Guiding You Through Divorce

DivorceLast month I wrote about all of the Paperwork involved in finishing up a divorce. Among the things you must do is visit with an Estate Planning attorney. Mr. Bailey’s article this month will cover that. I also suggest that you visit with a counselor. Whether secular or a practitioner of a faith tradition I believe counseling is very important in divorce. In fact it is probably just as important as in times of death. Research tells us that the grief is the same in the ending of a marriage as in a death.

An attorney and client relationship is unique. It involves a special trust. The attorney is charged with carrying out (within the bounds of the law) the client’s wishes. But we are also charged with COUNSELING the client. What I have learned over the course of my practice is when you’re grieving you don’t make very good decisions. Things that wouldn’t ordinarily bother you are suddenly over-whelming. I honestly think that is one of the reasons for having an attorney. Yes, we went to school for a really long time to study and learn “The Rules.” But we aren’t emotionally tied up in the case. This is important. It allows us to examine the case dispassionately, and thus, offer you advice based on the law as applied to the facts and not merely what the client may want to hear.

Among the issues, and the reason I suggest a counselor when going through a divorce is sometimes a litigant is tempted to seek their “pound of flesh” from the opposing party for some perceived (or even very real) wrongdoing. My practice has taught me that is a VERY BAD IDEA. Forgive. Forgive till it hurts. Be generous. Assume an innocent explanation whenever your soon to be ex does something you don’t like. IF YOU HAVE CHILDREN YOU ARE TIED TO EACH OTHER FOR THE REST OF YOUR LIVES. Whatever manner you speak of or treat your Ex, your child WILL notice. And they will either love you for loving their mother/father or they will hate you for hating their mother/father. Don’t believe me? Check with any Mental Health practitioner.

When deciding on an attorney to help you with ending your marriage, speak to them about their philosophy. Does the attorney practice primarily family law? I can assure you a lawsuit between a couple of companies is a very different animal than a divorce. The entire course of the litigation is different. Something else to consider is does the attorney practice where your case is pending. I have practiced in Tarrant and Dallas Counties and several of the surrounding counties. Each of the counties are different, sometimes vastly different. Something that might be a good idea in Tarrant County would be a very bad idea in Dallas, or Ellis, or Johnson County.

Interview attorneys. Make sure they have a similar philosophy. Make sure they practice primarily in Family Law. Make sure they practice in the courts where your case is pending or will be filed. LISTEN TO THEIR ADVICE. Then go interview counselors to help you deal with the emotional issues involved with a divorce.

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To set up a free initial consultation, contact us online or call us at 844-402-2992. For your convenience, we answer our phones 24 hours a day, 7 days a week. We will meet with you evenings or weekends upon request.

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Can’t I just represent myself in my divorce?

At Bailey & Galyen, we are often asked by potential clients if they can simply represent themselves in a divorce. The short answer is yes – our legal system is designed to be accessible to all people, regardless of attorney representation. However, the more important question that people should be asking is “SHOULD I represent myself in my divorce?”.  That has a much more complicated answer.

The Internet has provided our society with unprecedented access to information.  Many people determine that after an internet search, they can competently handle their own divorce proceedings.  However, googling my latest medical symptom does not make me a doctor nor does it make me qualified to operate on myself.  In many respects, representing yourself in a divorce is similar.

For instance, in general, the property and funds acquired during a marriage form the community estate and that community estate is subject to a fair and equitable division between the parties.  While at first this seems like a simple premise, there are many exceptions and nuances in the law that become factors in determining what a fair and equitable division truly is.  For instance, property owned prior to a marriage is generally considered separate property and not part of the community estate.  But what if the community estate contributed money towards the improvement or upkeep of the separate property?  Or what if that separate property asset gained in value during the marriage?  How do you establish a value for both of those situations? How do you divide that value between the parties in a fair manner?

Additionally, the division of retirement accounts is another area that is filled with potential pitfalls.  The transferring of retirement assets is generally done through a separate order called a Qualified Domestic Relations Order which allows both parties to avoid certain taxes and penalties. These particular orders are very detailed and plan specific.  If such orders are done incorrectly, a party risks exposure to unintended penalties and financial problems.

The most alarming problem with “do-it-yourself divorces” is that oftentimes a mistake made in the division of property or retirement accounts cannot be fixed after the divorce decree is entered.  One of the most difficult tasks that seasoned family law attorneys face is having to tell someone that his or her divorce decree is incorrect or somehow faulty but there is nothing that can be done about it.  Many people assume that the judge or someone in the district clerk’s office will assist them in completing their divorce.  However, neither the judge nor anyone employed by the courts can give litigants legal advice.

When considering your options in a divorce, please carefully contemplate your need for legal representation. Divorce is a complicated process and it is important that you invest in yourself and  in preserving your post divorce life.

 

 

 

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Property Issues in Divorce Involving Military Personnel

In my article, YOU STAND FOR US; WE STAND FOR YOU, it was noted that military personnel are not immune from the tragedy of divorce; and like civilian divorces, the same property issues arise, but with some different rules. What I am focusing on in this article is RETIREMENT and post divorce entitlements for the non military spouse (“Former Spouse”).

For sake of brevity, I’ll refer to the Servicemember as a soldier.

A soldier is entitled to a pension (a Defined Benefits Plan) based on the number of years of satisfactory military service, generally the completion of 20 years. Until 1983, federal law was silent on the power of the State courts to divide military pensions. However, in the 1981 McCarthy case, the U.S. Supreme Court held that the Supremacy Clause of the Constitution prohibited the division of military retired pay as a community property asset. In dictum, the Court indicated that Congress could change that by appropriate legislation. Taking the hint, Congress enacted the Uniform Services Former Spouses’ Protection Act of 1983 (“USFSPA”). That Act gave divorced spouses the right to share in the military retired pay in proportion to the number of years of the marriage during the soldier’s years of satisfactory military service.

The soldier is generally required to serve a minimum of 20 years, and the retirement age is not as critical as the total number of years served. The retirement benefit at 20 years is 50% of the Base Pay at the date of retirement with the maximum benefit being 67% at 30 or more years of service.

In Texas, the Former Spouse would be entitled to 50% of the military retired pay based on the number of years of marriage during military service. This also is applicable to the weekend warrior, the Reservist. Unlike the active duty career soldier, whose military PENSION is based a minimum of 20 years, the reservist is based on the total number of points that will equate to twenty years. However, the Former Spouse’s share is still calculated the same way.

There are some unique quirks or Rules to this military pension system that is critical to property division considerations. The first Rule is the 10 year rule. Under USFSPA, the Defense Finance and Accounting Service (“DFAS”) is not required to garnish the retired military personnel’s retired pay for the benefit of the Former Spouse unless the marriage was ten years or longer as of the date of the divorce and overlapped 10 years of military service. In that case, a State Decree of Divorce ordering that the Former Spouse’s share of the military retirement be withheld from the military retiree’s retirement pay would not be honored.

The second Rule is that a Former Spouse may also be entitled to 55% of retiree’s monthly retirement pay as a lifetime annuity upon the death of the retiree. This annuity is known as the Survivor Benefit Plan (“SBP”) and is clearly a valuable entitlement for a Former Spouse. However, the retiree must make the selection to pay for the SBP and designate Former spouse as the beneficiary at the time of his retirement. Some don’t because the SBP payment is taken out of the retirement pay. The Former Spouse may lose this right if she remarries before her 55th birthday; yet, if she divorces later, she may be reinstated. Go figure.

The third significant Rule is the 20/20/20 Rule. As of the date of the divorce, a marriage of 20 years; a military service of at least 20 years and the 20 years of marriage overlapped those 20 years of military service by the soldier. If the Former Spouse meets this Rule, the Former Spouse may be entitled to lifetime TRICARE (health care) and commissary and exchange benefits, as well as the appropriate portion of the retiree’s retirement pay and the SBP. This is a valuable right that can be a part of the negotiations, especially in light of the relatively young age of military retirees compared to civilian retirees.

But what is the Rule if the there’s not 20 years of overlapping marriage? The 20/20/15 Rule comes into play. 20 years of service and 20 years of marriage with more than 15 but less than 20 years of overlapping marriage. The SBP and the proportionate share of the retirement pay is still available, but not commissary and exchange privileges. TRICARE is only for one year after the divorce is final. There is, however, a post TRICARE health insurance plan that can be purchased by the Former Spouse that very similar to TRICARE. Like COBRA in the civilian world, it has a short life span and in this case only 18 months. However, relatively speaking, it is much cheaper than COBRA. Thus, the retiree gets TRICARE for Life; the Former Spouse gets TRICARE for one Year (possible 36 months).

The 10 year Rule, the 20/20/15 Rule and the 20/20/20: all have significant impact on the division of military retirement issues. Also, the SBP is a part of the property settlement picture. Obviously, when dealing with a divorce involving military personnel, these issues must be explored as soon as possible in the process.

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The Importance of and Accurate Inventory and Appraisement

One of the most important aspects in a divorce case is the preparation and filing of an accurate sworn inventory and appraisement of community and separate assets. The inventory and appraisement, otherwise known as an “I&A,” is a document which lists any and all of the assets owned by the community as well as the separate assets of each spouse. and will show in detail the approximate value of both the petitioner’s and the respondent’s respective assets. The I&A acts as a blueprint to determine a fair and equitable split of the community assets to both parties. While an I&A does not prevent the concealment of marital assets, exchanging I&A forms between the parties can go a long way in preventing concealment and can enlighten each party to the assets held by the marital community. In many cases, one spouse is delegated the task of managing finances on a daily basis while another is tasked with managing retirement benefits and the acquisition of property. An I&A can enlighten each spouse to the state of the community estate in a non-confrontational and open manner, cutting down on the need for extensive, thorough, and costly litigation.

While exchanging sworn I&A’s provides no guarantee to the extent of discovery and litigation, the I&A can provide an idea as to whether the parties are even on the same page with each other as to what assets are to be considered community property and what assets are to be considered separate property. If the parties are willing to negotiate and produce similar I&A forms, litigation can potentially be much less extensive and much less costly with regard to the division of the community property for both parties involved.

Community property is defined as property, other than separate property, acquired by either spouse during marriage. Clients are often caught off guard when we begin to speak about the assets of both the community and the separate property assets of each party, especially when divorcing after many years of marriage. Clients make the mistake of thinking the only assets to divide upon divorce are bank accounts, cars, and the martial home. Clients can also make the mistake of believing that certain assets are community assets when in fact the assets are actually separate property.

Because clients can overlook both community and separate assets it is important to spend time on the inventory and appraisement and present as much detail about when and how property was acquired. An inventory and appraisement does not merely act as a guide to determining what the total value of the community estate is, but also provides direction which can help guide each party locate and present what separate and community assets he or she believes exist and the approximate value of the assets. How and when property was purchased can affect the categorization of property as separate or community and the preparation of an accurate inventory and appraisement can be critical to a fair and equal division of community property.

Time Is Money

Dealing Successfully With a Divorce Attorney

Star Telegram, April 16, 2006

Dealing with divorce and divorce lawyers is not much different than taking a trip without first plotting out the route. If you go to a matrimonial lawyer without specific objectives or goals in mind, and think he or she can fix it for you, you’ll be disappointed. Given a specific set of facts, lawyers are trained to apply the law and advise clients about ways to attain specific goals – or at least some of them.

Here are some basic guidelines:

1. Gather as much of your financial and other information as possible before you go to see your lawyer. This includes tax returns and schedules, financial statements, budget documents and the like from at least the last five years.
2. Make sure your fee arrangement is in writing, that you understand it before you sign, and that everyone understands how you will pay your bill. Generally, lawyers are not allowed to take a percentage of what is recovered for you in a divorce case, so expect to pay by the hour.
3. Since you won’t always need to talk to your lawyer when you have questions, meet and get to know the paralegal or secretary so you can give and get information billed at lower rates.
4. Write out your questions, then make an appointment with the lawyer and take notes about what you’re told.
5. If there are billing questions, talk to the billing clerk or the secretary who handles this aspect of the business. The lawyer should be the last resort.
6. Photocopies made at the lawyer’s office may cost you 25 or more cents per page, sometimes plus the time of the person making the copies. So for numerous copies, consider making your own at copy shops to save money.
7. If you don’t understand something, ask. And if you have a problem with the way your lawyer is handling your case, also ask. Don’t allow the issue to fester.
8. Your lawyer should keep you reasonably informed about the status of your case by sending you copies of what goes out of the office. Then you’ll be less likely to make emergency calls. Remember: Spur-of-the-moment calls just to find out what’s going on can get expensive.
9. Don’t second-guess your lawyer based on the advice of friends and family. But if you feel strongly about a point, seek a second opinion. Let your lawyer know you feel this way.
10. Remember that your lawyer works for you. After you have been fully informed and have reviewed your options, you and your lawyer should decide upon a course of action suitable to your situation.
11. Don’t be surprised if your case takes time to get resolved. Although everyone is in a hurry to complete his/her case, you will have no control over scheduling issues that can keep your case in limbo for a long time.
12. If your lawyer promises or guarantees you a result, get another lawyer

– Jan Collins, a writer and editor, and Jan Warner, matrimonial tax and elder-law attorney.

Collaborative Law Divorce – Because Your Family Deserves The Very Best

Maybe you’ve stumbled across this article because your spouse is talking about filing for divorce. You’re in “bunker mode” — feverishly searching the Internet for information about what to expect and, most importantly, how to protect yourself. Or perhaps you’re the one contemplating the divorce. Either way, if you live in Texas, you must educate yourself about collaborative law.

There are three ways to get divorced in Texas. The easiest is the uncontested divorce. Here both spouses sit down and reach an agreement on all issues. Often only one attorney is involved, and that attorney serves to execute the agreements in the form of an agreed upon final decree of divorce. The second and most common way for couples to divorce is the traditional litigation model. One spouse files. The other spouse is served. The parties have a temporary orders hearing and the posturing begins:

  1. “I want this.”
  2. “I deserve this.”
  3. “The kids should live with me.”
  4. “I’m entitled to [fill in the blank].”

Each side begins conducting discovery, attempting at every turn to devalue property they want, enhance the value of property their spouse wants and uncover bad facts about the other parent. Throughout the process both sides are preparing for war — the final trial. But the final trial rarely occurs. By the time the discovery process is completed, the parties are exhausted, terrified and out of money. The idea of risking a bad result at trial almost always leads the parties to settle, either informally or through mediation. The end result is a hodgepodge of what you think is your best day in court versus what the other side will agree to. You walk away thinking, “could I have done better?”

The third way to divorce in Texas is through the collaborative law model. In collaborative law, all of your energy is focused on the final agreement. Both parties and their attorneys sign a contract promising to resolve every issue outside of court. If an agreement cannot be reached, the parties must get new lawyers and start from scratch. The crux of collaborative law is the team approach to putting the puzzle together. It starts by setting goals. Every step after that is aimed at helping both of you reach those goals. With the help of a neutral mental health professional and a neutral financial professional, you eliminate the posturing. The entire team’s energy is focused on achieving goals that the parties disclose in the first meeting. It’s still a negotiation, but it’s interest-based — e.g., “I want our children to stay in their same school” — rather than positional — e.g., “Well, I’m keeping the house.”

Clients who have been through the process say that the team approach is much more comforting than knowing it’s just you and your attorney suiting up for war. But I caution you — this is not group therapy. It’s a difficult process. The good news is that your team of professionals is organized around only one mission — helping you and your spouse achieve your goals. Divorce is a scary place to be. Choosing from the very beginning to handle the restructuring of your family in a private and dignified manner will ensure you and your former spouse can continue to communicate and cooperate long after the divorce is completed.

The Internet is filled with information about collaborative law. One of the best sources is the Collaborative Law Institute of Texas website at www.collablawtexas.com. This site can answer your questions, let you hear from actual clients who have participated in the process and let you search for an attorney who is trained in collaborative law. Bailey & Galyen also has information about collaborative law on its website. If you’re in that scary place searching for information about a pending or impending divorce, do yourself a favor and educate yourself and your spouse about collaborative law. I know you won’t be sorry you took the time to do this research. Doesn’t your family deserve the very best?

Premarital Agreements

by R. Keith Spencer

Premarital agreements are contracts executed by fiancés, which become effective upon marriage. Their purpose is to clearly define the rights and property of spouses in the event of death or divorce. They are intended to prevent unnecessary litigation and unpleasantness. However, broaching the subject of premarital agreements is frequently difficult for people planning their weddings. Just like executing a will requires acknowledgement of mortality, a “prenup” admits that the marriage could end.

Generally speaking, property owned by the parties prior to the marriage is separate property and remains separate property thereafter. Property acquired during the marriage (except by inheritance) is community property that can be divided by the courts at the end of the marriage. Wages and retirement earned during the marriage are generally community property.

A 1948 constitutional amendment authorized Texas spouses to partition and exchange separate and community property. In 1980, another amendment authorized spouses to agree that income from separate property would remain separate property. Both of these provisions are common in premarital agreements today. Another popular provision provides that no community estate will be formed and the parties’ wages and other property will forever remain separate property.

Texas requires that all premarital agreements be in writing and signed by both parties. The terms of an agreement cannot be grossly unfair or unconscionable, and both parties must provide adequate disclosure of their assets and liabilities. The document must be signed by the parties voluntarily and without undue duress. Presenting your intended with a prenuptial agreement at the altar may render it unenforceable.

Only about three percent of first-time spouses execute prenuptial agreements, compared to about 20 percent of second-time spouses. A prenuptial agreement is vastly more important in cases where the parties own significant property prior to the marriage.

Parties contemplating marriage are encouraged to engage in candid and serious discussions about their finances and debts. It is not inappropriate to discuss your financial plans with your intended life partner. A Bailey & Galyen attorney will provide you with a free consultation to discuss prenuptial agreements and whether one would be appropriate in your circumstances. Arrange your free appointment as far in advance of the wedding as possible.

Ten Tips for Divorcing Parents

by R. Keith Spencer

Divorce is never easy on kids, but there are many ways parents can help lessen the impact of their break-up on their children:

Never disparage your former spouse in front of your children. Because children know they are “part mom” and “part dad,” the criticism can batter the child’s self-esteem.

Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.

Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent’s hostility.

Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.

At every step during your divorce, remind yourself that your children’s interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.

Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.

If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.

If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.

If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child’s sense of abandonment and further erodes his or her stability.

If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent’s divorce.

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What You Need to Know About Divorce in Texas

Texas Divorce Law

In Texas, a divorce can either be granted for “fault” or “no fault.”  In a “no fault” divorce, a party has to tell the Court that the marriage has simply broken down and that there is no hope for reconciliation.

A “fault” divorce in Texas is a divorce based on cruel treatment, adultery, conviction of a felony with imprisonment of at least a year, abandonment in excess of one year, living apart for at least three years, or confinement in a mental hospital for at least three years without hope of recovery.  A “fault” divorce is most likely when there are contested issues involving children or property and the other party’s past behavior should be taken into consideration by the Court.  At Bailey & Galyen, our experienced divorce attorneys will consider your case carefully to help you determine which type of divorce is right for you.

Bailey & Galyen provides a free initial consultation to all clients. To set up an appointment, contact our office by calling 1-866-300-1529 today.

Additionally, Texas divorce’s can either be contested or uncontested.  An uncontested divorce is one in which you and your spouse have agreed on all matters, both children and property related.  A contested divorce is one where there is not complete agreement.  A contested divorce is not necessarily a hostile one.  It simply means there is a disagreement that must be resolved.

Some of the child related matters that must be decided are:

  • the rights and duties of each parent;
  • the possession schedule for each parent
  • child support and health insurance for the child

Property issues that come along with a divorc include determining what property is community property and what property is separate property, the value of that property, the division of property and alimony/spousal support.

The child and property issues are most often resolved in one of three ways:

  • settlement through informal negotiations
  • settlement through mediation
  • final trial

Contact Bailey & Galyen Today

We answer our phones 24 hours a day, 7 days a week. You can contact our office by calling 1-866-300-1529 to set up a free initial consultation. Evening and weekend consultations are available upon request. Se habla Español.