a divorce and then compensating adjustments are made after the divorce is completed.
"5. Canceled Checks and Check Registers from Personal, Partnership, and Corporate Accounts - While time-consuming, it is always revealing to go over all the canceled checks and bank statements from personal accounts for the past few years, and post the expenditures to different columns under utilities, entertainment, loan payments, and so on. You will learn the amount of total expenditures per year, which sometimes exceeds income, and you will have a better feeling for cost of living and where budget cuts should be made. In terms of hidden assets, you may come across canceled checks for the purchase of property, which you never knew, existed. It is important to check off the canceled checks against the appropriate bank statement to make sure that you have all of the canceled checks. It is possible that certain checks were removed before they were delivered to you. For larger amounts deposits and withdrawals you should review the back and the front of the checks.
"6. Savings Account Passbooks - Acquire the passbooks for any savings accounts open during the past five years or more. Look for any deposits or withdrawals that are unusual in amount, or in pattern. A monthly withdrawal or deposit of money in the same odd amount may reflect mortgage payments or income receipts from sources that you are not aware of.
"7. Security or Commodity Account Statements - If one spouse has been buying and selling stocks or bonds or dealing in commodities, the broker with whom he or she trades furnishes monthly or quarterly statements indicating all transactions. A review of these statements going back a few years could reveal the existence of securities of which there was no knowledge or could raise questions as to the disposition of the sale proceeds. Cross checking securities transactions and bank accounts by date and amount will usually verify the source or disposition of the monies involved. If the securities are sold and the proceeds are unaccounted for, you can be sure the money is out there somewhere.
"8. Expense Accounts - Very often, a corporate employer will allow employees a great deal of leeway in their expense account reporting. A spouse may take advantage of this by exaggerating or even falsifying business expenditures. The employer maintains records as to expense account disbursements to the employee over the year with monthly detail. A check of these records will indicate the extent to which the employee is able to “live off” the expense account.
"9. Deferred Salary Increase, Uncollected Bonus, or Commissions - You should always determine whether a salary increase is overdue, when it will be forthcoming, and how much it is. Employers are sometimes sympathetic to their divorcing employees and willing to bend the rules slightly to defer salary increases, bonuses, or commissions in order to suppress apparent income. Ultimately, these increases, bonuses, or commissions must be paid to keep the corporate books straight, and the employer will rarely lie when put under oath or forced to make a written statement on the subject. Sympathy goes just so far."
By carefully looking at the above sources, you may be able to uncover substantial assets that the other party may be trying to hide. Sometimes, things are just accidentally overlooked, such as a bank account that is inactive. Most of the time, however, during a divorce, it is very unlikely that an unrevealed asset was accidentally overlooked. Follow your intuition and you may find your pot of gold.