Lewisville Family Law Blog

Can't Agree in an Uncontested Divorce? Then Collaborate Peacefully

  • 21
  • May
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for ted ogilvie_SMALL.jpgVery often I see potential divorce clients who want an uncontested divorce, but they simply cannot agree with their partners on every detail. This is the point where it could turn really ugly, or it could remain peaceful and more effective.

It could turn ugly by becoming a litigation maze that turns up the anger, turns up the selfishness, and turns up the expenses of a divorce. This road, albeit effective in securing the divorce, most of the time causes a breakdown in communication between the husband and wife. If they never intend to see each other again, then this road may not be as bad as divorce is generally thought to be. If children are involved, or the husband and wife will likely remain in the same community and circle of friends and coworkers, however, then maybe litigation should be averted.collab2.jpg

One of the key goals of the collaborative method is to have a more positive outcome for the splitting couple, and this is accomplished by working toward a settlement agreement without resorting to court hearings and court orders at every step. From my experience as a family law attorney and collaborative practitioner, collaborative divorce encourages more, productive communication with the other spouse. This keeps conflict reduced to the lowest levels possible and allows more fruitful agreements to be reached. This is true even when they could not work through the same decisions on their own without the quelling assistance of a collaborative team.

The other road of litigation and finger pointing, without any precept of finding a solution to the problems at hand, breeds higher conflict and more limited choices down the road. Some of the exacerbated problems often show up in children of divorcing couples as behavior problems, depression, substance abuse and dependence, poor social skills, and poor academic performance. The collaborative divorce can help parents reduce conflict, and in turn, help prevent these negative effects in their children. See Blaisure, Karen; Saposnek, Donald T. "Managing Conflict During Divorce," American Association for Marriage and Family Therapy.

Financial issues often arise to a greater degree when the traditional litigation model is used for a divorce. Divorce is expensive, and a fully contested road is horribly expensive. Depending on the resources available to a divorcing couple, it is not uncommon to see a high conflict case be completed after the spending of $40,000 to $100,000. Who pays for this? Both spouses pay, regardless of who brought the money home. And this leads to more conflict, and this more conflict leads to less and less positive effects on the family.

So, before turning up the heat by abandoning the uncontested divorce, I would highly recommend finding a lawyer who is familiar AND experienced in collaborative divorce. Give peace a chance! Be open to the idea of creating goals, setting realistic objectives to obtaining those goals, and creatively agreeing to keep your divorce uncontested. Find a practitioner who regularly practices in finding peaceful solutions and resolutions to couples in conflict without the means of a courtroom.Thumbnail image for collab4.jpg

Shattered Dreams and the Nasty Divorce

  • 11
  • May
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for ted ogilvie_SMALL.jpgNot all shattered dreams have to lead to a nasty, ugly divorce in North Texas. It is true that, even though your highest hopes and expectations of living happily ever after have been obliterated, keeping your calm and cool through the separation and division of property and children is paramount to coming out much happier on the other side.

Here's an example of what I mean: Husband and Wife have three children together after being married 15 years. Wife now has another child on the way, but this one is not Husband's! That's right, Husband's dreams have been shattered, and he's rightfully upset and indignant over the whole mess of his wife's infidelity. After all, they were the poster family at their church, PTA, and country club. What a kick to the stomach this is for Husband and the kids.

Right about now, I can hear all the suggestions Husband must be getting from friends, family, co-workers, and bar buddies. Kick her to the curb! Teach her a lesson! Make sure she doesn't end up with a dime! We can all imagine even worse. Who knows, he might very well be entitled to think, feel, and act out those suggestions. Maybe she deserves it. Who's to say?

So what actions should Husband take now? Sue Wife for divorce, asking for her to pay all attorneys' fees (which will be exorbitant) and give up most of the marital estate as punishment for her adultery and inappropriate conduct? Plead to a jury that such an awful, heartless adulterer could never be a good parent ever again (even though she was Mom-of the Year every year prior)? He certainly could take this approach. He might not win everything, but he has grounds.images-83.jpeg

Stepping back and assessing this from a distance may allow a better thought process. Consider that the couple's three children will always have Wife as their mother (for the rest of their lives). Wife will also be having a half-sibling to all of these three children. Should they be mortal enemies just because Wife made a mistake and Husband compounded the mistake by acting venomously? Assume Husband has made no mistakes (for the sake of argument!). No, they should be normal, modern siblings and half-siblings. Could Husband be doing an injustice to his own kids by punishing Wife and causing her additional pain and financial troubles?

I believe the best approach is to preserve what you can out of the marriage. The kids will learn about and always know what their mother did, and they will have that to contend with all their lives. The kids will probably always lover their mother, and being a bad Wife doesn't usually change that. Knowing that, why would Husband then try to ruin Wife's chances of future success with their children and in the Wife's new life? My answer is he shouldn't.

There are ways to proceed through a divorce without scorching the earth beneath the Wife and the Husband. Good lawyers have been doing this for many years, even though the public foremost sees the quick fix is to head to the Courthouse to fix the noose around the other spouse's neck and never let up from there. We have many options to settle divorce cases without relying on the courts, such as mediation, private judging, arbitration, collaborative methods, and other cooperative means.

I know in our firm, we access all of these options on a regular basis. Our lawyers have special skills and experience in these available options, having pertinent experience and good outcomes in each of the respective areas. The collaborative and cooperative options, along with mediation, are my favorite of the bunch. I appreciate and see the positive outcomes when the parties agree to voluntarily disclose everything, agree to sit down and meet individually, as a group gather all the info needed, build options together for dividing and separating what the marriage accumulated, and forming an agreement around the idea of each party's goals and desires for a more positive outcome.

So in the course of being blindsided by your spouse, kicked when you're down, spat upon by those around you, and trying to pick up the pieces of a marriage that is over, step back and think through what your immediate actions might bring to you and your family. Choose your lawyer wisely and inquire about the methods that firm uses on a regular basis. Proceed wiselyshattered-dreams-in-the-quiet-place.jpg

Want Control Of Your Divorce? Identify The Financial Issues

  • 08
  • May
    2015

You are not the only person to have felt out of control during the divorce process. To start getting that control back, you will want to identify the financial issues in your divorce.

To help you identify and understand the potential financial issues in your divorce, we have posted a legal white paper on the subject.

By reviewing our white paper, you will learn about a number of financial matters often involved in divorces, including:

  • Your net worth
  • Recent changes in Texas alimony law
  • The potential taxability of your divorce settlement
  • The often misunderstood distinction between community and separate property

Taking a holistic approach to your divorce involves addressing many issues interwoven with the legal issues. These issues, in addition to finances, often include emotional ones.

Learn about these items in depth by reviewing our firm's free online white paper.

The Concept of "Shared Parenting": Is it Coming to a State Near You?

  • 08
  • May
    2015

Thumbnail image for jimsmall.jpgAn increasing number of state lawmakers are examining their child custody laws in response to advocates of the concept that divorcing or separated parents should share equal "custody".

Advocates of shared parenting arrangementsshared parent3.jpgview them as encouraging children to know both parents and for both parents to be actively involved and share responsibility in their children's upbringing.

Nationally, the concept of shared parenting has also been referred to as "collaborative parenting", "balanced parenting" or "equal shared parenting", and can also apply after the separation of adoptive or other non-biological parents.

House Bill Number 2363 made it out of committee in the Texas Legislature on May 6, 2015 and could potentially become Texas law later this summer. Essentially, the bill proposes to change existing Texas Family Code Section 153.001(a) to make it the public policy of the state of Texas to encourage parents to share equally in the rights and duties of raising their child after the parents have separated or dissolved their marriage. It also proposes to amend Texas Family Code Section 153.134 to provide that if parents are appointed as joint managing conservators of a child, the court will enter a possession order that provides for equal parenting time for each parent unless the court determines that such an order is not in the child's best interest, in which case the court may order a standard possession order as contained in the current Texas Family Code.

The bill further proposes several options for the court to consider in determining a possession order: Alternating weeks ("week on, week off); alternating two-week periods of possession, and even alternating months.

Several states have proposed similar bills to be voted on. In 2013, Arkansas passed a law that calls for the "approximate and reasonable equal division of time" of children between parents in divorce proceedings.

The text of House Bill 2363 can be found here:

http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=84R&Bill=HB2363

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Uncontested Divorce - the Four Steps

  • 07
  • May
    2015

Thumbnail image for Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgWhile divorce cases can become heated at times, many divorces that attorneys handle tend to be amicable between the parties. Thus, with each party's cooperation, an agreement can be reached on all issues and memorialized in an agreed final decree of divorce. Parties often want to know the steps in an agreed divorce, so this blog is designed to educate them on those steps.unconteste2.jpg

To begin a divorce, one of the spouses will need to file a petition for divorce asking that the court grant a divorce and make orders on all issues including children, property, and debts. If an agreement is expected, a petition informing the court of this intended agreement can be drafted by your attorney.

Next, instead of serving the other spouse with the petition by using a constable or private process server, a waiver of service can be presented to the other spouse with the filed petition to give notice of the proceedings to the other party. The other party will sign and notarize this waiver and it will be filed with the court.

Then, a 60 day waiting period is instituted by the family code which makes the parties wait 60 days from the filing of the petition until they can get a divorce. During this time, the final decree of divorce will be drafted which will reflect the agreement of the parties on all issues including custody, visitation, child support, health insurance, property division, debts, and taxes.

Finally, once the final decree has been drafted and agreed to, it will need to be signed by the parties and their attorneys and then presented to the court at a short hearing called a "prove up". At this hearing, one of the parties will be present with their attorney and will be asked background questions on the case including residency, reasons for divorce, children and property, and agreement of the parties. After the judge has heard the testimony, they will sign the decree and the parties will be divorced.

Parties will often times try and handle an uncontested divorce by themselves without the help of attorneys. While this may help save on costs, if the steps are not performed correctly, or the final decree does not contain necessary provisions on the children or property, the court can reject the decree at the final hearing and ask that the parties submit a satisfactory decree to be approved by the court. This is why an attorney will many times be necessary to ensure the parties have a written decree that accurately reflects the agreement of the parties and that will be accepted by the court.uncontested5.jpg

Want More Time with your Kids? Know the Texas Family Code - or make sure your Lawyer does

  • 29
  • April
    2015

Thumbnail image for wfneal_SMALL.jpgClients seem to always be fighting over the amount of time they get with their children when a divorce or post divorce modification happens. It isn't unusual to have clients count minutes they have and compare that to the minutes their ex has. Judges don't like minute or hour counting, but that is a topic for another day. Today is for what a parent is entitled to without much argument. The key is knowing what it is and when to grab it.visitation3.jpg

The push and shove in possession orders is always between a "Standard Possession Order" and an "Expanded Standard Possession" in a normal case involving parents who live within 100 miles of each other. (We'll also leave for another day the now popular "shared custody" or "equal possession" schedules as they are in a world of their own - for their own reasons - and the one for parents who live over 100 miles from each other). The main difference between a Standard Possession Order and an Expanded Standard Possession Order is when the exchange times for having the kids occur. In a Standard Possession Order that means one parent will have only Thursdays for dinner from 6pm to 8pm during the school year and will get the 1st, 3rd, and 5th weekends throughout the calendar year from 6pm on Friday until 8pm on Sunday. Plus, they will get Spring Break in alternating years, Thanksgiving in alternating years, Christmas in alternating years in addition to30 days in the summer, your child's birthday, and Mother's Day and Father's Day weekends. The times for the pickup and return of the children between the parents is very specifically set out.

In the Expanded Standard Possession Order, the times for pick up and return of the children get increased (expanded) so that the parent can now get his children from the time school lets out on Thursday during the school year and keep them until Friday morning and take them to school. In addition, if it is a 1st, 3rd, or 5th weekend, then that parent can get his kids when school dismisses on Friday and return them to school on Monday following their weekend. A substantial increase in the amount of time a divorced or separate parent can spend with their kids. And you can get his extra time merely by stepping up and saying "I want it", subject to the Court's approval which is normally always granted. While I still see arguments over these expanded pick up and return times, it usually because someone didn't make it clear at the time of mediation, settlement, or trial that they wanted these expanded times and the occasional homework argument (i.e. "the kids don't get their projects done when he/she has them from Thursday through Monday").

Alas, there is more if you know about it and your lawyer knows about it. Under Section 153.317 of the Texas Family Code, the legislature has added more time for the asking and taking. A parent can elect to get their kids from school on Friday at the start of Spring Break, Thanksgiving, and Christmas instead of waiting until 6pm. Dad's can elect to keep their kids overnight on Sunday of Father's Day and return them on Monday at 8am. Mom's can get the kids from school and return them to school after Mother's Day Weekend.

I have found that Courts and lawyers don't always know about these additional elections and just let the Standard Possession Order start and end times of 6pm be used. You have to request the additional times and you have to ask timely but if you know about them why wouldn't you if you can get as much as 21 extra hours if you are a Dad and 24 extra hours if you are a Mom? But - who's counting? Get educated and know your rights and make sure your lawyer does too.visitation.jpg

A Child's Preference - Deciding Where They Want to Live

  • 23
  • April
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgIt might be a scary thought to leave the choice of where a child lives up to the child themselves, but in Texas the court has given some credence to that very choice.  Before 2009, the legislature allowed for a child in a suit affecting the parent child relationship who was at least 12 years of age to sign an affidavit stating with which parent they wanted to live.  This document was then filed with the court hearing the case and used as evidence of the child's choice of where to live.  Now, that law has been repealed, and there is a new law in place which increases the child's involvement in the litigation.

That new law states that, if requested, a court shall interview a child who is 12 years of age or older in chambers when conservatorship or the right to designate the primary residence of the child is at issue between the parents.  If conservatorship or the right to designate the residence of the child is not at issue, but possession or access is, then the court may interview the child in chambers to determine their wishes, but it is not required.

Parents might be particularly concerned about this mandate upon the courts to interview children, especially when one parent attempts to involve the child in the litigation by instructing or coaching them to tell the judge that they want to live with that parent.  In addition, a parent might use the child's choice about where they want to live against the other parent when it comes to visitation or allowing the other parent's involvement with the child.NY-Oneonta-City-Court-intern14-A34838.jpg  

The courts are still left with the ultimate decision on with whom a child ends up living, and will only use the child's preference as a factor in determining where a child ultimately ends up living.  In addition, a court will likely not be pleased when they hear that a parent has used the child against the other parent or unnecessarily involved them in the litigation.  A parent must be cognizant of all of these factors involved before they attempt to use their child's wishes in a court proceeding against the other parent.

If you are considering a change in conservatorship or have been served with a lawsuit requesting such a change, you will most likely have to consider the possibility that your child could confer with the judge if he or she is over 12 years of age.  It is a step in a case where the potential benefits need to be weighed against the possible pitfalls.  An experienced family law attorney can help guide you through these different factors and help you decide whether asking the judge to confer with your child would be in the child's best interests.       

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Tone It Down--Maybe You Could Fix Your Marriage Before It Ends in Divorce or Make Things Better With Your Ex Even If It's Too Late

  • 21
  • April
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for ted ogilvie_SMALL.jpgDo you have a propensity to say harsh things to your spouse or ex-partner that you soon regret saying? Did your emails or texts cause your divorce? Do they still cause you grief? Are you spewing whatever comes to mind without thinking about it first?

Many folks have picked up some very nasty habits over the years. If you drive in the Dallas/Fort Worth Metroplex, you will invariably encounter hostile driving, questionable gestures, and awkward situations. We call this "Road Rage." This leads to stomping, cursing and saying many words not intended for the General Audience.toneitdown.jpg

Often in a marital or familial relationship we experience those instances of rage that lead us to stomp, curse and say many words not intended for even a Parentally Guided Audience. Perhaps a Restricted Audience would be even be blushing. This is often then followed with spits, spats, tantrums and fights that lead to separation or divorce.

For some, the "rage" never dies down. For some, the "rage" continues toward the former loved one and interferes with child relationships, business relationships, and self relationships. In other words, some people cannot naturally curb their insults, aggressiveness, bullying, or indignant remarks toward others or themselves.

My esteemed colleague, John Denke, recently posted a blog about utilizing Our Family Wizard for communication about your children after a divorce or separation. I agree one hundred percent with John that OFW is a great tool for all divided parents to use to communicate more effectively and with greater accuracy. But here is an additional nifty feature that costs about ten bucks a year as an add-on to OFW: ToneMeter. You can also purchase this tone type of software or app independently, such as ToneCheck™, which works with the word processing aspect of your computer or device.

Just like grammar, spelling, and language software, now there is help available for watching your tone as you type. If you start using a sequence of words that could be construed as offensive or aggressive, the tone software will mark, flag, and offer suggested changes to what you have yelled into the communication, but before you send it. It gives you the opportunity to soften your tone before you hit Send.

Believe it or not, family lawyers don't like to see high conflict between clients engaging in further destructive behavior. This software is worth trying to see if it might reduce your nasty comments and inappropriate messaging. Try toning it down for a change! It may be the best app you've ever purchased.textingsad.jpg

Front Loading of Alimony - Beware of the Recapture Rule

  • 20
  • April
    2015

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by Damon J. Wykrent, CFP®, CDFATM, CFE 

If you are the Payee (the spouse receiving the payments) congratulations you must have great negotiation skills; however, this article is not for you. As the payor of alimony (the spouse paying), how would you feel if after a few years the IRS told you that you could not deduct the alimony payments that you paid to your ex spouse? You must be thinking that this could not happen to me...my agreement stated that I could deduct the payments and my ex spouse would have to include them as income. Well, if your alimony payments decrease or end during the first three calendar years, you may be subject to the recapture rule.alimony 2.jpg

The rule comes into effect to the extent that alimony payments decrease annually in excess of $15,000 during the first three calendar years. To the extent that the payor spouse has paid excess alimony, the excess alimony is to be recaptured in the payor spouse's taxable income beginning in the third year after divorce. The payee spouse is entitled to deduct the recaptured amount from gross income in the third year after divorce.

An example: Both spouses decide that it would be in the best interest of their family if one spouse were able to go back to school for two years after the divorce. After two years they plan on both spouses being able to work and support would no longer be needed. They decided that one spouse would pay $24,000 each year (or $2,000 per month) in alimony for two years.

A friend tells them about the IRS rule that says if you want to deduct everything over $15,000, alimony must go on for at least three years, but the rule doesn't stipulate as to the amount that must be paid. So for year three they decide that there will be a $1,000 payment to satisfy the IRS rule. This is what the figures look like.

1st Year $24,000

2nd Year $24,000

3rd Year $1,000

The couple in the above example would still fall into the recapture rule because of the second part of the rule. If payments drop by more than $15,000 from one year to the next, there is tax recapture on the amount over $15,000.

There are ways to plan around the recapture rule as well as the three year requirement. The first step is to get a financial expert that specializes in the field of divorce involved with your case.

Damon Wykrent, CFP®, CDFATM, CFE has over a decade of extensive experience which includes work in the financial services industry and being a financial expert in a full service law firm. On a daily basis, Damon provides expert financial support to attorneys and individuals going through the divorce process. Some of these areas include explaining business valuations, present value calculations for pensions and other assets, asset tracing, measuring economic damages, uncontested and contested property division, mediation and settlement support, QDRO support, expert witness testimony, and work as a neutral financial expert as part of a collaborative team. For more information about Damon go to: www.DivorceFinancialExpert.com.alimony4.jpg

Our Family Wizard - Communication Tool for Parents

  • 15
  • April
    2015

johndenke_SMALL1.jpgOften times when parents either divorce or separate, there can be problems with the communication between them regarding the children. Whether this is because of animosity or differences in opinion, the court has come up with a way to address these communication issues. A service known as Our Family Wizard is one of these tools used to facilitate communication between parents of children.

When orders are put in place between parents as to custody, visitation, childwizard.jpgsupport, and health insurance, each parent can use the wizard to inform the other parent of their intentions on these matters. So, for example, a parent could inform the other parent of their intended pick up time or return of the children, participation of the children in extracurricular activities, and health information affecting the children. The wizard can also be used to exchange financial information such as child support payment and unreimbursed medical information.

By using the wizard to exchange this information, there is a record of the communications going between parents which helps to eliminate the disparity and confusion that can result from exchanging this information through talk, text, or e-mail. In addition, the communications on the wizard can later be used in a court proceeding between the parties to show evidence of a discussion on a particular matter, notice of a party's intent, or as a tally of expenses or amounts owed under the prior orders of the court.

Our Family Wizard can be a particularly useful tool for parents who tend to disagree on the matters affecting their children, which can be enhanced by past litigation between the parties. If the court or attorneys can recognize this difficulty in communication between the parents early on, they can impose this required communication tool on the parents such that it aids in exchanging pertinent information concerning the children in a clear and unambiguous manner.download (3).jpg