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

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

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

Dick's words of wisdom follow:

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


SOURCE: DivorceSource

Source for Post: Georgia Family Law Blog.

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