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

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

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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?

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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.

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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.

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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.

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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.

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