Anticipating Divorce 

 2008

Thomas Noble
Law Offices of Thomas Noble, P.C.
6116 N. Central Expressway
Suite 922, LB 72
Dallas, Texas 75206
214-692-1888
fax: 214-692-8577
tnoble28@hotmail.com
www.tnoble.com

Copyright © 1990, 2000, 2008, Thomas Noble

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage or retrieval system without the written permission of the publisher, except where permitted by law.

For information call The Law Offices of Thomas Noble, P.C. at 214-692-1888; fax: 214-692-8577; e-mail: tnoble28@hotmail.com or visit www.tnoble.com.

Printed in the United States of America; June, 1990; March 1, 1992; January 15, 1995;
September 1, 1995; January 1, 1997; January 1, 1998; June 7, 2000, January 15, 2008.

Preface

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Marital discord pervades our culture. Every couple contemplates divorce sooner or later. This book will help you clarify the causes of your marital problems. It will reduce the anxiety associated with the divorce process by providing you with valuable information about how the process works. Armed with this information, you will be better prepared to make the decisions that must be made during the divorce process.

When you suffer, and you feel that your marriage causes your suffering, you will suffer more by wrestling with the question of what to do about it. To divorce or not to divorce? With children this question becomes exponentially harder to answer. Divorce scars every family member. No one avoids this. But, you must confront the issue of whether the potential scars from divorce will cause less suffering than the scars caused by remaining in a destructive relationship. My initial advice to you is:

If you have difficulty making a decision, consult a marriage and family therapist or counselor before you initiate divorce proceedings. On the other hand, if you have analyzed your marriage carefully and concluded that divorce is inevitable, plan rationally for divorce.

Table of Contents

Chapter I: Evaluating Your Marriage

Marital Evaluation Questionnaire

Check Your Answers

Chapter II: Pre-Divorce Planning

Are you married?
Divorces with Children: Dual Suits
Community Property and Separate Property
Debts
Common Problems (Frequently Asked Questions)

Credit Cards
Bank Accounts
Separation
Possession of the Children
Gathering Records
Tracing Assets
The Financially Irresponsible Spouse
The Financially Uninformed Spouse
The Non-Working Spouse
Post-divorce Maintenance
Ambivalence
Affairs
Spousal Abuse
Telling Your Children
Marriage Counseling/Reconciliation
Coping with Marital Distress
Keeping a Journal
Financial Documents
Other Documents
Tape Recordings
Mediation
Collaborative Law
Mental Health Professionals

Pre-Divorce Checklist

Chapter III: How To Select A Divorce Lawyer

Using One Lawyer

Where to Look

The initial Interview: What to Ask

Arrangements

Specialists

Attorney-Mediators

Collaborative Lawyers

Other Factors to Consider

Chapter IV: The Divorce Process

Initial Considerations

Collaborative Law
The Temporary Restraining order 
Protective order
Service of Citation
The Petition
The Counter-Petition (or "Counterclaim")
Suits Against Third Parties
Torts
Reimbursement
Economic Contribution

Temporary Orders

Child Support
The Temporary Injunction
The Inventory and Appraisement
Parenting Plans
Exclusive Use of Property
Interim Attorney's Fees
Debts
Contested Hearings
Violations

Defining Issues

Investigating Your Case

Request for Production of Documents
Interrogatories
Depositions
Appraisers/Expert Witnesses
Inventories
Witnesses
Tracing assets
Family businesses

Negotiating a Settlement

What Are You Entitled To?
Which Assets Will You Get?
Who Pays the Bills?
The "Buy-Out"
QDROs
Sole Managing Conservators and Possessory Conservators
Parental Rights and Duties
Joint Managing Conservatorship
How to Act In a Custody Case
Child Support Revisited
Periods of Possession
Alimony
Income Taxes in Year of Divorce
Tax Exemptions and Credits
Decrees
Agreements
The Trial
Adverse Rulings

Chapter V: The Aftermath

A Positive Approach
An Improved Estate
Self-Knowledge
Don't Forget the Children
Into the Future - Goal Setting
Conclusion

Works Consulted
Appendix "A"
Appendix "B"
Appendix "C"
Appendix "D"

Chapter I: Evaluating Your Marriage
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f you are having marital problems, you are probably upset and confused. Sorting things out can be very difficult. You may not even want to think about your problems. After all, marital problems are painful.

The questions in this chapter are designed to increase your awareness about your marriage. Some marriages are beyond hope. If you are married to an extremely abusive spouse, you can skip this chapter. Don't stop to evaluate. Get out now!

More often than not, however, we find ourselves involved in a situation that is not so well defined. We are not sure how we feel; or, if we know how we feel (usually: NOT GOOD), we are not sure why. If that just might be you, spend a few minutes answering the following questions. Then, check your answers with those provided.

If you decide that a divorce may not be the solution to your marital problems, consider developing a "reconciliation plan." This may consist of periodic counseling, a weekly date, a family night with or without children, regular roses, daily hugs, more space, less space, or whatever. But, be specific, include deadlines, and do not let your problems drag on month after month. If you do not make progress, do what you have to do, knowing that you made every reasonable effort to save your marriage.

Or, you may decide to get a "financial divorce" but not a legal divorce. This entails entering into a marital agreement (or "post-nuptial agreement"), partitioning assets and/or future earnings. Entering into a marital agreement may allow you to stay married without all of the financial risks typically related to marriage.

Marital Evaluation Questionnaire

1. If you are contemplating divorce, describe when you first considered it and why.

2. Describe the best times you and your spouse have shared together.

3. Describe each activity you and your spouse share on a regular basis that is fun for both of you.

4. How do you feel when you are alone?

5. How frequently do you and your spouse fight or argue?

Describe how intense it gets:

6. Try to feel the whole relationship. Does it feel good, bad, or is it difficult to define? Briefly describe it.

7. Do you feel like you are growing as an individual? _________ Why or why not?

8. Does your spouse prevent you from growing as an individual? _________ If so, how?

9. Is your relationship sexually satisfying? __________________ Why or why not?

10. Has your marriage improved your financial condition? _________ If not, why not? If so, to what extent?

11. List all of the things you do for your spouse on a regular basis.

12. List all of the things your spouse does for you on a regular basis.

13. What is your financial contribution to the marriage?

14. What is your spouse's financial contribution to the marriage?

15. If you have children, do both of you spend approximately the same amount of time parenting? If not, why not?

16. What are the biggest problems with your relationship?

17. What have you done to solve these problems?

18. Would you be happier single? ____________________ If so, why?

19. Is your marriage the only cause of your problems? ___________

What are other causes?

20. What is your current state of health?

How could you improve it?

21. What common goals do you and your spouse share?

22. What percentage of your marital problems involves communication problems between you and your spouse?

23. How could you improve your marriage?

24. Are you and your spouse each motivated to improve your marriage?

25. Is divorce the best option under the circumstances?

Check Your Answers

1. How long have you been agonizing, ambivalent about whether or not you should stay married or get divorced? This ambivalence will take its toll. If the marriage has not improved, and you have made reasonable efforts to change it, that should tell you something.

2. How long has it been since you and your spouse had fun together? Is this possible to revive? How much effort would it take on your part? Have you really tried?

3. If none, why not? Couldn't you think of something the two of you would enjoy on a regular basis?

4. Feeling "down" may not be your spouse's fault or the fault of the marriage. Beware of projecting your problems onto your marriage relationship and resenting your spouse for not solving problems that you should solve yourself.

5. Negative patterns, such as arguing, belittling, and neglect can be broken in therapy. Do not give up without counseling unless you are married to a real abuser.

6. Try to maintain this awareness instead of constantly analyzing and attempting to perform mental gymnastics.

7. Again, if you're not growing as an individual, do not project your frustrations on your relationship.

8. If you feel prohibited from growth, decide how you might circumvent your obstacles.

9. This may be crucial to certain individuals, unimportant to others. You decide.

10. This can also be crucial. Many marriages fail because of financial problems. If you have marital problems, check to see if financial strain is contributing.

11. and 12. Compare your answers on questions 11 and 12. Are you a slave or a tyrant? A healthy relationship is well balanced.

13. and 14. The same logic applies to the next two questions. Many spouses take financial contributions of their spouses for granted. If you do, you may be in for a big surprise after a divorce is final.

15. Other spouses take parenting for granted. This is also a source of typical marital discord.

16. Are your problems really too significant to overcome? A little effort can go a long way! Should you see a therapist before consulting a divorce lawyer? Is the grass really greener? Visualize your future for the first year after divorce, three years, five years, etc. Again, be aware of causes of marital discord that do not relate to your spouse. Remember that it takes healthy individuals to make a healthy relationship. In my opinion, this is a crucial problem. Common purpose is the adhesion that keeps marriages together. If you are not working together for some shared result, what are you doing together, other than sharing space?

Communication problems exist in almost every marriage. Learning to listen can help a lot.

Dr. Peter Kramer has written a recent book for those who are married and ambivalent. Should You Leave? is available in hardback through Scribner Publishing.

If you have tried everything you can think of, read on. Otherwise, try being proactive in improving your relationship.

It takes two to tango. The bottom line: if you have children, spend extra time on this one.

Chapter II: Pre-Divorce Planning
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If you are contemplating a divorce or speculating that your spouse may be, consult an attorney immediately. Chapter III provides some tips on how to select an attorney. Find out what your rights are. Determine how vulnerable you are to losing property or losing custody of your children. Even if a divorce is not imminent, even if it never occurs, legal advice may be beneficial in helping you organize your estate and plan for adverse possibilities .

People with marital problems usually have immediate and urgent questions. This chapter will attempt to address some of the more common ones.

Are you married?

To state the obvious, you cannot get divorced unless you are married. Most of us get married the old-fashioned way: we get a license and someone to conduct a ceremony, and we take our vows. Licensed or ordained Christian ministers; Jewish rabbis; "a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony"; and, just about any judge or justice of the peace or federal magistrate, including retired judges, can conduct a wedding ceremony.

Others among us take a more Bohemian approach. Some call this "common law marriage". In legalese, we call this "informal marriage". Most people misunderstand this concept. If you think you may be informally married, or married by common law, as it is more commonly known, best to consult a professional right away. This can be a tricky question, but here are the basics: to have a binding informal marriage in Texas, you have to (1) agree to be married; (2) live together in Texas as husband and wife; (3) while in Texas, represent to others that you are married; and (4) file suit to prove the marriage, which would include a divorce petition, but which could include other types of suits, within 2 years after the date of separation.

Divorces with Children: Dual Suits

Assuming that you are married, or decide to litigate the issue, if you have children, a divorce case becomes two cases at the same time: a case to determine how your property will be divided, and a case to determine what happens to your children.

If you cannot agree about how to divide your property, including your debts, a trial judge will do that for you based upon what he or she believes is "just and right". That may mean that someone gets more than 50% of the assets.

There are basically four aspects of the case regarding your children (lawyers call this the "parent-child case"): (1) conservatorship, (2) parental rights, (3) child support, and (4) possession (sometimes referred to as "visitation").

Community Property and Separate Property

This book is written for people who live in Texas. It is important to understand that you live in a "community property state". For purposes of divorce, probate, and many other legal matters, all of the property owned by you or your spouse is categorized as either community property or separate property.

"Separate property" is: (a) property you owned prior to marriage; (b) property you inherited during the marriage; (c) gifts, which you received during the marriage (including those given to you by your spouse); (d) certain judicial awards for personal injuries; and, (e) other property "traceable" to separate property (sometimes referred to as "mutations" of separate property). The remainder of your property is community.

You own your separate property. Your spouse has no claim to it unless you have used community property to enhance it. A court cannot divest you of your separate property. When you divorce, a court will award your separate property to you and divide the community property between you and your spouse. Because separate property is not divisible, it is often important to delineate between community and separate property.

There is also property that is sometimes referred to as "quasi-community property". This is property that may have been acquired during marriage in a non-community property state, but is treated by a divorce court as if it were acquired in the state where the divorce case has been filed.

Even though a family court can divide community property, it does not have to divide it 50/50. This is a common myth. You may be entitled to more than 50% of the community for a number of reasons, including fault, inferior earning ability, smaller separate estate, or poor health.

Manyestates are complex mixtures of separate and community property. This is often true in second marriages and marriages in which one or both of the spouses have received an inheritance.

Debts

You are liable for debts you incur. But, are you liable for debts incurred by your spouse? In order to answer this question, it is necessary to further delineate community property as "sole management community" and "joint community". Your sole management community property is property acquired during the marriage and under your sole management and control. An example could be your paycheck, if you deposit it in an account to which your spouse does not have access. Joint community property is property under the joint management or control of you and your spouse. A creditor of your spouse can collect his debt only from joint community property, your spouse's sole management community property, and your spouse's separate property. So, if your spouse has problems with creditors, be wary of joint accounts.

Common Problems (Frequently Asked Questions)

Credit Cards

Marital distress and financial distress go hand in hand. Excessive credit card debts often precede a divorce. Unpaid credit card balances create anxiety for the frugal spouse. Consider the following options for handling your joint credit card accounts:

1. leave them as they are ;

2. write the issuer of the credit card and advise it that you will no longer be liable for charges made on that account ; or

3. write the issuer of the credit card and advise it that you want to lower your credit limit and you will not be liable for charges over that amount.

Consider the following:

Many people do not want to be liable for expensive items charged by their spouses while the marriage is insufferable, but they also do not want to inflame their spouses by cutting off all of the credit cards. When there is uncertainty about the prospects of the marriage, or when both spouses are responsible and mature about finances, consider the middle ground of instructing the credit card issuer to lower the credit limit of certain cards.

Send your letter by certified mail and keep a copy for your records. Seek your spouse's prior consent, or advise your spouse that you are doing this, so that he or she does not learn it in an embarrassing situation.

Bank Accounts

Funds in a joint account are vulnerable to attack by a hostile marital partner. Spouses who are angry enough, ruthless enough, or insecure enough may raid these accounts. It may be impossible to recover the funds withdrawn. What to do? Consider the following options:

1. close these accounts and grab the loot before your spouse does;

2. take a portion (half?) of these funds and leave the remainder for your spouse;

3. proceed at your own risk; or,

4. file a divorce petition and seek a TRO (more about TROs below).

Joint Accounts Are Vulnerable!

Option 1 is justified in some cases. A mother with small children and no employment, for example, may need all of the fifteen hundred dollars in the joint account for support. Persons married to financially irresponsible spouses might be prudent to grab a portion before their spouse's creditors wind up with it. If you take control of the funds, and act responsibly, you can give your spouse money when necessary; if you lose control of these funds, you will not have this option.

Spouses who raid joint accounts without good reason may put themselves in a bad light with a court at a later date. Act irresponsibly with these funds and you may give your spouse a reason to sue you for "breach of fiduciary duty" . If you do not have a good reason to take control of a joint account, but you are unsure about losing control, consider withdrawing one-half of the funds in the account. Then, tell your spouse so that he or she will not bounce any checks.

Separation

Separation is usually the most difficult phase of a divorce. This is typically the time when emotions are most intensely charged. The main dispute often concerns who stays in the marital residence and who moves out. Many spouses are reluctant to move out of the residence because they are concerned with appearing to give ground, or losing "territorial rights".

What can you do when your spouse refuses to move? Your options are:

1. move out yourself;

2. persuade your spouse to participate in counseling and attempt to resolve the issue there; or

3. instruct your attorney to file suit for divorce and seek a court order awarding you exclusive use and possession of the residence until the divorce is final.

Many judges will leave the children in their home with the "primary caretaker" and oust the other spouse. In some cases, however, judges order parents to get a one-bedroom apartment and take turns moving in and out of the house. For example, a parent will move in for a week while the other parent goes to the apartment. At the end of the week, they change places. While this approach results in a more stable situation for the children, it may give them an unrealistic view of the situation. Their acclimation to the post-divorce family structure is delayed.

If you resort to the legal system to decide separation problems, you can expect to wait until (a) someone serves your spouse with a petition and (b) the court can schedule a time for a hearing. This may take several weeks.

In the past, a judge could order a spouse to move out immediately upon the filing of a divorce petition. This procedure often caused a race to the courthouse. The Texas Legislature changed this process a few years ago. Now a hearing is absolutely necessary before a court can order either party removed from his or her home, except in some cases of family violence.

Spouses who want a court to decide who stays and who goes without having to put up with the tension and hostility during the interim may consider staying with a friend or checking into a motel until the court makes a decision.

Changing the Locks. When your spouse has moved out, consider changing the locks immediately. Do this even if your spouse has personal effects in the house. Failure to heed this advice may cause you embarrassment, loss of property, or other problems.

Possession of the Children

If you have minor children, before you separate, it is a good idea to give some thought to when each parent will see the children after you and your spouse are living in separate residences. In Texas, the Legislature has developed a "Standard Possession Order". This is the default mode for non-custodial parents. In other words, if you're a Dad in a traditional family where the mother has been the primary caretaker, this is probably what you are going to wind up with. Actually, there are two standard possession orders: one for non-custodial parents who live within 100 miles of the children, and one for those who live farther away. For those within 100 miles, essentially, you get to see your kids on Thursday nights during the school year, 1st, 3rd, and 5th weekends, and 30 days in the summer. If you live more 100 miles from the kids, you get an extra 12 days in the summer. Holidays are split, but if you live more than 100 miles away, you are entitled to every spring break, and if you live closer, you get every other spring break. Fathers always get Father's Day weekend, and mothers always get Mother's Day weekend. There's a lot more detail, but those are the basics. You may want to ask your lawyer for a copy of the Standard Possession Order. Or, if you don't like that plan, which gives non-custodial parents approximately 43% of the year by some calculations, you may want to consult with a mental health professional about what plan is in the best interests of your children.

Gathering Records

During your marriage you should keep accurate records of your personal finances, property purchased and sold, and debts incurred. One of the first things a divorce lawyer will do is inspect all of the documents that are relevant to your case. This will usually include:

1. tax returns for the past few years;

2. bank statements, canceled checks, and deposit slips for each of your accounts for the same period;

3. deeds, closing statements, and loan documents relating to purchases and sales of real estate during the marriage;

4. written materials relating to investments made during marriage;

5. credit card statements and other evidence of indebtedness;

6. current statements for your IRA accounts and retirement accounts;

7. financial statements prepared by you or your spouse during the marriage; and

8. other documents relating to your income or property.

Even if you are not sure that a divorce will occur, you should have a complete set of records in a place where your spouse cannot tamper with them. If your records are incomplete, contact your bank, the IRS, and other sources necessary to acquire duplicates. This should be done without delay. It may take weeks to get reproductions.

Organize Your Legal and Financial Documents Now!

Tracing Assets

If you have owned any property that might be considered separate property, and you have not kept that property intact throughout the marriage, you may have to "trace" this property in order to avoid dividing it with your spouse upon divorce. Tracing can be a time consuming and complex process. Start it as soon as possible.

The Financially Irresponsible Spouse

Many of us are married to spouses who are ignorant or negligent about finances. They incur debts without any thought of how these debts will be paid. They charge gifts in an attempt to smooth rough waters, or they charge new clothes preparing for single life. Whatever their justification, they find a reason to spend money that they do not have. This may go as far as forging your signature or endorsement on checks. If this is similar to your situation, you should consider filing suit for divorce as soon as possible.

Financial Problems Always Increase Marital Distress!

 

Why? In conjunction with the filing of your divorce petition, you may seek a temporary restraining order, ("TRO"). This will prohibit your spouse from spending any money, incurring any debts, or transferring any property except for ordinary living expenses, business expenses, and legal fees. If your spouse violates the TRO, he may be in contempt of court and can be jailed or fined. Additionally, many judges view the filing date of the divorce petition as a cut-off date, and they will usually order a spouse to pay any debts incurred after the date of separation.

The Financially Uninformed Spouse

Others of us have no idea what our spouse earns, owns, or spends. If this sounds familiar, investigate! Financial statements submitted to your spouse's banker are a good source of information. So are tax returns. Your lawyer can assist you with this, but the more you can do on your own, the less you will have to pay for legal fees.

In some cases, it is important to analyze an estate prior to filing a divorce petition to determine what the financial future has to hold. If that future is bleak, it may be advantageous to delay the legal process while a spouse uses community resources to go back to school and look for a job.

The Non-Working Spouse

Non-working spouses who expect to survive after divorce better find employment unless, of course, they expect to be independently wealthy or they are entitled to post-divorce maintenance. If your spouse is working and you are not, the court may award you "temporary spousal support" to be paid by your spouse for some limited period. This period may be anywhere from 30 days to over a year. Many judges will limit spousal support to 90 days to encourage non-working spouses to get a job.

Post-divorce Maintenance

Texas was the last state in the nation to pass legislation allowing a court to award alimony. Even then, we don't call it "alimony"; we call it "spousal maintenance". Being eligible is not easy. You have to have been married for at least 10 years, the victim of a domestic violence crime , or you have to be lacking the skills and the property to meet your "minimal reasonable needs" (whatever that means) or taking care of a disabled child. Because this is relatively recent legislation, lawyers do not have a lot of history to draw upon to tell you whether a court may award you alimony if you qualify. To err on the side of safety, if you do qualify, don't count on it. Trial judges have a lot of discretion about how much to award and for how long, although, (and if you are the paying side of this problem, listen up) typically, the max is 20% of gross income for three years. But, if the alimony seeker is mentally or physically disabled, the court may order the other party to pay INDEFINITELY!

Ambivalence

Do not start the divorce process unless you are absolutely sure that a divorce is the only solution to your problems. If you are ambivalent, seek counseling.

Affairs

Beware of affairs. The Texas family law system is still somewhat moralistic. Generally, dating after separation is OK, although it may inflame your spouse, which means that your trial judge will not care, but your spouse can make the whole process much more difficult because you are having fun and s/he isn't. Intercourse, however, is not OK. I realize this can be easy advice to give and hard to follow, but by sleeping with someone other than your spouse prior to divorce, you subject your lover to subpoena as a witness in your divorce case. Both of you may be asked a barrage of embarrassing questions. You may provide your spouse with ammunition to harass you into a favorable property settlement. Discovery of a lover can have detrimental effects on your case if custody is at issue. Remember, having sexual relations with someone other than your spouse before divorce, even if you are separated, is still considered adultery under the law.

Spousal Abuse

If your spouse is physically abusive with you, call the police first; call a lawyer second. A court can order that abusers stay away from your home and office. A few years ago Judge Richard Johnson in Dallas began issuing cellular phones to victims of abuse, allowing them to call 911 when a threat occurs. Criminal judges may use electronic monitoring to protect victims of abuse. You can get help, but you will have to ask for it.

Telling Your Children

You will need to tell your children about the dissolution of the marriage, but do not do so prematurely. Make sure that a divorce is inevitable. When you tell them, be honest. There is no need, however, to fill them in on gory details. A good book, which deals with this subject, is Divorce Without Victims, by Dr. Stuart Berger.

Marriage Counseling/Reconciliation

If you think there is any hope of reconciliation, see a counselor. You may need the advice of an attorney at the same time, but if there is any chance of saving your marriage you should try counseling for several sessions. In many cases marriage counseling has worked wonders.

Coping with Marital Distress

Marital distress can be just as stressful as the most difficult business problems or the most serious health issues. In extreme cases marital distress kills. Even if your marital distress is not that severe, it will be a day-to-day drain on you. This may lead to insomnia, excessive drinking, hypertension, passive-aggressive behavior, headaches, fatigue, boils, neuritis, neuralgia, flatulence , and a myriad of other stress-related problems. Marital distress will have a ripple effect and affect your children, parents, and co-workers. Sufferers of marital distress are well advised to set aside extra time to relieve stress in a healthy way. Walk a few extra miles. Start doing yoga. Learn racquetball. Go camping for a few days. Practice relaxation techniques. Do whatever you enjoy that is not destructive but, remember, extra stress will take its toll if you do not do something about it.

Spend Extra Time Managing Your Stress!

Keeping a Journal

Keep a journal until your divorce is resolved, especially if you have children. Write down everything that happens involving you, your spouse, and your minor children: telephone conversations, confrontations regarding the children, settlement discussions - everything. If you have minor children, continue keeping a journal after your divorce. You may have to return to court after your divorce to modify custody or support issues. Keeping a journal is not only good therapy; it's good evidence.

Financial Documents

Importance: The legal community has worked hard in the past few years to "de-emotionalize" the divorce process. This began in the '60's with no-fault divorce laws and has continued into the '90's with innovations such as mandatory mediation in custody disputes and broader application of joint custody. The result is a system involving less mud-slinging (at least, theoretically). The family law system is now more concerned with the financial aspects of the divorce. For this reason, in most cases, the preparation of accurate financial documents is the most important part of the case.

Personal Financial Statements. The most helpful thing you can do for your attorney is to prepare an accurate, current personal financial statement. I have seen numerous cases where thousands of dollars of attorney time had to be spent preparing a financial statement. You can save yourself a lot of money by doing this yourself or by employing a CPA to do it. An accountant's hourly rate is usually less than your attorney's. I have attached a form on Appendix "A" that will help you get started. How detailed should it be? As detailed as possible, but, please, no furniture.

How do you place a value on your assets? Consult appraisers or give it your best shot. Value home furnishings at liquidation value.

Cash Flow Statement. If you have children, or anticipate any issue in your case regarding financial support for you or your spouse, prepare a cash flow statement describing your average monthly income and expenses. A form is provided on Appendix "B". This exercise should also assist you in your post-divorce financial planning.

Documentation. Your financial statement and cash flow statement should be substantiated by appropriate supporting evidence such as pay-stubs, amortization statements, appraisals, bank statements, and credit card statements.

Timing. In too many cases, once the petition is filed, battle lines are drawn.This usually means that financial information is easier to obtain before someone files a petition. Consider "doing your homework" before you start a legal proceeding. The results will help you better understand the strengths and weaknesses of your case before you begin.

Other Documents

Estate Planning. A typical TRO will prohibit each of you from changing life insurance beneficiaries and retirement plan beneficiaries (but not your will) . Consider re-evaluating your estate plan before the divorce gets under way. This is especially important in larger estates. 

Chronology. A chronology of salient events during the marriage will be very helpful to your attorney. An example is attached as Appendix "C".

Witness Lists. If you think that your case might not be settled out of court, list each person who knows anything about the disputes between you and your spouse. Include their addresses and telephone numbers and a brief synopsis of what he or she knows that is important to your case.

Tape Recordings

I'm not sure I like it, but the law clearly allows you to tape record any telephone conversation to which you are a party. If you're on the phone, you can legally tape it. Taping verbal abusers or spouses who make threats can result in devastating evidence.

Can you tape phone conversations between a child and your spouse? A recent case suggests that you may be able to because, under certain circumstances, a parent can consent to the recording on behalf of the child.

Personally, I prefer to make agreements that neither parent will tape record the other. When people think they may be recorded, they will be guarded, if the communicate orally at all. In some cases, however, all is fair, and you have to do what you have to do. But, be very cautious tape recording people. There is a state statute and a federal statute making wiretapping a crime and allowing for civil penalties. If you don't know what you are doing and get too aggressive, you can get burned.

Mediation

What is "mediation"? In 1987 the Texas legislature passed the Alternative Dispute Resolution Act authorizing judges to utilize more innovative methods of settling civil disputes. One of these methods is mediation.

Mediation is a structured settlement conference where a person acts as a neutral go-between to bridge communication gaps between parties in a lawsuit. Most mediators are trained in techniques proven to facilitate resolution of disputes.

How Does It Work? Although there is no right way or wrong way to conduct a mediation, and every mediation is a little different, there are currently two basic "models" for mediating a divorce case in Texas. In the first model, the parties and their attorneys appear at the mediator's office. In the old days (10 years or so ago), mediators would start with a "joint session", where everyone got in one room together, the mediator explained the process, and then the lawyers and their clients started discussing the issues. Mediators quickly learned that when people are in litigation, they don't always like being in the same room together. Nowadays joint sessions for mediators who use this format are rare. Instead, mediators immediately separate the parties by putting the wife and her lawyer in one room and the husband and his lawyer in the other. The mediator may have a brief session with the lawyers or he may start "caucusing", meeting with one party and then shuttling to the other party. Most likely, this pattern will continue for a long day of mediation. How long a caucus lasts is unpredictable, so you may have a lot of down-time when the mediator works with the other side.

In the second model, the parties attend mediation without their attorneys. The mediator seats the parties in the same room, and conducts the mediation without separating the parties and meeting with them privately. Mediators who employ this model usually schedule sessions for an hour or two and continue the mediation over several sessions, giving the parties "homework" between sessions, which may include consulting with their attorneys. Relatively amicable couples may utilize this form of mediation before the legal process becomes litigious. The disadvantage of this model is that the "weaker" spouse can be at a serious disadvantage because her attorney is not there with her to assist her in the negotiations.

How Much Does It Cost? Customary rates for experienced mediators in Dallas County as of this writing vary between $600.00 and $2,500.00 per party per day based upon the complexity of the case and the experience (if not the ego) of the mediator.

Does It Work? Approximately 80% of the cases referred by a court for mediation in Dallas County have been settled.

Advantages of Mediation.

1. Mediation empowers the parties to formulate their own solution to their dispute.

2. Mediators are often more accessible than judges.

3. Mediation, if successful, will terminate the dispute. Resolving a dispute by trial may lead to an appeal.

4. Cases resolved in mediation usually result in lower attorney's fees. A journalist recently reported in ABA Journal that lawyers generally charge $20,000 and up for resolving a divorce case resolved through litigation and rarely more than $10,000 for resolving a case through mediation. As a mediator, I see a lot of cases where the lawyers charge more than $10,000, but, generally, I think that most divorce lawyers would agree that mediation reduces litigation costs.

5. Unlike court proceedings, mediation is confidential.

When Should Mediation Be Utilized? If you and your spouse have a simple estate and no children; or, if you have a simple estate and no dispute about who will have custody of the children and how parenting will be shared after divorce, you do not need a mediator. If, however, there are disputes or complexities about your divorce, you should consider employing a mediator. But, when? I usually test the waters with some negotiations before scheduling mediation. After all, if you can settle the case without spending the money on a mediator, why not? But, if negotiations among the parties and the lawyers are not promising, it's best to get on with the mediation process. Even though mediation is an expense, it is one that can save other litigation expenses. Tough negotiations often lead to depositions and trips to the courthouse; that approach can cost a lot more than hiring a mediator, and once the downward spiral of acrimony begins, it can be hard to reverse it.

Attorneys representing relatively uninformed spouses will usually want to gather information before agreeing to mediate. This makes sense. You cannot negotiate without sufficient information to allow for an effective dialogue. And, of course, knowledge is power.

Collaborative Law

Collaborative law is a relatively new development, showing that even the legal system is dynamic sometimes. Basically, in collaborative law, the lawyers agree that they will not go to court; if there is some reason to go to court for a contested hearing or trial, the parties have to change lawyers. The threat of going to court is taken out of the equation. While that sounds like a noble cause (no pun intended), as I see it, while trying to keep people out of court is what I do, many cases settle because of the threat of going to court. And, most of my clients cannot afford to change lawyers when negotiations break down. So, the more invested you become in the collaborative law procedure you get, the more economic pressure there can be to make a deal, even a bad deal. If you are interested in collaborative law, please refer to my newsletter of October, 2000. Many of my most respected colleagues are practicing collaborative law. Personally, I have not yet jumped on this band wagon. The jury is still out on collaborative law. Stay tuned!

Mental Health Professionals

As far as I am concerned, mental health professionals are almost an indispensable part of the divorce process. Even the simplest divorce (from a lawyer's perspective), represents the destruction of someone's hopes and dreams about a major life event. It's traumatic. If you were ever inclined to get a little counseling, now is the time. In many ways, divorce is worse than experiencing the death of a loved one. Death is final; divorce lingers.

Those of you with custody issues should be especially interested in what a mental health professional can do for you, especially one who is willing to testify.

Do your kids need counseling?

Pre-Divorce Checklist

• Consider counseling.
  
• Understand the difference between community property and separate property.
  
• Evaluate your credit cards.
  
• Evaluate joint accounts.
  
• Confront separation.
• If you are separated, and you have remained in the marital residence, change the locks on the doors.
  
• Gather and organize all important financial and legal documents.
  
• Determine whether it will be necessary to trace separate property. If so, consider professional assistance.
  
• Consider a restraining order to prevent excessive spending.
• If your spouse has been abusive, consider requesting a Protective Order.
  
• Anticipate your post-divorce financial condition. If necessary, go back to school and/or seek employment.
  
• It's OK to date, but be careful of too much too soon.
  
• When you are sure, tell your children.
  
• Manage your stress constructively.
  
• Keep a journal.
  
• Prepare a current personal financial statement.
  
• Prepare a current cash flow/budget.
• Should you consider tape recording your spouse?
  
• Consider changing your will, life insurance beneficiaries, and retirement plan beneficiaries.
  
• Consider employing a mediator.
  
• If you anticipate a custody battle, or do not like the standard possession order, you may want to get the input of a mental health professional.

Chapter III: How To Select A Divorce Lawyer
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Start Now! Contemplating divorce? It's a safe bet that your spouse has had similar thoughts. What if your spouse has been conferring with a lawyer for months? Could that disadvantage you? If so, consult with a lawyer now to find out how to protect your rights. If you do not find a lawyer until you are served with a divorce petition, you will find yourself at a serious disadvantage in a contest that may affect the rest of your life.

Even if you do not get divorced, a competent lawyer can help you organize your affairs. That may be important in the event of disability or an untimely death. A probate proceeding is, in many ways, similar to a divorce proceeding. When you die, the property that passes under your will is your one-half of the community estate and your separate property. What comprises your total estate can be a complex question. But, it must be ascertained sooner or later. If your affairs are in order, probate fees will be nominal; if your affairs are a mess, it will be costly to ascertain and distribute your estate.

Using One Lawyer

Lawyers are ethically prohibited from representing both parties in a divorce. This is because lawyers are advocates, and it is impossible to advocate both sides of a case. This does not mean, however, that divorcing couples always need two lawyers. You can always use one lawyer. You would be smart if s/he were YOUR lawyer, but you already knew this.

Where to Look

Ads. Avoid large ads in the yellow pages or TV guide unless you have no property and no children. Most reputable law firms do not advertise in this manner (although attorney advertising is rapidly changing).

Bar Associations. Your local bar association can be a good source of information. Most lawyers who do a significant amount of family law are members of the family law section of local, state, and national bar associations. Your local bar association can give you a list of attorneys who are members of the local family law section. This will give you some measure of assurance that the lawyer you choose is qualified to handle your divorce.

Friends. More often than not friends, acquaintances, and friends-of-friends are dubious sources because many people do not know when they have been competently represented. Most divorcees come away with a feeling that they lost. They blame their lawyer when, in fact, the system is at fault.

Lawyers. Lawyers are a good source of information if you know one well enough to get a candid, objective opinion. If your attorney refers you to another lawyer, make sure and ask if the referring lawyer will receive a portion of the fee. If so, you may be referred to a lawyer because he pays other lawyers high referral fees, and not because he is necessarily the best person for the job. Often, however, lawyers know more about the practices of their colleagues than the public could ever know. Some lawyers have reputations among their peers for overcharging their clients, not working their cases, not knowing the law, or being overly litigious. If you are considering hiring a certain lawyer for your divorce, try to check him out with other lawyers in advance.

Other Professionals. CPAs, CFPs, Mediators, Therapists, CLUs, and bank officers can also be valuable resources.

The Initial Interview: What to Ask

You may have numerous questions for your first interview with a divorce lawyer, but make sure to ask the following:

• How will I be charged?
• Who will actually handle my case?
• Have you handled other divorce cases similar to mine?
• What percentage of your practice is divorce, or family law, related?
• Do you employ associates, paralegals, law clerks or legal assistants? If so, what is the charge for their time?
• Do you having any long vacations coming up?

Fee Arrangements

What is a retainer? A retainer is an attorney's security blanket. Most attorneys wrestle with substantial monthly overhead and cannot afford to extend credit to their clients. They require an advance as a credit against the time they expect to expend on your case in the short run. If they do not get enough of a retainer, and you get behind paying your bills, they may not be too enthusiastic about working on your case. If you get too far behind, you may find yourself learning law the hard way - through self-study.

What do I do if I can't afford much? Even attorneys offering services to people of little or no resources usually require money up front. Married persons who have accumulated no property, who have had no children, and who have no disputes can divorce for as little as $80 plus costs (approximately $230). The Dallas Morning News publishes the "TV Magazine" weekly. Look there to find the lowest prices for an uncontested divorce. Lawyers who offer legal services at these rates cannot provide you with much in the way of advice. Their practices are designed differently than most lawyers with more traditional practices. I admire their creativity in providing legal services to people who, in the past, have been unable to afford them.

Refundable and Non-Refundable Retainers. Beware of the non-refundable retainer. Your attorney may charge you $5,000 as a non-refundable retainer. If he spends two hours on your case, and then you and your spouse decide to reconcile, you have just paid $5,000 for the two hours of services rendered.

Written Fee Agreements. Many lawyers want you to sign a written employment contract before they begin working for you. This is mutually beneficial because a good contract clarifies how your lawyer will charge for handling your case. This will prevent a lot of future misunderstandings. Do not sign such a contract, of course, unless you understand it.

Other lawyers prefer to use "engagement letters". Rather than asking you to sign a contract, they will send you a letter setting out the terms of their fee arrangement.

How it is done is unimportant, but make sure that the terms of your lawyer's fee arrangement are stated in writing.

The Contingency Fee. Some lawyers will agree to represent you and defer all or part of their fee until the case is over, taking a percentage of what you ultimately receive. This sounds like a great deal: no monthly bills to worry about, no worry that your attorney will withdraw from your case because he is not paid. The percentage, however, may be as much as 25-40% of each dollar he recovers for you. This may apply regardless of how much is actually in dispute.

For example, if you have an estate worth $100,000, and you and your spouse have agreed to the division of 90% of it, your lawyer may get paid a fee of $20,000 (40% of half) for fighting over $10,000. Some would consider this an excessive fee. Lawyers may put contingency fee cases on the back burner and work on them only when they have few cases on which they are paid an hourly fee.
The Texas State Bar discourages contingency fee agreements in divorce cases for various reasons, including the obvious complications if the parties reconcile. Be circumspect of any proposal to handle your divorce on a contingency fee basis .

Specialists

Specialists are a fairly new addition to our age-old legal system, dating back to the mid-1970's when the State Bar began "certifying" lawyers as "specialists" if they met certain qualifications of experience and knowledge. In the family law area they emphasized experience in courtroom battles and left little room for lawyers who prefer to resolve their cases privately through negotiation.

Therefore, the current roster of "specialists" favors warriors and disenfranchises diplomats. I have found that this is exactly the opposite of what many consumers want. The vast majority of people with whom I have counseled on family law issues during the past 26 years have expressed a strong desire to stay out of court. They usually want to dissolve their marriages with as little expense and trauma as possible. So, if the State Bar's list of specialists is not a good source of lawyers who will try to keep you out of court, where do you look? This is a real problem for every consumer of divorce and family law services.

The fact that the State Bar has certified your lawyer does give you some measure of assurance, however. It means that he has had a minimum of 75 hours of continuing legal education in family law, he has had a fair amount of trial experience, and he has passed a written examination designed to establish certain competence in family law. It does not mean, however, that he will be conciliatory, superior, or effective in resolving your case promptly and economically.

Many times the fees of specialists exceed those of a non-specialist. So, unless you have a very complicated situation, you may save money by using a non-specialist to handle your case.

Attorney-Mediators

An even newer breed is the "attorney-mediator". The State Bar has nothing to do with this label. Attorney-mediators are attorneys who have had special training as negotiators and problem solvers. The amount or quality of this training may vary considerably from practitioner to practitioner. Attorney-mediators often represent parties in divorce cases and serve as mediators in other cases; other attorney-mediators are full-time mediators. Attorney-mediators typically handle cases using methods that emphasize cooperation rather than confrontation. Their objectives are to keep their clients out of court. This is not to say that an attorney-mediator is necessarily unfamiliar with, or uncomfortable with, court procedures. Some are experienced trial lawyers, but their emphasis differs from that of their colleagues.

Collaborative Lawyers

And, the newest - collaborative lawyers. As mentioned above, these are lawyers who will not go to court. They are strictly negotiators. If your negotiations hit a snag and you want or need to go to a judge for a ruling, you have to get another lawyer. I have no quarrel with their good intentions of trying to force family law litigants to "de-militarize", but there are some obvious potential inefficiencies with this system.

Other Factors to Consider

• Personality: Will you enjoy working with this person for three months to two years? Do not choose a lawyer you do not like.
• Telephone calls: Most lawyers charge you for time they spend talking to you on the telephone. Some charge a minimum of a quarter hour per call; others charge by the tenth of an hour. Find out. Consider writing out your questions before you call and writing down your lawyer's responses so you do not forget what he tells you and have to call back.
• Location: Is your lawyer's office in a convenient location? You may have to make numerous trips to your lawyer's office during your divorce case. Make sure that the additional travel time is not a hardship on you.
• Confidence: Do you trust this person? This can be a crucial consideration in complex cases where the fees will be significant.

Chapter IV: The Divorce Process
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Getting divorced is like going to a foreign country. The divorce process has its own language, its own set of rules, and its own sense of time. This chapter previews the legal system to better prepare you for divorce and to reduce the anxiety intrinsically related to the divorce process. Topics are presented sequentially, according to when you usually confront them during the process; in other words, from start to finish.

Initial Considerations

Collaborative Law

Although I know of no reason why you could not make the decision to elect the collaborative law process after you had begun and were well into the divorce proceeding, as I understand it, most people make this election at the beginning of the case.

The Temporary Restraining Order

The "TRO" is a court order prohibiting all transactions except expenditures for normal living expenses, normal business expenses, and legal fees. A TRO will limit the financial transactions you or your spouse may conduct and it prohibits various forms of harassment.

TRO practice has changed in the past few years. Used to be that lawyers had to prepare an order, take it to court, persuade a judge to sign it, thus, having to "walk it through" the process. Because TROs in divorce cases are virtually automatic, at least to some extent, depending on what they include, many counties have adopted "standing orders". That means that you no longer have to ask a judge to sign a TRO unless you want some unusual relief; otherwise, it is automatic when someone files a petition for divorce. The court clerk simply attaches a copy of the standing order.

In the past, clients all had to decide if they wanted a TRO. With standing orders, you no longer need to make that decision; it is made for you. Now the decision is whether to serve your spouse with the petition, as opposed to "softer" methods, such as providing him a copy by mail.

If you do not live in a county that utilizes standing orders, you may request that the court issue a TRO when a divorce suit is filed or at any time during the pendency of the case. A TRO is valid for only 14 days. You may request that the Court renew it once without the agreement of the other party. After that, the court must conduct a hearing to extend it further. It is common for courts to extend the TRO for the duration of the case. When this occurs, however, the law no longer refers to it as a TRO, which is a term denoting a short-term order; when extended for the duration of the case, it becomes a "temporary injunction."

Standing orders typically become temporary injunctions if neither party objects within 14 days after the petition is filed.

Protective Orders

There are a couple of different court orders called Protective Orders. One type of Protective Order is designed to protect a party from an unreasonable request for information. In cases where someone has threatened or committed family violence, however, the court can issue a Protective Order that prohibits one party from coming anywhere close to the other party or his or her residence or business. While police may do little because of a violation of a TRO, they must enforce a Protective Order.

Service of Citation

You have the right to "serve" the divorce petition on your spouse. Typically, this means that a local constable or private process server goes to your spouse's residence or business and hands him or her a copy of the petition.

In uncontested divorces spouses sometimes waive service by filing a waiver with the court to save the expense of paying someone to deliver papers. In cases where both spouses have consulted attorneys before one of them files a petition, they can avoid service by having the non-filing spouse's attorney file an answer to the petition.

Once someone serves you with a citation, you must file a written answer with the court where the suit was filed by 10:00 a.m. on the Monday following 20 days after the date of service.

The Petition

In order to invoke the divorce process, you must file a "petition" with the district clerk of the county where you have resided for the past 90 days. In this petition, you request that a state court dissolve your marriage and make appropriate orders concerning a variety of related matters including:

• dividing your community estate;
• awarding you your separate property;
• awarding conservatorship, possession, and support of minor children;
• changing your name;
• assessing attorney's fees;
• resolving claims for assault and other bad acts; and,
• resolving claims for reimbursement or economic contribution between estates.

The Counter-Petition (or "Counterclaim")

If your spouse files first, you may: (1) file a counter-petition describing what you want the court to do or (2) file an "answer" to the petition. An answer acknowledges that you have received the petition but does not request that the court grant any extensive relief. An answer is sufficient if you do not want a divorce and think reconciliation is a possibility.

Filing a counterclaim prevents your spouse from dismissing his or her suit unexpectedly , leaving you in a state of uncertainty. This may require that you re-file, starting the process all over again, at unneeded delay and expense.

Suits Against Third Parties

Lovers: Suits for "alienation of affection" have not been legal in Texas since long before Brad, Jen, and Angelina.

Legal Entities : Corporations are viewed as distinct legal entities unless they have been used for purposes of fraud. Parties married to a spouse who is an owner of a closely-held corporation or a partner in a general partnership should consider joining the entity as a party to the suit. The same is true for trusts, partnerships, and limited liability companies.

Torts

You may have legal claims against your spouse for wrongful acts committed during the marriage, such as assault. These claims are referred to as "tort claims". Tort claims should be included in the petition or counterclaim.

Most tort claims must be filed within two years after your discovery of the wrongful act; otherwise, the claim will be barred by the statute of limitations.

Reimbursement

Claims of reimbursement usually arise when funds from one marital estate are used to benefit another. For example, if you come into the marriage with debts (separate property debts) and you use your marital earnings (community assets) to pay those debts, your separate estate owes reimbursement to the community.

Reimbursement claims are difficult to evaluate, however, because they are "equitable". That means that the trial judge has broad discretion in awarding you all or part of a reimbursement claim. In other words, they could be worth their face value, or they could be worth nothing. It's strictly up to the judge.

Reimbursement claims are measured by "enhancement in value", but they are offset by the benefits received.

Economic Contribution

We have had legal claims for reimbursement in Texas for many years. As the law developed through appellate opinions, lawyers discovered a pattern. In a number of cases, spouses came into a marriage with a home and a typical mortgage attached. Because he or she owned the house before marriage, it was separate property. Because the spouses made payments on the mortgage during the marriage, at the time of divorce the community had a claim for reimbursement. But, because both spouses enjoyed the use and benefit of the house during the marriage, the courts held that the claim was offset. The net result was that the owner still had his separate property house; at time of divorce it had usually appreciated because of market factors and/or improvements made during the marriage; the equity had increased because of the mortgage payments; and the community (i.e. the other spouse) was not entitled to anything.

That scenario struck some legislators as unfair to the non-owner, and, so, in 1999, Texas enacted legislation to correct this problem. Originally, we called these "equitable interest claims" but they morphed into what are now called economic contribution claims. Essentially, they require trial judges to apportion the appreciation between the separate estate of the owner and the community estate (or the separate estate of the non-owner in some cases) by use of a formula. This all gets a little complicated, so I will not bore you with the details right now. But, if you have a case in which a secured debt was paid with funds from another marital estate, or if one marital estate made improvements to another, please bring it to the attention of your attorney.

Temporary Orders

Temporary Orders govern the parties' conduct while the case is pending. Temporary Orders address interim problems such as those set out below.

Child Support

You are entitled to receive monetary support for your children if you have primary possession of them. Unless you have unusual circumstances, the Court will determine how much support to award by applying a fixed percentage, as provided by the Texas child support guidelines, to the paying parent's net income as follows:

These guidelines apply to the first $7,500 per month of net resources. For higher income earners, the court may order additional child support if a child's financial "needs" exceed the guideline amount. Texas courts have failed to establish a clear definition of "needs", so child support issues in cases involving high-income earners are currently fertile ground for litigation. Recent cases indicate that private schools may be a "need".

Payors with children of two or more families have different guidelines.

In appropriate cases, the Court may order that one spouse pay the other child support retroactive to the date of filing.

Temporary Spousal Support

Trial courts may award "temporary spousal support" to spouses who need financial assistance while the divorce proceeding is pending. There are no current legislative guidelines for determining how much temporary spousal support a court should award or how long a court should require payment. Some judges will award spousal support just long enough to allow the recipient to find a job.
Spousal support may include payment of existing debts, costs of relocating, and continuation of insurance or other benefits.

The Temporary Injunction

The temporary injunction is simply an extension of the TRO for the duration of the divorce case. In counties with standing orders, this will happen automatically unless someone objects.

The Inventory and Appraisement

In most cases the parties will agree that they will each prepare and exchange an Inventory and Appraisement within 30-45 days after the court signs Temporary Orders.

An Inventory and Appraisement lists all of the assets and liabilities of the parties and characterizes each as community or separate. It is similar to a personal financial statement (Appendix "A").

Ask your attorney for an Inventory and Appraisement form. Spouses who have accumulated even a modest estate during their marriage will have to do this to get through the divorce process. The sooner you complete yours, the sooner you can divest yourself of your lawyer.

Temporary Conservatorship/Social Studies

In 1995, Texas adopted a law requiring courts to presume that appointing parents as joint managing conservators of their children is in their best interests, except in cases involving a pattern or history of abuse. For that reason, people do not fight over conservatorship of their children as they once did.

Regardless, exceptions arise. In addition to cases involving abuse allegations, we still see cases where one parent has not been involved in raising the children and those where the parents have so much trouble getting along, the prospects of their reaching any joint decisions about the children are slim. In such cases, sole managing conservatorship may rear its ugly head and become an issue. But, keep in mind that "conservatorship" is just a label; you can call a parent a "joint managing conservator" and still give all of the parental rights that matter to another parent (more about parental rights below).

When parents fight over conservatorship or possession of their children, many courts will require that they participate in a "social study". In a social study a social worker interviews both parents and the children and makes a recommendation concerning periods of possession and/or conservatorship. In other cases the court may appoint a psychologist to evaluate both parties and the children.

Parenting Plans

Divorcing parties with children must now submit parenting plans to the court. What is a parenting plan? For the most part, this is just a case of old wine in a new bottle. A parenting plan is nothing more than an agreement on conservatorship, parental rights, possession, and child support, which is what Texas lawyers have been doing for decades described by the relatively new phrase "parenting plan". But, now, you must include a provision for mediation or some form of alternative dispute resolution in a final agreement. Parties who have not reached an agreement on these issues must submit their proposed plan to the court at least 30 days before trial.

Exclusive Use of Property

The court may award temporary possession of certain property to one spouse, excluding the other spouse from it, until the divorce is final. This prevents interference with residences, vehicles, and other property while the case is pending.

Interim Attorney's Fees

What if you're broke, but your spouse has plenty of money? How do you pay your lawyer? This happens in families where one spouse controls the finances and gives the other spouse an "allowance". To level the proverbial playing field, a court can order the spouse in control of the funds to turn some over to the spouse who is doing without so the latter can pay his lawyer. Enforcing an order to pay interim fees can be tricky; if the order is not drafted properly, this can be a Pyrrhic victory. Motivating an attorney to take a case where his only prospects of getting paid are collecting the fee from an embittered spouse may also present a challenge.

Debts

The court may order that one spouse or another pay certain debts during the pendency of the divorce. This is important when mortgage payments loom. On the other hand, many courts will not order payment of unsecured debts, theorizing that they are concerned with you and your children - not your creditors.

Contested Hearings

Divorcing spouses who need Temporary Orders have several choices: (1) they can negotiate an agreement, (2) they can proceed immediately to mediation, or (3) they can go to court, and let a judge resolve their disputes. Inmetropolitan areas going to court usually means a delay of several days to several weeks. On the day of the hearing, whether your case is heard right away or not at all is unpredictable.

Some people, typically those histrionic types who cannot wait to get to court to tell all about something insignificant, are disappointed to learn that the judge of their court does not preside at the hearing on Temporary Orders. In many courts, especially those in metropolitan areas, associate judges preside over these hearings. Don't worry. They are usually quite capable.

Regardless of what method you select, some issues should be easily resolved. Lawyers customarily agree to Temporary Orders requiring the parties to exchange inventories, issuing a mutual temporary injunction, and requiring production of relevant documents.

More often than not I counsel people to stay away from yucky-old court where mudslingers hone their skills. Sometimes, however, going to court for a hearing is an important option . It is an opportunity for information gathering, if nothing else. If you do not know very much about your spouse's financial situation, and your spouse is not cooperative, consider going to court for a temporary hearing. Your attorney can learn a lot about your case by doing this. But, before you make this decision, also consider that a contested temporary hearing sets an adversarial tone for your divorce, which can make it more emotionally and financially draining. You may win the battle and lose the war.

If your temporary hearing involves support, be prepared to summarize and justify your normal monthly income and expenses. Expenses that are greater than normal should be documented with canceled checks or other evidence. Go through your canceled checks and credit card statements for the past six months. Take an average of your normal income and expenses. Complete Appendix "B".

Associate Judges often expect lawyers to complete contested hearings in 30 minutes to an hour; some counties have policies limiting each side to 20 minutes. Getting a fair hearing over custody of children can be a real challenge in such a limited time. If you think your case will take longer than that, your attorney may need to request a "special setting".

If you do not like the Associate Judge's ruling in your case, you have the right to appeal to the District Judge.

Violations

Theoretically, a court can enforce Temporary Orders by contempt, assessing a fine of $500.00 against the violating party or incarcerating him for up to six (6) months. Temporary Orders are a good deterrent to bad behavior during the divorce process. As a practical matter, however, do not expect much relief for minor infractions of Temporary Orders.

Defining Issues

Once the smoke clears, and your attorney has enough information to evaluate your case, he or she should determine what the contested issues are. In cases where the parties cannot agree on how to divide the estate, common issues include valuation of assets, tracing, reimbursement, economic contribution, and whether one spouse is entitled to more than 50% of the estate ("disproportionate division"). In cases where the parties cannot agree on what to do with their children, common issues include periods of possession, where the children will reside, and child support.

Once you and your attorney have defined the unresolved issues, you need to evaluate the prospects of resolving those issues without litigation. If those prospects are not good because, say, for example, you are married to a jerk, you should consider formulating a litigation plan. Litigation plans should address how to investigate the unresolved issues and present your side of the case as effectively as possible in court. While this may sound like too much reality to some of you who would much rather not go to court, be encouraged by this: I have heard many experienced trial lawyers (not just family lawyers) say that the best way to settle a tough case is to prepare it for trial.

Investigating Your Case

Is investigation necessary? Once you and your attorney have identified the issues, you must determine whether you have all of the information you and the court will need to resolve those issues. If you have all of the information available about your case, set it for trial, negotiate a settlement, or opt for mediation. On the other hand, if you have questions that need to be answered before intelligent negotiations can begin, you have two options:

• Settle the case on the basis of partial knowledge.
• "Discover" more about the case.

An attorney cannot, and usually will not, for fear of malpractice, give you an opinion or a recommendation based upon insufficient information.

In many marriages one spouse has a lot more information than the other does. The classic example is the marriage in which the husband is self-employed and the wife is not involved in the business. In these marriages the wife may have a consistent problem of acquiring information and determining whether she has enough information to make an intelligent decision about dividing the estate.

Described below are common methods attorneys use to investigate the facts of your case.

Request for Production of Documents

Attorneys routinely send one another a request for production of documents in a contested case. They review all legal documents regarding your estates , including tax returns, stock certificates, financial statements, and correspondence. Requests for documents are often lengthy. The Texas Rules of Civil Procedure require that a party must respond to a request for production of documents within 30 days after service.

Interrogatories

Interrogatories are written questions a lawyer may "propound" upon your spouse in order to gather relevant facts. A person receiving interrogatories must answer them under oath within 30 days after service.

Interrogatories are useful to establish basic facts about your case, such as when a retirement program began, or who the officers of a corporation are. But, don't be too optimistic about receiving candid answers from your spouse. Once he has answered the questions, his lawyer will "sanitize" his answers and state objections to the questions to make sure that he gives up as little damaging information as possible.

Don't instruct your attorney to send interrogatories to your spouse unless you want to answer the same questions. Reciprocity is a two way street!

Depositions

A deposition is a spontaneous, out-of-court interrogation. Typically, you, your attorney, your spouse, his or her attorney, and a court reporter meet at one of the attorney's offices. The court reporter will place the witness (who may be your spouse) under oath, and your attorney will ask questions.

Depositions are relatively expensive. Get an estimate before deciding on depositions.

You only pay for the reporter's time for depositions that you have requested. If your spouse requests that your deposition be taken, he pays the reporter. Remember, however, if he is spending community funds, who actually pays may not be material because, regardless who writes the check, the community estate will still be reduced.

You cannot refuse to give your deposition. You are entitled to reasonable notice, but you cannot refuse to answer questions that are relevant.

You and your attorney should rehearse to some extent before you testify in deposition.

Like interrogatories, if you request your spouse's deposition, rest assured that he will ask for yours. There's that rule again!

Upon proper request, a deposition may be videotaped.

If you are faced with a deposition in your divorce case, consider the 5 rules stated below.

Appraisers/Expert Witnesses

Spouses who cannot agree to what their property is worth often hire appraisers to assist them. They may hire other experts to assist them with other issues. Psychologists, for example, often assist in disputes relating to children. Accountants assist in disputes relating to tracing of separate property.

Inventories

The Inventory and Appraisement ("Inventory" for short), as discussed above, is a fundamental tool for investigating your case and is routinely requested. By simply requesting an Inventory, your spouse must provide you with full and verified disclosure of all assets, liabilities, claims, and his contentions concerning whether property is community or separate. In fact, many lawyers will not settle a case without requiring the other party to provide an Inventory. It is frequently the starting point in investigating the property division (as opposed to the parent-child) issues in your case.

Witnesses

Family members, friends who have witnessed family violence, doctors, psychologists, teachers, and experts familiar with your case are all potential witnesses. You can help your lawyer by making a list of all potential witnesses, stating each witness' name, address and telephone number and a summary of what the witness knows that may be germane to your case. See Appendix "D" for an example.

Most people do not like getting involved in a divorce case. You may think that someone will come to court and testify for you only to learn at the last minute that he is not willing. Try to get friendly witnesses to sign a statement or affidavit as soon as you think that you will need them. If you need testimony from a "hostile witness", budget for his or her deposition.

Tracing assets

If you own or have owned separate property (property owned before marriage, or acquired after marriage by gift or inheritance), and wish to claim it as yours at the time of divorce so that it will not be divided with your spouse, it must either be intact or traced.

For example, if you had $10,000 in a bank account before marriage, and that same $10,000 is in the same account, you have no problem. If, however, all or part of that money was disposed of, you have no claim for it as separate property unless you can "trace" the funds into a particular asset or assets.

If you need to trace separate property, start now.

Hire a CPA to help you with a complex tracing problem.

To trace separate property, you need to be familiar with the "community-out first rule". Please discuss this with your attorney if you have a tracing problem.

Family businesses

Closely held businesses can be very difficult to value. If you think a family business has any significant value, consider hiring an appraiser.

Negotiating a Settlement

What Are You Entitled To?

A common myth is that community property is divided equally at the time of divorce. This is not true. A divorce court has the discretion to award up to 100% of the community estate to one spouse to the exclusion of the other.

You or your spouse may be entitled to more than 50% of the community estate for various "equitable reasons" including:

• fault in the breakup of the marriage, (i.e. cruelty, adultery);
  
• lesser earning ability; or
  
• smaller separate estate.

In 1999 and 2000, I participated in a poll of local judges, which requested that they respond to a questionnaire designed to ferret out their policies on when they award a spouse more than 50% of the community estate and how far they would go. The results of that survey are posted on my web site at www.tnoble.com.

Which Assets Will You Get?

A court will usually award you your personal effects and the automobile that you drive at the time of the divorce. If you and your spouse own a business, and one of you has been more involved than the other, the court will probably award the business to the more involved spouse (although the court may order him or her to "buy you out"). Otherwise, there are not too many hard and fast rules in this area.

Who Pays the Bills?

In my opinion, this is one of the most confusing areas of family law. In many families, one spouse incurs debt in his name only and then at the time of divorce he expects his spouse to share in the responsibility to pay that debt. He reasons that debts incurred during marriage are "community debts" (akin to community assets), and that they should be accounted for, if not netted out, when dividing the estate. In fact, Texas marital property law views debts differently than assets. An asset's "characterization" (e.g. whether it is community or separate) depends upon when and how the spouses acquire it. But, for some reason, Texas law views debts not from the perspective of the spouses but from the perspective of their creditors.

If, for example, you incur a debt during marriage in your name only, the creditor can look only to your separate assets, your sole-management community property, and joint management community property to satisfy the debt. He cannot look to your spouse's sole management community property or his or her separate assets. All of that is relatively clear when a creditor sues to collect an unpaid debt, but it can be very confusing within the context of a divorce proceeding. To make it more confusing, each judge has his own way of viewing debts. Some subtract debts from assets and divide the net estate. Others ignore debts entirely!

To complicate the issue further, many people carry credit card debt for years, rolling balances from one card to another, chasing the best interest rates. By the time they get to the divorce proceeding, they cannot recall why they incurred the debts to begin with, and they no longer have any statements to show why. If you have a case where one or the other of you are carrying a significant amount of credit card debt, I recommend that you make a diligent effort to track down the credit card statements that show the nature of the charges, especially if you are the only one liable to the credit card company for the debt. If you incurred the debt for the benefit of you and your spouse or children, as opposed to for your exclusive benefit, you can make a very persuasive argument that the court should order your spouse to pay part of that debt or share in it at the time of divorce. If, on the other hand, you incurred it for a hunting trip in which your spouse and children did not take part, or for electronic equipment that you will receive upon divorce, you are probably going to get stuck with it.

A divorce court can order you to pay debts incurred by your spouse, but it cannot affect the rights of creditors. So, if you incurred the debt, you are liable to the creditor. If the divorce court orders your spouse to pay part of the debt, and he doesn't, the creditor will look to only you to pay 100% of it. You may have a legal remedy against your spouse, but you owe it all to the creditor no matter what the divorce court orders.

If your spouse assumes a debt for which both of you are liable as part of your divorce settlement, and he fails to pay it, or fails to pay it timely, that can adversely affect your credit.

Many people have houses at the time of divorce, and, in many cases, one spouse wants to continue to live in the house after the divorce. This is especially common in cases involving minor children. When that occurs, if both spouses are liable on the mortgage note before the divorce, they will still be liable after the divorce. The divorce court cannot affect the rights of the mortgage company. What usually happens in these cases is that the divorce decree will provide that one spouse is liable for the mortgage payments and will indemnify and the hold the other harmless for failure to pay. The spouse who does not get the house will get a "deed of trust to secure assumption", which is like a lien on the house. If the spouse who assumes the mortgage fails to pay it, the other spouse can step up, pay it, and foreclose on the other spouse. That is some consolation to the spouse who stays on the mortgage but gets no part of the house, but, as a practical matter can be a tough remedy. If, for example, your wife and 3 small children stay in the house, and she fails to make the payments, are you really going to foreclose on her and kick her and the kids out? Even in cases where the kids are out of the nest, exes balk at pulling the trigger on this one. The only way to really really get off of the mortgage is for your ex to re-finance (not always possible) or sell the house.

The "Buy-Out"

In cases where the parties have grown a business during marriage, it doesn't usually make sense to liquidate the business because of the divorce. So, one spouse may buy-out the other by making installment payments secured by stock in the business. Buy-outs also occur in cases involving real estate to avoid the costs of liquidation.

QDROs

A QDRO is an acronym for "Qualified Domestic Relations Order". This is a relatively new legal document. Several years ago, when a couple divorced, and one of them had participated in a qualified retirement plan during the marriage, the court appointed the "participant spouse" as a "constructive trustee" of the benefits for the other spouse. This meant that when the participant became entitled to benefits, the plan administrator paid them to the participant, and he was supposed to act as the trustee for his ex-spouse, sending her portion of the payments to her promptly. To no one's surprise, the participant did not always find the motivation to forward those payments. So, the feds passed a law, which allows the non-participant spouse to collect her benefits directly from the plan administrator. There's only one catch: you gotta have a QDRO.

Do not be surprised if you have to pay another lawyer to draft a QDRO for you. Because of the technicalities of many retirement plans, and the risk of liability to a lawyer who screws it up, many family lawyers hire employee benefit specialists to draft their QDROs.

Sole Managing Conservators and Possessory Conservators

Traditionally, Texas courts appointed the primary caretaker - usually Mom - as the "sole managing conservator" of the children, and Dad as a "possessory conservator".

A sole managing conservator had most of the parental rights, including the important right to determine where the children live. This meant that a sole managing conservator could take the children and move to another location, and the possessory conservator could not prevent it. A possessory conservator had the right to visit with the children and consent to emergency medical care.

Parental Rights and Duties

In 1993, the Texas legislature expanded the rights of possessory conservators by amending the Texas Family Code to provide that all parents who are conservators have certain rights at all times and other rights during periods of possession.

Unless limited by court order, the rights to which parents are currently entitled at all times are as follows:

• to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
  
• to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
  
• of access to medical, dental, psychological, and educational records of the child;
  
• to consult with any physician, dentist, or psychologist of the child;
  
• to consult with school officials concerning the child's welfare and educational status, including school activities;
  
• to attend school activities;
  
• to be designated on the child's records as a person to be notified in case of an emergency;
  
• to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and,
  
• to manage the estate of the child to the extent the estate has been created by the parent or the parent's family.

The rights and duties to which parents/conservators are currently entitled during their respective periods of possession are as follows:

• the duty of care, control, protection, and reasonable discipline of the child;
  
• the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
  
• the right to consent for the child to medical and dental care not involving an invasive procedure; and,
  
• the right to direct the moral and religious training of the child.

The sole managing conservator is entitled to the following rights:

• to designate the primary residence of the child; and,
• to consent to medical, dental, and surgical treatment involving invasive procedures, and to consent to psychiatric and psychological treatment;
  
• to receive and give receipt for periodic payments for the support of the child and to hold and disburse these payments for the benefit of the child;
• to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
  
• to consent to marriage and to enlistment in the armed forces of the United States;
  
• to make decisions concerning the child's education;
  
• to the services and earnings of the child; and,
  
• except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government.

Joint Managing Conservatorship

The days of sole managing conservators and possessory conservators are largely behind us. Effective September 1, 1995, the law presumes that joint managing conservatorship is in the best interest of the children unless there has been a history or pattern of family violence during the marriage. This means that most divorcing parents will become joint managing conservators. Some judges will still appoint a sole managing conservator, however, in cases where one parent has done the lion's share of the parenting and the parents do not agree on how to exercise parental rights.

With the presumption in favor of appointing both parents as joint managing conservators, the battle-field for parents in conflict has moved from conservatorship labels to parental rights and possession orders, which is still an improvement. Parents used to fight over who would be sole managing conservator. Now they fight overwho can establish the primary residence of the child, who can make medical decisions, who can make educational decisions, and how days, hours, and minutes are allocated.

Custody litigation can be detrimental to children. Few experts argue that children benefit from conflict between parents. Parents often spend an amount equivalent to a college education on attorneys in a custody battle. Joint managing conservatorship solves a lot of problems and should be seriously considered by anyone concerned about a fight over custody. Making peace may be the best gift a parent can give a child.

How to Act In a Custody Case

We all know how to be Super-Parents. We go to every soccer game. We make every PTA meeting. We take our children to religious services every Sunday. In the July, 1994 ABA Journal, Fred Silverberg, a family law specialist from Los Angeles, described "the ten worst things" parents can do to hurt their custody case. 13 years later, this is still good advice of what not to do:

• Make derogatory remarks about the other parent.
• Make derogatory remarks about the other parent's family.
• Use the child as a messenger.
• Refuse to talk by telephone with the other parent
• Leave the child with a baby sitter during visitation periods.
• Fail to communicate with the child's educators and health care providers.
• Keep the child involved in activities from dawn until bedtime.
• Be inflexible regarding visitation schedules.
• Provide a negative profile of the other parent to a custody evaluator.
• Have the "significant other" get involved in the custody dispute.

Child Support Revisited

Child support will normally be determined by a simple formula as shown above.

Texas requires that all child support payors send their checks to the Texas Child Support Disbursement Unit in San Antonio. If you are paying, don't pay your ex directly; it will throw off Big Brother's books, and that means TROUBLE!

Child support must be paid until a child is 18 or has graduated from high school, whichever occurs later. That includes just about any program leading to a high school diploma, including joint junior college/high school credit programs.

Child support may be increased or decreased after divorce upon proof of a material change in circumstances.

Child support is not tax deductible unless you are real creative. There are ways to do it, but the situation must allow for it. For example, if you can afford to buy your ex a house for the kids to live in, you may be able to deduct the interest portion of the mortgage payment because the house may be considered your second home.

Periods of Possession

I hate the way we lawyers refer to time spent with children as the "right to possession of the child" or "periods of possession", but we do. So, you might as well get used to it. I discuss the Standard Possession Order above. If that does not work for you, in order to settle your case, you will need to agree upon when each parent is entitled to see the children. My advice is: keep it simple and flexible. Don't get hung up on playing "what if". There are simply too many, especially if you have young children. You are better off working on procedures for meeting and discussing the children and cooperating with one another than trying to come up with a rigid schedule that considers every conceivable eventuality.

Alimony

There are two types of alimony in Texas: (1) court-ordered, and (2) contractual alimony.

Court-ordered alimony . Effective September 1, 1995, Texas courts can order alimony payments in the following types of cases:

• Domestic Violence Cases: The applicant's spouse has been convicted, or received deferred adjudication, for an act of family violence within 2 years prior to the date the divorce petition was filed or during the pendency of the divorce.
• 10 Year Marriage and Applicant Ain't Got No. In a marriage of at least 10 years, the applicant cannot support herself because s/he lacks sufficient property, including what s/he will receive as a result of the divorce proceeding, to provide for the applicant's "minimum reasonable needs" and (a) the applicant cannot support himself or herself because s/he is disabled; (b) the applicant has custody of a disabled child; or (c) the applicant lacks the earning ability to provide for his or her minimum needs even though he or she has used diligence in seeking employment or developing job skills.

Except in cases where the applicant or a child is disabled, the purpose of court-ordered alimony is to provide financial support to a spouse until s/he can find a job. In disability cases, a court may order that alimony be paid indefinitely. In cases where a spouse is trying to re-enter the job market, a court cannot order alimony for longer than 3 years.

The payor of alimony can request that the Court review its alimony order from time-to-time.

The amount of alimony is limited to the lesser of $2,500 per month or 20% of the payor's gross monthly income.
VA benefits, social security benefits, and worker's comp benefits do not count against the applicant.

Court-ordered alimony terminates when one of the parties dies or when the applicant remarries or cohabits with another adult "in a permanent place of abode on a continuing conjugal basis".

Court-ordered alimony, like child support, is enforceable by contempt. In other words, if the payor fails to make his payments, the court may put him in jail.

Contractual alimony. Even if you or your spouse does not meet the criteria for court-ordered alimony, you may agree to "contractual alimony". But, why would anyone agree to pay alimony when he does not have to? Alimony is tax deductible by the payor and reportable as ordinary income for tax purposes by the payee. In cases where the anticipated tax brackets of the spouses will be disparate after divorce, it may make sense for the spouse in the upper bracket to pay alimony to the spouse in the lower bracket.

No matter which flavor you may select, alimony is not dischargeable in bankruptcy unless a bankruptcy court determines that "alimony" is just a disguised property settlement.

To be tax-deductible, alimony must terminate on the death of the recipient.

Contractual alimony cannot be "front loaded" so that relatively large sums are paid in early years without potentially adverse tax consequences to the payor.

In prior years, the Internal Revenue Code required that contractual alimony be paid for 10 years in order for it to be deductible. It later reduced that to 6 years, and then to 3 years. Then, they gave up. No requirement now exists that contractual alimony payments be paid for a specific time period. Lump sum payments, however, are not allowed. Make sense out of that.

Income Taxes in Year of Divorce

You have to be married on December 31st to be eligible for filing a joint return. That means that you cannot file a joint return in the year of your divorce. For that reason, some people, especially those who find themselves ready to divorce late in the calendar year, wait until just after the first of the year to finalize their divorce proceeding.

Divorcing during the year can create a problem for spouses divorcing in a community property state because the Internal Revenue Code requires that they each report half of the income during the months of marriage and half of the deductions for that period. This can be a problem because, believe it or not, some people who divorce are not wild about cooperating with one another several months after the divorce. There are two exceptions to this rule. You can file and report your income and deductions just like a single person if, during the entire prior tax year (a) you and your spouse did not support one another; and (b) you did not live with one another.

Even though you and your spouse have to report your income in a certain way, you can still agree to whatever way you want to pay it. Enter into such agreements with full recognition that the agreement is only between you and your spouse; the IRS still has its full range of Draconian powers.

The Texas Family Code has tried to take some of the fun out of this by allowing you to partition your income for the year of divorce.

Tax Exemptions and Credits

The Internal Revenue Code provides that the party who has custody of a child for the majority of the year is entitled to the tax exemption for the child. Lots of people think he who spends the most gets the exemption - not so.

An exemption is worth $3,400 per child in 2007. This tax benefit begins to phase out when your income reaches $156,400 (for single taxpayers) or $195,500 for heads of households.

Under the 1997 Tax Act, the taxpayer entitled to the tax exemption for the child is also entitled to a tax credit in the amount of $1,000 per child for each child under 17. Like dependency exemptions, this tax benefit phases out when your income rises to a certain level ($110,000 for singles; $75,000 for heads of households) . If you have 3 or more children, you may be entitled to an additional credit, but figuring out how much you get is between you and your accountant.

Decrees

The state regulates marriages. It decides when you are married and when you are divorced. When you marry, you get a license. When you divorce, you get a decree. A decree of divorce is a document reflecting a court's order that a marriage be dissolved. Typically, a decree will also address the division of the parties' estates, and, if the parties have minor children, it will include provisions for conservatorship, child support, parental rights, and periods of possession. Many times the decree will be "agreed", meaning that the parties have reached an agreement concerning all of the terms of the decree. An agreed decree is both a court order and a contract.

Agreements

The Texas Family Code authorizes divorcing parties to enter into several different types of agreements. The main types are: Agreements Incident to Divorce, Mediated Settlement Agreements, Informal Settlement Agreements, and Agreed Decrees (or orders).

Agreements Incident to Divorce are, basically, the dinosaurs of this group. For whatever reason, the Texas Legislature decided years ago that divorcing parties could enter into agreements about dividing their estates, but either party could repudiate the agreement before the judge actually renders (declares, orders, whatever you want to call it) the divorce; a lot of good that does. So, for years lawyers had people sign these fragile agreements, and someone raced to the courthouse to get a judge to bang her gavel before buyer's remorse set in.

Then, mediation came along. Who wanted to suffer through a day of intense negotiations with a nagging mediator, reach an agreement, and find out later that his or her soon-to-be-ex had changed his or her evil mind? After experimenting with mediation for a few years, family lawyers decided that they were tired of waffling clients and passed legislation stating that mediation agreements would be binding if the lawyers were present when their clients signed the agreement (more or less). Unlike mediation agreements for other types of cases (e.g. civil disputes), a trial judge must enter a final judgment based upon the terms of a mediation agreement (a/k/a mediated settlement agreements or "MSAs").

But, solve one problem and cause another. Being THAT BINDING makes a MSA a bit dangerous. Mediation agreements are usually signed in the heat of battle, after a long day, and under some pressure, whether imagined or real. People are tired and just want to get it over with and go home. They will sign anything. Drafting gets sloppy. Do I need to mention the "M" word: malpractice?

Another problem lawyers discovered is that in order to have an MSA, you have to have a mediator. Some lawyers, including myself, once called just about every agreement an MSA, even if there had been no mediation, because we liked the fact that it was a binding agreement and could not be repudiated. Unfortunately, someone repudiated one anyway and claimed that if you had no mediator, you could not have an MSA, and an appellate court bought that argument and set the darned thing aside.

So, what to do? Divorcing parties (and probably a lot of judges who got tired of seeing people try to back out of agreements) wanted to have binding agreements but did not want to pay mediators. So, in order to fix that problem the legislature passed some statutes authorizing "informal settlement agreements", which allow divorcing parties to sign binding agreements, if they jump through a few small hoops. Seems to me that it would have been more efficient to do all this right the first time. But, what can I say? That's the way law is sometimes; it evolves in layers.

The Trial

Know your judge. An old legal bromide goes something like this: "Good lawyers know the law; great lawyers know the judge." Ideally, once you discover who your trial judge is you want your lawyer to be something along the lines of "golfing buddy". Unfortunately, some judges don't play golf, or, if they do, the lawyers with whom they tend to play, for some strange reason, charge fees over and above your financial stratosphere.

We all cannot be so lucky as to have a lawyer who sits next to your judge every Sunday morning at church. All is not lost. If you think your case may go to trial, find out as much as you can about your judge. Trial judges in divorce cases have considerable discretion. Many have been working in the family law system for many years and have definite opinions about most issues, which may affect your case. Others are inscrutable, and no one (including they) know what they will do with any given case before they actually do something, which may take awhile because many judges are masters of avoidance behavior (if you don't rule, you can't get reversed!). But, try! See what you can find out. It may save you a lot of money.

I once represented a man whose wife cheated on him and left him for another man. He adamantly believed that he was entitled to more than 50% of the estate (more than 100 would still have not been enough!). I filed a motion and used that as an excuse to bring up the issue. The trial judge let me know that he rarely awarded anyone more than 50% of an estate, believed that there were two sides to every morality play, and there it was: not good news for my client but much better to find out before spending another $25-50,000 on a trial.

Consider visiting the courtroom before your trial date to observe the judge. Get used to the courtroom. If you cannot resolve your problems without a judge, you better make sure that you are not squeamish about witness stands, loud lawyers, waiting, and spending your life in a room with no windows with the spouse you are divorcing and his or her obnoxious lawyer.

Jury or Non-Jury? Jury trials are more expensive than non-jury trials. In addition to slowing down the trial, lawyers have to prepare a "charge" for the jury, which consists of the instructions to the jury and the questions they must answer after the lawyers present all of the evidence.

Juries are the exception to the rule in family law cases. Non-jury trials are much more common. Payment of a jury fee in a family law case usually means: (1) there are damage claims for abuse or other wrongful conduct during the marriage; (2) custody is at issue; or, (3) the judge has indicated some bias against you or your attorney.

Trial Dockets. If you want to go to trial, you have to get on the court's "trial docket". Why we don't just call it a "list" I find somewhat curious, but that's what you do. How do you do that? Each court sets its own policies about how to run a docket, but, in my locale, there are basically two systems: (1) pre-trial conference, or (2) docket-call system.

Under the docket-call system, the lawyers contact the court and ask that their case be put on the docket, and the clerk will set that case, along with a number of other cases. The lawyers for all of the cases show up at a given time, and the judge calls each of the lawyers up to the bench (or into chambers), they discuss the case, and she sets it for trial or doesn't. Judges who use the docket-call system typically have one week or two week dockets. That means that they will either hear your case during that time frame or, if they are too stacked up, they will simply and politely ask you to reset your case for another docket call.

As you might imagine, not everyone likes the docket-call system. Lawyers can burn a lot of time waiting their turn for a docket call. They may have to prepare their case for trial without having much assurance about whether the judge will have time to hear them. Do that several times and you will know what FRUSTRATION is like (just in case a bad marriage wasn't enough).

The alternative to the docket-call system, which I am happy to report is being implemented widely in Dallas County, where I practice (a divorce lawyer from Dallas: I'm a living cliché!) is the pretrial conference system. Under this system, if a lawyer wants to set his case for trial, he schedules a pretrial conference with the judge, they discuss the case, and, usually, the judge gives the lawyers (or parties, as the case may be) a firm date when the case will be tried. If the lawyers don't have to wait for hours for their conference, this system is much more efficient.

If you have a lawyer, he or she will appear for you at either a docket-call or a pretrial conference. You can use that time worrying about the outcome (just kidding!).

Witnesses. Witnesses are more important than lawyers! There I said it! And, they charge a lot less. Lawyers, however, are more accessible.

Trials are won or lost based upon the quality of the witnesses. Take O.J., for example. Do you think the quality of Mark Furman's testimony had anything to do with why O.J. is still golfing at exclusive clubs (but stay tuned)? If you gave me the choice between a bad trial lawyer and really good witness, I would take the witness every time. A bad lawyer can win a case with great witnesses. A good lawyer is going to have a heck of a time winning a case if his primary witness gets caught in a lie.

On the other hand, the best witnesses are people who have nothing at stake. Husband-crap versus wife-crap is just one more version of "there are two sides to every story" (even though one side may be more credible than the other). If that's all there is to a case, it can be tough to gain an advantage. But, add a corroborating witness who has no dog in the fight, and you can tip the scales of justice in your favor.

So much for Trial Strategy 101. The problem is usually how to get people to testify (willingly).

If you are fortunate enough or popular enough to know people who will come to court and stand up and swear for you (or against him or her), you may want to "pin them down" by getting their testimony in writing and having them sign off on it. Lawyers, creative creatures that they are, call this a "witness statement". But, before you do, you may want to discuss this with your own creative creature because, in most cases, you will have to disclose witness statements. For my money, I would rather have one than have a witness change his story at the courthouse. I have had the joy of that experience - no fun at all!

Demeanor. Never speak out in court unless on the witness stand.

Bad behavior in the courtroom may reinforce the allegations of opposing counsel.

If you want to communicate with your attorney, pass him a note. He cannot listen to you, the judge, the witness, and opposing counsel, all at the same time.

Dress conservatively. Do not wear flashy jewelry.

Do not get ruffled or combative during cross-examination.

Always be polite and cordial to opposing counsel.

Your Testimony. On direct examination by your lawyer, elaborate as much as you want when you answer a question, as long as detail and description are relevant to your answer.

Be as brief as possible when you are being cross-examined. Do not give opposing counsel voluntary information with which he or she can examine you further.

Be honest and sincere.

There are several rules that everyone needs to know about testifying:

Hearsay: You cannot testify to hearsay. That means that you cannot go to court and talk about what someone who is not in court said. After all, they're not there. So, how could anyone challenge them about whether they said what you say they said? Make sense?

Authentication of Documents: This is a no-brainer! In order to get a judge to actually read a document about your case, your lawyer must get it "admitted into evidence". There are certain steps he has to go through to do that, the first of which is usually "authentication". When you are sitting on the witness stand, trying to look calm, even though all you can think about is, "How long is this going to last?", and your lawyer wants to authenticate a document supporting your case, he will mark it (fancy way of saying "stick a sticker on it"), hand it to you, and say, "Can you identify this document, Mrs. Peabody?" If your answer is anything other than "Yes", we have a problem. So, he hands it to you with a flourish (actually, be careful of a lawyer who flourishes too much, it could indicate that he is trying to cover up a basic insecurity), you say "Yes" with emphasis (but not too much), and then he says, "What is it?" This is the tricky part. Let's say it's your 2006 joint federal income tax return. In that case you say, "It's my 2006 joint federal income tax return", preferably with a smile. That's it. The title of the document is your answer. He will then "offer" it, and the judge will decide whether to admit it or not.

Objections : Lawyers make objections for all sorts of reasons, right during your testimony: how rude! Sometimes a lawyer will object because he really really really believes that your lawyer has asked an improper question or is trying to get the court to admit a document improperly. Or, sometimes a lawyer will object because things are not sounding good to him and he is trying to break the flow, just like a basketball coach will call time-out when the other team is on a scoring run. It's going to happen. When it does, that is when you are testifying and feeling good about yourself, and opposing counsel stands up and bellows, "OBJECTION: blah, blah, blah!!!" your job is easy: shut up. That's right. In fact, as soon as that sucker stands up, you shut up. Let him make his objection. Let your lawyer respond. Then, go from there.

Non-responsive answers: Lawyers are great at this little word game. Let's say I ask you where you live and you say, "I have lived at 111 Lovers Lane since Valentine's Day, 1945." What's next? "Objection - non-responsive." Why? Because he didn't ask you how long you lived there. Get it? If you are consistently non-responsive, embellishing your answers, you will consistently irritate the judge, which is, well, not a good thing.

Helping Your Lawyer. When youare in court, be sensitive to the fact that your lawyer is multi-tasking most of the time: he's listening to each question; he's watching the body language of the witness; he's watching the body language of the judge; he's trying to determine whether a question is objectionable; he's dealing with surprises; and, he's wondering when this judge usually breaks for lunch. If you want to tell him something during a trial, pass him a note. If you use the "whisper method", you run the risk that you will distract him during crucial testimony, and you may be overheard.

Listen carefully to the testimony of the witnesses and to the judge's comments.

Take notes. Make note of inaccuracies or discrepancies in the testimony.

Adverse Rulings

Post-trial motions. The law almost always allows you reconsideration, although getting a judge to change her mind can be a much bigger challenge than convincing her the first time. If you get an adverse ruling, your attorney may have many ways to attack it. Don't lose hope. Sometimes justice moves at its own pace.

Post-trial settlement. If your trial does not go the way you expected, consider going back to the negotiating table and adjusting your settlement position.

Appeal. You must decide within thirty (30) days after a Decree of Divorce is signed if you want to appeal. This period may be extended if your attorney files certain motions with the court. Appeals can be costly and protracted, but in many cases, an appeal is essential in order that a just decision be reached. Appealing family law cases can be especially challenging because appellate courts rely to large extent on the discretion of the trial judges.

Chapter V: The Aftermath

A Positive Approach

Divorce does not have to be a negative experience, although this is a strong preconception most people bring into the divorce experience. Typically, we program ourselves that, "This is going to be painful." It does not have to be that way. If you are confident at the outset that a divorce is the necessary solution to your marital problems, the divorce process can be experienced in a positive manner, as a healthy step in your development as an individual. Even if you do not want a divorce, you can make lemonade out of these lemons! How you approach the divorce process and life as a single person is all in how you frame it. If this is a challenge for you, let me suggest that you read Mindset: The New Psychology of Success by Carol S. Dweck.

An Improved Estate

Although you may end up with less total property after the partition of your community estate, what is left should be better organized. Many people leave the divorce process with a clearer understanding of finances and legal relationships.

Self-Knowledge

A divorce can also make you better aware of aspects of your personality that you might have previously preferred to ignore. It may cause you to become more introspective or to reflect more carefully about your relationships with the opposite sex. Divorcing spouses who find themselves angry, hurt, or confused, will profit from those emotions if they use them as motivators for self-awareness instead of obsessing and blaming.

Don't Forget the Children

Dr. Barry Coakley, a Dallas psychologist who works with post-divorce couples, has developed the following "Top Ten List" to help divorced parents of minor children avoid conflict:

1. The responsibility of both parents to effectively communicate and "co-parent" their children does not end with divorce.

2. Continuing conflict between their parents constitutes the single greatest source of damage to children of divorce.

3. The most important task of a divorced co-parent is to work actively toward personal health, happiness, and satisfaction with life.

4. The second most important task of a divorced co-parent is to work actively on becoming the best parent he/she can be.

5. The third most important task of a divorced co-parent is to actively support the healthiest possible relationship between the child and all of his/her parenting figures.

6. Children know how parents feel about important things, and learn from what parents say and do.

7. Standing up for self is important, but it can and must be accomplished without attacking or putting the other parent down.

8. A child's self-esteem comes from both parents; any form of attack on either parent by the other is always devastating to the child.

9. The best message a divorced co-parent can send to a child regarding his/her "other parent" is acceptance; the second best is neutrality; there is no third best, and the worst is criticism.

10. The relationship between the natural or primary parents of a child, divorced or not, lasts the lifetime of all three.

Into the Future - Goal Setting

Set some post-divorce goals for yourself. Focus on the future rather than the past. Consider each area of your life: mental, physical, spiritual, career, financial, family and social. Write down specific quantifiable goals. Give yourself deadlines for accomplishing your goals.

Conclusion

That's it. That's the quick, down and dirty tour of the family law system in North Texas. After reading this, you should be prepared for the divorce process. Hopefully, this information will save you some pain, anguish, and, of course, money. Good luck in solving your marital problems.

Please see www.tnoble.com for future updates and newsletters.

Works Consulted

Beatty, Melody. Codependent No More. New York: Harper & Row, 1987.

Belli, Melvin, and Mel Krantzler. Divorcing. New York: St. Martin's, 1988.

Berke, Dr. Melvyn A., and Joanne B. Grant. Games Divorced People Play. Englewood: Prentice-Hall, 1981.

Bradshaw, John. Bradshaw On: The Family. Pompano Beach: Health Communications, 1988.

Brown, Stephanie. Treating Adult Children of Alcoholics: A Developmental Perspective. New York: John Wiley & Sons, 1988.

Chesler, Phyllis. Mothers on Trial. Orlando: Harcourt Brace, 1987.

Finley, Gale S. Assigning Retirement Benefits in Divorce: A Practical Guide to Negotiating and Drafting QDROs. Chicago: American Bar Association, 1995.

Friel, John, and Linda Friel. Adult Children: The Secrets of Dysfunctional Families. Deerfield Beach: Health Communications, 1988.

Galper, Miriam. Joint Custody and Co-Parenting: Sharing Your Child Equally. Philadelphia: Running Press, 1980.

Johnson, Spencer. The One Minute Father. New York: William Morrow, 1983.

Kramer, Peter D. Should You Leave. New York: Scribner, 1997.

Lyster, Mimi E. Child Custody: Building Agreements That Work. Berkeley: Nolo, 1995.

Podell, Peggy L, and David M. Franklin. The 1040 Handbook: A Guide to Income and Asset Discovery. Chicago: American Bar Association, 1993.

Ricci, Isolina. Mom's House, Dad's House: Making Shared Custody Work. New York: Macmillan, 1980.

Stansbury, Carlton D. The Family Law Practitioner's Guide to Social Security. Chicago: American Bar Association, 1995.

Texas Family Code. West, 1995.

Warshak, Richard. The Custody Revolution: The Father Factor and the Motherhood Mystique. New York, Poseidon, 1992.

York, Phyllis, David York, and Ted Wachtel. ToughLove. New York: Doubleday, 1982.

Appendix "A"

PERSONAL FINANCIAL STATEMENT
AS OF _________________

ASSETS

Real Estate

Personal Property

Jewelry, Furs, Personal Effects

Furniture, Furnishings, Appliances

Bank Accounts

Checking

Savings

Other

Retirement Accounts

IRA's

Profit Sharing

Other

Investments, Stocks, Bonds

Insurance Policies

Other

TOTAL ASSETS

LIABILITIES

Secured

Mortgage on property at _________

Car loan

Other

Unsecured

Credit card bills

Other

TOTAL LIABILITIES

NET WORTH

Appendix "B"

FINANCIAL INFORMATION STATEMENT

CASE NO. __________________                                              __________ DISTRICT COURT

____________________                                                         __________________________
PETITIONER                                                                         RESPONDENT

_________________________                                                ___________________________
PETITIONER'S ATTORNEY                                                    RESPONDENT'S ATTORNEY

DATE OF MARRIAGE: ___________________

CHILDREN OF THIS MARRIAGE AND THEIR AGES: _________________

_________________________________________________________________

AVERAGE MONTHLY EXPENSES

HOUSING                                                                                                               AMOUNT

House Payment
Utilities (Gas, Water, etc.)
Telephone

TRANSPORTATION

Car Payment
Gas, oil, and car maintenance

INSURANCE

Life
Health
Homeowner's
Auto

GROCERIES

PERSONAL

Uninsured Medical
Cleaning and laundry
Grooming
Entertainment (includes eating out)

CHILD'S EXPENSES

Uninsured Medical
Tuition
Clothing
Entertainment
Transportation
Grooming
Misc.

OTHER EXPENSES

Credit card payments

Total Monthly Expenses                                                                         $________________

AVERAGE MONTHLY INCOME

Gross Monthly Income from employment
Other Income

Less: taxes

Total Monthly Net Income                                                                           $_____________

Net Monthly Income (after expenses)                                                           $_____________

I certify that the above answers to the questions as listed are true and correct.

                                                                                            _____________________________

Appendix "C"

Chronology

Appendix "D"

Witnesses

1. Marcia Blasingame. 11456 Horsey Drive, Los Angeles, California; phone: 213-887-0098. This witness is my mother. She has seen bruises on me. She has seen my husband act cruelly to our children.

2. Bobby Thornton. 2158 Boontown Road, Harper, Texas; phone: 817-256-9976. This witness was Billy Jr.'s camp counselor last year.

3. Maggie Thong. 6678 Arapaho, Dallas, Texas; phone 214-998-0023. This witness has been our accountant for the last 12 years.

4. Bill Hoard. 2784 Ringer Drive, Dallas, Texas; phone 972-3345. This witness is my spouse's business partner.