Houston Divorce & Family Law Attorney Blog : Houston Divorce Lawyer & Attorney : Cavers Law Firm : Texas Family Mediation & Adoption Lawyer

In many states, a new and quickly growing area of family mediation is marital mediation.   Marital mediation is a process of assisted negotiation designed to preserve a marriage in ways not attempted by family therapy. The process uses family mediation skills to help couples negotiate new terms for their marriage. Marital mediation is not couples therapy or marriage counseling. There is no diagnosis, assessment or treatment of an illness or disability in the hopes of solving marital problems or achieving a better relationship. Through a dispute resolution approach, marital mediation provides the building blocks and a firm path to a happier and more satisfying relationship and marriage. 

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My colleague, Dick Price, wrote a fantastic piece about "mean" lawyers.  I find Dick's insights helpful and valid whether one is in the midst of family law case or general civil litigation. 

Dick's words of wisdom follow:

Over the years, a number of prospective clients have asked about how mean a lawyer I can be. I used to tell them that I could be as mean as I needed to be. Now, I prefer to discuss some other, related issues.

1. What is the client's overall objective in getting (or getting through) the divorce? Is it punishment for perceived wrongs? Is it to end up with adequate resources to be comfortable after divorce? Is it to have primary custody of the kids or to have a way to share time and responsibility for raising the kids? Is it to end up with certain valuable assets? Is it to come out debt free? Or something else? There's no right or wrong answer. It just helps the lawyer to know what the target is.

2. What kind of relationship does the client want to have with his/her ex-spouse? No relationship, a good one, best friends, neutral relationship or a bad relationship? Again, there's no right or wrong approach. The attorney just needs to know in order to work out the appropriate strategy.

3. What "mean" actions would the client want to take? Some actions are not permissible because they are illegal or unethical for a lawyer to do, and the client needs to understand that. Some actions are legal and ethical, but could be considered "mean" in some circumstances. Within that limited category, what would the client want?

4. How does the client think "meanness" will advance his/her cause? Some clients don't realize that being mean to the other side leads to more hostility and less cooperation. Will that help the client meet his/her needs or achieve his/her objectives?

5. Is the client willing to spend the extra money required to be mean? Unfortunately, for the client, "mean" isn't cheap. The attorney's fees increase dramatically when the attorney sends out numerous letters complaining or demanding action, files numerous pleadings complaining or requesting actions, sets hearings, conducts numerous depositions, demands voluminous discovery and so on. Also, the "tit for tat" strategy comes into play, meaning that whatever one side does to the other is returned again to the first party. The result: more letters, pleadings, hearings, depositions, discovery, etc. Being mean keeps the attorney busy, but it also increases the cost of divorce for both parties.

Often, the desire to hire a mean lawyer is just the natural reaction to pain,anger or fear the client is experiencing. There are certainly times when an attorney must act aggressively and firmly, but most clients just don't need or want a really mean lawyer when they learn how that will affect the case and their lives. And many or most clients can't afford or won't want to pay for a mean lawyer. Having the discussion about taking the mean approach can really be surprising to the client, but it can lead to planning for a better divorce.

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All of the courts of Montgomery County have approved a Standing Order regarding children, pets, property and conduct of the parties that will apply in all divorce cases and in most SAPCRs. The order became effective March 15, 2009, and will likely eliminate the need for attorneys to request temporary restraining orders in Montgomery County in the future.

To obtain a copy of the Standing Order, please utilize the following link to the Montgomery County website: http://www.co.montgomery.tx.us/dcourts/standingorder.pdf

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In September 2008, Harris County anno unced a new monthly Family Law Evening Court. The first session was held on September 9, 2008. The new Evening Court is a great way to get a fast disposition of uncontested cases. Eligible cases include uncontested matters handled by volunteer attorneys through pro bono agencies certified by the Interest on Lawyers Trust Accounts (IOLTA) Program and uncontested pro se cases with a poverty affidavit.  Members of the Harris County judiciary preside on a volunteer basis. The program is presented through the cooperation of the Harris County family law courts, the Harris County judiciary, the Harris County District Clerk's Office, the Harris County Sheriff's Office and the Houston Bar Association.

Family Law Evening Court is held on the second Tuesday of each month from 5:30 p.m. to 7:30 p.m. on the second (2^nd) floor of the Family Law Center. To find out if your case is eligible, contact the clerk of the court in which the case is assigned. Public users can go to www.hcdistrictclerk.com, select the Civil/Family Courts menu and follow the Family Services link to the Evening Court’s docket search link. Users can then select a date and view the docket listings for the Family Law Evening Court.

 

Thanks to the court's evening hours, litigants will not have to miss work. Evening court also will help relieve the crowded family court dockets.

Sources: Houston Bar Bulletin, May 2009; Houston Chronicle, September 5, 2008.

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Today’s post in Lipman’s State Your Case column highlights an important consideration for spouses who decide to separate and part ways without first seeking divorce or a post-marital property agreement. 

Just because a married couple separates does not mean that their finances are also separate. As long as the parties remain married, they accumulate community assets and liabilities. 

The lady in today’s column had been separated from her spouse for 22 years. During that period of separation, she purchased a home. Even though her husband’s name is not on the deed, the husband can claim a community property interest in the home. This was probably a huge shock and unintended consequence. 

 

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It’s that time of year again – the seemingly long stretch between the New Year and April 15^th. If you’re like me, you keep putting off until tomorrow what you should be doing today – that is organizing your documentation to prepare the income tax return. Then you find yourself strung out on Red Bull and fretting with the latest version Turbo Tax asking why you wasted all that time. The only two certainties in life are death and taxes, so let’s get it in gear!  The tax preparation that is. 

As a family law practitioner I do not offer tax advice, and recommend that my clients seek counsel from a CPA or tax attorney, especially if they have complex issues. 

Another useful resource is IRS Publication 504 - Divorced or Separated Individuals. Though the current version on the IRS’ web site is for preparation of one’s 2007 return, the information is still helpful and though provoking. 

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In the present economic climate, singles and married couples alike are having difficulty with retirement.  Even diligent savers are astonished when they reviews their quarterly 401-k statements.  Now imagine, that you and your spouse are approaching retirement, and a divorce is on the event horizon.  An article on CNBC titled Don't Let Divorce Derail Your Retirement provides some helpful tips on dividing up shrinking assets and planning for the future. 

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Beginning on Tuesday, September 9. 2008, Harris County will have its first Family Law Evening Court session from 5:30 p.m. to 7:30 p.m. Evening Court is a unique opportunity for indigent litigants (working with a pro bono attorney or representing themselves pro se) to get before the court and finalize their divorce case. These hours are especially helpful for parties who work during the day, and it allows volunteer attorneys to handle these matters after normal business hours. 

To qualify for evening court, the litigants must:

·         Have an uncontested matter handled by a volunteer attorney through an IOLTA certified pro bono agency; or,

·         Meet the requirements for indigence and have uncontested pro se case (must have property affidavit).

Evening Court will be held on the 2^nd Tuesday of each month starting September 9, 2008. In order to set a case on this special docket, a party must contact the clerk of the court in which the case is assigned no later than 3:00 p.m. on the Monday before the evening court date.

The evening court program is made possible through the efforts of the Harris County Family Law Judges, the Harris County Judiciary, the District Clerk, Sheriff’s Department, and the Houston Bar Association. Thank you for your generosity!

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There is a reason the State Bar of Texas polices the unauthorized practice of law (UPL), and that is to protect the consumer. As a family law practitioner, I am aware that there are numerous internet sites selling divorce packages to consumers. In some instances these do-it-yourself forms may meet the needs of the consumer and the approval of the presiding judge. However, be aware that there is no substitute for competent legal advice. 

Just this morning in the 311^th District Court of Harris County, I personally witnessed a pro se litigant present a final decree of divorce. The source of the litigant’s forms were RapidLaw, an internet site offering divorce, adoption, and bankruptcy services across the U.S. 

The family law judges and court staff in Harris County bend over backwards to assist pro se litigants. However, they may not give legal advice to pro se parties. The forms were not prepared to properly dispense with the parties’ 401-K and retirement benefits. Apparently, the documents were insufficient enough to spur the judge urge the litigant to reconsider presentation of the decree as-is. The Judge asked the pro se party where she received the forms. Her response was Rapid Law. The Judge next asked the party if she paid for the forms, and she answered yes. Finally, the Judge directed the bailiff to photocopy the instructions from RapidLaw – presumably to present the information to the State Bar of Texas. 

I have no way to know whether the pro se party: incorrectly filled out the forms, failed to follow instructions, or if the service offered by the provider was simply deficient.  I do know the end result was not what the party intended, and she must now seek counsel to properly prepare the final decree to finalize her divorce. 

Not everyone can afford legal counsel, but that is why there is (1) access to free assistance in the basement of the Harris County Family Law Center, (2) forms available at the Harris County Law Library, (3) pro bono attorneys available through the Houston Volunteer Lawyer’s Program, and (4) legal clinics at the Houston-area law schools. If you received a medical diagnosis requiring surgical intervention, you would not opt to operate on yourself. The same holds true in law. 

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Though Houston’s housing market is reportedly doing better than anywhere else across the country, many of my clients are feeling the pinch when trying to sell the marital residence and establish a new residence for themselves. 

A recent article in the San Diego Union Tribune reported that many couples are becoming reluctant roommates because they simply cannot afford to live apart. The article addresses some creative solutions. 

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Because of real estate market woes, many of my family law clients are finding it more difficult to sell their homes as quickly as they hope, for the price they hope to obtain, or to simply refinance. Apparently, reality TV shows are feeling the housing market woes as well. The Learning Channel begins airing a new reality TV show called “Hope for Your Home” on Saturday, August 9, 2008 at 7:30 p.m. CDT (check your local listings for time and channel). Unlike shows such as Flip that House or Trading Spaces, this show is aimed at assisting homeowners increase the value of their property so that they may sell or refinance. Though some of the episodes discuss harsh realities people don’t want to hear, in order to get the house sold you’ve got to get that reality check.  For more information, visit the article published in today’s Wall Street Journal. 

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There are few divorce cases where extreme emotions such as anger, bitterness and fear do not impact the parties. The important part is managing emotions in a way that does not damage either spouse or the children. 

In a heated New York divorce case, the wife made dramatic YouTube video asserting embarrassing allegations about the couple’s intimate life and disparaging her spouse’s family members. The YouTube video has been viewed more than 3 million times. The judge presiding over the parties’ divorce case granted the divorce on the grounds of cruel and inhuman treatment by the wife, and blasted the wife’s video as “a calculated and callous campaign to embarrass and humiliate her husband and to pressure him into settling the case.” 

A finding of cruelty by a Texas court can be a basis for a disproportionate division of community property. 

The internet provides us all with an instant venue to make global statements with the click of a mouse, but that doesn’t mean it’s wise to air every statement. Bottom line – think before you act. Venting may be best left to private conversations with friends and family. 

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Though Houston is reportedly one of the areas least affected by the economic downturn, the city is not without its share of troubles. The quandary of what to do with the house has always been an issue in divorce cases, but my practice is encountering an increasing number of people in financial turmoil with respect to the house. Selling property and dividing proceeds was a good option for couples where neither could afford to stay in the house alone. Selling is still an option, but with the mortgage lending crisis and surplus of available homes, no one can predict how long the house will remain on the market.   

Unless you and your spouse are on exceptionally good terms during the divorce, usually someone has to move out. Before deciding on who stays and who goes, consult a real estate agent and educate yourselves on optimum ways to stage a house so it is appealing to potential buyers. For more information on realtors in the area, visit the Houston Association of Realtors.

Remember – if you and your spouse signed the deed of trust then you’re both responsible for the mortgage note regardless of who remains in the house. The court cannot make the mortgage lender remove either party from the agreement. Even though you may despise your soon-to-be ex, it’s in each party’s interest to make sure the house is sold and for the best possible value. 

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Everyone knows that the leading cause of marital discord revolves around money– mainly the lack of it and how it is spent. One of the most helpful and low- to no-cost financial counselors is Dave Ramsey. Mr. Ramsey takes a tough love approach to helping people become debt free and create financial stability by offering such sage advice as “Act your wage.” Mr. Ramsey does not offer any quick fix solutions, so be ready to work. Though you may not agree with all his views or implement all of his advice, I guarantee you will learn by listening to the radio show, viewing the on-line resources, or even attending a local workshop. Who knows – getting a handle on the financial issues might even save your marriage. 

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In 2004 Massachusetts became the first state to legalize gay marriage, and California was soon to follow. While couples in these jurisdictions have the right to marry, there is the uncomfortable issue of how they go about divorce – especially in Texas with a constitutional amendment prohibiting same sex-marriages. Many same-sex couples establish residency in states where they can marry. Not surprisingly, people relocate, and that may even include coming home to Texas. 

Because Texas law recognizes marriage as a union existing between man and woman, the law specifically excludes same-sex marriages. If the parties to a divorce action cannot establish they are legally married, it follows that a family court cannot grant a divorce. Divorce provides a just and right division of community property and may confirm a party’s separate property. Divorce also addresses children’s issues such as parenting plans, custody, and child support.

It is naïve to think that divorce will not be an issue for same-sex couples who reside in jurisdictions that do not recognize their status. At some point, there will be a challenge to the current Texas law, and we can only wait and see what issues are presented, the arguments made, and the ultimate outcome. For now, relief in dividing property owned by same-sex couples in Texas is likely limited to a civil partition suit. 

For more information on issues throughout the country, see the recent article from The Chicago Tribune.

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If you anticipate a separation or impending divorce it is a good idea to revisit your estate plan. Most individuals' principal assets include their home, life insurance, retirement funds, bank accounts and securities.

Though unpleasant to consider, think about what could happen if you die before filing for divorce or during the divorce proceeding itself.

If you have a will, consider executing a new will or codicil bypassing the soon-to-be ex-spouse and leaving your share of the community estate to the children in trust, or other individuals. You may also wish to change designated beneficiaries on any life insurance policies. Because many retirement plans are subject to ERISA, it is unlikely that you will be permitted to change your beneficiary designation(s) without your spouse's consent.

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Most of the time I roll my eyes when entertainment commentators feel the need to report on celebrity divorces, property disputes, and custody issues since Hollywood is so far removed from the reality of the average person. 

Recently, Christie Brinkley's divorce trial has been receiving lots of media attention.  Since coverage spotlighted the use of a child psychologist in making a custody recommendation to the court, this may be somewhat instructive on the role of experts in custody cases.  For more information on the divorce and custody dispute, visit Newsday.com. 

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Occasionally our office receives inquiries from a non-resident husband or wife wishing to file for divorce in Texas. A common scenario involves a marriage that occurred outside Texas, the parties have been separated for a long time, and the party seeking a divorce learns that his/her spouse is now a Texas resident. The question is whether the non-Texan may file for divorce in a Texas court. The answer is yes, so long as the spouse residing in Texas has lived here for at least the preceding 6 months and in the county where suit is to be filed for at least the preceding 90 days. The non-Texan must either get his/her spouse served or obtain a properly executed waiver of service. Though the court may grant a divorce to the non-Texan spouse, it is important to note that the court will likely grant a divorce as to status only and not make a just and right division of marital property. 

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Frequently our office receives questions pertaining to geographic restrictions imposed by a final decree of divorce.  Unless the parents agree to another arrangement, the primary conservator of the minor children is restricted by court order in where he/she may live with the children.  Usually, when parties divorce in Houston, the primary parent is limited to Harris county, Texas and the contiguous counties -- meaning the counties that are directly touching Harris County.  This is actually a very broad area as the contiguous counties include Brazoria, Fort Bend, Waller, Montgomery, Liberty, Chambers, and Galveston counties. 

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Texas voters overwhelmingly approved a constitutional amendment prohibiting marriage between individuals of the same sex, and about 43 other states also prohibit same sex marriage. However, nine other states recognize civil unions, and in 2004 Massachusetts approved provisions allowing same sex marriage.

The questions are (1) if same sex partners can marry or enter into civil unions in certain states, how can these marriages and unions be undone; and, (2) what is the impact if the parties relocate to other states? These are not easy questions to answer, as an April 15, 2008 article in The Houston Chronicle noted.

Same sex couples married in Massachusetts are finding that other states will not permit them to seek dissolution. Additionally, couples who later relocated to another state find that if they do not meet the domicile and residency requirements under the Massachusetts family code, the state will not permit dissolution suits to move forward. While this may seem to be an unnecessary road block, the state has a legitimate interest in denying relief to parties who are not domiciled in the state. There are also constitutional considerations – the court can only adjudicate a matter if it has jurisdiction over the parties and issues. According to sources at The Houston Chronicle, to establish domicile in Massachusetts one must reside there for at least 12 months.  

Though same sex marriage and civil unions are hot topics, they recognized by a minority of US jurisdictions. With a highly mobile society, many of couples will find themselves relocating from the states where they entered into the marriage or union, and perhaps seeking assistance under the law to terminate the relationship. It is just a matter of time and parties making a constitutional argument. At some point laws of the various states (Texas included) must address issues of division of property, conservatorship and custody in same sex marriages/unions.

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During the divorce process many women find themselves in uncharted financial territory.  Sometimes, the husband is the individual in the marriage who takes point in managing the the budget, taxes, investments, estate planning and/or retirement planning. 

If this is describes your situation and you are in the midst of a divorce, now is the time to get a handle on financial issues. 

Fortunately, there is a not-for-profit organization in the Houston area to assist women going through this life changing event.  For more information, visit www.texaswife.org or contact Texas WIFE at (713) 599-1225.

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With the present credit pinch and looming economic downturn, people are looking for an asset they may liquidate or borrow against to ease money woes. Often, this asset is an individual’s retirement plan. An article published in The Houston Chronicle on March 17, 2008 by Shannon Buggs provides excellent insight about the ups and downs of using a 401(k) plan. For a complete text of Ms. Bugg’s article, visit: http://www.chron.com/disp/story.mpl/business/buggs/5621877.html.

From the perspective of dividing assets upon divorce, there is another factor the article did not address, and that is what to do with a loan against a 401(k) plan. Before the plan administrator will make a division, the issue of the outstanding loan must be addressed. For instance: Will the plan participant take his/her portion of the 401(k) subject to the loan? Will the loan balance be deducted equally from each party’s portion? Or, will some other formulation be implemented in the division?

Before taking making important decisions about borrowing against or liquidating a 401(k) account, make sure to obtain all the information you can from your plan administrator, discuss your options with a financial planner, and know the consequences for taking such action. 

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When couples divorce, often the largest asset subject to division is the home. When the home is subject to a mortgage, often the party awarded the home must refinance the note into his/her name in order to absolve the other spouse of financial responsibility. I saw a disturbing story on the CBS News Early Show just this morning about a California woman who refinanced her home following her divorce. When she refinanced her home 2 years ago, the mortgage lender suggested she use an interest only adjustable rate mortgage (ARM). This type of mortgage is reportedly one of the most nefarious lending tools. The consumer now owes more on her home than she did two years ago, and worse yet, the balance owing is more than the value of the home if she could sell it. 

The moral of this story – when refinancing be VERY careful, analyze all documents with care, ask questions, and do not sign on the dotted line if you do not have a good understanding of the financial transaction. Some consumers feel awkward asking questions, or even asking for a second explanation. Take a firm stand and insist that your mortgage lender explain the terms to you for any instrument you sign.

For more information on the mortgage crisis, visit: www.cbsnews.com/sections/i_video/main500251.shtml

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According to data collected by the American Academy of Matrimonial Lawyers (AAML), 88% of the country’s divorce lawyers cite an increase in the number of contested divorce cases using electronic data as evidence in the past 5 years. 

Though e-mail is the most frequently used form of electronic evidence, other forms of data used in divorce proceedings includes text messages, instant messages (IM), internet browser history, social networking site information, photos from camera phones, toll tag, and data from vehicle and stand alone GPS devices. 

Technology has become so ingrained in our daily lives that it follows us to the courthouse in family matters.

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Credit Freeze – One Method for Protecting Your Credit Before and During Divorce

Prior to and during divorce credit cards often become a hot button issue. Though family law litigants represented by counsel likely have injunctions preventing either party from opening new accounts or spending beyond what is specifically permitted in temporary orders, that is no help to individuals going through the process pro se (without counsel).

An article in The Houston Chronicle on December 10, 2007 entitled Leaving Identity Thieves Out in the Cold, discusses new tools for combating credit fraud perpetrated by identity thieves. What if your spouse (or soon to be ex) is that “thief”? 

One option is to apply for a credit freeze. A credit freeze prevents anyone from taking your social security number or other personal information and opening an account in your name. Fees to initiate a credit freeze are anywhere from $5-$10 and must be initiated with each of the three major credit bureaus (CSC, Experian, and TransUnion). If you need to “thaw” your credit to apply for a new card, car loan, home loan, refinance, etc., then you must request for a specific creditor to be able to access your credit file. This, too, may require a nominal fee. 

Though a credit freeze is an effective tool to prevent identity theft, it is not for everyone. For instance, if you are starting out and establishing your credit, this is not the best option. In that situation, you might opt for a fee-based credit monitoring system where alerts are sent to you when an inquiry is made to the credit bureau. 

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One of the questions I’m frequently asked is whether a person may obtain a divorce when he/she cannot locate the other spouse. Though knowing your spouse’s contact information is extremely helpful in getting him/her served with divorce papers, lack of information will not bar a spouse from obtaining a divorce. The process will take slightly longer, and there are some additional costs, but the petitioning spouse may still obtain a divorce.

An important tenet in the American legal system is notice and an opportunity to be heard when someone files a complaint against us. Usually notice comes in the form of being served by the constable or a private process server with suit papers. This is difficult, if not impossible, when spouses have been separated for long periods of time, or when the spouse simply doesn’t want to be found. After filing for divorce, the petitioner must have divorce papers served the respondent’s last known address. If the process server is unsuccessful, he/she will provide an affidavit stating the number of attempts and the results of those attempts at service. For instance, the affidavit may say “Mr. Doe refuses to answer his door even though I can hear him inside and see him through the windows” or it may say “The person at respondent’s last known address has no knowledge about where the respondent lives.”

After such facts are established, your attorney will petition the court for alternative or substitute service. If the court permits service by publication or posting (i.e., leaving notice at the courthouse door or placing notice in a newspaper of general publication) then the court will also appoint an attorney ad litem to represent your spouse’s interests. This attorney is appointed by the court to attempt to locate the other spouse. If the attorney ad litem is unsuccessful, the attorney will file a statement of evidence stating so, and the court will grant the divorce. 

Though it may seem irritating to have to jump through these extra hoops (service through publication and appointing and attorney ad litem), these hoops are there to protect some of the important foundations of our legal system. These procedures also protect the petitioning spouse from future claims of the long, lost spouse. 

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A recent post in the Oklahoma Family Law Blog presented by Dan Nunely, deserves consideration by Texas parents going through divorce. 

In her article The Devastation of Divorce, Trish Berg states that children of divorce suffer a myriad of losses when their parents divorce. Ms. Berg points out that it’s difficult to understand the impact divorce has on the children's lives until we examine the losses they suffer in this process. She lists the following five main losses children experience during divorce:

1. Loss of Dad - When parents divorce, typically the dad leaves the home, and may not be present much in the lives of the children. This causes an emotional vacuum for the children, and they may feel rejected, alone, and unloved, no matter how much the single parent loves them.

2. Loss of Money – When dad leaves, so does a lot of the money. Economic resource are, at best, cut in half, at worst, single parent families live in poverty.

3. Loss of Security – Kids of divorce often move to a new, smaller home, in a new town, with a new school. They now have to visit their dad. If mom and dad then begin dating, an entirely new stress is added to their lives. Their sense of stability and security is shaken as their world has forever changed.

4. Loss of Harmony – Many kids whose parents divorce feel caught in the middle. The fighting may have stopped, but now Mom may talk negatively about dad, and dad may gripe about mom, all in front of the kids. Parents may play games with visitation, and hold the children as emotional ransom. This loss of harmony causes tremendous chaos and stress for kids.

5. Loss of Simplicity – Life for children of divorce can get very complicated. They have to schedule everything they do, and remember what weekends they are visiting dad so they don’t play in a soccer league with games then. They have to split heir holiday time - Christmas Eve with dad, Christmas morning with mom. And when life events hit, they have to worry about mom and dad being in the same place. Who will come to my eighth grade graduation? Will they see each other? Will they fight? Family life is now complex and chaotic, and that will last for the rest of their lives.

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The Family Law Professor Blog posted a timely story regarding the changing face of evidence in the world of matrimonial litigation.  While many people engage in such "surveillance," remember that many of these tactics may violate federal wiretapping law and state statute.

"The age-old business of breaking up has taken a decidedly Orwellian turn, with digital evidence like e-mail messages, traces of Web site visits and mobile telephone records now permeating many contentious divorce cases.

Spurned lovers steal each other’s BlackBerrys. Suspicious spouses hack into each other’s e-mail accounts. They load surveillance software onto the family PC, sometimes discovering shocking infidelities.

Divorce lawyers routinely set out to find every bit of private data about their clients’ adversaries, often hiring investigators with sophisticated digital forensic tools to snoop into household computers.

“In just about every case now, to some extent, there is some electronic evidence,” said Gaetano Ferro, president of the American Academy of Matrimonial Lawyers, who also runs seminars on gathering electronic evidence. “It has completely changed our field.”"

By Brad Stone, N.Y. Times Link to Article (last visited 9-19-07 NVS)

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Almost every client in the midst of a divorce has to contend with financial strain, along with emotional turmoil.  A common concern my clients have relates to their health insurance coverage, and what will happen to their health insurance after the divorce is final.

In most contested divorces, the court will impose a mutual temporary restraining order (TRO) that prohibits the parties from canceling one another's insurance policies, whether those policies are auto, home or health care.  Additionally, before terminating a policy beneficiary, most employee benefits managers will want specific information before making a change. 

If your spouse has always covered you under his/her employer's health insurance plan, you have a right to continuation coverage through COBRA.  While COBRA coverage may be expensive, the premium is often better than what an individual health insurance policy will cost.  The non-employee spouse must contact the employee benefits administrator to obtain information such as enrollment information, required forms, and premium payment information.

 

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An important question I ask of all clients is whether they have a secure e-mail address and a "safe place" to receive mail from my office.  When spouses are in the beginning phases of the divorce process, accidentally alerting the other spouse to divorce plans can have a negative impact ranging from tipping one's hand early too early or up to and including domestic violence in extreme cases.

If you plan to correspond with your attorney via e-mail, make absolutely sure that your spouse cannot access your e-mail account.  You might consider changing your password or opening a new e-mail account. 

In terms of "snail mail," you might consider renting a PO Box through a United States Post Office location or a private company such as the UPS Store, or Mailboxes, etc.  This is an inexpensive way to make sure your confidential communications with your attorney are not compromised.

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This is a worthwhile post recently seen on the Georgia Family Law Blog.

Ruben Francia has an article posted on Your Child - Your Divorce which looks at the best appropriate divorce parenting practices for school-age children. It is well-worth a full read.

Here is his list of some divorce parenting practices that are best for your child:

· Explain what is happening over and over again. Children this age are confused easily. In simple terms, explain where your child will live, with whom, where the departing parent will live, and who will provide care when both parents are unavailable.

· Encourage your child to talk about how he/she feels. Be sensitive to children’s fears. Let your child know that he or she can openly talk to you about the ups and downs of your separation or divorce.

· Read books together about children and divorce. Use books to help your child talk about feelings.

· Answer all questions about the changes, and keep lines of communication open. Make sure your child feels like he or she can ask you questions and get answers about why the divorce happened and what to expect.

· Plan special time together. Set aside special time to spend with your child but be careful not to make promises you may not be able to keep.

· Repeatedly tell children that they are not responsible for the divorce. Children need to be reassured that the breakup wasn’t their fault.

· Reassure children of how their needs will be met and of who will take care of them.

· Reassure children that everything will be ok, just different. Children are invariably frightened and confused by divorce. It’s a threat to their security. Provide extra hugs and kisses and tell your child that you and other adults will always be near to love and protect

· Talk to your child’s day-care provider about the divorce. She will better understand your child’s possible regressive behaviors and will likely offer extra support.

· Talk to your child’s teachers or school counselors about the divorce. They may then better understand possible learning or behavioral problems and will likely offer extra support.

· Keep daily routines intact. Children feel more secure when there is a standard routine. Stick with bedtimes, no matter at which home the children are. Have some consistent chores. Have some time committed to the child, which is treated as sacred.

· Respect, but monitor, your child’s privacy.

· Discourage reconciliation fantasies. Avoid dinners, outings, or holiday celebrations with your ex-spouse; they only fuel your child’s fantasies. Instead, emphasize the finality of divorce

· Be sensitive to children signs of depression and fear. Seek professional help if depression is prolonged or intense.

· Help non-custodial parent stay involve. Let non-custodial parent maintain a regular presence such as a phone call several times each week, messages sent on video or audiotapes.

· Plan a schedule of time for children to spend with their other parent. Be supportive of children’s ongoing relationship with the other parent. Remember that children generally fare best when they have the emotional support and ongoing involvement of both parents.

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Though Collaborative Law, in comparison to traditional divorce litigation, is relatively new, many clients are not familiar with the process.  Nancy Crevier, of the Newton Connecticut Bee provides a compelling case for going collaborative.  To view this article, visit:  http://www.newtownbee.com/Features.asp?s=Features-2007-07-12-12-47-37p1.htm.

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www.nynews.com recently posted a set of ten useful tips for couples contemplating divorce.  Even though published for New York residents, I think these ideas are equally useful for those in the Houston and surrounding area. 

To view this article, visit:  http://www.nynews.com/apps/pbcs.dll/article?AID=/20070630/BUSINESS01/706300326/1066

 

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Spoliation is the improper destruction of evidence. Once evidence is destroyed, it gives rise to the presumption that the destroyed evidence would have been unfavorable to the party who destroyed it – a/k/a, the spoliator. 

When parties are contemplating divorce, or reasonably know that a divorce action will be filed, neither the husband nor the wife should destroy evidence which may be relevant to the case. This would tangible and intangible evidence, including but not limited to e-mails, financial records, diaries, photographs or any data which may be relevant to the divorce suit. When parties first meet with a divorce lawyer, the lawyer should make them aware of spoliation and the potential consequences.

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With the advent of e-mail, spy ware, “nanny cams,” and telephone recording devices available on the consumer market, many litigants take it upon themselves to put their spouse under surveillance.  For example, husband may tape conversations to which he not a party in order to determine if the wife is having an affair or engaging in objectionable activities such as gambling, cyber sex, internet dating and/or substance abuse. 

Though spying on an offending spouse can yield rich information benefiting the spying party, the right to privacy (where one has a reasonable expectation of privacy) is deeply rooted in the United States and Texas Constitutions. Taking such action could land the spying spouse in jail, or at the very least, subject him/her to a civil lawsuit and a hefty monetary fine. 

Both federal statutes and Texas law prohibit illegal wire tapping. Federal wiretap statute prohibits interception and use of illegally intercepted communications. See 18 U.S.C. §§ 2510-2521. Texas law makes the illegal interception and use of a telephone conversation a second degree felony. See Tex. Penal Code § 16.02 (f). In addition, the offending party can be fined up to $10,000.00 per occurrence. 

Therefore, if you bring video tapes, audio tapes, or other electronic evidence intercepted through questionable means, any attorney worth his/her salt will refuse to review the materials and most likely decline to represent the client, because any party who reviews the illegally obtained evidence commits a crime. 

Taping a conversation with your spouse where you are a party to the conversations is permissible, but snooping on the spouse and another party could cause more trouble than you want. 

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Though the majority of divorce cases are plead as no-fault, there remain six fault based grounds, which include: (1) cruelty; (2) adultery; (3) conviction of a felony; (4) abandonment, (5) living apart (at least 3 years); and, (6) confinement to a mental hospital. 

Before no-fault divorce, cruelty was the most common ground for divorce. Though some litigants still plead cruelty, this is often done to gain the upper hand in the division of community property and in custody issues. The same holds true for adultery claims. 

Adultery is usually not pleaded as a sole ground for divorce, but in the alternative to no-fault grounds. 

The court may grant a divorce in favor of: 

• the petitioning spouse, if during the marriage, the other spouse has been convicted of a felony, has been imprisoned for at least one year (state or federal penitentiary), and has not been pardoned. However, the court may not grant a divorce against a spouse who was convicted on the testimony of the other spouse. 

• the petitioning spouse on the ground of abandonment if the other spouse left with the intention of abandonment and remained away for at least one year. 

• either spouse if the spouses have lived apart without cohabitation for at least three (3) years. 

• one spouse if, at the time the divorce is filed, the other spouse has been confined in a state or private mental hospital for at least 3 years and it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that if adjustment occurs, a relapse is probable. 

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No-fault divorce is based on the modern concept that it is unnecessary to allege or prove that one spouse engaged in behavior that breaks the marital contract or relationship. At the risk of sounding trite, the gist of no-fault divorce can be summed up in the 1977 Dave Mason song We Just Disagree -- “There ain’t no good guy. There ain’t no bad guy. There’s only you and me and we just disagree.” 

Since January 1, 1970, a Texas court may grant a divorce without regard to the fault of either party. The only evidence necessary is:

• the marriage has become insupportable because of discord or conflict of personalities;
• the conflict or discord destroys the legitimate ends of the marital relationship; and,
• the conflict or discord prevents any reasonable expectation of reconciliation. 

This evidence is in the form of one or both spouses agreeing to a similar statement before the court. 

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Defenses to divorce suits have little relevance since the implementation of no-fault divorce on January 1, 1970. Though Texas Family Code Section 6.008 addresses Defenses to divorce, this code section is little more than a remnant of pre-1970 family law. 

Prior to January 1, 1970, the defenses to divorce included recrimination (i.e., a retaliatory accusation) and adultery. However, these defenses have been abolished. The only remaining defense to a divorce action is condonation (i.e., an implied pardon of an offense by treating the offender as if the offense had not been committed). Condonation is a defense to divorce only if the court finds that there is a reasonable expectation of reconciliation. Generally speaking, the party filing for divorce would have to announce that the parties were attempting to reconcile. 

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Today, the most common ground for divorce is insupportability – meaning there is such conflict of personalities that it is impossible for the spouses to continue living together. However, until 1913, the only grounds for divorce in Texas were cruelty, adultery, abandonment, and the conviction of a felony. All of these were fault grounds. The only alternative to fault grounds was to prove that the spouses were living apart without cohabitation for 10 years. Not until 1941 was another no-fault basis added, and that was for insanity. Basically, if the conduct complained about did not fit into one of the statutory grounds, a divorce was denied.  

During the late 1960’s lawmakers began to realize that the existing grounds for divorce (and defenses to divorce actions) were no longer compatible with modern life. Effective January 1, 1970, a no-fault ground was added to the Texas Family Code. While this may seem trivial, the new provision made a tremendous impact on family law. No fault divorce meant it was no longer the complaining party’s burden to prove misconduct or one of the no-fault grounds such as insanity or living apart. The party filing for a no-fault divorce only need establish that the marriage is insupportable, regardless of whether either party is at fault. 

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For all practical purposes the date the judge affixes his/her signature to your final decree of divorce is the date you are officially divorced. While this milestone may send some clients popping champagne corks and leave others sad and blue, it is important to note that the divorce is not “final” In other words, “It ain’t over ‘til it’s over.”

Texas divorce litigants should be aware that the court retains plenary power (i.e., absolute power) over its orders for 30 days. During this 30 day time period, either party may file an appeal or a motion for new trial. Examples might be if a defaulting party attempts to set aside the court’s order for improper service or notice, or if one of the spouses discovers the other failed to disclose all community assets during the pendency of the case. 

Therefore, once 30 days have elapsed since the final decree is signed, the divorce is truly final. 

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There are two family district courts in Fort Bend County, Texas -- the 328th and 387th Judicial District Courts.  Both are located inside the historic courthouse building at 401 Jackson Street, Richmond, Texas 77469. 

For more information on the Fort Bend County court offices, visit the official web site at http://www.co.fort-bend.tx.us/Home.asp. 

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Divorce is ranked 2nd in the top 10 stressors in life according to psychological experts.  When humans experience stressful circumstances, it is not surprising that intense emotions such as anger, hostility, and resentment may surface.  Left unchecked, these emotions may lead to inappropriate aggressive behavior.  This is why courts sometimes order one or both parties to attend an anger management program.

Though some of my clients initially resented being ordered to anger management, upon completion, many find that  they are able communicate with others more effectively, better handle tense situations (both family and professional), and reduce the amount of tension experienced by their children during the divorce process. 

For more information on what to expect from an anger management program, feel free to visit the Anger Management Institute of Texas.  There are four locations in the Houston area:

2200 Southwest Freeway, Suite 420, Houston, TX 77098

9000 W. Bellfort, Suite 250, Houston, TX 77031

11821 East Freeway, Suite 555, Houston, TX 77029

301 South 9th Street, Suite 111, Richmond, TX 77469

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The Harris County, Texas local rules require that parties with children attend a 4 hour parenting class before the divorce will be granted.  When I notify my clients of this, some seem offended as if I or the court system are being critical of their parenting skills.  Rest assured this is not the case. 

Divorce is one of life's most stressful events, and stress in the parent's life often bleeds into the lives of the children.  This is uncharted territory for the family, and this basic course coaches parents on how to help their children get through this difficult time. 

Four hours is a big time commitment, and to alleviate time crunches, many services are available on-line to assist busy parents meet this requirement.  Many of my clients have reported taking their parenting classes at parentingchoice.com or parentsareforever.com.  There are probably other sites available, but these are just two where I've had positive feedback from clients.  

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Perhaps one of the most upsetting experiences is being served with divorce papers, whether it’s out of the blue or whether you’re expecting it.

Most likely you received an Original Petition for Divorce and a Temporary Restraining Order (TRO). Though legal documents may seem intimidating, it is critical to calendar dates. Generally, a party responding to a law suit has about 20 days after the date of service to file an answer. Failure to file an answer may result in a default judgment being taken against the responding party. 

Perhaps more important than filing an answer is determining whether the court set a temporary orders hearing.  If you received a TRO, the document will contain a date, time, and place to appear before the judge. The temporary orders hearing is the time where the judge will take up issues such as temporary custody, child support, and rights to use of property such as automobiles and the marital residence. 

It is important to get in touch with an attorney as soon as possible after you being served so that your rights are protected. 

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Once a spouse is awarded maintenance by court order, it is important to note that the maintenance obligation will not go on indefinitely absent compelling circumstances.

Generally, the maximum duration for maintenance payments will not exceed 3 years. Statute requires the court to limit the duration to the shortest reasonable period that allows the spouse receiving support to meet his/her minimum reasonable needs by obtaining employment or job skills. The exception to this 3 year rule would be if the spouse receiving maintenance is physically or mentally disabled, the spouse is the custodian of an infant or young child, or some other compelling reason that prevents the spouse from obtaining gainful employment. See Tex. Fam. Code Section 8.054.

Maintenance orders may be terminated by the court if either party (obligor or obligee) dies, or if the obligee remarries. After a hearing, the court may terminate maintenance payments to an obligee if he/she is cohabitating with another on a conjugal basis (i.e., living with someone on a permanent basis with whom there is a sexual relationship). See Tex. Fam. Code Section 8.056.  

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As previously stated, spousal maintenance is Texas is not glamorous, and in no way compares to what we read about famous couples in People Magazine. By design, Texas spousal maintenance is very limited in amount and duration. 

A court cannot order maintenance payments requiring the obligor to pay more than the lesser of $2,500.00 per month or 20% of the obligor’s average monthly gross income. So, if 20% of the obligor’s average monthly gross income is less than $2,500.00 per month, the obligee will receive the lesser amount. See Tex. Fam. Code Sec. 8.055. 

Remember, that the court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the obligee. The term minimum reasonable needs are not defined in the family code or case law; rather, the court determines a party’s minimum reasonable needs on a fact-specific and case-by-case basis.  

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Once a spouse clears the first hurdle to qualify for spousal maintenance, the court must determine the nature, amount, duration, and manner of how the qualifying spouse will receive maintenance payments. 

To do this, the court must consider all relevant factors, including the requesting spouse’s: 

• economic resources;
• education and job skills;
• age;
• employment history;
• earning ability;
• physical and emotional condition;
• contribution as a homemaker;
• marital misconduct; and,
• the efforts to seek available employment counseling. 

The court will also consider factors relevant such as the property each spouse brought into the marriage, the acts of either spouse resulting in excessive or abnormal expenditures, concealment or fraudulent disposition of community property, and the comparative financial resources of both spouses.   See Tex. Fam. Code Sec. 8.052. 

Remember, though, Texas law presumes that a spouse is not entitled to maintenance unless, the spouse seeking maintenance has exercised diligence in seeking suitable employment or developing the necessary skills to become self-supporting during the period of separation and the time the divorce action is pending. However, this presumption does not apply if the spouse has a physical or mental disability, or a cares for a child of the marriage requiring substantial care and supervisions due to a physical or mental disability, which would prevent the spouse from working outside the home. See Tex. Fam. Code Sec. 8.053. 

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Until 1995, Texas was the only state without any form of alimony or maintenance following separation and divorce. Texas was able to avoid the “A” word (“alimony”) for quite some time. Following welfare reform on a national level, spousal maintenance in Texas, at least in theory, is designed to prevent the economically disadvantaged spouse from going on welfare. 

When people think of alimony, they may reflect upon the lives of the rich and famous, but spousal maintenance in Texas is nothing like this. To read the full spousal maintenance statutes, refer to Chapter 8 of the Texas Family Code. 

Maintenance is defined as “an award in a suit for dissolution of marriage of periodic payments from the future income of one spouse for the support of the other spouse.” See Tex. Fam. Code Sec. 8.001 (1). The statute is written so that either husband or wife may seek maintenance from the other spouse. 

There are two strict criteria for a spouse to qualify for maintenance. The first involves history of domestic violence in the marriage, and the second involves marriages of 10 years or more. 

Generally, a spouse may seek maintenance if there is a recent history of domestic violence. Specifically, the offending spouse must have been convicted of domestic violence (or received deferred adjudication) within the previous 2 years from the date the divorce action was filed, or during the time the divorce action is pending. 

If a couple is married for 10 years or more, and the spouse seeking maintenance cannot provide for his/her minimum reasonable needs, the spouse may seek maintenance. 

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By Child Custody Coach

The overall cost of your divorce can be impacted by several behaviors you may be able to control. When a marriage dissolves there are several important topics that need to be addressed and sorted out, such as child custody, visitation, division of property, and support. Recognizing the following four behaviors and how to manage them ahead of time may be able to help your divorce lawyer properly gather the information he or she needs to put your case together and can reduce your divorce costs at the same time:
(1) Having unclear objectives
(2) Being overly enmeshed in your case
(3) Using your lawyer as a therapist
(4) Expecting justice in the courts

Continue Reading...

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If you are planning to file for divorce, one of the first considerations is where to file.  In "legalese" this is referred to a jurisdiction and venue. 

Jurisdiction is the court's power to hear the matter in controversy.  Harris County, Texas has nine (9) district courts that hear exclusively family matters.  Other Texas counties with smaller populations tend to have courts of general jurisdiction that hear many kinds of matters. 

Venue, in layman's terms, means whether the litigant has filed the case in the right location. 

The rule of thumb for filing a divorce action in Texas is that the petitioner must have been domiciled in Texas for at least the preceding 6 months and a resident of the county in which he/she files for at least the preceding 90 days.  It is important to advise your attorney of where you have resided for at least the last year.  Of course, there are times when a party must seek emergency jurisdiction.  That topic will be covered in a future post. 

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Women divorce clients have the option to keep their husband’s last name or to restore their previous last name. This is a matter of personal preference for the wife, and the provision is usually made in the final divorce decree. However, before the name change is granted, the court will ask the wife to affirm she is not seeking the name change to evade creditors. 

However, just because the final divorce decree grants a name change, do not assume that you don’t have to take some initiative to effectuate the change. It is important to notify the Texas Department of Public Safety so that your driver’s license reflects your restored last name. 

So that your retirement benefits are accurately tracked, it is also important to obtain a new Social Security Card with your restored name. You may obtain Form SS-5 from the Social Security web site.  Other individuals to notify of the new last name are your creditors, financial institutions, and employee benefits department. 

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In my late recognition of Mother's Day, I draw attention to a recent post by Granth Griffiths of the Kansas Family Law Blog. 

According to the mom pay wizard calculator at Salary.Com, the typical stay at home mother works 40 hours at base pay and 52 hours overtime for a total of 92 hours a week.

Mothers perform ten jobs at home, namely:

cook
housekeeper
day care center teacher
laundry machine operator
van driver
facilities manager
janitor
computer operator
chief executive officer
psychologist

Salary.Com also says it would take $138,095 a year to buy those services if she did not perform them.

Source for Post: Maryland Divorce Legal Crier.

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Susan Robicsek, author of the Bankruptcy Law Network recently posted an important article on balanced budgets and bankruptcy.  Since one of the top reasons marriages end in divorce involves financial strain, I think this article may provide benefit to many folks. 

When you rely on credit cards to cover things that don’t come up every month like car repairs, house repairs or medical issues, you have to recognize that your budget is not balanced. These things will come up and shouldn’t be a surprise when they do. In fact, there is little anyone can do to avoid them.
Maybe you use credit cards to buy groceries, because your paycheck goes to pay your other bills, like your rent/mortgage, car payment and credit cards or other revolving debt accounts.

If you are using credit to cover your living expenses or “emergencies”, you are spending more than you make to cover the things that occur in your life. When you have to borrow to pay for things you can’t afford now, you will pay back more when you consider the interest. So if you couldn’t afford to have something to begin with, why will it be easier to pay back more over time?

Continue Reading...

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On May 11, 2007, the Family Law Professor Blog referred to an article published in the New York Times  (5/10/07) regarding the decline in the divorce rate.  Though the statistics may support this conclusion, Texans who support the covenant marriage bill seemingly disagree. 

The New York Times reports that the national per capita divorce rate has declined steadily since its peak in 1981 and is now at its lowest level since 1970. The article points out that experts disagree as to the cause. Some experts say relationships are as unstable as ever -- and divorces are down primarily because more couples live together without marrying. Other researchers have documented what they call ''the divorce divide,'' contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

To view the full article, visit www.nytimes.com/aponline/us/AP-Divorce-Decline.html

Last visited on 5/14/2007

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Source: Oklahoma Family Law Blog by Dan Nunley

In contested cases, parties often are angry at each other. This is understandable. But displays of anger, particularly in court, usually are counterproductive.

In one case, a joint custody arrangement allowed for a child to spend approximately equal time with both parents. However, the arrangement was not working out and both the mother and father sought to modify custody. The court ordered the parties to attend counseling sessions, but the father would not attend because he refused to communicate directly with the mother. At the end of the case, the trial judge described the father's conduct in court as follows:

"During [the father's] testimony he was visibly angry and his body language appeared to show a strong disliking for [the mother]. To this extent Father exhibited a lack of control of his negative feelings for Mother in the presence of the Court. The same or worse is likely outside the courtroom in the company of Mother and/or the children."

For this and other reasons, the court granted sole custody to the mother, and the Idaho Supreme Court affirmed the decision.

Source: McGriff v. McGriff, Docket No. 28910 (ID 9/21/2004) (ID, 2004).

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A Florida appeals court has refused to allow a woman to use evidence obtained by illegally planting spyware on her husband’s computer to support her case in their bitter divorce proceedings.

Beverley Ann O’Brian installed a surveillance program called Spector on the computer used by her husband James. She obtained transcripts of private on-line chats between James and another woman with whom he was playing Yahoo Dominoes, according to court papers.

The Circuit Court for Orange County, Florida, found that evidence obtained in this way could not be used in court because it had been intercepted – an offence under federal wiretapping regulations and the Florida Security of Communications Act 2003. It banned Mrs O’Brian from using spyware in the future and from disclosing any information obtained from the surveillance.

Continue Reading...

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The South Carolina Family Law Blog has a great post today of things to consider after the divorce is final and you need to get your finances in order.

Once your divorce is finalized, it is time to begin laying the groundwork for your future. Finances are an important part of becoming self-sufficient and nurturing the new you. Here is a checklist of items that are important to cover when ensuring your finances are headed in the right direction.

Establish Yourself Financially.' If you haven't already, you want to make sure you have a credit card as well as a checking and a savings account in your name. It is important to maintain or begin building your credit as soon as possible.
Understand Your Divorce Ruling.' In order to make smart financial decisions, you need to understand fully the financial ramifications of your divorce. Will you be paying or receiving alimony? How will these payments be structured? What property or assets will you be receiving and when? Are you eligible for a portion of your former spouse's social security payments? Take time to discuss these issues with your lawyer to be sure you understand them fully.

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Messages left on voicemail can be introduced as evidence.  If you don't want a room full of strangers to later hear what you have said to your spouse or ex-spouse, the best policy is not to say it at all.

Under Rule 34 (a) of the newly adopted amendments to the FRCP Rules, electronically stored information is now described as; "electronically stored information - including writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations stored in any medium from which information can be obtained - translated, if necessary, by the respondent into reasonably useable form, or to inspect, copy, test or sample any designated tangible things which constitute or contain matters within the scope of Rule 26(b). 

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The following are some infomative and useful tips on the sale of a residence in divorce from divorcehq.com

For many people going through a divorce their biggest asset is their home or in legal speak, the marital residence. Deciding what to do about the marital residence is often a major issue in a divorce. There are a few different options when it comes to splitting the marital residence.

One option is for one spouse to keep the house and buy out the other spouse's share. Another option is for one spouse to be granted exclusive use for a specified period of time, usually when the youngest child turns 18, after which the house will be sold. Finally, the house can be sold outright with the profits being allocated to each spouse.

Should you sell your house? Hard as it may be this is a decision that needs to be made devoid of emotions. As a practical matter take into consideration whether or not it is financially beneficial to keep the home. If not and you do decide to sell here are a few tips to help you through the process.

Time is money: Put your home on the market as far in advance as possible of purchasing a new one. Remember that when people buy and sell a home there usually is a domino effect. Closing and moving dates have to be coordinated, and the more firmly everyone commits to a window of dates and sticks to them, the better for all involved. Put all agreements about dates in writing, and protect yourself by negotiating financial penalties for failure to live up to the agreement. Continue Reading...

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When a marriage ends in divorce, the lives of those involved are changed forever. During this time of upheaval, one thing that shouldn't’t have to change is the credit status you’ve worked so hard to achieve.

Unfortunately, for many, the experience is the exact opposite. Unfulfilled promises to pay bills, the maxing out of credit cards, and a total breakdown in communication frequently lead to the annihilation of at least one spouse’s credit. Depending upon how finances are structured, it can sometimes have a negative impact on both parties.

The good news is it doesn’t have to be this way. By taking a proactive approach and creating a specific plan to maintain one’s credit status, anyone can ensure that “starting over” doesn’t have to mean rebuilding credit.

The first step for anyone going through a divorce is to obtain copies of your credit report from the 3 major agencies: Equifax, Experian®, and TransUnion®. It’s impossible to formulate a plan without having a complete understanding of the situation. (Once a year, you may obtain a free credit report by visiting www.AnnualCreditReport.com.)

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Marriage has become a delicate venture. According to the U.S. Census bureau, about nine out of ten people will marry sometime in their lives, but about half of first marriages will end in divorce. And while some marriages end peacefully, with both sides agreeing to an equal and fair settlement, some do not, and the ensuing process can get quite vicious.

When ex-spouses significantly distrust each other, it is advisable to engage the services of a lawyer, especially if one or both do not understand their household finances and the economic implications of marital settlements. In turn, attorneys often hire CPAs as forensic accountants to help represent the spouse who doesn’t have access to the family’s financial information. Continue Reading...

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It is one of the first questions that needs to be addressed, often in an atmosphere of mistrust, hurt and hostility. Nonetheless, a decision must be made. Avoiding the issue will only make the government richer at the expense of the couple.

Ordinarily, joint returns produce a lower tax on the joint incomes of a husband and wife than filing separate tax returns. But in many instances, filing separate returns may actually produce a lower combined federal and state tax. Consequently, separate returns should always be computed. If by filing separate returns, a lower combined tax results, one issue of disagreement can be resolved immediately by the filing of separate returns.

However, when the combined tax liability is less by filing a joint return, several non-tax issues remain. During divorce proceedings a spouse may refuse to file a joint return because of hostility or vindictiveness, or fear of the resulting liability (joint and several) for tax, penalties and interest that is actually due (whether or not correctly shown) on the return.

The price to be paid for not filing a joint return is not only higher tax rates, but loss of some elections, credits, and deductions or exemptions.

Where one party insists, often at the advice of counsel, in filing a separate return at a higher tax cost to the couple, the spouse injured by the separate return filing could be compensated for the additional tax in a property settlement. In effect, this is an insurance premium paid by the spouse seeking protection from joint and several liability. Some judges follow this practice.


SOURCE: DivorceSource

Source for Post: Georgia Family Law Blog. Continue Reading...

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