Tag Archives: divorce

Top 3 Things People Don’t Know about Community Property

file0001248906240I got a question from a colleague who works as a financial planner: he wanted to know if a 403(b) retirement account was subject to division in divorce. The short answer to this question is probably yes. Many people don’t realize that in the absence of a premarital agreement, all assets obtained during divorce (with very few exceptions) are considered community property in a Texas divorce. Most people realize that a court may determine the division of their house, vehicles, and tangible assets, but there are some subtle nuances to the presumption of community property that could dramatically affect their odds for a positive outcome in divorce. It is always preferable for spouses to agree on the division of their property, but sometimes agreement is simply impossible, so I wanted to shed some light on the three most surprising aspects of community property division in divorce.

1. Inheritance is off the table.

If a relative passes away and leaves you a large sum of money, that inheritance is not subject to division as community property in your divorce. The money you receive in an inheritance is your separate property. However, if you mingle that money with your community funds (perhaps by using it to purchase other assets with your spouse), it could become a part of the community estate. This phenomenon is known as co-mingling. If you’re married and are on the verge of receiving an inheritance, it is a good idea to meet with a family law attorney to ensure your inheritance is definitively separate property.

2. Retirement accounts are subject to division.

As previously mentioned, retirement accounts (including IRAs, pensions, defined benefit plans, defined contribution plans, 401ks, and 403(b)s) are part of your community estate once you marry your spouse. If you’ve worked for decades at the same company,  you’ve likely acquired a substantial nest egg in your retirement plan. Most people believe if they work hard and obtain retirement benefits, they’re entitled to enjoy the fruits of their labor when they retire. However, once you marry, your contributions to your retirement plans become community property, and as the value of the plan increases over time, the balance of the plan from the date of your marriage becomes subject to division in divorce.

No one wants to lose their inheritance or their retirement. So what are couples to do if they want to avoid these outcomes? Thankfully, the presumption of community property can be overcome.

3. Couples can agree to define their assets as separate or community at any time.

Premarital agreements allow future spouses to decide what assets they want to keep as their separate property and which assets will be their jointly owned community property. Ideally, each party will have his or her own attorney to review the documents and advise as to the consequences of the agreement. This is a great opportunity for them to discuss their finances at their very onset of their marriage and establish clear boundaries about how their assets will be treated if they divorce. If you do not have a premarital agreement, do not despair. You and your spouse can create what’s known as a postnuptial agreement after you marry.

Unfortunately, finances are one of the primary motivating factors for divorce, so the sooner you and your partner get on the same page about the money in your relationship, the better off you will be as a couple. For more information about community property or to discuss your financial circumstances, feel free to give me a call at (713) 574-8626 to schedule a consultation.

3 Tips for Parents Going Through Divorce

032cc38c6b791fc5612c6823ab93fb44In my practice, I see many people at their absolute worst. Their marriage is over, and they’re coming to me for advice and counsel during the divorce process. Some of those people have children which further complicates matters. How does one navigate the divorce process without taking their children on an emotional roller coaster? Frankly, this is a difficult question without a simple solution or answer because every family is different, but these three guidelines are critical if you want to exit your marriage with as little damage to your kids as possible.

1. Never Bad Mouth the Other Parent

This one may seem obvious, but if you’ve been served with a divorce citation, you probably have some choice words to say about your soon to be ex. You should share those choice words with your divorce lawyer, your therapist, your best friend, or your pastor. Who you should not vent to under any circumstances is your child. It doesn’t matter if he or she is an absolute scoundrel. Your child loves her other parent just as much as she loves you. It’s not fair to place a child in the middle of an adult situation by deriding your spouse. It will drive a wedge between you and your child and place you in a terrible light when she gets old enough to process what you said about her other parent. Find healthy ways to express your frustration but keep it away from the little ones.

2.  Avoid Using Your Child as a Bargaining Chip

Similarly, parents going through divorce have to navigate several issues such as who will stay in the family home, who will pay child support, and what the possession and access arrangement will be for the children. Although it may be tempting to punish your ex for his or her wrongdoing by withholding access to the children, please do not do this. Your children will not understand, and it’s simply not in their best interest. The family unit as they know it is changing dramatically; do not make that change even more severe by making the children feel guilty for wanting to see both parents on a consistent basis. Doing so is emotionally abusive and could severely impact your child’s well-being.

3. Maintain Their Routine

Your children may not tell you this, but the day to day happenings in their life are what makes them feel safe. Eating breakfast, getting ready for school, catching the bus to school, sitting through classes, going to extracurricular activities, and doing homework are all a part of their daily routine. If you and your spouse are going through a divorce, it is likely that their routine has been interrupted by one of their parents moving out of the home, or by them moving away from one of their parents. Some interruptions are unavoidable, but if you can minimize the disruptions from your child’s daily life, your child can continue to develop and grow as an individual. The more you provide stability for your children, the less likely they are to resent either of their parents for divorcing. You and your ex have a responsibility to let your children know that you both love them unconditionally even though your marriage is ending. You can show that love by maintaining their routine as much as possible.

We all love our families. Sometimes it’s hard to know if we’re doing the right things for them. If you’re contemplating divorce and need practical advice and guidance, feel free to give me a call at 713-574-8626.

Should I Hire a Lawyer or Handle It on My Own?

ttronslien-8953 (1)I get asked this question in different ways from time to time, so I thought it would make a great blog topic. Is it a good idea to hire a lawyer or go pro se?

In most instances, we have no problem going to a professional for services. Car making a funny noise? Go to a mechanic. Need a haircut? See a barber. Broke your key in the door? Call a locksmith. But when it comes to legal services, people with absolutely no legal experience or training strangely believe that they can do it themselves, get the outcome they want, and successfully represent themselves in court. This is almost always a terrible mistake.

“I have the right to represent myself in a court of law”, you may be thinking. This is true. You absolutely do, but just because you can do something doesn’t mean you should. Abraham Lincoln famously said, “He who represents himself has a fool for a client.” Like me, President Lincoln was an attorney, and he had a great reason for making this remark: the law has its own set of rules, guidelines, and vocabulary. There is a reason lawyers have to attend several years of school and pass their state bar examinations. Competence in the courtroom comes with years of experience handling legal problems again and again. A person without this background is simply not prepared to properly represent him or herself.

Typically when a person goes pro se, that person quickly realizes they’re in over their head and hires an attorney. When I meet someone who has filed their own lawsuit, I look at what they have done on their own and determine what, if anything, I can do to fix their mistakes and protect their interests. This often results in my new client paying more than he or she otherwise would if they had simply come to me with their legal problem from the very beginning. The additional work needed to pick up where a pro se litigant has left off usually results in me having to spend more time on their case, and therefore a higher bill. Sometimes they’ve waited too long to seek my help, and I can’t do anything for them because the case is too far gone.

Even a skilled lawyer who represents himself is at a disadvantage. We are humans, and our emotions tend to cloud our judgment when it is our own personal interests at stake. I take my own advice in this regard. When my grandmother passed away, I advised my mother (her executor) to hire an attorney. I did not want to bungle my grandmother’s estate. I had recently graduated from law school and had not yet learned how to handle probate matters. I wouldn’t pull my own tooth if I had a toothache, and something tells me you wouldn’t either. The same principle applies to the law: when in doubt, hire a professional.

Attorney Obligations: Reporting Child Abuse and Neglect

toysUnfortunately when discussing divorce and family law issues sometimes people reveal potentially damaging information about their behavior and attitudes toward their children or, more commonly, their stepchildren. In my practice, I have encountered individuals so riddled with grief and despair threaten to kidnap and even kill their young children in a desperate attempt to change their situation. What they may not realize is that I have a legal obligation as an attorney to report abuse or neglect as well as potential abuse or neglect. The Texas Family Code makes it a Class A misdemeanor for a lawyer to fail to report incidences of child abuse or neglect. In fact, if it is shown that a legal professional intended to conceal the abuse or neglect, he or she faces a state jail felony.

Lawyers are held to the same standard as teachers, doctors, nurses, and daycare workers under Chapter 261 of the Family Code. We must report suspected abuse within 48 hours to a law enforcement agency or the Texas Department of Family Protective Services. We are entrusted by the state to look out for the well being of those who cannot speak up for themselves. Children are a vulnerable population, and when lawyers fail to act out of a desire to protect our clients, we are violating our duty to the state of Texas. A client or prospective client who has harmed a child or threatened to harm a child and let a legal professional know about it has opened himself up to prosecution. If the lawyer remains silent, his or her life and livelihood could be on the line.

Although we are trusted advisers and counselors, we are also officers of the court and representatives of the state. We have duties to be truthful and honest in our dealings with clients and with the public. It can sometimes to be difficult to balance our obligations to the client to protect his or her privacy with the duty to report child abuse and neglect. Reporting these incidents could cause problems for the client, but not reporting could result in criminal penalties for us. It is my policy to let clients know my legal obligations during family law cases. Transparency is important to building trust in any relationship, but the public at large should also know about what an attorney’s duties are in these cases. For questions about this or any other family law issues, please give us at call at (713) 574-8626.

 

 

 

 

 

#Sugar Land divorce lawyer

Served with a Divorce Petition? Here’s What to Expect

Many times I receive frantic phone calls from individuals who have opened their mail boxes or received a knock at the door that resulted in them being in possession of an unexpected petition for divorce. These people are distraught and unsure of what to do next; if you are one of these unfortunate ones, this blog is for you.

Apparently your spouse is unhappy and has decided to end your marriage. The divorce petition is the first step in what is sometimes a lengthy and emotionally draining process. Fortunately, it does not last forever, and the average divorce proceeding in most American jurisdictions is from 6 months to 1 year. Typically, there are six steps common to each of these divorce cases:

1. Petition

This is where the paperwork in the mailbox or service at home or work comes from; the petition is a spouse’s way of initiating the divorce process and letting the court know he or she wishes to dissolve the marriage relationship.

2. Temporary Orders

Temporary orders are orders that are mandated by the county where the divorce is taking place or requested by the attorneys representing the spouses that mandate what things can and cannot be done during the time between when the petition is filed and the actual divorce is granted. The purpose of temporary orders is to ensure that neither party sells property, hides assets, takes debts in the name of the other spouse, or otherwise does anything that would make the equitable division of the marital property more difficult. Temporary orders can be made by agreement or by court order. If by agreement, the parties can be spared the expense of a pre-trial hearing.

3. Discovery of Evidence

This is the information gathering stage of the process. Assets, debts, the monthly expenses of each party, and the status of any children of the marriage are the most important aspects of the process. Divorce is meant to determine what happens to these things, who will be responsible for what, and how to divide that responsibility in a way that is fair to both parties. In order to do this, each side must be forthcoming about their finances with their attorneys and with each other. This may involve you or your attorney preparing a sworn inventory and appraisement that lists all of your belongings and financial obligations, hiring appraisers to determine the fair market value of a house or other real estate, and gathering documents for your attorney to see your full financial picture.

4. Settlement negotiations or mediation

In Harris county, where I often practice, parties are required to attend mediation. Mediation is a private settlement and negotiation conference where each party and his or her attorney attempts to reach an agreement about how to divide the affected property with the use of a third-party neutral known as a mediator. The purpose of this requirement is to allow people the opportunity to settle the matter out of court. Almost 95% of divorce cases are settled, but sometimes those settlements are not made until the case has been set for trial; therefore, it is in your best interest to prepare for your divorce with the mindset that the case may not settle because you have no idea how any given judge will rule on any given day. Preparation is key. If you are required to attend mediation, remember that mediation is different from trial. It is informal, and anything said to the mediator is confidential, so be sure to utilize your mediator effectively. You can use this settlement conference as a way to find out more about the motivations of your spouse and what he or she really wants to get out of the divorce.

 

5. Trial (if no settlement reached)

If you and your spouse are unable to reach an agreed settlement, your case will go to trial. Rest assured, it is not nearly as interesting or exciting as the trials you have seen on television. Usually, a divorce case is tried before a judge, rather than a jury. Many times, the only people present at a divorce trial are the parties, their attorneys, the judge, and the court reporter. In that case, both sides present their evidence, cross-examine one another, and ask the judge for whatever remedy they want (specific property, custody of the children, etc.). Once the trial is over, the judge makes his or her determination known as a ruling. That ruling is then converted into a document known as an order. A court order is enforceable, and each party must adhere to its specified requirements.

6. Post-trial settlement

After trial, many documents may need to be drafted such as the Divorce Decree, Agreement Incident to Divorce, and any other documents needed to effectuate transfer of title to real estate, motor vehicles, or retirement benefits. This can be a lengthy process.

If you want more information about what to do if you are suddenly presented with divorce paperwork, feel free to contact us at 713-574-8626. We’d be glad to help!

Divorce Negotiations and the Time Value of Money

This blog has yet to address family law matters directly, and perhaps that is because I have been waiting for the right words to express some of the slings and arrows that come along with being a family law practitioner. Most people would consider me a divorce lawyer. I consider myself a catalyst for change. Once a prospective divorcee contacts me, he or she is already in a crisis. It is my job to be a steady rudder through stormy seas, or as my mother would say, “keep it all together.”

Divorce is not fun for anyone, but I take my responsibility to my clients very seriously, and I make it a point to keep a clear head and to consciously guide them away from the negative emotions that led up to their current state. More importantly, I keep them and myself focused on the present because the past cannot be changed, and the future is unknown unless we take (or do not take) certain steps to prepare for what we would like the future to be. Just like any other productive pursuit in life, the first part of the journey starts with a plan.

I was fortunate enough to counsel a client who was presented with a very reasonable divorce settlement offer. His initial response was to reject it. She wanted to keep the house, and for him that was a deal-breaker. I took a moment to talk to him about the time value of money. I said, “If you win $4000 at a roulette table in Las Vegas, what does a smart person do?” His response, “Get up and leave.” I smiled. He didn’t smile back, but he took the deal thanks to me and a very experienced mediator.

Because I am also a mediator, it is in my best interest to be transparent and explain why I do what I do. That’s part of the inspiration for this blog, and it’s also a selling point for this firm. I take the time to talk to my clients and explain the pros and cons of any decision they may make because ultimately I am simply an agent. All lawyers act on behalf of someone else. In the case of my divorce client, he was allowing an emotion, particularly spite, to get in the way of his own best interests. At its most basic level, the time value of money dictates that it is better to have money now than to receive it later. The reasons why involve interest and potential for growth, but in this example, additional reasons existed like the time and expense of further litigation and added costs for my client and his future ex-wife. For a more exhaustive discussion of the time value of money, please see here.

The moral of the story in this case and others is that an attorney’s role is not simply to provide documents and file them in courts. An attorney is also a counselor and ought to be prepared to give thought and sound guidance to the needs and concerns of her clients. Every situation is different, and some folks expect attorneys to perform the impossible, but it is our duty to educate these misguided souls about how there are no guarantees in life, but if you have a competent advocate, your chances are far better than trying to fend for yourself in an opaque legal system. For more information about how I might assist you with your divorce, please don’t hesitate to call.