Monthly Archives: June 2012

The Baby Boomer Divorce Boom

A recent article on the Huffington Post raises a very interesting question regarding the cause of the sudden rise in the divorce rates among the “baby boomer” generation:

It’s hard to navigate what authors David and Claudia Arp call “the second half of marriage” — the years after the kids leave. The growing divorce rate among baby boomers has jumped by more than 50 percent over the past 20 years.

But instead of wringing our hands about so-called gray divorces and seeing those long-term marriages as failures, perhaps we should consider marriage as more “till the kids part” than “till death do us part.” The partner we need in our 20s and 30s, when many of us are looking to settle down and raise kids, may not be the partner we need in our 50s, 60s and beyond, when we’re free to explore new passions or reinvigorate the ones we gave up when the kids came along.

Each client that comes to our office in Houston has a different motivation for seeking a divorce.  For some, they have been married for only a year or two and find that they simply are not compatible with their spouse.  Others may be trying to escape an issue with substance abuse or financial troubles.  In the case of the rising numbers of baby boomers seeking a divorce, it certainly has been my experience that many of these clients are waiting for their children to start their own lives before making major changes.

As divorce attorneys, we have to be sensitive to the needs and motivations of our clients.  The more we know about what brought them to us in the first place, the more we will be likely to develop a better attorney-client relationship and, therefore, do a better job for our clients.

Using Electronic Evidence to Find Hidden Assets in a Divorce

In various areas of law, the use of electronic data in court has grown by leaps and bounds.  Certainly the same can be said for divorce litigation.  The Wall Street Journal recently published an article discussing the use of technology to find hidden assets, particularly money being socked away:

Sometimes, uncovering mischief just takes some basic electronic detective work. Thomas Burrage, an Albuquerque, N.M., forensic accountant, had a client who asked her husband, from whom she was getting divorced, if he’d get a pension from his company. The husband said that he wasn’t sure. Mr. Burrage did a quick search on the company website and discovered the husband was in fact eligible for a large pension—something he had hidden from his spouse for more than 14 years.

Scott Maier, a forensic accountant in East Hanover, N.J., recently searched a free public database and discovered that his client’s husband owned real estate in another state. Another simple Google search discovered a client’s husband had sold his company for millions of dollars when he had told his wife it had no value.

Spouses are also doing basic detective work themselves. Gordon Cruse, a San Diego-based family lawyer, has seen spouses discover hidden assets by looking through the browsing history of the family computer and finding things like visits to bank websites where the couple doesn’t have an account.

The article also warns against the perils of attempting to use illegal or less than honorable means of collecting evidence, such as using keystroke logging programs or hacking into a spouse’s e-mail or Facebook account.  There are more than enough legitimate means of uncovering hidden assets in a divorce without resorting to these tactics.  Moreover, in Texas, the rules for discovery allow litigants in a divorce to request electronically stored data from the other party.  There’s no need to hack into someone’s account to obtain information when all you need to do is demand it from them through formal discovery requests.

Our office is prepared to use any ethical and legal means of discovering hidden assets in order to ensure that our clients receive all marital assets to which they are entitled.

Quantity vs. Quality of Time in Child Custody

How many times have you heard someone in a child custody dispute remark about how one parent received more time than the other parent?  Rarely do you see a child custody order in Texas which contains equal time for both parents.Texas Child Custody Law

Is the quantity of time, however, the real value we should take away from a child custody schedule?  If the mother of a child gets that child during the week, what does that mostly entail?  It’s going to consist of getting that child ready for school in the morning, dropping them off at school, being away from them for the better part of the day while they’re in school, then getting them to do their homework, followed by dinner, then getting them in bed just to do it all over again in the morning.

Dad, on the other hand, gets the kids at least half of the weekends of the month (in Texas, if there are five Fridays in the month, it’s 3 out of the 5 weekends).  What is Dad doing on those weekends?  Spending quality time with the kids, going to the zoo or the park, maybe catching a Houston Astros or Houston Texans game.

I don’t want to completely minimize the value of having your children around during the week, but are parents who are subject to a standard possession order in Texas losing sight of the value of that order when they focus on the quantity of time instead of the quality of time?

When parents raising children in split households begin focusing on what they do have instead of what they don’t have, quality co-parenting is a far easier task.

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When Divorce Meets Performance Art

To close our our first week with the blog, we bring you a more humorous perspective on family law – a “protest” marriage undone in a ceremonious divorce.  I’m not sure I can do the entire specticle any justice, so I’ll provide you an excerpt and encourage you to read the rest for yourself:

Amongst a small group of supporters, the couple officially dissolved the marriage vows taken in protest against the Menil Collection’s planting of a tree from The Art Guys Marry a Plant performance piece, which became the focal point of a row in the Houston arts community about marriage rights and the role of public art.

The tree planting was the second part of The Art Guy’s performance piece in which the artist duo of Michael Galbreth and Jack Massing wed a live oak in a public ceremony in 2009. Britt-Darby felt the work devalued gay marriage, hence the protest marriage and now . . . legal divorce.

To each their own.  I hope everyone has a good weekend, and we’ll see you again with fresh blog posts on Monday morning!

The Importance of Judicial Review of Mediated Settlement Agreements Concerning Children

Just last month, I read an article in the Austin American Statesman about a case in the 309th Judicial District Court of Harris County, Texas in which the trial court refused to approve a mediated settlement agreement because it was not in the best interests of the child:

The girl’s father, Benjamin Redus, admits that he signed a binding custody agreement that normally could not be rejected.

But during a routine hearing to enter the agreement into the court record last year, Redus instead asked the judge to intervene, saying he no longer felt comfortable with a document that allowed weekend visits between his daughter and ex-wife. Explaining his change of mind, Redus said his ex-wife’s new husband, a registered sex offender, had slept “naked in bed with my daughter between them.”

Appalled, the associate judge refused to enter the agreement, leading to a hearing by state District Judge Sheri Dean, who also rejected the document, saying it was not in the girl’s best interest.

The girl’s mother, Stephanie Lee, appealed Dean’s ruling, arguing that the judge had only one option — to approve the agreement, regardless of concern for a child’s safety — because it was hammered out in a daylong session with a mediator.

Set aside for a moment your anger at the father for agreeing to such an arrangement to begin with.  That is not the point of this post.  Instead, the very judicial review of the best interests of the child is at stake in this case.

There is long standing case precedent giving trial court’s the ultimate ability to reject agreements between parents which do not appear to be in the best interests of a child.  While this is an extreme example of such an agreement, courts frequently exercise this power in a variety of circumstances, such as rejecting obviously problematic custody arrangements or rejecting child support calculations which clearly benefit the parents but not the child.

While I don’t think there is any real danger of this judicial power being eliminated entirely, I am hopeful that the Supreme Court of Texas does not find a way to carve out the trial court’s power in a particular instance as a result of this case.  The trial court ought to always have the ability to review agreements and determine the best interests of the child.

For those particularly interested in a good summary of the law behind my reasoning, I defer to Clint Lawson’s short but informative brief submitted to the Supreme Court of Texas.

Top 5 Tips for Working With Your Family Law Attorney

I know it’s popular to use a top 10 list for various topics, but I really do think the following 5 tips can make your experience working with a family law attorney that much more efficient and productive:

1.  Be completely honest and forthright – Clients are often embarrassed by the details of their case.  They really shouldn’t be so worried.  As family law attorneys, we hear all kinds of sordid details from clients on a regular basis.  It really takes quite a story to make a family law attorney blush or become disgusted.  Also, keep in mind that you’re working with a professional.  They work on a daily basis to set aside their personal feelings and focus on doing what is in the client’s best interests.

2.  Before you pick up the phone and call your attorney, think through how to make the best use of your time – Unfortunately, clients often spend far more money on telephone calls to their attorney than they should.  With the technology we have available to us, it is far too easy to pick up the phone and call an attorney when another person is frustrating us or upsetting us, particularly in family law cases.  Rarely can an attorney do anything for you at the drop of a hat.  Waiting at least a couple of hours, or even 24 hours, before picking up the phone and calling your attorney will give you time to ponder whether the issue necessitates a phone call.  Maybe you can make a list and make one phone call with all of those issues once a week.  Better yet, if you simply need your attorney to know of an issue or incidence, but don’t require an immediate response – shoot your attorney an e-mail.  It will take far less of the attorney’s time to read that e-mail than to listen to you recall all of the details of the incident.

3.  Trust your attorney – Before you ever retain an attorney, you must ask yourself whether you trust this person or can see yourself quickly developing trust in their abilities.  This can be very difficult for someone going through a divorce, as a client’s trust for the person closest to them has likely been recently shattered.  It is absolutely necessary, however, to quickly develop a trust in your attorney’s abilities and judgment.  Without that trust, the attorney is nothing more than an instrument through which you act.  You miss out on the most valuable aspects of legal representation, such as objective counsel, legal analysis of your case, and a second set of eyes on the issues you are facing.  Why spend thousands of dollars on someone you do not trust?  If you find yourself saying the words, “I feel like you’re taking their side…” and don’t immediately realize that you’re being unreasonable in your criticism, it may be in your best interest and your attorney’s best interest to find an attorney you can trust.

4.  Watch deadlines set by your attorney and do your best to meet them – Frequently, family law attorneys will request documents from you and ask if you can produce them by a given day.  If you say you can produce them by that day, do your best to meet that deadline.  If you believe you cannot, let your attorney know as soon as possible.  Both divorce work and child custody work can often be very document intensive.  Between bank records, real estate deeds, credit card statements, report cards, medical records and retirement account statements, you will likely need to produce quite a few documents to your attorney.  Make sure you start early and request documents from financial institutions, schools or the IRS (in the case of tax return transcripts) immediately after you realize they are missing.  Waiting until the last minute increases the chance you will not get the documents to your attorney on time, which can dramatically affect your attorney’s ability to represent you effectively in your divorce or child custody case.

5.  If your attorney has support staff or alternate resources, get to know them and use them when you can – Utilization of support staff or other alternate resources by attorneys is often essential for an efficient law practice.  This may take the form of a paralegal, receptionist, or even technology such as an online case management system.  In either case, determine what support systems the attorney has available and try to use them as much as possible in order to work with your attorney.  If you can upload documents or information to an online case management system instead of mailing them to your attorney, please do so.  This will eliminate the possible need of the attorney to scan the documents themselves, saving time and money.  If your attorney uses a receptionist or paralegal, use them to get basic updates or answer basic inquiries (keeping in mind that only attorneys can provide legal advice).  These resources are often far less costly than requiring the attorney to deal with these issues, inquiries or questions themselves.  In the end, this will benefit you in terms of cost and will benefit the attorney in terms of time management.

I certainly hope that these tips can help you make the most of your attorney-client relationship.  If used correctly, the services of a properly staffed and equipped law office can be a very valuable resource to a client, particularly one going through a divorce or a child custody dispute.

Mediation in Family Law: Is It Worth It?

As I head off to another mediation in a child custody case, I can’t help but recall the all too frequent objections I receive from clients about mediation:

“I don’t understand why we have to do this.  It’s just a waste of time and money.  We’re never going to agree to anything.

Of course, the easy answer would be, “Because the court has ordered us to go to mediation.”

Yet, it’s the last part that really catches my attention.  Often times, in family law cases, the level of vitriol and distrust between parties is unlike any other area of the law.  Emotions are running high and otherwise calm and rational people find themselves at their worst and lowest.  Learning how to tactfully deal with this very understandable position is the greatest challenge for any attorney practicing family law.

I usually respond to this objection by pointing out the statistics:  More than half of all mediated family law cases settle.  In my experience, a much larger number of those settle.

More importantly, there are many other reasons why parties should go into mediation hoping for it to settle and striving for settlement.  Where children are involved, the strife and bickering that comes from fighting a contested divorce or a child custody case impacts those children greatly.  When parties come to an agreement, they have one less dispute in front of them.  Their stress levels drop.  Children notice that mom and dad are no longer fighting.  In addition, most studies and the anecdotal evidence of family law attorneys everywhere reveals an important fact:  Family law cases resolved through mediation are more likely to be successful because the parties each had a hand in crafting the solution.  The alternative is to allow the judge, who has likely never met the parties or their children before the day of their trial, make this important decision for them.  That’s not a good alternative.

So as I head off to what must be my upteenth mediation session, I prepare to put my client’s mind at ease that this process truly is worth it, and they will, like most of my clients before them, thank me for convincing them to give mediation a good faith shot.

 

The Importance of an Inventory in a Divorce

One of the most frequently overlooked aspects of uncontested divorces is the importance of a sworn inventory and appraisement.  Often times, my clients are seeking a quick and easy way to dissolve their marriage and move on with their lives.

I am always quick to ask a set of very simple questions, “Are you fully aware of all assets and liabilities belonging to your spouse?  How can you be certain?”

Most people are caught off guard.  They readily assume that their spouse disclosed all of their assets during the marriage.  Unfortunately, some people discover well after their divorce that their spouse was, in fact, hiding assets.  Sometimes this discovery is far too late.

Although it will not completely prevent the concealment of marital assets, insisting on an exchange of sworn inventories and appraisements can provide some form of safety net against this sort of situation.  It is an essential part of any Texas divorce lawyer’s toolkit.  Put simply, a sworn inventory and appraisement is a document completed by each spouse in which they list, in great detail, all assets and liabilities owned by either party.  In this document, they also provide an opinion as to the value of the asset or the amount of the liability, as well as an opinion as to whether it is community property or separate property.  Finally, the document is accompanied by a sworn verification in which the person completing the document swears, under oath, that the inventory is a complete and accurate summary of all assets of which the person is aware, to the best of that person’s abilities.

Another benefit of a sworn inventory and appraisement is that it helps each party sort through their assets and ensure that they do not forget to list the most important assets in their divorce decree.  Also, if there is any question as to whether a particular division of the community estate is fair and equitable, the values provided in the inventory can be of assistance to the attorneys to calculate the net value of each party’s share of the community estate and compare those values.

If you have further questions about obtaining a divorce or how an inventory may help you to prepare to divide your assets with your spouse, give our office a call at 713-579-9702.  We’d love to be your Houston family lawyer.

Welcome to Our New Website!

In an effort to provide current information to our clients and friends on the ever-changing world of Family Law in the State of Texas, our office has revamped our website into a blog format.  Although blog posts regarding family law will be prominently displayed on this page, we will continue to provide our ever-popular Frequently Asked Questions page concerning issues relevant to divorce, child custody, adoption and name changes in Texas.

We look forward to helping you with all of your family law matters.  Call 713-579-9702 to speak with an attorney to discuss your situation and how we can be your Houston family lawyer.

New Texas Alimony Rules

During the last meeting of the Texas Legislature, new rules were adopted to define alimony benefits for spouses.  In Texas, alimony is referred to as spousal maintenance.

Chapter 8 of the Texas Family Code provides for spousal maintenance under limited circumstances.

Who is eligible for spousal maintenance in Texas?

Texas law allows a spouse in a divorce proceeding to seek spousal maintenance “only if the spouse seeking maintenance will lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs.”  The spouse also has to demonstrate to the court one of the following:

    • The parties have been married for at least 10 years and the spouse applying for maintenance lacks the ability to earn income sufficient for his or her minimum reasonable needs.
    • The spouse seeking maintenance cannot earn enough income to meet his or her minimum reasonable needs due to “an incapacitating physical or mental disability.”
    • The spouse applying for maintenance is the custodian of a child (either a minor or an adult who is legally considered a child due to their condition) who “requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.”
    • The spouse asking for maintenance was the victim of domestic violence (or a child of the marriage was such a victim) which resulted in the other spouse either being convicted of domestic violence or receiving deferred adjudication for domestic violence within two years of the filing of the divorce or during the pendency of the divorce.

It is important to note that this is an exhaustive list.  Courts do not have the ability to award spousal maintenance for any other reason.

How much alimony can a spouse receive in Texas and for how long can they receive it?

Once a court determines that a spouse is eligible to receive maintenance, the court will use the following factors to determine the amount and duration of those payments:

each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;

    • the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
    • the duration of the marriage;
    • the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
    • the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
    • acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
    • the contribution by one spouse to the education, training, or increased earning power of the other spouse;
    • the property brought to the marriage by either spouse;
    • the contribution of a spouse as homemaker;
    • marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and,
    • any history or pattern of family violence.

This list, however, is not exhaustive.  The court is allowed to consider all relevant factors, including those outlined above.

Are there any limits imposed by Texas law on the duration of spousal maintenance payments?

Yes, Texas courts are limited in how large of a payment they may award and the duration of those payments.

If the spouse seeking maintenance qualifies due to domestic violence, and the spouses were married less than 10 years, the payments may last for no longer than 5 years.  Also, if the spouses were married between 10 and 20 years, the duration is also limited to 5 years.

If the spouses were married between 20 and 30 years, payments may be ordered for up to 7 years.

If the spouses were married for 30 years or longer, payments may be ordered for up to 10 years.

The court, however, must limit the payments to the shortest possible duration in which it is determined that the spouse will be capable of earning sufficient income to cover their reasonable minimum needs.  The one exception is that no limit is placed upon payments to a spouse who has a permanent condition or situation which prevents them from earning sufficient income to meet their reasonable minimum needs, such as a disability, the responsibility of caring for a special needs child, or some other circumstance which prevents from from taking care of themselves.

May Texas courts award any amount of money for spousal maintenance payments they wish?

No.  Texas courts are limited to awarding the lesser of $5,000 per month or 20 percent of the other spouse’s gross monthly income.

If my spouse begins to live with their boyfriend or girlfriend, or if they remarry, do the spousal maintenance payments end?

Generally, yes.  The court will have to have a hearing to determine whether such an event has occurred.  If the court determines that the person receiving payments “cohabits with another person with whom the [recipient of payments] has a dating or romantic relationship in a permanent place of abode on a continuing basis.”

I have more questions.  Who can I turn to?

Feel free to call Bobby Warren at 713-579-9702 and find out how he can become your Houston family lawyer.