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1
2The Smart Texan’s Guide to a No Nonsense Divorce
3Cristi Trusler
4Board Certified in Family Law
5by the Texas Board of Legal Specialization
6P e r c e p t i v e P u b l i s h i n g L L C
7A u s t i n , Te x a s
82
9Copyright © 2013 by Cristi Trusler.
10All rights reserved. No part of this publication may be reproduced, distributed
11or transmitted in any form or by any means, including photocopying,
12recording, or other electronic or mechanical methods, without the prior
13written permission of the publisher, except in the case of brief quotations
14embodied in critical reviews and certain other noncommercial uses permitted
15by copyright law. For permission requests, write to the publisher, addressed
16“Attention: Permissions Coordinator,” at the address below.
17Cristi Trusler/Perceptive Publishing LLC
189600 Escarpment Blvd
19Suite 745 #84
20Austin, TX 78749
21www.perceptivepublishing.com
22The Smart Texan’s Guide to a No Nonsense Divorce ©2013
23TruslerLaw.com/book
24Ordering Information:
25Quantity sales. Special discounts are available on quantity purchases by
26corporations, associations, and others. For details, contact the “Special Sales
27Department” at the address above.
28The Smart Texan’s Guide to a No Nonsense Divorce / Cristi Trusler. —1st
29ed.
30ISBN 978-0-9899491-0-1
313
32Contents
33Who I Am and Why I Wrote This Book
34A Note About Legal Advice
35Important Information About Hiring a Lawyer
36Deciding Whether or Not to Divorce
37Preparing for Divorce
38Find a Wise Guide
39Make an Accounting of the Family Finances
40Gathering Financial Records and Information
41Further Preparations for Divorce
42What if Your Spouse Surprises You With the Divorce?
43Do You Need to Hire a Lawyer?
44How Do I Choose a Lawyer?
45Lawyer Styles: The Lamb, the Pit Bull, and the Fox
46Your Options
47Reconciliation
48Physical Separation
49Separation
50Negotiated Settlement
51Collaborative Divorce
52Mediation
53Cooperative Litigation
54Adversarial Litigation
55Anatomy of a Divorce Case
56The Divorce Process
57The Issues
58Custody and Issues Related to the Children
59Division of Property and Liabilities
60Post Divorce Spousal Maintenance
614
62Checklist of Issues
63Division of Assets and Debts
64Maintenance in a Nutshell
65Child Support
66Child Custody, Possession and Access, and Co-parenting
67Legal Procedures After the Divorce Trial
68Tying Up Loose Ends
6911 Steps to a No Nonsense Divorce
70Collaborative Law
71Tools and Strategies for Navigating High Conflict Situations
7215 Ways to Guarantee a Divorce from Hell
73What’s Next?
74Glossary of Divorce Terms
75Recommended Resources
76Websites
77Books for Individuals Facing/Recovering from Divorce
78Children’s Age Appropriate Books on Divorce
795
80Dedicated to my family
816
82Not to spoil the ending for you, but everything is going to be OK.
837
84C H A P T E R 1
85Who I Am and Why I Wrote This Book
86I want to first thank you for choosing this book. It is my genuine hope that
87the information I give you here will help you survive what is in all probability
88one of the most difficult times in your life.
89I wrote this book to provide practical and important information to couples
90facing divorce. But, more importantly, I hope to help them avoid a nasty
91divorce that spirals out of control and devolves into a competition between
92the spouses to inflict as much misery on one another as possible.
93Let’s face it - divorce hurts. Many experts say that the effect it has on a
94person is second only to the death of a loved one. Contrary to a book of the
95same title, in my opinion, there is no such thing as a “Good Divorce.”
96However, there are some divorces that are worse than others. Maybe you’ve
97seen the 1989 movie, War of the Roses, in which Michael Douglas and
98Kathleen Turner play spouses who literally fight to the bitter end in their
99divorce. The truth is that it is possible to survive divorce without bloodshed
100(figuratively and literally.)
101My name is Cristi Trusler. Since 2001, I have made my living primarily
102helping my clients and their children navigate the often difficult divorce
103process. Family law, which includes divorce and custody work, is a unique
104and difficult specialty in which to practice. Before I was a divorce lawyer, I
105worked in a transactional intellectual property practice at a big firm. I mostly
106traveled around the country negotiating deals as the junior lawyer on the
107team, and sitting in war rooms reviewing piles of documents. I did this for the
108first five and a half years out of law school. The work was interesting (well,
109sometimes), but it took me away from my family too much. I rarely felt like
110my work made a difference in the lives of my clients.
111As a family law specialist, I am constantly working with families and
112individuals that are in crisis. Often I am helping people at their lowest point. I
113am often asked why I do it, or how I can do it. There are several reasons why
114I do it and ways I have learned to be able to continue to do it without it
115“getting me down.” One of the main reasons why I do it, is that I value the
116opportunity to make a significant, positive difference in the lives of my clients
1178
118and their children during a distressing stage of life. I pray for my clients,
119individually. I try hard to stay objective and not to become too emotionally
120involved in the case myself. I can do a better job for my clients this way. I
121also strive to keep a balance in my own life.
122I run, almost daily, with my two crazy Siberian huskies, Speed Racer and
123Trixie. That helps me burn off stress. I pray often, and go to church when I
124can. I cherish my own family. I am immensely thankful for my own friends
125and family who support me and, ultimately, make it possible for me to do
126what I do.
127I depend on and value my staff. They are the heartbeat of my firm. I do not
128watch the news. It’s way too depressing, especially given what I do for a
129living. I love to travel, read, cook and snow ski, and go for runs on the beach -
130and I do these things whenever I can. I work hard and I play hard.
131I refuse to candy coat things for my clients or tell them what I think they
132would “like” to hear. I know that doing this may make them feel good for a
133few hours, but ultimately, it will not help them. I want to help people make
134wise choices through the divorce process. I want to help them heal. In my
135opinion, the first step to doing that is to educate the client. The next step is to
136guide them and advocate for them, zealously - but with honesty, truth and
137grace. This book is an extension of that mission.
138If you’ve picked up this book, I assume that either you or your spouse is
139considering filing, or has filed for divorce. If that is true, then it is my sincere
140hope that the information in these pages will help you reduce the pain of your
141divorce.
142Although I help families more effectively navigate the divorce process, I do
143not encourage or promote divorce. Often when my clients come to me, it is
144too late for reconciliation. Occasionally, however, it is not. I always
145encourage efforts to reconcile when possible.
146Either way, if you are facing the possibility of divorce, then this book will
147be helpful to you. The difficult emotional issues of divorce are compounded
148by the uncertainty of the process and the fear of the unknown.
149These are critically important issues. In a divorce, a court order will set out
150many details that are fundamental to your life: how frequently you will see
151your kids, what your financial obligations will be, who will get which assets
152and who will pay the bills.
153You need to know your rights. You need to understand the divorce process.
154You need to arm yourself with information that will help you attempt to have
155a civilized divorce. Whether that is possible or not will depend on a number
156of factors, some of which are outside of your control. I hope that the
157information in this book will make a respectful divorce with an acceptable
1589
159outcome more likely for you and your family.
160Sometimes people walk into my office asking me how many “wins” I have
161had or whether I think they can “win” their case. In my opinion, there are very
162few true “wins” in family law. We are dissolving a marriage. We are redefining
163the roles of spouses to co-parents. As I see it, the way we “win”
164when we do this, is to protect the emotional and physical well being of the
165client and their children. I want clients who look back after five years and say,
166“My life is better today,” or “that was really, really hard, but I’m glad we did
167it the way we did it for our kids.” In a courtroom setting in family law, it is
168very rare for either client to walk out of court feeling like they got everything
169that they wanted. The cases where that does happen are, in my opinion, the
170saddest and most tragic of family law matters because it means that one of the
171spouses got nothing they wanted. I have had those “wins” and I can tell you
172about them, but I can promise you, you do not want to be in a situation where
173your case looks like one of those folks’ cases at the end of the day.
174Most lawyers require that you make an appointment with them and pay
175them before they will share some of the information that I have provided to
176you in this book. My goal is to provide this information to you at minimal
177cost, immediately... and without the pressure that you might feel in a lawyer’s
178office.
179I feel you should have this important information to help you make
180informed decisions about what steps you should take and to help you have a
181more civilized divorce. My philosophy is that an educated client makes both a
182happier client and a superior attorney-client relationship. Having knowledge
183about divorce in Texas and about your options in going through a divorce
184empowers you, as an individual, and helps you navigate the storm of divorce.
185The knowledge also enables you to think outside of the box. But before you
186can think outside the box, you have to know what the box looks like.
187You can find out more about me on one of my firm websites here:
188TruslerLaw - http://www.truslerlaw.com
189TruslerLegal - http://www.truslerlegal.com
190Additionally, we created a Divorce Education Center here:
191Austin Divorce Help - http://www.austindivorcehelp.com
192The law does change from time to time. So, these websites will provide you
193with the latest developments in Texas family law.
19410
195C H A P T E R 2
196A Note About Legal Advice
197I am not allowed to give you legal advice in this book and you should not
198take anything in this book as legal advice about your specific case. It is
199intended to be educational and to provide you with a basic understanding of
200the divorce process and laws in the state of Texas at the time the book was
201written.
202Only after you have agreed to hire me, and I have agreed to accept your
203case, can I give you specific legal advice about your case. After all, until that
204happens, I do not even know the facts of your case or the specific issues you
205are facing.
206If you already have a lawyer, then you should contact your own lawyer
207about questions you may have as a result of reading this book. It is rarely a
208good idea to change horses in the middle of the race. Generally speaking,
209switching lawyers a number of times makes you look “unreasonable” or
210“difficult to work with” (in short, “crazy”) to the court (not to mention to
211opposing counsel and other professionals who may be working with you on
212your case). So, if you plan to switch attorneys, do it only once, and only after
213you’ve given it a great deal of thought. Make sure you are comfortable with
214the lawyer’s staff, as well as the lawyer. Often, you will be spending
215considerable time preparing with the lawyer’s paralegal or legal assistants. In
216my opinion, it is similar to hiring a doctor - if you don’t like the nurses, then
217you might not want to see that doctor. The nurses and administrative staff,
218like our paralegals and staff are a big part of your over all experience, and you
219may spend more time with them than with their boss.
220Also, beware of seeking advice from well meaning friends and family. If
221you have a lawyer, take your legal questions to them. Every case is different,
222and practices vary from state to state and even county to county, for some
223things. Your lawyer should be able to advise you on the realistic outcomes for
224your set of facts in the location where they practice. Bottom line - you’ve
225hired them to do a job - let them do it.
226(WARNING: THIS BOOK CONTAINS GENERAL STATEMENTS
227AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE OR
22811
229OPINIONS. THIS BOOK DOES NOT CREATE AN ATTORNEY-CLIENT
230RELATIONSHIP. DO NOT ACT OR RELY UPON THE INFORMATION
231IN THIS BOOK WITHOUT SEEKING THE ADVICE OF AN ATTORNEY
232BECAUSE CHANGES IN THE LAW OCCUR FREQUENTLY AND YOU
233SHOULD CONSULT WITH AN ATTORNEY WITH RESPECT TO YOUR
234PARTICULAR CASE.)
235Important Information About Hiring a Lawyer
236Whether or not you use a lawyer and which lawyer you select to represent
237you in your divorce case are two of the most important decisions that you will
238make. The consequences of not having proper representation to shepherd you
239through this process can be catastrophic and long lasting.
240For this reason, I dedicated an entire chapter (How Do I Choose a Lawyer?)
241to this critically important issue. I hate to admit it, but more frequently than I
242would like to mention, I have witnessed the lawyers involved in a divorce
243case cause more harm than good to the family involved. There are a number
244of reasons why I think this is true, but that is well beyond the scope of this
245book. The most important thing at this point, is for you to understand how
246critical a decision this is for you. The purpose of my including this note is to
247specifically bring that to your attention and highlight the importance upfront.
248I hope that by my emphasizing this point that if you take nothing else from
249this book, you will read and carefully consider the contents of How Do I
250Choose a Lawyer?
25112
252C H A P T E R 3
253Deciding Whether or Not to Divorce
254The decision to end a marriage and obtain a divorce should never be taken
255lightly. Divorce is one of the most emotionally and spiritually difficult
256experiences a person can undergo. Anger, grief, fear, and anxiety about the
257future make the experience of divorce one of the most draining and difficult a
258stages in life that you can ever experience.
259The spouse that initiates the divorce often experiences tremendous amounts
260of guilt and self-doubt. For the spouse who does not initiate the divorce, the
261rejection and feelings of betrayal can often be nearly unbearable, at least for a
262while. If there are children involved, then the disruptiveness is multiplied
263exponentially, because the parents fear the inevitable toll that the divorce
264takes on their children.
265For that reason, before a final decision is made to move forward with the
266divorce, I always recommend that my clients seriously consider whether their
267marriage can be saved. Once a couple has reached the point that they have
268found their way into my office, the chances of reconciliation are generally
269going to be best if the parties involve a marriage counselor. I frequently tell
270my clients that despite the fact that I make my living helping families deal
271with the harsh realities of divorce, I do not encourage divorce. For that
272reason, I frequently refer clients to a marriage counselor before moving
273forward with a divorce.
274In fact, because I feel so strongly about the need to make your best efforts
275to save your marriage, I founded and maintain a website which contains
276resources for those struggling in their marriage, as well as a directory of
277marriage counselors in the primary jurisdictions where I practice (Travis,
278Williamson, and Hays counties). If you have not yet attempted marriage
279counseling, I recommend that you review that site and contact a marriage
280counselor listed there or from another trusted referral. If you live outside of
281Central Texas or the Austin area, I encourage you to find a local marriage or
282family therapist.
283You can find the site here:
28413
285Get Marriage Help -> http://www.getmarriagehelp.com
286Despite your best efforts, however, you may find yourself with no choice
287but to divorce. After all, it takes both spouses working together to stay
288married. If you have carefully considered the serious and long-lasting
289consequences of a divorce and have made a good faith effort to participate in
290marriage counseling with your spouse and a qualified counselor and or
291spiritual guide, and still feel that divorce is inevitable, then the next best thing
292that you can do is to become as educated about the process and the law as
293possible. This is also true in situations where you do not want the divorce, but
294your spouse does.
295In either case, your reading this book is a good first step in that direction.
296Your next best step should be to meet with a qualified and experienced
297divorce lawyer (in my office we call that an Initial Consultation. You can read
298more about the value and benefits of such a meeting in the chapter, What’s
299Next?). As noted above, going through divorce evokes a number of difficult
300emotions. These are compounded by the fear of the unknown. Thus, the more
301you understand the divorce process, the laws surrounding divorce that will
302affect you and your family, and how your particular situation is affected by
303those laws, the less stressful your divorce will be.
304If the divorce does become inevitable, for whatever reason, then I urge you
305to make a commitment to take the high road if at all possible. The inherent
306difficulty of a divorce is compounded tremendously by a bad divorce.
307Although I believe there is no such thing as a good divorce, there are
308absolutely some that are worse than others. Its akin to saying a “good cancer”
309or a “good flu”. Neither of these is good, by any definition, but there some
310ways that are far better to treat and survive them than others. A bad divorce is
311characterized by the spouses being unreasonable with one another and
312fighting over the most trivial issues, especially if it is in front of children. This
313is often coupled with blindly adversarial or unnecessarily aggressive lawyers
314that cause the divorce litigation to spiral out of your control and out of the
315control of your spouse. Avoiding that type of situation begins with your own
316decision to be committed to the high road. You should have a frank
317discussion with your spouse about your desire to resolve the divorce in as
318amicable a manner as possible. The trust level between you is likely to be low
319at this point and so it may take some persistence on your part to get them to
320believe that you sincerely want to avoid a nasty divorce - and a separation
321from the union or partnership.
322At this point, I can’t resist making a shameless plug for a fairly new form
323of alternative dispute resolution that is part of our statute in Texas -
32414
325Collaborative Law. I have a chapter called Collaborative Law deals with this
326topic in more detail. But, my personal and professional opinion is that in most
327cases, this approach is a superior approach for people. In particular, people
328with children (regardless of whether those children are still minors or not),
329people with any kind of public profile, people of faith, and high net worth
330individuals often seek out this private, client-driven approach. I encourage
331you to read the chapter on the collaborative law option.
332Admittedly, deciding how to approach your divorce is a difficult balancing
333act. On one hand, you may be committed to a civilized and amicable divorce.
334On the other hand, you don’t want to act in a way that you foolishly expose
335yourself to being taken advantage of by a spouse who does not share your
336desires or who is not capable of meaningful participation. In some
337circumstances, maybe you have a spouse who is impaired due to mental
338health issues or substance abuse. Sometimes, court is the only option life
339hands you this set of facts. However, depending on who the “impaired”
340spouse hires as his or her counsel, you may still be able to achieve a civilized
341and amicable divorce. This again speaks to the need to be informed and
342educated, to act wisely, thus seeking the counsel of a wise guide from the
343beginning of this process. This takes it a step further, showing how important
344it is that your spouse too, has a wise guide - and one that your lawyer can
345work with in a productive and professional manner on your behalf.
34615
347C H A P T E R 4
348Preparing for Divorce
349If you reach the point that you think divorce is likely (whether because you
350are going to file or you suspect your spouse is), then you need to get
351organized and prepared for the possible divorce. By doing so you will put
352yourself in a better position to resolve the divorce and make the transition
353easier for you and your children.
354If you are the one initiating the divorce, it is important that you do these
355things before you announce your divorce plans to your spouse. It may sound
356heartless and manipulative, but taking these steps now will help you minimize
357the financial risks of divorce. Divorce will inevitably put you under an
358emotional and financial strain. If it is going to happen, you want to do all you
359can to put yourself in the best financial and emotional position possible.
360As difficult as it is, you must set aside any emotional turmoil that the
361thoughts of divorce cause and take some important strategic steps.
36216
363C H A P T E R 5
364Find a Wise Guide
365You don’t need a lawyer to get a divorce, but you need them for the
366consequences of your divorce. You can likely get a divorce by finding some
367forms on the Internet or hiring a lawyer that advertises for cheap uncontested
368divorces. If you have no children, a marriage of only a year or two in
369duration, no assets or debts have been accumulated during the marriage, and,
370most importantly, you and your spouse agree on everything, then you
371probably do not need a divorce expert. We actually offer an option for this
372type of client in our office called the No Nonsense Divorce. There are three
373different service levels for this type of limited scope client. In these cases, my
374role generally ranges from giving legal advice when requested by the client,
375document review, and sometimes attending the hearing where the agreed
376divorce is granted all the way to full representation. There are different
377options available depending on how much help the client wants from us.
378In any case, I highly recommend that you find a lawyer that practices
379primarily in the field of divorce and family law. Depending on the complexity
380of your case or the opponent lawyer - in Texas, that means someone who is
381board certified and considered an expert by the State Bar. If you are interested
382in collaborative law, try to find a specialist who is both board certified and
383has done many cases collaboratively. If you are in the category where you
384think court is the only realistic option, then get a board certified lawyer who
385has done many trials and knows the judges and other lawyers in your
386jurisdiction well. As a divorce lawyer, I hate to have to say it, but often the
387path a divorce takes is the direct result of the lawyer(s) involved.
388Choosing the right lawyer is such an important topic that I have dedicated
389an entire chapter to it. You will want to review that chapter carefully and
390begin the process of researching and finding the lawyer that is right for you.
39117
392C H A P T E R 6
393Make an Accounting of the Family Finances
394The next thing you will want to do is to gather as much information as you
395can to get a clear picture of your family’s financial situation. You may
396already have a firm handle on it if you are the one that takes care of the
397finances in your home. On the other hand, you may have no idea what your
398spouse owns or owes. One of the primary functions of the divorce process is
399to make a division of the assets and debts of the marriage. In order to get a
400equitable division or a “just and right division” per Texas law, you must know
401what there is to divide.
402This is a three-step process:
403Step 1.Determine What You Own
404Many of the assets of the marriage will be obvious – the home in which
405you reside, your checking and savings accounts, vehicles, boats, etc. Others
406may be less obvious. Then there is always the possibility that your spouse is
407hiding assets (this is more likely if they are the one initiating the divorce or if
408divorce has been discussed previously).
409Gather as many documents as possible to prove the existence and the value
410of each asset. Generally, this means updated statements from retirement
411accounts, bank accounts, credit cards, etc.
412If you are able to gather this information on your own instead of having to
413rely on your lawyer to get it for you, you will likely save yourself a lot of
414money and time. If there are documents you are not able to obtain, your
415lawyer may have to get them through the discovery process (that process is
416generally described in Anatomy of a Divorce Case).
417Also, keep in mind, being organized in the manner you get the information
418to your lawyer or to the financial professional on your case will also save you
419time and money. If you bring your lawyer a box full of receipts paper clipped
420together and statements with rubber bands around them - or worse yet, loose,
421it will take far longer than if you bring your lawyer the information digitally,
422organized into folders with a table of contents.
42318
424Step 2.Determine What You Owe
425You will need to make a determination of all of the debts of the marriage
426(regardless of whose name it is in). The Final Decree of Divorce will need to
427address which spouse is responsible for the debt whether it is in your name,
428your spouse’s name or joint names.
429I recommend that each of my clients obtain a copy of their credit report
430from all three credit reporting bureaus. You are entitled to a free copy once
431per year. There are many ways to get a copy. You can request a free credit
432report here:
433Free Credit Report -> www.truslerlaw.com/free-credit-report
434It is important to request a copy to make sure that your spouse has not
435incurred debt with your name on it that you may not know about. Also, there
436may be outstanding debt or lines of credit that you have forgotten about. This
437is a good time to clean up your credit report. It would surprise you to learn
438how often people find out that a spouse has incurred debt in their name that
439they were not aware of. This happens more frequently than you might think.
440Once you determine that debt exists, promptly obtain copies of the
441statements on those accounts to ascertain the balances. You may also need the
442statements if your spouse has made large or inappropriate purchases on the
443cards that may need to be addressed in the Divorce Decree.
444If you cannot find credit card statements on each of the accounts, you can
445contact the credit card company directly and request they send them to you.
446Check their websites as you can probably make the request online. Normally
447you will want a minimum of 12 months worth of statements. Where I practice
448in Texas, it is unusual to need more than three years worth of statements, but
449can be necessary in some cases. Check with your lawyer to see what he or she
450recommends for your specific situation.
451Step 3.Determine Income
452Your lawyer will need documentation showing your income (if you work
453outside the home or have other income) and the income of your spouse. This
454is important for a number of reasons, but primarily for child and spousal
455support.
456If your spouse is a salaried employee then your job is easy. Obtain a copy
457of the most recent pay stub and the most recent Income Tax Return. If you do
458not have access to either of these, you can obtain a copy of the Income Tax
459Return by requesting it from the IRS. Complete Form 4506, Request for Copy
460of Tax Return and mail it to the IRS address in the instructions along with a
46119
462$39 fee for each tax year requested. Copies are generally available for returns
463filed in the current and past 6 years. You can download the form here:
464Internal Revenue Service -> www.truslerlaw.com/tax-return-copy
465If your spouse is self-employed, then the job of determining their income
466becomes much more difficult. This is why discretion about your divorce plans
467is important. You may want to discreetly question your spouse (or if he or she
468has one, their business partner or their partner’s spouse) about income. You
469can attempt to get copies of bank account statements and financial statements
470of the business.
471Another good way to prove income and assets of a self employed spouse is
472to obtain a copy of a loan application or net worth statement that they may
473have submitted to a bank or other lending institution for a loan.
474Sometimes it is difficult to prove the actual income of a self-employed
475spouse. At this point, gather the information you can. In the case of a selfemployed
476spouse, your lawyer will likely have to help you by using the
477discovery process to obtain and analyze additional information in a traditional
478case. If you are in a collaborative case, your lawyer will likely depend heavily
479on the assistance of a neutral financial expert to help determine income.
48020
481C H A P T E R 7
482Gathering Financial Records and Information
483As you gather the documents regarding the assets and debts, you should
484make two copies of all of them. One is for you and one is for your lawyer.
485Keep your copy in your divorce notebook, file folder or electronic file. It is
486important to keep up with: (1) what documents you have, (2) what documents
487you still need, and (3) what you have given to your lawyer.
488Make A Current Household Budget
489It is important to know what it costs to run your household. Equally
490important is to have an understanding of what your costs of living will be
491after divorce. Let’s take each in turn.
492Before I explain how to do this, let me explain why. Knowing your current
493monthly budget is important for the following reasons:
494In an alimony case (called spousal maintenance in Texas) it is critical to
495show the ability (or lack thereof) to meet minimum reasonable needs and the
496plan or strategy for becoming self supporting. This is because court ordered
497maintenance in Texas is primarily meant to be rehabilitative in nature;
498It is helpful in assessing the specific needs of the children that may not be
499covered in state guideline child support. Guideline child support in Texas is
500based on what I generally refer to as a “mac-n-cheese” budget. It does not
501cover private schools, extracurriculars, specific medical needs or summer
502camps. It is a “statutory minimum” meant to cover bare bones living expenses
503(groceries, clothing, transportation and a roof over the child’s head). It is not
504adjusted to the historic lifestyle or needs of the parties’ children. A court,
505however, has the ability to make such adjustments, according to the resources
506available to the parties and the needs (historical and otherwise) of the child.
507It will help you in planning your own post-divorce budget.
508If your spouse is self-employed and under reporting his income, showing
509that monthly expenses exceed what they claim they make can show they are
510attempting to hide their true income.
511Make an Estimated Post-Divorce Budget
51221
513This is important for your personal planning and will affect your objectives
514in the divorce negotiations. You need to know what you will need financially
515in order to evaluate your settlement options or what you will ask the judge for
516in a trial.
517This will undoubtedly take some estimating on your part. But, that is why it
518is called an estimated budget. It will be a work in progress. The point is to
519give some forethought to what your living expenses will be as you start the
520new chapter in your life.
521How to Make Your Monthly Budgets
522If you already maintain your checking account records on a software
523program like Quicken then the process is easy. You can simply print out a
524monthly budget report. If you don’t, then you will need to sit down and look
525through your check register and/or your spouse’s check register for at least
526the past three months. This will reveal the expenses you are likely to have on
527a monthly and quarterly basis (divide those by three and enter them in the
528budget as a monthly expense).
529You will then want to think about any annual or semi-annual expenses you
530may have such as for life insurance, homeowner’s insurance, etc. and convert
531those to a monthly figure and enter it onto the budget(s).
532Try to be as realistic as possible. You should be conservative in your
533budget (meaning don’t understate the expenses and end up stating a budget
534that doesn’t realistically meet your needs). Also, do not grossly overstate the
535budget (which a judge will frown on, should the case go to court). It is
536admittedly a fine line. The best advice is to base it on as real of numbers as
537possible. Also, if there are areas where you can and should trim the budget,
538based on the money you have coming to you, then do so. For example if you
539discover that you and/or your spouse are spending an exorbitant amount
540eating out or on entertainment and you will operate at a deficit if you continue
541to do so post divorce, then find a way to change your behavior(s) and
542expenditures, so that you can live within your means.
543Document and Safeguard Personal Property
544Inventory and photograph your household furniture, art, jewelry and other
545items of value. Inventory and photograph the contents of and safe deposit box
546or family safe your family may own. Also, photocopy any important
547documents in the safe or safe deposit box (if you did not already do so when
548collecting the financial records). It is unfortunate, but often these documents
549and property will “disappear” once the divorce process starts so get your
550proof in place now.
55122
552Additionally, you may want to consider safeguarding any items of
553particular value (either monetary or sentimental) that are small in size. I am
554referring primarily to things like the jewelry your mother passed down to you,
555your father’s fountain pen, your high school year book, your childhood photo
556albums, etc. You are reading this book so I assume that you will do all you
557can to get through this with dignity. However, that sentiment may not be
558shared by your spouse and/or their lawyer. Better to safeguard those
559sentimental items that are particularly difficult to replace.
560Please note that I am not suggesting that you empty the house of its
561contents. That is a sure way to escalate the emotions in a divorce and
562guarantee that you will not have a civilized divorce. Things like televisions,
563iPods, cameras, laptops, small appliances and other electronics can be
564replaced. Just document those on your inventory and photograph them for
565proof in the event it is ever needed.
566Establish Your Own Credit
567If you do not have your own credit history, you should begin the process of
568establishing it now. Go ahead and apply for at least one commercial card, like
569a gas card (Shell, Texaco, etc.) or a department store or other store card (ie:
570Target, Best Buy, Home Depot, Macy’s, Sam’s etc.) and at least one major
571credit card (ie: Visa or Mastercard). You may need to use your spouse’s
572income to get the card. Its better to apply for it now and have it in place than
573to not be able to do so post divorce. In many Texas counties, standing orders
574are in place that prevent you from incurring debt or closing or opening
575accounts without your spouses’ agreement once a divorce petition has been
576filed. This is another reason you should be taking these steps before you
577announce your desire for a divorce, if at all possible. When applying for the
578card(s), do not elaborate on your personal situation, just answer the questions
579asked and submit the application.
580You will want to use these cards only to the degree that you can pay them
581off each month. Your goal is to establish a favorable credit history and have
582emergency access to credit, not to run up a bunch of debt. Generally, you will
583want to use each card at least once per year to assist in establishing a positive
584credit score. Obviously, you will need to make timely payments and not allow
585them to go past due. Many cards have rules now that increase the interest if
586late payments are made.
587One place that I personally like and sometimes recommend to clients to
588study options for credit cards and which have the better policies at any given
589time is:
59023
591Best Credit Cards -> www.truslerlaw.com/best-credit-cards
592Assess the Financial Accounts
593If you’ve completed the prior steps in this list, then you already know what
594accounts exist and what the balances are. You need to make a decision about
595what to do with them.
596It is an unfortunate reality that one of the first things that some spouses do
597when they learn/decide a divorce is imminent is to raid the accounts. This is
598typically done after receiving particularly bad advice from a blindly
599aggressive adversarial lawyer (I address the different types of divorce lawyers
600in the chapter, Find a Wise Guide) or, sadly, sometimes from a well meaning,
601but poorly informed friend, colleague or family member.
602In a perfect world neither party would touch the financial accounts except
603to pay normal household bills until after the divorce is over. Where I practice,
604we call this “maintaining the status quo.” However, if this was a perfect
605world, you would not be reading this book and I would be in another line of
606work because divorce lawyers would be unnecessary.
607That being said I generally do not recommend that you clean out the
608accounts. As noted previously, it immediately escalates the conflict and stress
609of divorce. It also will not be well received by the divorce judge.
610So, you don’t want to clean out the accounts, but you want to be protected
611from your spouse cleaning them out. If and only if, you have a reasonable
612fear that your spouse will raid the accounts, the only rational solution that I
613know of is to remove one half of the funds from the accounts and put them in
614a new account in your own name. Do not hide, dispose, or waste the money.
615Document carefully where every penny is spent because you will likely need
616to make an accounting of it later in negotiations or at trial. Additionally, you
617should not do this for the regular checking account out of which the
618household expenses are paid unless there is a substantial balance in the
619account over and above the amount needed for paying the current month’s
620bills. You do not want to take action that would cause checks to bounce.
621I don’t make this as a blanket recommendation. If the money can be kept
622where it is with neither party removing funds out of the normal course of
623business, that is preferred! Always maintain the status quo if at all possible.
624Another option for certain types of stock accounts is to put a freeze on the
625account. Obviously, that is only practical for accounts that are not regularly
626needed to pay bills and regular expenses.
627Before you decide how to handle your financial accounts, consult with your
628lawyer. If they are suggesting you go take all of the money out without a good
62924
630reason, I would seriously reevaluate whether that lawyer shares your desire
631for a respectful, civilized divorce.
632Assess How to Handle the Credit Accounts
633If a divorce is imminent you do not want to be liable on any accounts on
634which your spouse has charging privileges. It is not unheard of for an angry
635spouse, upon learning of a divorce, to go on a shopping spree. Likewise, some
636lawyers may advise their clients to take out cash advances on joint cards to
637provide a cushion while the divorce is pending or to charge a large amount in
638lawyer’s fees on to joint cards.
639You will want to consider canceling such joint accounts or at least reducing
640the spending limits. If they are an authorized user on charge cards in your
641name, see what steps the credit card companies require to remove them as an
642authorized user. However, be aware that at least where I practice, courts will
643generally not look favorably on cutting your spouse off financially if they do
644not have other resources available to them. To do this after a petition is filed
645in two of the jurisdictions where I practice, violates the court’s standing order
646and might result in a judge finding the offending party in contempt of court.
647To do so just before filing, will not generally result in contempt but is likely
648to anger the court. Changing the status quo in any way should be done by
649agreement wherever possible, and where not possible, with an eye on
650accountability to the court and to your spouse. This is one of the many areas
651where you will be living your life under a magnifying glass while going
652through a divorce.
653Also consider home equity lines of credit. You may need to consider
654whether you should close or restrict access to such accounts pending the
655resolution of the divorce. Discuss this with your lawyer.
656Avoid Additional Debt or Major Purchases
657This suggestion goes hand in hand with assessing how to handle the credit
658accounts, but deserves its own separate mention. If a divorce is going to
659happen, you want to be conservative with the finances. It is likely not the best
660time to be putting a pool in, buying a new car, or buying new furniture on
661credit.
66225
663C H A P T E R 8
664Further Preparations for Divorce
665There a few other general issues that arise during a divorce that deserve
666discussion. They may not necessarily be related, but they’re important.
667Stay Put
668One of the most common questions I am asked is, “Can I move out of the
669house?” The short answer is usually do not do it. It is not the answer most of
670my clients want to hear.
671I know that things are stressful. And, they will get worse once your spouse
672knows you are definitely moving forward with divorce. Unfortunately, there
673are several very good reasons to avoid leaving. The most important ones are
674the following:
675It could jeopardize your custody claim. If you end up in a legitimate
676custody dispute (i.e. not one where one party is asking for custody for
677financial leverage –something that sadly does occur), then if you leave the
678house and the children remain there with your spouse you will almost
679guarantee that you will not receive primary custody. If the case becomes
680contested, it could drag out for many months (even a year or two). If your
681spouse has had primary physical custody that entire time and you’ve had
682alternate weekend visitation, then unless your spouse has made major
683mistakes in the interim, your spouse will likely maintain primary custody.
684It could affect your property interests. You’ve moved out. Your spouse
685pays the mortgage the entire time the case is pending. Some judges may
686factor that in, when making the property division. It is not a major factor, but
687it could come into play.
688You will lose leverage in the negotiations. This is big. You want the
689divorce. Your spouse doesn’t. You decide you have to get out of the house.
690You move to an apartment and are paying your rent and the home mortgage.
691You have just given your spouse a major incentive to drag out the litigation. I
692see it happen all the time. Eventually you decide to settle for much worse
693terms because you can’t keep paying for two households. Do not make this
694mistake.
69526
696Moving out of the house can have dramatic effects on the case. Do not do it
697without discussing it with your lawyer and giving it a great deal of thought.
698You should know, also, that there are often temporary orders at or near the
699beginning of a case, where a judge decides who has exclusive use and
700possession of the home and who is the parent who determines the primary
701residence of the children, pending the trial. Many times, the outcome at
702temporary orders dictates the outcome at trial in this regard.
703It goes without saying that if domestic violence is an issue, then all of this
704is moot. You will need to take whatever steps you must to protect yourself.
705Just make sure you let your lawyer know what is going on. In the case of
706domestic violence, your lawyer may actually be able to have your spouse
707removed from the house. Even without domestic violence, a temporary orders
708hearing or an initial collaborative joint meeting can address this critical issue.
709Keep a Diary/Calendar and Make a Narrative of Past Events
710It is important to document all of the major events that occur until the
711divorce is final. Your lawyer will likely want your help in reconstructing a
712chronology or timeline (a list in order by date) of the major events that led to
713the filing of the divorce. Additionally, you should begin keeping careful
714records of new events and incidents as they occur. Simply note the date, what
715happened and any witnesses that may have observed it (who can give first
716hand testimony and what that person will say).
717Then provide this information to your lawyer or the lawyer’s paralegal or
718litigation or legal assistant assigned to your case periodically so that he or she
719is aware of any significant facts in your case.
720Consider Hiring a Private Investigator
721As will be discussed elsewhere in this book, Texas does consider “fault”
722when deciding how to divide property in a divorce. Additionally, depending
723on the facts, adultery can affect custody determinations (see Anatomy of a
724Divorce Case for more information).
725If your spouse is committing adultery, then you are better off having proof
726of it, than not, in a litigated case. In a collaborative case, it is not as critical.
727Having this information on hand is helpful even where you fully intend to
728settle your case. Often having proof of the affair is what gets the case settled
729at terms that are acceptable to you. Notice I used the term “acceptable” and
730not “fair.” Generally, there is nothing any lawyer or judge can do to make this
731situation “fair” - especially from the perspective of the injured party.
732Truthfully, most judges do not care whether either of you broke your vows.
733What they do care about is funds spent on activities that did not benefit the
73427
735community or activities that affect the children. For example, large sums of
736money spent wining and dining a paramour or buying them gifts does not
737bode well. Likewise, introducing someone as the “new mommy” or “new
738daddy” or displays of affection in front of children are sure-fire ways to
739damage your divorce case - not to mention your children. Documenting
740adultery is often more about leverage and personal privacy and less about
741what the judges will or won’t do where these types of facts exist. Take this
742with a grain of salt. It depends on the judge, the jurisdiction and perhaps the
743judge’s mood that particular day as to what if any real impact this information
744will have on a fact finder.
745It is not fun to find out your spouse has cheated, and you may be like many
746of my clients who have said they would rather not know. But, you should
747think carefully before making that decision. Talk to your lawyer. Assuming
748you’ve chosen a good one, listen to their advice. If you are going to get proof
749of it, now is the time. Your lawyer should be able to talk to you about the
750costs involved (it is not cheap) and how to improve your chances of making
751the surveillance effective, should you choose to go that route.
752Be Good
753This sounds silly I know. But, here is the principle: you are about to be
754under a microscope. You are reading this book, so I assume that your goal is
755to get divorced as amicably as possible. Sadly, that is not always possible.
756Your spouse may not share that objective for some reason. They may be
757influenced by others (lawyers, friends, etc.) who convince them that what you
758are offering is not fair.
759So, there is a chance that your case will end up going to trial no matter how
760diligent you and your lawyer are about trying to work the case out fairly and
761quickly. That being said, you should not load ammunition in the gun for your
762spouse to use against you.
763That means no dating, no carousing, and no partying and certainly no
764putting such things on Facebook, Instagram, or even in texts or emails. If you
765put something out there, assume that the Judge and the opposing lawyer are
766going to see it. If something is out there already, tell your lawyer about it.
767Your lawyer is your advocate. You cut your own lawyers legs off at the knees
768if you keep secrets from them. If they are a well seasoned divorce lawyer it is
769unlikely you are going to shock or embarrass them. They need all the facts to
770effectively represent you. Lawyers as a breed do not care for surprises -
771especially in the courtroom.
772Particularly if custody may be an issue in your case, you must make the
773children your number one priority (they should be that any way, right?). Even
77428
775things that are perfectly legal and harmless any other time can be twisted to
776look suspicious or worse in the hands of your spouse’s lawyer during a
777divorce or custody battle. Never, never, never use the children as your
778messenger or courier of mail, information, messages and certainly not divorce
779pleadings or legal documents for your spouse. Along the same lines do not
780discuss the case with them or where they can hear you. Recently I was in
781court and thought our case was going pretty well, when my client admitted
782that he sent his petition for divorce with his teenage son to be delivered to his
783wife. The judge’s tone changed instantly. This unwise choice cost us dearly in
784the temporary orders hearing. I’m thankful that we are on a rotating docket in
785this particular county because if it goes to trial, maybe this icky fact will not
786come back up.
787Suppose for example that you go out for dinner and drinks with members
788of the office to celebrate a fellow employee’s birthday. This sounds harmless
789enough. But, in a custody case these questions may be asked: While you
790chose to go out drinking with your friends, your spouse was at home taking
791care of the children, correct? Are you having a romantic relationship with
792Joe/Jane who was also at the party? How many drinks did you have that
793night? This is something you routinely did during the marriage, isn’t it (i.e.
794choosing social events over your family)? You drove home that night under
795the influence of alcohol didn’t you? Etc.
796You get the point. This is a silly example, but why even open yourself up to
797this line of questioning. Don’t put the judge in the position of even having to
798decide whether you are telling the truth when you claim that this was a
799harmless and isolated event.
800Spend time with your kids, work, stay around the house, exercise, and
801attend to your spiritual disciplines. Be above reproach.
80229
803C H A P T E R 9
804What if Your Spouse Surprises You With the Divorce?
805The previous chapter has outlined some strategies and issues to consider
806before you file for divorce. It is written for someone who is initiating the
807divorce, or at least knows that divorce is imminent. What should you do if
808your spouse surprises you by announcing they want a divorce?
809If this happens, you are likely to feel like the bottom has just dropped out of
810your life. Sure, you knew there were problems, but nothing you didn’t think
811you could work through. Now you are faced with a divorce you haven’t
812planned for. If that is the case, it will likely take a very long time to heal the
813emotional wounds you are suffering. But, that will come. In the meantime,
814you must act quickly and deliberately to protect your interests. Your spouse
815may have been planning the divorce for some time. You should get a lawyer
816immediately and review all of the tips listed above. It may not be too late to
817do them now.
818In addition, check to make sure that important financial documents are not
819missing, and that the financial accounts and/or safe deposit box has not been
820raided. Report anything out of the ordinary to your lawyer.
821You may also invite your spouse to marital counseling if you want to try to
822save the marriage. I have seen cases where the parties reconciled and
823dismissed the divorce after it was filed. This is not a common occurrence, but
824it is not unheard of either. Regardless, make sure that even if you are going to
825try and reconcile that you have good legal counsel and take the measures
826listed above to protect yourself in case things do not work out.
827Planning and careful action before the divorce will make this difficult
828transition much easier. Follow the tips in this chapter and you and your
829children will benefit.
83030
831C H A P T E R 1 0
832Do You Need to Hire a Lawyer?
833Before embarking on a discussion about how to choose the best lawyer for
834your case, we should first discuss whether you need a lawyer at all. You do
835have the right to represent yourself in your Texas divorce case. Certainly,
836representing yourself is a lot cheaper than hiring a lawyer. However, you may
837be familiar with the old saying that the person who represents himself has a
838fool for a client. The fact of the matter is that if you represent yourself, you
839potentially risk giving up important rights. I recommend that you hire a
840lawyer if you face any of the following circumstances:
841If Custody or Possession and Access of your children is disputed.
842Even if you are a good parent, you don’t want to risk losing physical
843custody of your children or the right to make decisions on their behalf. In
844Texas, the assumption is that it is in children’s best interest for parents to have
845“joint managing conservatorship” - meaning joint decision-making. Honestly,
846it is fairly rare for actual custody or decision making to be “sole” under
847current Texas law. Normally, only in cases where a parent is impaired, due to
848mental health issues or substance abuse, or where parents are so high conflict
849that they cannot communicate effectively - do our judges impose sole
850custody. “Possession and Access” is a different beast all together and is
851honestly what most non-lawyers probably are thinking about when they use
852the term “custody.” Under current Texas law, the statutes assume that a
853standard possession order is in the best interest of children. This means that
854there is a parent who determines the primary residence of the child for the
855purpose of school The other parent is called the possessory conservator and
856has possession of the child as agreed by the parents, and failing agreement,
857according to a specific schedule. The current Standard Possession Order, as
858defined in the Texas Family Code, provides that the Possessory Conservator
859has possession on first, third and fifth weekends of each month (as determined
860by the Friday in that week), Thursday evenings when school is in session
861(usually from school release until 8 P.M. or from 6-8 P.M.), 30 days in the
862summer and alternating holidays. It is worth noting that the current Texas
86331
864Family Code also provides the option for an Expanded Standard Possession
865Order. The code says that the possessory conservator can make this election
866and the court “shall” grant it, unless doing so would not be in the best interest
867of the children. In the Expanded Standard Possession Order, the Possessory
868parent gets Thursdays overnight every week during the school term and
869returns the children to school on Monday mornings after the first, third and
870fifth weekend periods of possession. There are, of course, several other
871variations of this schedule (like schedules for certain children under age three
872and schedules for parents who reside more than 100 miles from one another).
873Plus, the schedule can be, and often is customized, either by agreement or by
874a judge. A good lawyer will educate you further about your options here and
875help you present a stronger case for custody and possession and access to the
876court and/or in your negotiations.
877If your spouse has hired a lawyer.
878The laws and procedures involved in a divorce are quite complex. Do not
879let yourself be outmaneuvered by someone who knows the ropes. Most judges
880will not protect you when you make errors. Even in an uncontested divorce
881case, don’t make the mistake of thinking that your spouse’s lawyer can
882represent both of you. In Texas (as in most - if not all states) a lawyer is
883ethically prohibited from representing both sides of a legal dispute (it’s called
884a conflict of interest). If your spouse’s lawyer drafts a proposed agreement, at
885least retain a lawyer to review it from your perspective and make suggested
886changes on your behalf. Again, here, as elsewhere, you want a wise guide.
887Having your buddy who practices corporate law look over the document or
888the least expensive lawyer you can find may prove to cost you more time and
889money in the end. In my opinion, you will better protect yourself by selecting
890a specialist or at least a lawyer that practices primarily in the family law field.
891Further, you should try to find someone who respects your philosophy and
892goals for the case. For example, if you choose a lawyer who takes everything
893to court and wants to find fault with every suggestion from the other side, you
894may not be getting they type of advice you are seeking. If you are looking to
895settle out of court, you might look for a specialist who either mediates or does
896collaborative law - even if you are looking to engage in either of those more
897formal forms of alternative dispute resolution. Seeking the advice of a
898specialist with this type of tool set might better your chances of finding a
899lawyer who encourages settlement. What you do not want if you are trying to
900settle is an attorney whose goal is to maximize their own fee and fan the
901flames of your conflicts with your spouse. You want them to kick the tires (to
902make sure the deal works and your interests are adequately protected), not
90332
904gauge the tires with a sharp blade.
905If you have significant assets to protect.
906Obviously, the more you have at stake, the more value you stand to receive
907from hiring a divorce specialist to represent you. A lawyer will ensure that
908you pay only a fair amount in support payments and that the property is
909divided fairly. An experienced lawyer can also minimize the amount of taxes
910you pay by structuring the property settlement properly. Depending on the
911size and complexity of your estate or on whether you and your lawyer thinks
912your spouse is hiding assets, your lawyer may recommend hiring a financial
913expert to assist with aspects of your property case.
914If you or your spouse is seeking spousal maintenance.
915The area of spousal maintenance is one of the most limited areas of divorce
916law in Texas. Texas has guidelines for determining post divorce spousal
917maintenance and courts sometimes come to very different conclusions about
918how much spousal support should be paid, even on similar facts. The law
919surrounding post divorce spousal maintenance underwent major changes in
920September of 2011. Even with these changes, maintenance in Texas is not
921according to a specific formula, and is never guaranteed based on a number of
922years of marriage. Rather, it is meant to be rehabilitative in nature for spouses
923who lack the earning capacity or the resources to meet their minimum
924reasonable needs. The previous maintenance statute in Texas limited court
925ordered support to marriages of 10 or more years and allowed for a maximum
926of $2500 per month or 20% of gross income, whichever is less, for a
927maximum of 3 years. Under the 2011 statute, there is a tiered approach, but it
928is still anchored to one’s ability to meet his or her minimum reasonable needs.
929It is NOT based on the lifestyle to which one has become accustomed or
930based on any kind of entitlement to the future earnings of the other spouse.
931The new limits are as follows for court ordered support:
9321) for marriages of 10 years, but less than 20 years-up to $5,000 per month or 20
933% of gross income, whichever is less, for up to 5 years;
9342) for marriages of 20 or more years, but less than 30 years- up to $7,500 per
935month or 20% of gross income, whichever is less, for up to 7 years;
9363) for marriages of 30 or more years, up to $10,000 per month or 20% of gross
937income for up to 10 years.
938If there has been felony domestic violence in a marriage of any length
939(within 2 years of the filing date), or if a spouse is disabled or caring for a
940disabled child of the marriage and, as a result, is unable to support his or her
941minimum reasonable needs, the limits in terms of time or money do not
94233
943necessarily apply. If these facts exist, the judge has broad discretion to award
944post divorce maintenance appropriate for the situation, on a case-by-case
945basis.
946Contractual alimony is not subject to any of these restrictions and often
947surpasses the above noted limits in cases settled collaboratively, in mediation
948or otherwise settled out of court by agreement. Contractual alimony is a
949contract between you and your spouse. Therefore, the court cannot modify it
950in the future. It can be modified only according to the terms of your
951agreement.
952Your lawyer should help ensure that the amount of spousal support is
953appropriate under the circumstances, and given the limits of Texas law in this
954regard.
955If you have a retirement account.
956For many of my clients, their second most valuable asset after their home is
957their retirement account. In Texas, any portion of a retirement account earned
958during marriage is community property and subject to just and right division.
959At the onset of a divorce, Texas courts assume that each spouse has a 50%
960undivided interest in the community property. This does not mean that the
961judge must divide all property 50/50. The division can vary based on certain
962factors, like fault in the break up of the marriage, health of the parties, relative
963earning capacity of the parties, etc. The law regarding how these accounts
964should be divided is complicated. Your lawyer will help ensure that your
965estate is valued and that your proposed division (if going to court in a
966contested case) is presented in a manner that is appropriate. And if you are
967settling outside of the court context, your lawyer should help guide you to a
968value and division that is acceptable to you, given your specific set of facts
969and taking the law into consideration.
970If there is an imbalance in power between you and your spouse.
971If your spouse is domineering or controlling, you will be better of dealing
972with him or her through a lawyer.
973If there are allegations of domestic violence or child abuse.
974Even if the allegations are not true, they can have a devastating effect and
975must be dealt with quickly and appropriately. Do not take such serious
976allegations lightly.
977If you have been a victim of domestic violence, you may want to consider
978contacting the County Attorneys office. If domestic violence has occurred,
979and you have a likely fear that it may occur again and reasonable fear for the
98034
981safety of yourself or others in your household, you may be able to seek a
982protective order. Protective orders in Texas are quasi criminal in nature in
983some circumstances (it is quasi criminal if its a final protective order as
984opposed to (1) an ex parte protective order resulting from an emergency, non
985evidentiary hearing or (2) a magistrates protective order which lasts for ninety
986days and is generally issued when someone goes before a judge after an
987arrest).
988Many people confuse protective orders with temporary restraining orders.
989They are not the same thing. They do have some of the same elements. A
990restraining order is a civil order which is either a keep away order or to stop
991someone from doing something. A protective order also has keep away
992provisions and restrains a party from doing certain things, but it has a criminal
993element. If you have a legitimate concern that your spouse may be dangerous
994to you or others in your household, you should do an intake with the local
995domestic violence shelter. This way, perhaps you will have a place to go if
996you get in a bad situation. I always recommend that you call the police, not
997your lawyer, if you are in a situation of immanent danger. In my area, I direct
998people to SafePlace (www.safeplace.org) and the Texas Advocacy Project, in
999addition to the county attorneys office for domestic violence issues.
1000I often advise my clients who need a protective order to go to the county
1001attorney prior to hiring a divorce attorney. While a private attorney can file
1002for a protective order, it can save you thousands if the county attorney agrees
1003to take your case. It can also strengthen your case because the county attorney
1004cannot take every case worthy of a protective order. They only take they ones
1005that pass their criteria for county assistance. To a great extent, this is based on
1006(1) how bad is the domestic violence and (2) is the person already represented
1007by a family lawyer. Generally, if you are already represented by a family
1008lawyer, the county attorney will not pursue your case.
1009If you cannot communicate with your spouse.
1010You will not be able to settle things with your former spouse if the two of
1011you cannot communicate. You will need the help of a lawyer to ensure that
1012you get a fair settlement.
1013If you or your spouse is self-employed.
1014The valuation of a business is complicated and you may need a lawyer’s
1015help - and quite possibly that of a valuation expert. Also, the amount of
1016spousal and child support payments that must be paid is based on income. It is
1017often easy for someone who is self-employed to manipulate income or to hide
1018assets. An experienced lawyer will know how to best try to prove unreported
101935
1020income.
1021I recognize my own bias on this issue. But, the truth is in only the simplest
1022of divorce cases (i.e. very short term marriage, no children, no joint property
1023and no joint debts) do I think you should consider not having a lawyer. Even
1024in those cases, if your spouse’s lawyer is drafting the proposed divorce
1025agreement, I recommend you at least pay your own lawyer to review it on
1026your behalf.
102736
1028C H A P T E R 1 1
1029How Do I Choose a Lawyer?
1030If after reading the situations in which you should consider hiring a lawyer
1031in the previous chapter and you decide you should, then the next question is
1032how do you decide? All lawyers are not created equally. And, as we have
1033already established, selecting the lawyer that will represent you is one of the
1034most important decisions that you will make in your divorce case.
1035You should try to find a lawyer who is skilled, competent, and regularly
1036handles family law and divorce cases. Seek someone who is responsive and
1037willing to communicate with you throughout the divorce process. Ask for
1038recommendations from your friends and family members, but in the end, trust
1039your own judgment.
1040Schedule an initial meeting with the lawyer. This will give you an
1041opportunity to evaluate how you are treated by the staff and will give you
1042some time to interact with and interview the lawyer. After spending about an
1043hour with the lawyer, you should have a good feel for whether he or she is the
1044right lawyer for you. One factor that is often overlooked is whether a lawyer's
1045personality compliments yours. Your divorce lawyer is someone with whom
1046you will be sharing many intimate details of your life as well confidential
1047financial information. He or she must be someone with whom you are
1048comfortable and whom you trust.
1049Here are 13 important questions to ask the potential lawyer before you
1050write him or her a check:
1051Do you specialize in family law?
1052If you needed back surgery, would you go to a general practitioner? How
1053about heart surgery or a nose job? Similarly, there are many lawyers who are
1054general practitioners that will handle a divorce case. In addition, they take
1055business matters, bankruptcies, criminal cases, etc. That is not the type of
1056lawyer I recommend you to let handle your divorce case. Ask them what
1057percentage of their practice is divorce and family law matters. If it is not at
1058least 70-80% of their practice, go elsewhere. Are they board certified? In
1059Texas, this is a distinction that specialists in family law earn by taking an
106037
1061exam and fulfilling certain requirements of judge and peer review and testing.
1062While it is not necessary in all cases, some cases may warrant having a board
1063certified family law specialist on your side. All of that being said, there are
1064board certified lawyers whom I have little to no respect for and there are non
1065board certified lawyers whom I think are great and at the top of their game. Its
1066a factor, but not the only one.
1067What costs can I expect?
1068In addition to lawyer's fees, there are other costs that are typically
1069associated with your divorce case such as court costs, subpoenas, private
1070investigator fees, depositions, etc. Ask the lawyer what types of costs are
1071likely to be involved in your case and how much you can expect to pay for
1072them. Keep in mind that most lawyers charge by the hour. While the lawyer
1073may be able to give you a range, they probably can not give you an exact
1074number unless they are charging a flat fee. I do not personally know any
1075specialists who charge a flat fee for a divorce - unless that divorce is a limited
1076scope case and that scope is very specifically defined. For example, in my
1077office, we offer flat fees on two specific types of divorces in the No Nonsense
1078category. One is what I call “level 1” or “drafting only” clients. These clients
1079pay for my staff to draft certain documents and for me to review those
1080documents. They have pre paid for up to one hour of my time for advice. But
1081technically, I am not their lawyer. These are clients who are representing
1082themselves, but getting limited coaching and guidance from me. We also offer
1083a flat fee for our “level 2” or “flat fee” divorce clients. Again, we specifically
1084define in our contract for these clients what we will and will not do for the
1085quoted flat fee. These options tend to work well for clients who have time to
1086manage their own case and who are truly in agreement on all aspects of their
1087case with their spouse. Usually, as stated before, these are cases where the
1088parties have not been married long, do not have significant property or debts
1089together and do not have children.
1090Will you send me monthly, itemized bills showing the time that you spent on my case and the expenses
1091incurred?
1092Your lawyer should systematically keep you updated with regard to your
1093account if they are charging by the hour and not on a flat or fixed fee. If you
1094ever have a question about a charge on your bill, talk to the lawyer and/or
1095billing staff about it. Address it sooner rather than later. If the lawyer
1096representing you is not charging you by the hour, then this question does not
1097apply. If this is the case, however, you are likely in a limited scope
1098representation - meaning the lawyer has agreed to perform specific services
109938
1100for a set price. In this case, you already know the total costs when you agree
1101to work with one another. In my office, I keep a record of timekeepers and
1102time spent on a case even in the flat fee No Nonsense cases. My reasons for
1103this are partially selfish - so that I know that my staff is being productive and
1104for liability protection. But I also do this for the client, because in some cases,
1105a limited scope or No Nonsense client will need to move into a different
1106category of services with my firm. When this happens, I like to be able to
1107demonstrate to my client what services have been rendered and what that
1108“cost” was, before I have them sign a new contract with me for a different
1109level of service, which is inevitably an hourly representation (i.e.: a
1110negotiated case, a mediated case, a litigated case or a collaborative case).
1111Do you have any resources that you can make available to me to help me reduce the pain and expense of
1112divorce?
1113Going through a divorce can be a very traumatic experience. A lawyer that
1114is willing to educate you about the process and the law affecting your case
1115will help remove some of the concerns that you may have. This may include
1116books like this one, CDs, blogs, written articles, and so forth. Good
1117educational materials will help you reduce the anxiety that comes when you
1118do not know what to expect. For example, I often send clients who suspect or
1119know that they are dealing with a spouse with mental health issues to the
1120High Conflict Institute web site: www.highconflictinstitute.com, which was
1121started by a respected attorney who also happens to be a mental health expert
1122in another state. The founder of this site is Bill Eddy. I find that his tools are
1123often useful to my clients in high conflict situations. I also have resources that
1124I recommend for people with children, for people over age 50, for certain
1125faith based individuals, etc.
1126Who else will be working on my case?
1127Other lawyers, paralegals, and/or staff members will often perform work on
1128your case. This is how a case is run efficiently. You want to be sure that the
1129others that work on your case are also competent and experienced. If you are
1130being charged hourly, find out at what rate you will be charged for their
1131working on your case, if at all. The hourly rate for less experienced attorneys
1132and/or paralegals should be lower than that of the primary attorney on the
1133case.
1134What efforts will you make to try to settle my case?
1135The majority of divorce cases settle. Some are settled before they ever get
1136to the lawyer (that is to say that the parties have already reached an agreement
113739
1138and the divorce lawyer is only needed to draft the paperwork). Others settle
1139on the day of the trial, in a room outside the courtroom. Still others settle at
1140any stage in between. You want a lawyer who is willing to communicate with
1141your spouse and/or your spouse's lawyer (if he or she has one) to try to settle
1142the case. Sadly, many lawyers will not make a deliberate effort to settle your
1143case, but instead will prepare the matter for trial and only settle it if the other
1144side takes the initiative. Worse, others will purposely try to be as difficult as
1145possible to deal with (we sometimes call these “hired guns” or “Rambo
1146litigators”). This type of lawyer can cost you thousands or tens of thousands
1147of dollars in unnecessary legal fees and make sure you have what I call the
1148“Divorce from Hell.”
1149Do you survey your clients to measure their satisfaction?
1150You should not let a negative answer to this question preclude your
1151allowing the lawyer to represent you. Because so few lawyers actually do
1152survey their clients, there are many very good competent lawyers who don't
1153do this. However, all other factors being equal, a lawyer that surveys his
1154clients to determine their satisfaction is likely to render better service to his
1155clients as he is more attuned to their feedback.
1156Do you have any client testimonials I can review?
1157If a lawyer has testimonials from prior clients that he or she has actually
1158represented, that is a good sign. If a client is willing to go to the time and
1159effort of giving the lawyer a testimonial, then they were obviously very
1160pleased with that lawyer’s efforts on their behalf. Also bear in mind that the
1161people that are most likely to write a review of their divorce lawyer (on their
1162own anyway - without a request from their lawyer) are the angry and often,
1163sadly, the unstable ones. Even the best divorces and custody cases are still
1164painful and don’t leave most normal people jumping for joy or wanting to go
1165public. Review sites are generally not full of the “happy” customers. We all
1166get bad reviews because we have all had a client or two who cannot accept
1167any responsibility for their own situation and they want to blame someone -
1168often that person is their lawyer. Usually, it’s pretty obvious who these sour
1169grapes are when you read the review and I think most people discount those,
1170with good reason. If you do run into a few that are negative, remember that a
1171lawyer cannot or at least should not typically respond to a negative reviewer
1172for ethical and privacy reasons.
1173Do you frequently participate in mediation or collaborative law to resolve divorce cases?
1174Ask what the lawyer thinks about mediation or collaborative law.
117540
1176Mediation is prevalent in divorce cases and collaborative practice is on the
1177rise. In most courts where I practice, mediation is mandatory in any case set
1178for longer than 3 hours on the docket. In courts where it is not mandatory, it
1179will likely be ordered if requested by either side. If you think that it may be
1180helpful in your case, you should ask the lawyer to explain the costs and
1181benefits associated with mediation. A lawyer that is concerned about
1182resolving the case fairly and quickly will be willing to consider mediation, if
1183that is appropriate for your case.
1184Collaborative Law is a smaller sub-set and is also a form of alternative
1185dispute resolution, but is appealing to many people who want a respectful,
1186well thought out and private divorce. Texas was the first state with a statute
1187on collaborative law. Engaging in the collaborative process requires, at a
1188minimum, that you and your spouse both have counsel and that the four of
1189you enter into a collaborative law participation agreement. This agreement
1190prohibits collaborative counsel from going to court on your behalf - absent
1191emergency (which will in turn terminate the collaborative process). Typically
1192in Texas, collaborative cases use the “team approach” - employing 2 neutrals,
1193one financial professional (either a CPA or in some cases a certified divorce
1194financial analyst), and one facilitator, (who is typically a marriage and family
1195therapist, licensed master social worker or Ph.D. psychologist). Beware of
1196lawyers using collaborative law as a marketing gimmick, as opposed to a
1197legitimate practice. Ask questions, like – “How many collaborative cases
1198have you done?”, “What percentage of your case load is collaborative?”, etc.
1199The chapter on Collaborative Law explores this option in more detail.
1200Do you regularly appear in the Court where my case will be heard?
1201An attorney who is familiar with the courthouse, the local rules, and the
1202procedures used by the individual judges has a distinct advantage over the
1203lawyer who does not have this information.
1204As you ask the above questions and make a decision about hiring a lawyer,
1205keep in mind that you have a right to expect your lawyer to do the following:
1206Explain the legal issues involved in your case and the possible
1207outcomes under your fact situation.
1208Clearly explain his or her billing arrangement.
1209Copy you with all documents related to your case.
1210Make efforts to settle your case on terms that are fair to you and once
1211it is determined that the case will not settle, competently and
1212vigorously prepare your case and you for trial.
1213If a lawyer answers the questions above to your satisfaction and meets the
1214expectations just noted, you will dramatically increase your odds of having a
121541
1216civilized divorce.
121742
1218C H A P T E R 1 2
1219Lawyer Styles: The Lamb, the Pit Bull, and the Fox
1220In my years of practice I have seen lots of lawyers handle divorce cases.
1221There are as many different styles as there are different lawyers. But, I have
1222also noticed three recurring styles of lawyer in particular. I call them the
1223lamb, the pit bull and the fox.
1224The lamb is the lawyer that just sort of goes with the flow. They are
1225reactive, not proactive. They want to avoid confrontation at all costs and that
1226means they also want to avoid going to court at all costs, even if it means
1227convincing their clients to settle for significantly worse terms than they
1228should. The lamb may even be afraid to try the case. He will rarely, if ever,
1229tell his client that he should not sign a settlement offer that is being extended
1230from the other side even if that offer is clearly inequitable. Thankfully, there
1231are not a lot of lambs that last very long as divorce lawyers.
1232Much more prevalent is the pit bull. He is exactly the opposite of the lamb.
1233They hate to settle cases. In fact, some of them won’t do anything proactive to
1234try to settle the case. It is almost as if they take some type of perverse joy in
1235seeing the “blood running in the streets.” The truth is that often they do this
1236simply to develop and maintain a reputation as “the biggest, meanest hired
1237gun in town.” When a spouse is angry and in the emotional stage of wanting
1238to exact revenge, they want to be the name on everyone’s lips when that
1239aggrieved spouse asks their neighbor who is the lawyer most likely to get a
1240pound of their spouse’s flesh. So they work hard to maintain that reputation
1241because it makes them a lot of money.
1242The sad part is that acting like a pit bull is rarely, if ever, in their own
1243client’s best interest. Of course, the pit bull’s main concern is not their client.
1244If you know anything about the stereotypical pit bull, you will know that they
1245are very aggressive and vicious. They act only on instinct. When they fight,
1246they not only destroy the dog they are fighting, but by their own actions hurt
1247themselves and anything else around them (which in our context often
1248includes their own clients and their clients’ children).
1249The pit bull is aggressive for the sake of being aggressive, not for any longterm
1250benefit it brings their client. Often people going through divorce will
125143
1252think they need an aggressive lawyer to represent them in their divorce. They
1253are wrong. What they need is a lawyer who is assertive, well educated on the
1254law, wise, and respected in the legal community. There is a difference. It is
1255the difference between the pit bull and the fox.
1256The fox is wise and cunning. He sees the big picture. The fox is assertive
1257when he needs to be, compromising when it benefits his clients’ long-term
1258best interests, and always aware of the many different consequences his
1259actions have on his client and his client’s family. He stands on principle. Yet,
1260he is a strong advocate for his client when it promotes his client’s long-term
1261best interests. He recognizes that reaching a fair settlement is always
1262preferable to trying the case and leaving it up to the judge. Yet, he also knows
1263that if a fair settlement is not forthcoming, then he must be willing and able to
1264prepare to effectively litigate the case in court.
1265You should avoid the lamb and the pit bull at all costs. You need a fox.
126644
1267C H A P T E R 1 3
1268Your Options
1269When you are struggling in your marriage, you have several options to
1270consider. Some do not involve divorce at all, while others are various ways to
1271resolve your divorce case once it gets to that stage. Below are seven options
1272that you may want to consider.
1273Reconciliation
1274The first option for a struggling couple is to reconcile the marriage without
1275divorce and without court involvement. Many times when someone has
1276consulted with me about divorce, they end up reconciling and never needing
1277my services. Often this requires getting a marriage counselor involved to
1278assist in that process.
1279As I noted in the introduction, in order to assist in the process of helping
1280couples reconcile their struggling marriages, I launched and continue to
1281sponsor a website that contains resources for couples attempting to reconcile,
1282including a directory of local marriage counselors in the counties in which I
1283practice - Travis, Williamson, and Hays counties. You can find that website
1284here:
1285Get Marriage Help -> www.getmarriagehelp.com
1286The resources found there are free and sponsored by my law firm as a
1287public service.
1288Physical Separation
1289Sometimes a reconciliation does not immediately happen and one or both
1290of the spouses find themselves wanting to physically separate from one
1291another by one of them moving out of the marital home.
1292I have seen this work successfully. The couple is able to have some time to
1293reflect on what they want to do and sometimes the end result is reconciliation,
129445
1295with the couple resuming their marriage and living together.
1296However, there are some potential problems with this approach, especially
1297for the spouse who would be moving out of the home. For reasons that I have
1298already elaborated upon in the chapter on Preparing for Divorce, I do not
1299recommend that you move from the house without consulting with a lawyer
1300that specializes in divorce. There are too many negative consequences that
1301can come from that decision to do so without specific legal advice.
1302Separation
1303The next option takes a physical separation to another level. In addition to
1304being physically separated from one another, the couple signs a written
1305separation agreement or files for divorce and has temporary orders in place. In
1306Texas, there is no “legal separation.” You’re either married or you’re not.
1307Having temporary orders in place does involve the court, at least on some
1308level, even if the temporary orders are agreed. In fact, nearly all of the issues
1309that you deal with in a divorce, you also deal with in temporary orders. So,
1310things like custody, child support, visitation, possession of assets and payment
1311of bills are all addressed. These things are decided either by agreement of the
1312parties, or in the event that they cannot agree, by decision of a judge after a
1313trial (called a temporary orders hearing). In other words, you deal with all of
1314the issues you would in a divorce, but you stay married to one another. As
1315you might imagine, that is a difficult proposition at best.
1316I generally do not recommend a temporary orders hearing as a short-term
1317fix for a couple that is struggling in their marriage. First, the costs can be
1318about the same as a divorce. Also, what happens at temporary orders is often
1319what happens on final trial. So, you have fewer witnesses, less information
1320and less time to prepare, but you often determine the final outcome well
1321before that stage of the case. Of course, sometimes temporary orders cannot
1322be avoided because there is a need for temporary support, orders regarding
1323children or order about property and finances.
1324Negotiated Settlement
1325The first three alternatives we have considered above do not involve a
1326divorce. The next alternatives we will consider are the five ways you can
1327resolve your divorce case.
1328The first is through what is termed a negotiated settlement. This is exactly
1329what it sounds like: you and your spouse reach an agreement on all of the
1330various issues involved in your case (for a list of the possible issues, see The
133146
1332Issues). Such a settlement can be reached either with or without attorney
1333involvement. This method often involves what is sometimes called the
1334“kitchen table method” i.e. where the spouses come to terms while sitting at
1335the kitchen table.
1336In the situation where the parties reach an agreement on their own, they
1337will often take their proposed settlement terms to a lawyer for the lawyer to
1338put into the proper legal format and to complete all of the documents that are
1339necessary to file with the Court in order to obtain the divorce.
1340Collaborative Divorce
1341Collaborative divorce is a relatively new way to resolve your divorce case
1342without going to Court. It involves an up front agreement - a written contract -
1343between both parties and their respective lawyers that all four of them will
1344work towards resolving the case by agreement. The interesting and
1345distinguishing feature of collaborative divorce is that all four of the people
1346involved (the two parties and their two lawyers) all sign an agreement that in
1347the event that the case cannot settle and the parties have to resort to litigation
1348then the two lawyers must withdraw and the parties must hire two new
1349lawyers to represent them in the litigation. In this respect, collaborative law is
1350also a limited scope engagement. Our ethics as attorneys require our clients to
1351exercise “Informed Consent” before committing to collaborative law.
1352One of the cornerstones of collaborative law in Texas is that it aligns the
1353parties interests in getting the case settled. In my opinion, a true collaborative
1354divorce requires that both lawyers be trained in and willing to accept
1355collaborative cases. Ideally, the lawyers will have done numerous
1356collaborative cases and will have even worked together successfully in the
1357past. The current statute in Texas, however, does not require specific training,
1358apprenticeship/clerkship or observation hours before taking on a formal
1359collaborative case. While collaborative law is becoming more broadly
1360available in Texas, it is not yet mainstream in most jurisdictions. Dallas,
1361Houston and Austin seem to be ahead of the curve in terms of mainstreaming.
1362In 2002, I was trained in collaborative divorce after I first heard about it at the
1363State Bar Conference. I have had success in collaborative practice, but
1364unfortunately could not yet earn a living accepting only collaborative cases -
1365although I am very passionate about it. I predict that more lawyers will be
1366willing to undergo the training and adopt the perspective required for this
1367innovative model of dispute resolution. I think it is an excellent way to serve
1368divorce clients and is the way of the future. For this reason, I have dedicated
1369an entire chapter of this book to Collaborative Law.
137047
1371Mediation
1372Mediation is another way to resolve a divorce dispute short of full-blown
1373litigation. Mediation involves a third party (generally a lawyer) trained in
1374mediation (creatively called a mediator) whose job it is to attempt to facilitate
1375a settlement between the parties. Mediation can take place with the parties
1376and the mediator alone (without lawyers representing the parties). However,
1377in most cases in the counties in which I practice, both parties are represented
1378by a lawyer during mediation.
1379The mediator does not have authority to make decisions like a judge would.
1380Rather, their job is simply to attempt to influence the parties to compromise
1381and reach an agreement. This is generally done with each spouse and their
1382respective lawyers in separate rooms with the mediator going back and forth
1383between them with offers and counter-offers, occasionally interrupting that
1384with “caucus meetings” with the lawyers.
1385We have had a great deal of success getting cases resolved through
1386mediation. This is especially (though not exclusively) true in cases that do not
1387involve custody disputes. I typically recommend that parties to a divorce first
1388attempt to resolve their cases through negotiation before attempting mediation
1389simply due to the increased cost of the mediator. That being said, if
1390negotiation is unsuccessful, then mediation is an avenue that you should
1391explore with your lawyer.
1392Cooperative Litigation
1393This brings us to litigation. Litigation should always be a last resort for a
1394number of reasons. It is more expensive, takes longer, and is more contentious
1395(and thus more difficult on the parties emotionally) than the other alternatives
1396discussed above.
1397That being said, sometimes you do not have a choice. Maybe your spouse
1398is being completely unreasonable in their settlement demands. Maybe their
1399lawyer won’t take the time to settle the case. Whatever the situation, there are
1400times when we must resort to the court system to help us resolve these
1401disputes. You should hope your case is not one of those situations. And, you
1402should do your part to make sure that it is not. But, if you must resort to
1403litigation, then make sure you are well represented and prepared for what
1404takes place in the courtroom. You should even consider a “field trip” to the
1405courthouse to visit your judge’s courtroom to see what takes place. Becoming
1406more familiar with the surroundings will help you be less anxious during your
1407own trial.
140848
1409To better understand the court process involved in litigation, refer to
1410Anatomy of a Divorce Case. Understanding the process will help relieve
1411some of the fear of the unknown.
1412In a litigated divorce, it is particularly important that you have the right
1413lawyer. Without the right lawyer, the litigation process can take over and
1414things can quickly spin out of control. Sometimes aggressive lawyers can
1415cause more harm than good for the family and even their own clients. Review
1416the advice about choosing a wise guide that is contained in the chapter called
1417Find a Wise Guide. It is especially important in the case of litigation, because
1418the lawyer you have can dictate the whether your case is handled with what I
1419call the cooperative litigation approach or if it handled by the more common
1420(and destructive) adversarial litigation approach.
1421The difference between what I call cooperative litigation and adversarial
1422litigation is in the approach you and your lawyer take with your spouse and
1423your spouse’s lawyer. The easiest way to understand the difference is to
1424consider the “unwritten rules” of each approach.
1425On the one hand, traditional, adversarial litigation tends to assume that you
1426and your lawyer will use every means permitted to prevail. On the other hand,
1427the assumption in cooperative litigation is that the parties and their lawyers
1428will exchange the pertinent information as quickly and fairly as possible,
1429make a good faith effort to settle, and failing that, afford each other a fair
1430opportunity to present the merits of their respective cases.
1431Cooperative litigation will tend to encourage settlement more frequently
1432and earlier, lower costs even where settlement is unsuccessful, and reduce
1433unethical conduct. Conversely, adversarial litigation tends to be more
1434competitive, less focused on the long term best interests of the parties, forces
1435an increase in costs and incites borderline ethical conduct.
1436In divorce cases, cooperative litigation makes even more sense, especially
1437where children are involved. If litigation cannot be avoided, you will do well
1438to conduct it cooperatively as opposed to the more common, and also more
1439destructive adversarial litigation model.
1440Adversarial Litigation
1441Adversarial litigation should generally be a last resort. There are a number
1442of reasons that is the case. Primarily, when one side begins to act
1443competitively under the adversarial model, there tends to be reciprocity from
1444the other side. Such behavior provokes retaliation and one-upmanship. This
1445leads to an escalating spiral where you and your spouse eventually lose all
1446control over your case.
144749
1448The only “winners” in that situation are usually going to be the lawyers. If
1449at all possible (and sometimes it is not) avoid adversarial litigation. There is
1450simply too much collateral damage done to the family and to your own mental
1451health to put yourselves through it. Furthermore, often neither side is
1452completely happy with the results of a trial following this adversarial,
1453competitive approach. This leads to further litigation after the divorce for
1454appeals, modification and enforcement of the Final Decree of Divorce. I, like
1455most family law specialists, have a handful of “serial” clients whom I have
1456represented over a span of 8-10 years, usually in multiple court cases. Some
1457of these clients have former spouses who struggle with mental health issues,
1458addiction issues or both. They are embroiled in a dance that negatively
1459impacts their children and their own happiness. Sadly, most of them are in a
1460place where they have no other realistic choice than adversarial litigation - at
1461least until their children age out of the system. These clients also typically
1462have long standing relationships with mediators, guardian ad litems, parenting
1463specialists, and/or counselors for their children and themselves. This is the
1464most expensive and the most intrusive way to divorce and to live as a
1465divorced person.
146650
1467C H A P T E R 1 4
1468Anatomy of a Divorce Case
1469I have found that one of the best ways for my clients to reduce some of the
1470anxiety that they have which is associated with their divorce is for them to
1471simply understand the divorce process. With that end mind, the chief aim of
1472this chapter is to educate you about that process in hopes that with some
1473familiarity, the fear and anxiety of the unknown will be substantially reduced.
1474The Divorce Process
1475Getting the Divorce Started
1476The end result of your divorce case will be your Divorce Decree a.k.a. the
1477Final Decree of Divorce, also called the Final Order This is the court order
1478that sets out your rights and responsibilities with regard to custody, visitation,
1479support, payment of debts, and property division.
1480In Texas, the divorce process is started by one of the parties filing a petition
1481for divorce. There is one exception to this - collaborative law. In a
1482collaborative law case, the parties may file a joint petition seeking a divorce,
1483so that one party does not have to “sue” the other and they can simply come
1484together to ask the court for a dissolution of their marriage.
1485In Texas, the divorce petition must be on file for at least 60 days before a
1486divorce can be granted. This is the waiting period (also called a “cooling off
1487period”). If you reach an agreement about your divorce - either informally,
1488through mediation, through collaborative law, a No Nonsense® or agreed
1489case, or otherwise, a Texas Judge will sign your final decree of divorce,
1490incorporating your agreement when your case is “proved up”. A prove up is a
1491short hearing where an agreed divorce is finalized. If both spouses and
1492counsel (if the spouses have counsel) have signed the divorce decree, only
1493one spouse needs to attend the prove up hearing. In the counties where I
1494practice, these are very short hearings. For example, in Travis county, we
1495have uncontested docket twice a day and you do not need to have an
1496appointment or setting to attend and prove up a case. In other counties, you
149751
1498either need to set the case or attend uncontested docket on the particular day
1499or days that the judge on the case has uncontested docket.
1500The Divorce Petition
1501A divorce case begins when one of the spouses files a petition for divorce
1502with the court. (Usually the district court or the county court at law,
1503depending on the location.) There is a filing fee that must be paid at the time
1504the petition is filed. The party filing the petition is called the petitioner, and
1505the other party is called the respondent. The petition is normally filed in the
1506county where either party has resided for the past ninety days, provided that
1507person has also been a resident of Texas for at least six months. If the parties
1508reside in different counties and have children, the best place to file is the
1509county where the primary residence of the children has been for the last
1510ninety days prior to filing.
1511In the petition for divorce, the petitioner sets out his or her factual
1512allegations and tells the court the generally what he or she is asking for.
1513Service of Process
1514Once the petition is filed, it must be served on your spouse, unless your
1515spouse is going to file a waiver of service. Many of my clients choose not to
1516have their spouse served and instead present them with the waiver, in person,
1517or by a letter from us in the mail or via email. Never, under any circumstance,
1518use your child to deliver this to your spouse. Nor should you have them
1519served in the presence of the children. Its bad form and the judge (if it ever
1520gets in front of one) will not smile on this.
1521Service of process normally involves a constable or private process server
1522serving the respondent with a copy of the petition. In some cases, it is
1523preferable to have a private process server serve your spouse. They will
1524charge you to do so. Whether to use the constables office or a private process
1525server is an issue for you to discuss with your lawyer.
1526The Court Date
1527A minimum three days notice is required to set a hearing. If you set a
1528hearing prior to the answer date (noted below), you (if you are representing
1529yourself) or your lawyer, must obtain what we call a “show cause” or “order
1530to appear” in court. Often this is done in cases where a family is in a true
1531crisis or there is some exigent circumstance requiring a hearing as soon as
1532possible. If a Pit Bull lawyer is involved, they may get a show cause as a
1533matter of practice - just to amp up the conflict and their fees. In my opinion, a
1534good lawyer will not do this as a “knee jerk”, automatic step in the case. As
153552
1536an example, in Travis County where I frequently practice, it sometimes takes
1537at least 3 weeks to a month from the time the Petition is filed until the original
1538court date. Travis County, unlike some of the surrounding counties, will let
1539you set a hearing with three days notice, almost always. This does not mean
1540that you will get a judge on the day you set the hearing for though.
1541Sometimes, there are just more cases set to be heard than there are hours in a
1542day, or the number of available judges. Remember, you are paying your
1543lawyer, even if you are paying them to sit and wait to see if a judge is
1544available. The best practice is to see how many hours are set in front of you
1545and set a hearing on a date where you have a decent chance of getting heard.
1546Some counties will require this, it just depends on the local practice in your
1547jurisdiction. Regardless of local practices and procedures, there is always a
1548possibility that your case may not be heard on its original court date. In fact, it
1549is not at all unusual for a case not to be heard on its original trial date. There
1550are many reasons cases get continued. So, it is not uncommon for a contested
1551case to take a minimum of eight months to a year to be resolved.
1552The Answer
1553After the Respondent is officially served with the Divorce Petition, he/she
1554must file a response. If they fail to do so, they risk a default judgment being
1555taken. The written response is called an Answer. In it, the Respondent enters
1556their appearance in the case for all purposes. Once an answer is filed, the
1557petitioner must give a minimum of 45 days notice before setting a final trial
1558date. It is also common for the respondent to also file a counter petition
1559(meaning a counter suit), setting forth his/her claims and telling the Judge
1560what he/she is asking for (also, sometimes called “affirmative pleadings”).
1561When someone is served with a petition for divorce, they have 20 days
1562Monday next to respond to the lawsuit. This means twenty calendar days and
1563then go to the next Monday. In a divorce, the 60 day waiting period would
1564have to have transpired as well, before a default judgment of divorce could be
1565taken.
1566Standing Order of Court
1567In many counties in Texas, including Travis, Hays, Bastrop and Dallas
1568counties, the Judges have passed a standing order of the Court in every family
1569law case. It essentially orders that each party “maintain the status quo” with
1570regard to payment of bills, custody, visitation etc. It also prohibits the parties
1571from disposing of assets while the case is pending or removing the children
1572from the school or day care where they are enrolled or taking them away from
1573their primary place of residence for the purpose of changing that residence....
157453
1575or out of the county, without permission of the other parent or the court.
1576Review the Standing Order in your case carefully if there is one. If you have
1577any questions about it, you should ask your lawyer. As with any order of
1578court, it is important to abide by this order. In certain circumstances, primarily
1579modifications of previous final orders, the standing orders are being found
1580unenforceable under the family code by the appellate courts. This is a
1581complex and issue and a moving target at the time that this book is being
1582written. If you are in a modification suit that seems in conflict with a standing
1583order or requested temporary order, you should take your issue to a family
1584law specialist if at all possible. Get some expert advice before proceeding.
1585Temporary Orders
1586Sometimes it is necessary to file a motion with the court, requesting certain
1587types of relief while the case is pending. For example, issues regarding
1588payment of child support, exclusive possession of the home place, temporary
1589custody (if the parties are separated), etc. may need to be brought before the
1590Court prior to the actual Court date. Generally, judges and court
1591administrators don’t like to have these motions brought frivolously, because it
1592needlessly overcrowds their already overcrowded dockets. Nevertheless, they
1593are sometimes necessary. If you think such a motion may be needed in your
1594case, you should discuss it with your lawyer.
1595Discovery
1596During the time leading up to trial, the lawyers in a litigated case normally
1597conduct discovery. Discovery is the formal, legal process that lawyers use to
1598gather information from the opposing side in order to prepare for settlement
1599and/or trial. There are several discovery devices that lawyers can use for this
1600purpose. The most common discovery devices are:
1601Depositions
1602A deposition is simply where a lawyer asks a witness or a party questions
1603under oath before a court reporter or videographer. The questions and answers
1604are recorded and a “transcript” of the proceeding can later be used in trial.
1605Requests for Production of Documents
1606This is a written request filed by the lawyer requiring the other party to
1607produce certain documents. Typical examples are income tax returns, bank
1608statements, and pay stubs.
1609Interrogatories
161054
1611These are written questions sent to the other party to answer them in
1612writing and under oath. These are limited in number by statute.
1613Subpoenas
1614A subpoena requires a witness to appear in Court or to provide certain
1615requested documents. It may be necessary to subpoena bank records,
1616brokerage account information, etc.
1617Settlement Negotiations
1618Just because a divorce Petition is filed does not mean the case cannot still
1619settle. In fact, the majority of cases (over 90%) settle before trial. Whether
1620your case settles often depends on the reasonableness of your spouse’s
1621demands, the reasonableness and experience level of your spouse’s attorney,
1622your willingness to compromise and whether or not there are any “hot button”
1623issues about which an agreement simply cannot be reached - typical examples
1624are custody, spousal maintenance, or how to dispose of the house.
1625Nevertheless, it is not unusual to continue to attempt settlement negotiations
1626in some form or fashion between the time the Petition is filed and the time of
1627trial.
1628Trial
1629If you cannot settle your case, you must be prepared to try the case. At that
1630time the Judge will hear evidence from both sides and make decisions
1631regarding custody, property division, etc. It is important that you know what
1632to expect at the trial. The more comfortable you are, the better witness you
1633will be. The better witness you are, the more you help yourself with the
1634Judge. To prepare yourself for trial, you may consider spending a few hours
1635listening to other divorce cases being tried in your jurisdiction’s or (if
1636applicable) judge’s courtroom - if possible. In Travis county, we have a
1637rotating docket, which means you do not know what judge will hear your case
1638on a given day, unless you are a case that is specially assigned. It is helpful if
1639the day you walk in to court to try your case is not the first time you’ve been
1640there.
1641Post-trial Motions and Appeals
1642In the event that one or both spouses do not want to accept the judge’s
1643ruling, they do have some options. Within 30 days of the rendering of
1644Judgment of Divorce on a final trial, you can file what is called a Request for
1645Findings of Fact and Conclusions of Law and a Motion for New Trial - an
1646appeal. If you are before an Associate Judge (and have not waived a de novo
164755
1648hearing), you can file a request to have a new trial, which is referred to as a
1649“De Novo” within 9 calendar days from the rendering of the temporary order.
1650If your case was heard in front of a District Judge on a final hearing, you may
1651be able to appeal to the appropriate court of appeals. on a temporary orders
1652hearing, you may have remedy in a mandamus action. In the area where I
1653practice, the appellate court is the Third Court of Appeals. Appealing,
1654whether by traditional appeal or mandamus will usually require you to show
1655that the judge’s ruling was tantamount to an abuse of discretion or reversible
1656error- - fairly high burdens. It is also worth noting, that at least where I
1657practice, the District judges are remiss to overrule the associate judges on de
1658novo hearings. Generally speaking, most experienced lawyers do not even
1659bother with de novos. Our associate judges are appointed by the District
1660judges and hear many family law matters. It is rare for the decision of an
1661associate judge to be overturned.
166256
1663C H A P T E R 1 5
1664The Issues
1665So, you are going through a divorce. You want to resolve the case by
1666agreement. What are the issues that must be addressed? This chapter will first
1667outline the three broad areas that are present in every divorce case that
1668involves children. If you do not have minor children, then there are only two
1669broad areas. After looking at these broad areas, we will get much more
1670specific. I will provide you a checklist of the issues that you should consider
1671in resolving your divorce. Not every item will apply to you, but I’ve made the
1672list comprehensive to stimulate your thinking on these issues. As always,
1673discuss with your lawyer what does or does not apply to your facts and
1674circumstances.
1675The 3 Broad Subjects to Consider in Every Divorce
1676At the most basic level, the issues that are addressed in a divorce case are
1677fairly standard. They can be broken down into three broad areas. There may
1678be other particular issues in your case, but these are the main broad subjects in
1679divorce cases.
1680Custody and Issues Related to the Children
1681If there are minor children (in Texas, that typically means under the age of
168218 and still in high school or not legally emancipated), then there are several
1683issues that will need to be addressed. Note that child support and custody can
1684go post high school in some cases where a child is disabled or if parents agree
1685to the same thing by contract.
1686These include the following: Who gets custody? How much is child
1687support? What possession time will be awarded to the non-custodial parent?
1688Who provides health insurance for the children? Who pays expenses not
1689covered by insurance? Is the non-custodial parent required to maintain life
1690insurance for the benefit of the children? Are there private school and/or
1691college expenses issues that need to be addressed?
169257
1693Division of Property and Liabilities
1694Who will get what property? Who will pay which debts? Every case will
1695involve some division of assets and debts, even if it is a fairly simple division.
1696Other times, the property division can be quite complex involving business
1697valuations, division of retirement accounts and the sale of real property. The
1698Judge has a lot of discretion in this area. In Texas, the division does not have
1699to be equal, only equitable (in other words, “just and right” or “fair” in the
1700eyes of the court). The legal issues related to property division are discussed
1701more fully in the Division of Assets and Debts chapter.
1702Post Divorce Spousal Maintenance
1703Commonly called alimony, Spousal Maintenance is money paid by one
1704spouse to the other for their maintenance and support. This issue will not be
1705applicable in every case, in fact it is fairly limited under Texas law. There are
1706a number of factors that go into the determination of whether or not the Court
1707can or will award maintenance. Those factors are discussed in more detail in
1708the Maintenance in a Nutshell chapter. If you think maintenance is an issue in
1709your case, be sure to discuss it with your lawyer.
1710Checklist of Issues
1711The following is a detailed basic checklist of issues that you may need to
1712consider addressing in your divorce settlement. Not every issue will apply to
1713you, and there may be some very particular issues that exist in your case, that
1714are not outlined here. Before discussing settlement options with your spouse,
1715you should discuss the details with your lawyer. There may be some issues
1716that he advises you not to bring up as it may not be in your best interest to do
1717so.
1718Custody Possession and Access and Welfare of Minor Children
1719Type of custody arrangement (joint or sole)
1720Periods of time each parent will have with the child(ren)
1721Weekdays
1722Weekends
1723Holidays
1724Vacations
1725Transportation issues
1726Each parents rights and responsibilities with respect to decisions
172758
1728affecting the child(ren)
1729Any “advise” or “consent” requirements
1730Child support
1731Any geographic restrictions
1732Dependency exemptions for tax purposes
1733Health insurance for the children
1734Responsibility for medical expenses not covered by insurance
1735Life insurance required for the benefit of the children?
1736How much?
1737How long required to maintain?
1738Require proof of existence of policy and beneficiary designation?
1739Address or reserve college expenses?
1740Division of Assets & Liabilities
1741Real Estate (including the marital home)
1742One person buy the other out? If so…
1743How will equity be determined?
1744What are payment terms?
1745What happens if defaults?
1746Do they also have to refinance to remove from debt?
1747If refinancing, how long do they have to refinance?
1748Sell? If so…
1749Who will possess pending sale?
1750Who will pay mortgage, insurance and taxes pending sale?
1751Who will be responsible for maintenance and upkeep?
1752Will property be sold by owner or by an agent?
1753If, by agent, how will the agent be chosen?
1754What happens if parties disagree about an offer that is
1755proposed?
1756How will the proceeds be divided?
1757Financial Accounts
1758How will they be divided?
1759Any joint accounts to close?
1760With respect to retirement accounts, is a QDRO necessary?
1761Personal property
1762How will the furniture and furnishings be divided?
1763Who gets which vehicle?
1764Are bills of sale necessary?
1765Any other recreational vehicles to address?
1766Safe deposit box contents?
176759
1768Debts
1769Who will pay what?
1770What are specific terms of payback including timing and payment
1771terms?
1772Joint accounts to close?
1773Indemnification and hold harmless provision?
1774Any taxes owed currently?
1775If so, how will they be paid?
1776If there is tax liability for past years, how will that be addressed?
1777Money Owed to Parties
1778Does anyone owe either of you money?
1779If so, how will that be divided, if at all?
1780Who will any tax refunds be divided?
1781Any outstanding lawsuits for which there may be a recovery?
1782Spousal Support
1783Monthly support?
1784How much?
1785How long?
1786Terminating events?
1787Property settlement?
1788How much?
1789Payment terms?
1790Requirement to maintain or contribute towards spouse’s medical
1791insurance?
1792Amount of contribution?
1793How long to maintain?
1794Life insurance required for the benefit of the spouse and/or children?
1795How much?
1796How long required to maintain?
1797Require proof of existence of policy and beneficiary designation?
1798Other Issues
1799Wife to resume a former name?
1800Any contribution towards lawyers’ fees or other litigation expenses?
1801If so, how much?
1802And terms of payment?
1803Any issues with respect to filing status on tax returns for prior year?
180460
1805C H A P T E R 1 6
1806Division of Assets and Debts
1807When it comes to the division of assets and debts in a divorce case in
1808Texas, there are very few bright-line rules. The law states that the division of
1809assets is to be “just and right,” not necessarily equal. The test that the court is
1810supposed to apply to determine an equitable division of assets and debt is
1811what is “just and right under the law.”
1812As you might imagine, determining what is “just and right under the law,”
1813is a very subjective determination for a judge to make. Notwithstanding that
1814fact, there are a couple of general rules of thumb that most Texas judges will
1815take into account. For example, in a short-term marriage, the judge is likely to
1816attempt to restore each of the parties to the economic standing that they had
1817prior to the marriage. In other words, each spouse in a short-term marriage
1818would typically be awarded the assets that they respectively brought into the
1819marriage as their separate property and any joint assets acquired during the
1820marriage would be split equally.
1821On the other hand, in a long-term marriage (say in excess of 15 or 20 years)
1822the court is likely to end with the premise that all of the assets each should be
1823divided equally and made adjustments from there. Texas courts assume that
1824all property is community unless proven otherwise.
1825Under Texas law fault can be considered in the division of the assets. So, in
1826a case where one party has primarily caused the breakdown of the marriage
1827through what is considered a fault ground for divorce (e.g. adultery or cruelty
1828or domestic violence), the court can “punish” the offending party by adjusting
1829what otherwise could have been an equal division. Additionally, whether or
1830not there is a fault ground, the Court might consider each party’s respective
1831contributions to the marriage (both economic and non-economic), as well as
1832other relevant factors, such as waste, fraud on the community, the relative
1833health and earning capacity of the parties, the respective levels of education of
1834the parties, etc.
1835Before a property settlement can take place, the first step is to identify the
1836community estate. In Texas, most all of the assets that are accumulated during
1837the marriage, regardless of how they are titled, will be considered community
183861
1839property (unless the parties signed a pre or post nuptial agreement (also called
1840a marital property agreement) before they married stating otherwise or a).
1841However, assets that either party had prior to marriage, or that either party
1842receives as inheritance or gifts are considered their separate property and not
1843subject to division in divorce.
1844After determining the community estate, the second step in deciding the
1845division of assets and debts is to determine the value of each of the assets.
1846Sometimes, the parties agree on the value other times they must turn to
1847appraisals or other indications of value.
1848It is only after determining which assets make up the community estate,
1849and determining what the value of each of those assets is that you can then
1850turn to the ultimate issue of a just and right division of those assets and debts.
1851With respect to debts, keep in mind that it does not necessarily matter how
1852a debt is titled. The title of the debt is not determinative of who will
1853ultimately be responsible for it, at least as far as the divorce court is
1854concerned. If the husband has a credit card that both parties have always had
1855access to and that was used by both parties to benefit the marriage, then the
1856divorce judge certainly can order that the wife contribute to the payment of
1857that debt despite the fact it was in the husband’s name.
1858One thing to keep in mind about the court ordered division of debts is that
1859your divorce decree does not bind your creditors to its terms. In other words,
1860just because your divorce decree says that your former spouse is responsible
1861for a particular loan and that your former spouse will hold you harmless and
1862indemnify you from that debt, if your ex does not pay that debt, the creditor
1863can still turn to you in their collection efforts. Third party creditors are not
1864bound by divorce decrees and are typically only interested in “who signed” on
1865the debt and who they can collect from. You can expect that they will try to
1866collect from whomever they have a legal right to collect from - regardless of
1867the divorce decree. What an indemnity provision in the divorce decree does
1868do, is give you some recourse against your spouse. If your ex fails to pay a
1869debt awarded to them, it gives you the right to file an enforcement action and
1870possibly contempt motion against your former spouse to recoup any out-ofpocket
1871expenses you have as result of their failing to pay the debt they were
1872ordered to pay. If a court finds a person in contempt, generally speaking, they
1873award attorneys fees as well. All of that being said, you don’t necessarily
1874want to chase bad money with good. In other words, just because you have a
1875right to collect and your ex is a deadbeat - it may not be worth it to pursue
1876legal action if the person is unemployed and has no assets on which you can
1877legally collect (levy). You should discuss this type of proceeding with your
1878attorney in depth before filing such an action. If there is or has been a
187962
1880bankruptcy involved, there may be additional legal advice you need before
1881proceeding.
1882Any retirement earned during a marriage is considered community property
1883in Texas. If the retirement is in a 401(k), pension or 403(b) - or any other plan
1884governed by ERISA, then the division is generally effectuated through what is
1885called a Qualified Domestic Relations Order (“QDRO”). The QDRO provides
1886a way to divide the retirement account pursuant to divorce without either
1887party incurring any tax liability or penalty. QDROs can be fairly technical and
1888will usually result in some additional lawyer’s fees for their preparation.
1889Many divorce lawyers defer to tax specialists to complete QDROs in a
1890divorce. These are frequently flat fee or limited scope engagements, whereby
1891the tax specialists handles this one aspect of the divorce in collaboration with
1892the divorce attorney. There are a few plans that we, as a firm, will handle in
1893house - depending on our familiarity with the particular plan. But for the most
1894part, it makes sense to have a tax (ERISA) attorney handle this particular
1895aspect of the case. We have several reliable professionals who we consult
1896with for this purpose. They are all well respected and proficient in their field
1897of expertise. In my opinion, it is more cost effective to hire them for these
1898tasks than to have your divorce lawyer or their staff complete them.
1899In addition to the retirement accounts, generally the parties’ largest asset is
1900their home. The court has a lot of discretion about what to do with the home.
1901The court can award the home outright to either party, can order one party to
1902buy out the other party’s interest, or can order that the home be sold and the
1903equity be divided in whatever proportion the court deems to be equitable. One
1904note to keep in mind, in the event that the home is to be sold, the court order
1905must also address who will have possession of the home pending sale, who
1906will be responsible for the mortgage, utilities, maintenance, and repairs on the
1907home pending the sale. Additionally, it is generally advisable to put some
1908language in the decree that provides that both parties will cooperate in
1909keeping the house clean and neat and available for show to prospective buyers
1910and that the court retain jurisdiction to address the potential issue of the
1911parties disagreeing about whether or not to accept an offer that is less than
1912their asking price.
191363
1914C H A P T E R 1 7
1915Maintenance in a Nutshell
1916There are two primary types of maintenance in Texas: Court Ordered Post
1917Divorce Maintenance and Contractual Alimony or Maintenance.
1918As noted above, all court ordered maintenance, except for in cases of
1919felony domestic violence and disability are meant to be rehabilitative under
1920Texas law and are limited to marriages of at least 10 years. Rehabilitative
1921alimony is paid on a periodic basis, generally for a short period of time. It is
1922designed to help bridge the gap to allow the recipient spouse to “get back on
1923their feet” and become self-supporting.
1924The maintenance statute in Texas was substantially revised in September of
19252011. Under the new law, a spouse seeking maintenance (except as noted
1926below in cases of domestic violence or disability), must have been married for
1927a minimum of 10 years and lack the ability to earn enough money to meet his
1928or her minimum reasonable needs and show that he or she has tried to either
1929(1) earn an income sufficient to meet his or her needs or (2) has tried to
1930develop the skills such that he or she could earn an income to meet his or her
1931minimum reasonable needs. What this generally means in court is showing
1932that one has tried to obtain employment (has sent out applications, gone to
1933interviews, etc.) and/or one has a plan for obtaining education or training
1934whereby they can become self supporting (i.e.: has applied for training or
1935education that will help them to obtain employment or earning ability). Under
1936the previous Texas statute this type of maintenance was limited to a
1937maximum of three years and the lesser of $2,500 per month or 20% of the
1938obligor’s gross monthly income. For cases filed after September 1 of 2011,
1939there is a tiered guideline for judges to use as follows:
1940in a marriage of 10 years but less than 20, up to the lesser of
1941$5,000.00 per month or 20% of the obligor’s gross monthly
1942income for up to 5 years;
1943in a marriage of 20 years, but less that 30 years, up to the lesser of
1944$5,000.00 per month or 20% of the obligor’s gross monthly
1945income for up to 7 years;
1946in a marriage of 30 or more years, the lesser of $5,000.00 per
194764
1948month or 20% of the obligor’s gross monthly income for up to 10
1949years.
1950If a spouse is disabled and unable to work because of that disability or
1951likewise is caring for a disabled child of the marriage, which prevents the
1952spouse from working; and the spouse lacks the ability through work or other
1953resources to meet his or her minimum reasonable needs, then post divorce
1954maintenance may be awarded by the court, without regard for the 10 year
1955marriage requirement and without regard to the usual time limits. In disability
1956based maintenance cases the maintenance can be awarded for as long as the
1957spouse satisfies eligibility requirements based on the disability of the spouse
1958or child. If maintenance is sought based on disability, there is not a need to
1959show diligence in trying to earn an income or develop skills to provide for
1960ones minimum reasonable needs. It is worth noting, that The Texas legislature
1961only removed the 10 year marriage requirement with regard to a disability
1962basis for alimony in September of 2011.
1963Similarly, if a spouse has been convicted of or is on probation for a
1964criminal act which is an act of family violence and that act was against
1965petitioner or petitioner’s child, within two years of the suit being filed or
1966happened during the pendency of the suit, then maintenance can be awarded
1967by the court without regard for the 10 year marriage requirement or the usual
1968time limits.
1969The above noted limits and guidelines apply only to court ordered
1970maintenance. Contractual maintenance can go on for as long as the parties
1971agree to and can be for as much as the parties agree to.
1972Of course, there are tax considerations that one should consider when
1973looking at contractual alimony or maintenance - and, for that matter court
1974ordered maintenance. If you are looking at contractual maintenance or if you
1975are ordered to pay maintenance by a court, you should discuss the
1976implications with your divorce lawyer and your CPA or tax lawyer. For
1977example, there is no such thing as lump sum alimony. Also there are tax
1978implications to alimony or maintenance ending within a certain amount of
1979time a child’s 18th birthday or graduation from college (ages 18 -24). There
1980are also provisions to consider if there is a step down in alimony and the
1981amounts between year one and year two or year two and year three exceed
1982$15,000.00. These time frames and amounts are based on IRS regulations
1983(which can change) and should evaluated as of the time of your divorce. I am
1984not a tax lawyer and cannot (nor do I wish to) give any tax advice. Suffice it
1985to say, you should check with a tax lawyer or accountant about the tax
1986implications of your alimony or spousal support before reaching an
1987agreement. Also, if you are court ordered to pay or receive maintenance, you
198865
1989will want to know the tax implications in advance.
199066
1991C H A P T E R 1 8
1992Child Support
1993In Texas, child support is usually heavily influenced by statutory
1994guidelines. Many people like to refer to these as a “cap.” Calling the
1995guidelines a cap is really not correct. Judges have broad discretion in varying
1996from the guidelines. They are meant to be a starting point. There are lots of
1997factors that judges can consider when deciding whether to strictly follow the
1998guideline calculation. They look at things like the amount of time the child
1999spends with each parent, the relative earning capacity and resources of the
2000parents, the historical needs of the child, etc. On its face, the child support
2001guidelines appear to be fairly straightforward and should provide an easy way
2002to determine what the child support in a particular case might be.
2003Theoretically, guideline child support is based upon the assumption that a
2004standard possession order is in place - that one parent is the possessory
2005conservator (or has possession of the child about 40% of the time). In these
2006standard possession order cases, the possessory conservator’s monthly gross
2007income, the number of children the obligor is ordered to support, and the cost
2008of medical insurance for the benefit of the minor child or children are the
2009primary factors.
2010However, child support calculations are not always as simple as one would
2011think they should be. There are frequently arguments about what numbers to
2012actually include in the calculation. For example, in determining gross income
2013what number do you look at – do you look at the most recent pay stub, do you
2014include bonuses, do you look at last year’s income taxes? What if you
2015received an inordinate amount of bonus money in the prior year, is that
2016considered?
2017As you can see, there’s lots of room for argument. The general rule is that
2018all income is considered. Therefore, bonuses, overtime, sales commission, etc.
2019are all considered in gross income. The calculation is supposed to be made on
2020current gross income. So, for example if your divorce is taking place in
2021February, the judge is most likely to simply look back at the tax return for the
2022prior year (assuming it’s been completed) and use that number for your
2023income. On the other hand, if the divorce is taking place in November then
202467
2025the current year’s pay stub showing year-to-date income may be a more
2026reliable indication of current gross income. In the case where the prior year’s
2027income tax returns shows an unusually high or unusually low amount of
2028income, then the party may ask the court to look at a larger sample of income
2029to demonstrate the fact that that year’s income was unusual and not in keeping
2030with the prior history. The court then makes a subjective determination about
2031which number to use.
2032Even more difficult than all of the above issues is the case of a selfemployed
2033individual. Anyone that owns their own business or knows
2034someone that does, knows that some business owners are more rigorous in
2035their bookkeeping than others. Frequently, we run into situations where
2036people are paid “off the books” or own their own business and don’t claim all
2037of the income that they actually earn. There are ways to attempt to include
2038income in those situations (such as by looking at deposits made into a bank
2039account or looking at what is considered “lifestyle evidence” such as the
2040amount of money someone’s paying out to meet all of their bills exceeding
2041what they claim they make, and also obtaining financial statements that might
2042have been submitted to a bank or financial institution in which the spouse
2043may have stated an income amount much higher than they are now claiming
2044in the divorce). However, none of these are exact and it is certainly much
2045more difficult to prove actual income in the case of a party who does not
2046receive a W-2 from their employer.
2047The other major problem associated with the child support guidelines is
2048that increasingly, they do not apply in a particular case. Effective September
20491, 2013, the guidelines max out at a monthly net income of $8,550.00. In
2050other words, if the obligor earns more than $8,550 (net of income taxes) per
2051month, then they may exceed the guidelines. In these types of cases, the child
2052support calculation becomes much more subjective. The standard then
2053becomes a review of the children’s reasonable needs and the resources
2054available to each parent. For example, if the obligor is earning $474,000.00
2055for year and the children have been in private school for years, the judge is
2056likely to order that the obligor pay for tuition, on top of the above guideline
2057base child support. Likewise, if a child is a budding musician or athlete or has
2058special needs and there are resources available to cover the historical needs of
2059the child, the judge is likely to tack these costs onto base child support.
2060In cases where parents share a 50/50 possession schedule or where there is
2061significant distance between the homes of the parents, the courts tend to vary
2062from guidelines. Many judges are routinely using off set child support
2063amounts in 50/50 possession cases in the jurisdictions where I practice. It is
2064also fairly common for the parent who moved, in a long distance case - or
206568
2066whom the court allowed to move, to be made to bear the cost of travel for the
2067child as an additional child support obligation.
2068In Texas, all child support is supposed to go through the State
2069Disbursement Unit in San Antonio (the “SDU”). Also, a withholding order is
2070generally signed by a judge, along with the final order. It is fairly common for
2071the withholding order to be suspended - meaning there is no garnishment of
2072wages to the state disbursement unit unless the child support become
2073delinquent by more than 30 days. Even in cases where a spouse is selfemployed,
2074we generally obtain withholding orders. In these cases, we simply
2075do not serve the order on an employer - unless or until the obligor becomes
2076employed by someone other than themselves. There are some cases where the
2077parties come up with custom arrangements for supporting their children. I
2078most often see these types of arrangements in collaborative cases and
2079sometimes in agreed cases or mediated cases. For example, sometimes parties
2080agree that a child support expense may be paid directly to an institution or
2081daycare, instead of money flowing directly to the obligee. Also, I sometimes
2082see parties bypassing support through the SDU by maintaining some type of
2083joint bank or credit account for the children. Enforcement in these cases can
2084be dicey, so if you want to look at a custom arrangement, you should seek the
2085advice of counsel first, and do a cost benefit analysis.
208669
2087C H A P T E R 1 9
2088Child Custody, Possession and Access, and Co-parenting
2089Custody consists of two aspects in the minds of most people – legal
2090custody and physical custody. Under Texas law, however, legal custody refers
2091only to the rights and responsibilities to make major decisions concerning the
2092child, including decisions affecting the education, health care and religious
2093training of a child. Physical custody is actually called possession and access
2094in Texas and relates to where the child physically resides.
2095Sole Managing Conservatorship
2096“Sole custody” called sole managing conservatorship in Texas, is actually
2097quite rare. The law presumes that the parents will be joint managing
2098conservators, and thus share in the decision-making responsibilities for the
2099child. Sole managing conservatorship is usually reserved for cases where a
2100parent is impaired due to mental health issues, or substance abuse or
2101incarceration or in cases where the parties are so high conflict as to prevent
2102communication. Also, where a party has been found guilty of family violence,
2103the presumption under the law is that that person should not be appointed a
2104joint managing conservator.
2105One other example where sole managing sometimes occurs, is where one
2106parent travels internationally or is military and cannot be reached in a manner
2107where joint decisions can be made reliably. Usually, though in this type of
2108situation, there are special decision-making abilities given to the nontraveling
2109parent.
2110In most cases, the parents are joint managing conservators and within that
2111joint managing conservatorship, there is a parent who determines the primary
2112residence of the child (called the “primary”) and a possessory conservator,
2113who has designated time periods of possession of the child. The possessory
2114conservator typically has a set schedule of time with the child that is
2115(unfortunately) called “visitation” by many people. I do not like the term
2116visitation to describe the possessory parents’ time with the child. Prisoners get
2117visitation time. When a parent and child spend time together, I do not think
2118the parent should be considered a visitor with the child. That being said,
211970
2120“visitation” is a term that is traditionally used, but it is not in the Texas
2121Family Code.
2122Joint Managing Conservatorship
2123The concept of joint managing conservatorship is an attempt to permit
2124parents to have more of an equal voice in making decisions for their children,
2125and in some instances to afford them more of an equal sharing of time.
2126However, despite the fact that the Texas legislature has adopted a joint
2127managing conservatorship statute that claims that joint managing
2128conservatorship is now the State’s policy, true joint physical possession
2129arrangements, meaning equal time for both parents are not the default -
2130although they are becoming more and more common. Most trial judges (and
2131some appellate court decisions) have questioned whether a true joint physical
2132arrangement (i.e. one that approximates equal time between each parent) is
2133really in the best interests of the children. Ultimately the Court almost always
2134approves a proposed custodial arrangement and parenting plan.
2135Much more common is joint managing conservatorship. Joint managing
2136conservatorship relates to the parents sharing the decision-making authority
2137for the issues affecting the children’s health, education, religious upbringing
2138and welfare. In the case of parents who can reach an agreement for joint
2139managing conservatorship, the parties can designate who will make those
2140various decisions for the child as opposed to having exclusive authority
2141resting in the discretion of a sole custodian.
2142Entering an agreement to share decision-making authority (i.e. joint
2143managing conservatorship) and to set out a custody and possession and access
2144arrangement that may be more than a court’s “standard visitation” is a very
2145useful way to avoid a bitter custody battle in a divorce.
2146Factors Considered in Deciding Custody
2147In a divorce where custody and or possession and access to a child is in
2148dispute, the standard that a Court is to consider in determining which parent
2149should have primary possession of the child and who should make what
2150decisions for a child is the “best interests standard.” This is a subjective
2151standard for the judge, but Texas law does provide guidance as to the factors
2152to be considered.
2153Holley v. Adams is a 1976 Texas Supreme Court case which set out a non
2154exhaustive list of factors that a Judge is to consider in determining the bests
2155interests of a minor child. These factors fall into 3 broad categories: (1) care
2156of the child; (2) maintaining family relationships and (3) fitness of the
2157parents. More specifically, these factors include:
215871
2159The child’s physical and emotional needs
2160Physical or emotional danger to the child posed by either parent or
2161that parent’s home
2162Stability of the homes of the parents
2163Plans for the child by each parent
2164Cooperation between the parents
2165Parenting skills of each parent
2166Primary caregiver of the child
2167Preferences of the child
2168Geographic proximity
2169Promoting relationships between the child and the other party
2170Any false reports of abuse
2171Any history or pattern of abuse
2172Intentional use of abusive physical force
2173Family violence
2174Present fitness and recent past conduct
2175drug or alcohol use
2176sexual conduct
2177The following factors should not be used in determining custody or
2178possession and access:
2179which parent make more money (provided basic needs can be met
2180with child support)
2181marital status
2182gender
2183race
2184religion
2185As a review of these criteria indicates, there are many factors for a court to
2186consider, and a proper custody and possession and access determination will
2187be very fact specific. Thus, each case will vary depending on its own facts
2188and circumstances.
2189With respect to the age of a child, I should point out a common
2190misperception. Many people think that there is a law that says once a child
2191reaches a certain age (commonly believed to be 12 or 14) they get to decide
2192where they will live. That is not the law in Texas, nor has it ever been the law
2193in Texas. What the current law does say is that a child’s wishes may be
2194considered when the child is 12 or older by a party requesting an in chambers
2195meeting with the child and the judge. Best interest of the child is still the
2196guiding legal factor for a court to consider. Most judges are not thrilled about
2197meeting with children...and in my opinion, having a child meet with the judge
2198should be an exception, rather than the norm. Certainly, one should not hang
219972
2200their entire case on a child’s meeting with the judge. Where I practice, these
2201in chambers meetings are typically not recorded and neither parent, nor their
2202counsel are allowed to be present during the meeting.
2203Making the Divorce Easier on the Children
2204Divorce is never easy on kids, but there are many ways parents can help
2205lessen the impact of their break-up on their children. By following the
2206guidelines in this book and attempting to obtain a “civilized divorce” you will
2207go far to reduce the trauma of the divorce on your children. A wise marriage
2208counselor informed a divorcing couple that I know that the long-term impact
2209that their divorce had on their children would depend entirely on how the
2210parents treated each other through the process. There is much truth to that
2211statement.
2212The American Academy of Matrimonial Lawyers lists a Top Ten Tips for
2213Parents Going Through Divorce. Those tips are useful and worth reading.
2214They are as follows:
22151. Never disparage your former spouse in front of your children.
2216Because children know they are "part mom" and "part dad", the
2217criticism can batter the child's self-esteem. If you do disparage your
2218ex or their family in any way, promptly use a correcting statement.
2219For example, you might say, “I shouldn’t have said that....what I
2220meant is, if you feel that way, you should probably speak with your
2221dad about that”...or “I am sure dad had a good reason for saying that.
2222Why don’t you talk to him about it.” In other words, one is perfect,
2223but do some damage control.
22242. Do not use your children as messengers between you and your
2225former spouse. The less the children feel a part of the battle between
2226their parents, the better.
22273. Reassure your children that they are loved and that the divorce is
2228not their fault. Many children assume that they are to blame for their
2229parent's hostility.
22304. Encourage your children to see your former spouse frequently.
2231Do everything within your power to accommodate the visitation.
22325. At every step during your divorce, remind yourself that your
2233children's interests – not yours – are paramount, and act
2234accordingly. Lavish them with love at each opportunity.
22356. Your children may be tempted to act as your caretaker. Resist the
2236temptation to let them. Let your peers, adult family members, and
2237mental health professionals be your counselors and sounding board.
2238Let your children be children.
223973
22407. If you have a drinking or drug problem, get counseling right
2241away. An impairment inhibits your ability to reassure your children
2242and give them the attention they need at this difficult time. A judge
2243typically will not look down on someone who is genuinely seeking
2244help for an impairment. They will typically frown on those who
2245clearly have a problem and refuse to seek help.
22468. If you are the non-custodial parent, pay your child support. The
2247loss of income facing many children after divorce puts them at a
2248financial disadvantage that has a pervasive effect on the rest of their
2249lives.
22509. If you are the custodial parent and you are not receiving child
2251support, do not tell your children. It feeds into the child's sense of
2252abandonment and further erodes his or her stability.
225310. If at all possible, do not uproot your children. Stability in their
2254residence and school life helps buffer children from the trauma of
2255their parent's divorce.
2256Children’s Bill of Rights
2257The Children’s Bills of Rights for children whose parents are divorcing or
2258separating are common in many jurisdictions. In my opinion, the children’s
2259bill of rights is a “must read” for all parents of minor children who are going
2260through divorce. Travis, County has also adopted a Children’s Bill of Rights.
2261I frequently include the Children’s Bill of Rights in divorce decrees and have
2262had it ordered by judges in each of the counties where I practice.
2263The Travis County Children’s Bill of Rights reads as follows:
2264Marriage is a contract between adults, and when it ends, the matter is
2265between the adults also. Yet no parental action has a greater impact on
2266children. Children love their parents and want to be with them. Even in times
2267of great stress, parents have a responsibility to conduct their legal affairs in a
2268manner that will protect their children from adult conflicts.
2269At a minimum, children are entitled to the following Bill of Rights:
22701. Neither parent shall deny the child reasonable use of the telephone to
2271place and receive calls with the other parent and relatives.
22722. Neither parent shall speak or write derogatory remarks about the other
2273parent to the child, or engage in abusive, coarse or foul language,
2274which can be overheard by the child whether or not the language
2275involves the other parent.
22763. Neither parent shall permit the children to overhear arguments,
2277negotiations or other substantive discussions about legal or business
2278dealings between the parents.
227974
22804. Neither parent shall physically or psychologically attempt to pressure,
2281attempt to influence, pressure or influence the children concerning the
2282personal opinion or position of the child concerning legal proceedings
2283between the parents.
22845. Each parent will permit the child to display photographs of the other
2285parent or both parents in the child's room.
22866. Neither parent shall communicate moral judgments about the other
2287parent to the child concerning the other parent's choice of values,
2288lifestyle, choice of friends, successes or failures in life (career,
2289financial, relational) or residential choice.
22907. The parents will acknowledge to the child that the child has two
2291homes although the child may spend more time at one home than the
2292other.
22938. The parents shall cooperate to the greatest extent practicable in
2294sharing time with the child.
22959. Each parent will permit the child to retain, and allow easy access to,
2296correspondence, greeting cards, and other written materials received
2297from the other parent.
229810. Each parent will respect the physical integrity of items possessed by
2299the child which depict the other parent or remind the child of the other
2300parent.
230111. Neither parent will trivialize, or deny the existence of the other parent
2302to the child.
230312. Neither parent will interrogate the child about the other parent nor
2304will either parent discourage comments by the child about the other
2305parent.
230613. Neither parent will intercept, "lose", derail, "forget" or otherwise
2307interfere with communications to the child from the other parent.
230814. Neither parent will refuse to acknowledge that the child can have or
2309should have good experiences with the other parent.
231015. Neither parent will directly or indirectly attack or criticize to the child
2311the extended family of the other parent, the other parent's career, the
2312living and travel arrangements of the other parent, or lawful activities
2313of the other parent or associates of the other parent.
231416. Neither parent will use the child as a "middleman" by using the child
2315to communicate with the other parent on inappropriate topics.
231617. Neither parent will undermine the other parent in the eyes of the child
2317by engaging in the "circumstantial syndrome" which is done by
2318manipulating, changing, or rearranging facts.
231918. Neither parent will create for, or exaggerate to, the child differences
232075
2321between the parents.
232219. Neither parent will say and do things with an eye to gaining the child
2323as an "ally" against the other parent.
232420. Neither parent will encourage or instruct the child to be disobedient to
2325the other parent, stepparents, or relatives.
232621. Neither parent will reward the child to act negatively toward the other
2327parent.
232822. Neither parent will try to make the child believe he or she loves the
2329child more than the other parent, by, for example, saying that he or
2330she loves the child more than the other parent or over-informing the
2331child on adult topics or overindulging the child.
233223. Neither parent will discuss child support issues with the child.
233324. Neither parent will engage in judgmental, opinionated or negative
2334commentary, physical inspections or interrogations once the child
2335arrives from his/her other home.
233625. Neither parent will "rewrite" or "re-script" facts which the child
2337originally knows to be different.
233826. Neither parent will punish the child physically or threaten such
2339punishment in order to influence the child to adopt the parent's
2340negative program, if any, against the other parent.
234127. Neither parent will permit the child to be transported by a person who
2342is intoxicated due to consumption of alcohol or illegal drugs.
234328. Neither parent will smoke tobacco materials inside structures or
2344vehicles occupied at the time by the child.
234529. Each parent will permit the child to carry gifts, toys, clothing, and
2346other items belonging to the child with him or her to the residence of
2347the other parent or relatives or permit the child to take gifts, toys,
2348clothing, and other items belonging to the child back to the residence
2349of the other parent, as the case may be, to facilitate the child having
2350with him or her objects, important to the child. The gifts, toys,
2351clothing and other items belonging to the child referred to here mean
2352items which are reasonable transportable and does not include pets
2353(which the parents agree are impractical to move about).
2354The Academy of Matrimonial Lawyers also publishes the following
2355Children’s Bill of Rights:
2356Every kid has rights, particularly when mom and dad are
2357splitting up. Below are some things parents shouldn't forget - and
2358kids shouldn't let them - when the family is in the midst of a break-up.
2359You have the right to love both your parents. You also have the
2360right to be loved by both of them. That means you shouldn't feel
236176
2362guilty about wanting to see your dad or your mom at any time. It's
2363important for you to have both parents in your life, particularly during
2364difficult times such as a break-up of your parents.
2365You do not have to choose one parent over the other. If you have
2366an opinion about which parent you want to live with, let it be known.
2367But nobody can force you to make that choice. If your parents can't
2368work it out, a judge may make the decision for them.
2369You're entitled to all the feelings you're having. Don't be
2370embarrassed by what you're feeling. It is scary when your parents
2371break up, and you're allowed to be scared. Or angry. Or sad. Or
2372whatever.
2373You have the right to be in a safe environment. This means that
2374nobody is allowed to put you in danger, either physically or
2375emotionally. If one of your parents is hurting you, tell someone -
2376either your other parent or a trusted adult like a teacher.
2377You don't belong in the middle of your parents' break-up.
2378Sometimes your parents may get so caught up in their own problems
2379that they forget that you're just a kid, and that you can't handle their
2380adult worries. If they start putting you in the middle of their dispute,
2381remind them that it's their fight, not yours.
2382Grandparents, aunts, uncles and cousins are still part of your life.
2383Even if you're living with one parent, you can still see relatives on
2384your other parent's side. You'll always be a part of their lives, even if
2385your parents aren't together anymore.
2386You have the right to be a child. Kids shouldn't worry about adult
2387problems. Concentrate on your school work, your friends, activities,
2388etc. Your mom and dad just need your love. They can handle the rest.
2389IT IS NOT YOUR FAULT AND DON'T BLAME YOURSELF.
2390If you have minor children and you are reading this book, then I commend
2391you. That is a sign that you desire to put your children’s interests first and to
2392try to have a civilized divorce for their sake. At times, that will not be easy.
2393There will be times when it will feel like you are the only parent doing their
2394part to make the process easier on the kids. Do it anyway. Your children
2395deserve it, and they will thank you later.
239677
2397C H A P T E R 2 0
2398Legal Procedures After the Divorce Trial
2399Whether your divorce case is resolved by some form of negotiated
2400settlement or by a judge's decision after trial, it will end in a judgment of
2401divorce (also known as a divorce decree or final decree of divorce). However,
2402that is not necessarily the end of the legal proceedings. If the case has been
2403resolved by a judge's decision, frequently one or sometimes both of the
2404parties are unhappy about the outcome. When that happens, the law provides
2405the dissatisfied party with two additional legal procedures.
2406At our office, we refer most if not all of our appeals to an attorney
2407specializing in appellate law. I’ll give a very cursory overview of the
2408appellate process below, but I am not an appellate expert and do not typically
2409practice in this area.
2410Either party can request the trial court to make findings of fact and
2411conclusions of law. These are normally set forth in a separate written
2412document from the judgment. Some findings are included in the final decree
2413of divorce. A judgment must be final to be appealable. It must dispose of all
2414the issues before the court, namely granting or denying the dissolution of the
2415marriage, dividing the community estate (assuming the court has jurisdiction
2416to do so), setting forth the required statutory custody language if there are
2417children of the marriage, including not putting a limit on the duration of court
2418appointed conservatorships or leaving any child related issues open for future
2419determination. The order should also contain unequivocal language disposing
2420of all of the claims of the parties.
2421The standard of review on appeal varies depending on what issue is raised.
2422For example, the standard of review for some issues is abuse of discretion.
2423For some it may be reversible error. Most appellate standards are fairly
2424stringent standards. The standard on dissolution of marriage may differ from
2425conservatorship vs child support vs sibling access vs grandparent access - to
2426name a few.
2427Some lawyers will file a request for findings of fact and conclusions of law
2428merely to preserve their client’s ability to perfect an appeal. Appeals go up
2429the food chain of the court system to the relevant court of appeals. Where I
243078
2431practice, this is the Third Court of Appeals. The appeal must be filed within
243230 days from the date of the divorce decree.
2433Typically, the appellate courts do not grant oral argument in a family law
2434matter. Rather, they generally will make their ruling based on a review of the
2435transcripts from the trial and briefs that are submitted by the appellate
2436lawyers. The transcripts are the written record that the court reporter makes of
2437all of the questions and answers during the trial. Additionally, the appeals
2438court receives the entire trial court record which includes all of the pleadings
2439filed by the parties and all of the exhibits presented by the lawyers at trial.
2440The briefs prepared by the appellate lawyers are the tools that they use to
2441point out facts to the appellate court that they want to bring to the court's
2442attention, review the statutory and case law that supports their position, and
2443attempt to persuade the appellate court that the trial court level erred in some
2444way and should be reversed.
2445There is a strong presumption in favor of the trial court judge, which makes
2446success on the appellate level difficult to achieve. One of my favorite
2447appellate lawyers is known for saying, “you will need a minimum $10,000.00
2448retainer and best case, I will probably tell you there is a 50% chance of
2449prevailing.” Generally speaking, the appellate court will presume that the trial
2450court made the correct decision and will have to find clear error in order to
2451overturn their decision.
2452In the event that the case proceeds all the way to the appellate court and
2453one or the other party is still not satisfied with the ruling then generally
2454speaking, the final step is to appeal to the Supreme Court of Texas. That
2455process takes essentially the same form as the appeal from the trial court to
2456the appellate court. In most instances (except in the case of a constitutional
2457issue) the Supreme Court of Texas will be the "court of last resort" in a
2458divorce case or other family law matter. Once they have ruled the parties are
2459essentially out of options and must accept the final outcome.
2460It should be noted that at both the appellate court level and the Supreme
2461Court level, it is very expensive to prosecute an appeal. Likewise, it can take a
2462very long time to get a result. This is particularly difficult in divorce and
2463family law cases where issues such as custody and visitation of children or
2464matters regarding financial support necessary for day-to-day living is
2465essentially in flux pending the outcome of appeal. This is one of the major
2466benefits to resolving the case by agreement. By doing so, you guarantee that
2467you are able to avoid appeals and end the divorce process much more quickly
2468and with more finality.
246979
2470C H A P T E R 2 1
2471Tying Up Loose Ends
2472They say “the devil is in the details.” Once your divorce is final, you will
2473probably be ready to turn your attention to more pleasant matters. In fact, you
2474may make a conscious effort to think about anything but your divorce.
2475However, before you do so, there are some important details that you should
2476consider first. Once these matters are taken care of, then you’re ready to put
2477the divorce behind you.
2478Make sure that title documents are prepared and signed according to
2479the Divorce Decree. These will include deeds to real estate, vehicle
2480registration titles, and proper ownership listings on bank, retirement and other
2481financial accounts. If you need help with that, ask your lawyer.
2482Make appropriate changes to your beneficiary designations on
2483retirement plans and life insurance. You’d be surprised to know that many
2484people fail to do this. And the consequences are devastating. I once received a
2485call from a lady who had been married to a man for 15 years. The man died.
2486However, he had failed to change the beneficiary designation of his
2487retirement plan. It still had his previous wife listed! In order to challenge it,
2488she will have to spend thousands of dollars litigating the matter. Don’t make
2489this mistake.
2490Update your will. You should create a new will and other applicable estate
2491planning documents, namely powers of attorney. In our office, we offer
2492affordable estate planning for clients who do not have an estate that meets the
2493criteria for federal estate taxes (at the time of publishing this book, that
2494amount is $5 million per person). If our clients have a taxable estate or need a
2495living trust, we refer them to a Board Certified Estate Planning attorney.
2496Review your debt situation. Close joint credit cards or have your name
2497removed from them, if possible. Call the creditor first to minimize negative
2498impact on your credit report. Sometimes closing accounts will negatively
2499impact your credit rating.
2500Make sure you understand your obligations under the Decree. You’ve
2501heard the statement that “ignorance of the law is no excuse.” It applies here. If
2502you don’t understand something, ask your lawyer now. If you fail to comply
250380
2504with the Divorce, the Judge will not likely be sympathetic to your plea of
2505ignorance.
2506If you are to make payments directly to your spouse, keep proof -
2507forever. It doesn’t matter how good you get along, at some time in the future
2508(sometimes many years later), you may have to prove that you made the
2509payments you were supposed to make. If you paid them to your spouse
2510directly, instead of through the Court, the burden will be on you to prove it.
2511Never pay cash. Keep your proof.
2512Consider consulting with a financial planner. Following divorce, you
2513will likely need to reevaluate your financial and retirement planning. A good
2514financial planner can help. If you need a referral, your lawyer should be able
2515to give you one. I have several that I refer to with confidence.
251681
2517C H A P T E R 2 2
251811 Steps to a No Nonsense Divorce
2519You picked up this book. You have read this far. Obviously, you are
2520serious about trying to divorce without ruining your life. Maybe you did not
2521even want the divorce to begin with. But, if it is going to happen, you want it
2522to be as painless as possible for you and your family.
2523This entire book has been aimed at helping you achieve that worthy
2524objective. However, I want to devote this chapter to providing you with some
2525practical steps you can take to reduce the pain and expense of the divorce
2526process and to survive the divorce with your dignity intact.
2527If you follow each of these steps you will be well on your way to a more
2528civilized divorce.
25291. Choose a lawyer who is a skilled negotiator and a skilled trial
2530attorney. If you’re doing a collaborative case, choose a skilled
2531collaborative attorney. Regardless of the type of case, it is usually
2532best for both parties to settle their case as soon as possible. When you
2533settle soon, you and your spouse save time, money and emotional
2534turmoil. So, you need a skilled negotiator who knows when to
2535compromise and when to take a stand - whether you are in litigation
2536or collaborative law. If negotiations are not successful, in a litigation
2537context, you need someone with courtroom experience who will
2538present your case in the best possible light to the Judge for the most
2539favorable outcome possible.
25402. Help your lawyer get financial documents and information. Your
2541lawyer can obtain the information through what is called the
2542discovery process. However, if you can obtain it, you can avoid much
2543if not all of the expense and delay that is often involved when the
2544lawyer has to entirely handle this aspect of the case.
25453. Don’t seek revenge. This only confuses, inflames and delays
2546everything. When both parties use the legal process to obtain
2547retribution, no one wins – except, perhaps, the lawyers.
25484. Communicate with your lawyer. Your lawyer must know all the
2549facts to adequately represent you and protect your interests. Be honest
255082
2551with him or her. Ive said it before....but it is worth repeating, lawyers
2552do not like surprises. It is unlikely that your divorce has elements
2553your lawyer has not heard of before. It is fairly difficult to shock a
2554divorce lawyer or a judge that hears family law matters. If you don’t
2555understand something, tell your lawyer so he or she can explain it to
2556you.
25575. If possible, have both spouses and their lawyers commit to end
2558the divorce quickly. This allows you to get on your feet without
2559delay and not drag out the process. Plus, you save money that you can
2560divide with your spouse, rather than giving it to the lawyers. Consider
2561alternative ways to resolve the divorce besides adversarial litigation,
2562such as collaborative law or mediation. (See the Your Options
2563chapter.)
25646. Look at your divorce as your opportunity to take control of a new
2565chapter in your life. You are not losing your identity. Divorce is the
2566process of handling the emotional, parenting and financial issues
2567involved in two spouses legally parting. Get emotional support from
2568friends and family, and seek professional counseling if appropriate.
25697. Aim for a fair settlement. We sometimes refer to the word “fair” as
2570the “f” word in divorces and ban it from discussions. Really, there is
2571nothing fair about divorce - and most likely you never hoped to or
2572thought you would be in this situation. But, your goal should not be
2573retribution. If it is, both you and your spouse will “lose” due to
2574increased legal expenses, a drawn-out process, and additional
2575emotional turmoil. On the other hand, don’t “give away the farm” in
2576an effort to try to win back your spouse or out of a sense of guilt.
2577Your objective should be to protect your interests through an
2578equitable settlement.
25798. Be civil with your spouse. Sometimes it is hard even to extend
2580common courtesy to your divorcing spouse. Often, they won’t
2581reciprocate. Nevertheless, doing so and taking the high road whenever
2582possible will help your chances of having a civilized divorce.
25839. If minor children are involved, don’t use them for your selfish
2584motivations. You should do everything in your power to keep the
2585children out of the middle. You should not use them to work out your
2586marital difficulties. Nor should you quiz them about time with the
2587other parent or talk with them at all about the divorce. Instead, focus
2588on your children’s needs and what is best for them. Let them know
2589that you will both always be their parents - despite the changing
2590design of your family. You will save money, time, energy and
259183
2592aggravation - and you will help your kids. If you insult your spouse,
2593on some level you are insulting them, because the other parent is a
2594part of them too.
259510. Take care of yourself – mind, body and spirit. If you are healthy
2596and energetic you stand a much better chance of achieving maximum
2597results. As a divorce lawyer, I deal with crises every day. I can tell
2598you that in order to do so effectively, you must attend to the proper
2599care of your mind, your body and your spirit and demand a balance in
2600your life.
2601a. For your mind - Get educated. You are doing that with this
2602book, and your lawyer should be able to educate you about your
2603case, the law and the process as well. Also, see the
2604Recommended Resources.
2605b. For your body – Monitor your diet. Exercise - even if it is only
2606a 30 minute walk each day. Drink water. Limit alcohol. If you
2607use non-prescription or street drugs, even pot, stop. Hair follicle
2608tests can detect most drugs for a six month period. And yes,
2609there are tests for synthetic pot now and all of the tests I know
2610of are negative or positive only. It’s like taking a pregnancy test
2611- you are positive for a substance within the time frame or you
2612are not. And do not think you can trick the system. Shaving off
2613all of your hair will not work - unless you are also willing to
2614remove your own fingernails. There are no pills or drinks to
2615dilute a hair follicle or nail test. Besides, taking care of your
2616body will elevate your mood, enhance your performance and
2617clear your mind. All of which are a good thing during a time of
2618crisis, like a divorce.
2619c. For your spirit – Worship. Pray. Meditate. Read the Scriptures.
2620Receive encouragement from your friends and family. Consider
2621getting counseling from a trained mental health professional.
2622Remember, this too shall pass. Do not let this ruin your life -
2623you have a choice.
26241. Keep the end in mind. Take a mission minded approach. Remember
2625what your long-term goal is. When you are tempted to lash out in a
2626way that will be detrimental to your interests, ask yourself whether
2627your action will make it more likely or less likely that your action will
2628help you achieve your long term goals. Try to be flexible in your
2629thinking and not black and white. Try, however hard it may be, to
2630keep your responses and behaviors moderate.
263184
2632C H A P T E R 2 3
2633Collaborative Law
2634I’ve made reference in several places in this book to collaborative law.
2635Collaborative law is a form of alternative dispute resolution. It is similar to
2636mediation in some respects, but it’s not the same thing. Faith based
2637organizations (churches, synagogues, etc.) as well as mental health
2638professionals (marriage counselors, psychologists, and psychiatrists) are
2639extremely supportive of this movement in family law. Personally, I think that
2640if you have to divorce, it’s the best way to do it. It is not the least expensive,
2641but it is certainly not the most expensive either.
2642In Texas, we have a statute governing collaborative law. In fact, Texas was
2643the first state to have a law governing collaborative family cases, thus
2644allowing Texans to use collaborative law as statutory means for obtaining a
2645divorce and/or settling a suit affecting the parent-child relationship (SAPCR).
2646In May of 2011, the Texas legislature unanimously passed the Uniform
2647Collaborative Law Act developed by the National Conference of
2648Commissioners on Uniform State Laws (NCCUSL).
2649Collaborative cases in Texas usually use a team approach and employ
2650interest-based negotiation as a process for parties to settle their family law
2651case outside of court. So what’s a team approach? The team usually consists
2652of each party’s lawyer, a facilitator (a mental health professional who is
2653collaboratively trained) and a financial professional (usually a CPA or
2654Certified Divorce Financial Analyst, who is also collaboratively trained). By
2655statute, both parties must have their own lawyer and must sign a collaborative
2656contract. The other professionals often referred to as the “neutrals” or the
2657“allied professionals” while not required by statute, are strongly
2658recommended by most lawyers who participate in collaborative cases. The
2659two lawyers and the neutrals are referred to as the “team”. In my opinion, it is
2660critical that both lawyers and all of the team members be collaboratively
2661trained and active in the collaborative community. It is more likely that you
2662will have a successful collaborative case if all of the team members work well
2663together, respect each other and are experienced in collaborative law.
2664Generally, the neutrals will not participate with the parties post divorce and
266585
2666are not allowed to testify, should the parties ever wind up in court. One
2667exception to post divorce work is that the facilitator will occasionally serve in
2668a continuing role as a parenting coach or even a “tie breaker” in certain cases
2669where the parties agree to such as a part of their final settlement. A facilitator
2670never engages in marital counseling or individual counseling for either party
2671or their children. Likewise, occasionally, the financial professional can assist
2672the parties post divorce with tax issues, but they do not ever sell product to or
2673become the individual financial advisor for either client.
2674The parties and the team sign a contract. The contract states that neither of
2675the parties will try to take the case to court and that the parties will work with
2676the team in a confidential environment to achieve an out of court settlement.
2677If either party decides they want to go to court, they must formally terminate
2678the collaborative process. If they do terminate, they must each obtain a new
2679lawyer or represent themselves in court. Opponents of collaborative law often
2680make a big deal about this. They will say, “you don’t want to pick
2681collaborative, because if it fails, you wont be able to use me as your lawyer.”
2682In my opinion a sign of someone, usually a lawyer, who does not know what
2683they are talking about. There are plenty of divorce lawyers around. In the
2684unlikely chance that you choose a good collaborative attorney and opt out of
2685the collaborative process, your collaborative lawyer can refer you to a more
2686than competent colleague to litigate your case. The collaborative lawyers, as
2687well as the team (with few exceptions), are prohibited from participating in
2688litigation between the parties. Most collaborative cases do settle within the
2689collaborative process. To date, I have completed well over 150 collaborative
2690cases and I have had a total of five cases opt out of the collaborative process,
2691so the success rate is very high.
2692On average, a collaborative case has 4-6 meetings, which are about 2 hours
2693each in length. There are also offline meetings between the lawyers and
2694client(s), and other team members and clients and just the team in between the
2695big meetings. The big meetings are called joint sessions or joint meetings.
2696Typically, I will meet with my client for half an hour or less (sometimes by
2697phone) prior to a joint meeting, then we have a debrief meeting (usually by
2698phone) after the joint meeting. In addition, the team meets for about half an
2699hour immediately prior to the joint meeting and again, after the meeting.
2700After most meetings, the parties, as well as the professionals will have
2701tasks, homework or action items that need to be completed before the next
2702meeting. An example of an action item might be for the parties to obtain their
2703credit reports and give them to the financial professional prior to the next
2704meeting, or to get the Kelly Blue Book value of their vehicles and the pay off
2705amount if they are financed. An action item for one of the professionals might
270686
2707be to update the list of assets and liabilities spreadsheet (financial
2708professional) or draft and circulate the minutes (attorney) or summarize the
2709parenting plan agreements reached by the parties (facilitator).
2710Interest Based Negotiation
2711We use interest based negotiation in collaborative cases. It is a method for
2712settling cases where we ask the parties to list their goals (called interests) in
2713the case. Ideally, this occurs before the first joint meeting. Often, the parties
2714work with the facilitator to come up with this list and the facilitator will put
2715the list into written form. Many lawyers and facilitators, use Willam Ury’s
2716example “Story of the Orange” in his book, “Getting to Yes,” as a way of
2717illustrating interest based negotiation.
2718In short, the “Story of the Orange” is as follows: Two children quarrel over
2719an orange. The traditional law model resolves the dispute of the children by
2720the judge dividing the orange between the parties, taking into account the
2721facts at hand (or the evidence). If the same children use interest based
2722negotiation to resolve their dispute, the judge asks each child why he or she
2723wants the orange (in short, what is your interest or goal?). If one child wants
2724to make orange juice and the other needs the rind or zest for a cake, the judge
2725can actually meet the needs (or interests) of both children without consulting
2726the statute. Obviously, this parable is an oversimplification of how interest
2727based negotiation works in real life disputes. It is not meant to suggest that
2728our collaborative clients can frequently both get all of what they want when
2729there is a dispute. We can, however, by using interest based negotiation, meet
2730more of the needs or wishes of our clients that we can using the traditional
2731law method. An added benefit to interest based negotiation and collaborative
2732law in general is that the parties decide their fate and that of their children.
2733We give them a procedure and tools to use to get there, but ultimately the
2734parties, not a judge makes the decision.
2735In most collaborative cases, interests are shared at the first meeting and are
2736used as the foundation of the negotiations between the parties. The interests
2737are updated and prioritized as we go through the case. An interest is usually
2738the “why” behind what it is that you think you want, not the item itself. For
2739example, an interest is:
2740NOT: “I want the silver Volvo,”
2741IT IS: “I want safe and reliable transportation, without a car note.”
2742NOT: “I want primary custody,”
2743IT IS: “I want to spend as much time with the children as possible” or “I
2744want to be involved in the children’s daily routines and homework”
2745NOT: “I want to keep the house”
2746IT IS: “I want the children to be able to maintain the relationships with
274787
2748their neighborhood friends” or “I want stability for the children and to change
2749their routines as little as possible”
2750There are various reasons for why we are strict about how your interests are
2751stated. One is, we want you to be creative and flexible in your thinking. If you
2752have one end solution in mind, it will hinder your ability to brainstorm and
2753consider other options. Also, the minute you say, “I want primary custody, the
2754silver Volvo, or the house” your spouse is immediately jumping to “No
2755way….I’m getting that” …or “I’ll never agree to that.” Your spouse is not
2756likely, however, to argue with you saying, “I want safe and reliable
2757transportation,” or “I want stability for the children,” etc.
2758Confidentiality and Informed Consent
2759Confidentiality and Informed Consent are also pillars of the collaborative
2760process. Much like mediation, our collaborative joint meetings are
2761confidential in nature. In other words, if the parties ever end up in litigation,
2762none of the team members can be subpoenaed to testify, with very few
2763exceptions. For example, you could not ask a party on the stand about what
2764options they were willing to consider or offered in the collaborative process.
2765On the other hand, if one of the parties discloses in a collaborative meeting
2766that they hid $1 million dollars in the back yard, you can bet that any lawyer
2767in the courtroom is going to find a way to get that fact into evidence. They
2768just can’t say, “In collaborative meeting number 2 did you tell your wife that
2769you hid $1 million dollars in the back yard.” Likewise, any information that
2770leads any of the team to have concerns about the abuse of a child or elderly
2771person is exempt from a duty of confidentiality. In fact, the lawyers, as well
2772as most facilitators are mandatory reporters by state law and cold lose their
2773licenses if they failed to report such abuse.
2774Informed consent is a more recent component to collaborative practice.
2775Lawyers have a duty to educate their clients about each of the ways they can
2776settle their case: litigation, informal settlement, mediation, collaborative law,
2777arbitration and how each of these processes differ. Primarily, lawyers need to
2778make sure that their clients understand that they are giving up their right to set
2779a hearing in their case without formal notice and a cooling off period
2780(required by state law). If there is an emergency (such as parental kidnapping
2781or domestic violence), this cooling off period is waived and the collaborative
2782lawyer can actually participate in an emergency hearing with his or her client.
2783After the emergency hearing, however, the lawyer must terminate the
2784collaborative case and transition the client to another attorney to proceed in
2785court. I personally do not know of any case where a collaborative lawyer has
2786had to do this. I assume it has happened somewhere though, or they law
2787would not have changed to allow this in 2011.
278888
2789We use what we call the Collaborative Road Map or the Road Map to
2790Resolution to navigate the divorce or custody case that is handled
2791collaboratively. On a high level the Road Map is as follows: (1) Identify
2792interests, (2) Gather information, (3) Generate Options, (4) Negotiate, (5)
2793Draft order (attorneys) and finalize case. An average case will have 4-6
2794meetings spanning over a 4-5 month period of time. Sometimes, clients will
2795have the urge to press forward to the negotiation stage. The team will work
2796together to assist the clients in going through each of the required steps in the
2797road map. We often give the example to clients of what you do when you
2798climb a mountain. If you don’t go through the proper steps and just set out to
2799race up the mountain, you are doomed to fail and possibly get injured along
2800the way. If you wear the proper footwear and other gear, bring enough water
2801and snacks, put on sun block, etc. your chances for success are much greater.
2802You plan and take precautions, perhaps even have a guide or at least a trail
2803map. As a collaborative team (assuming you pick an experienced team), this
2804is not our first rodeo. We have guided other folks through the same issues you
2805and your family are struggling with. The road map has been tested and it does
2806work. If you skip steps, you will jeopardize, maybe even derail your case. We
2807realize going through the steps can be tedious, and at times frustrating. It’s a
2808divorce or a child custody suit. As tedious as it may seem in collaborative, I
2809can almost assure you, you will find many frustrations with the “system”
2810down at the courthouse. There are too many cases and not enough judges.
2811Many judges do not like hearing family law matters. They, unlike your team,
2812are not going to ask you about your interests or take the time to explore the
2813best custom option for your family. They will apply the family code. In
2814essence, they will get out their cookie cutter and do the best they can to get
2815through their docket so that they can get up and do it all again tomorrow.
2816We do not exchange sworn inventories in a collaborative case and typically
2817do not conduct formal discovery. Instead of discovery, we work through the
2818financial professional and the facilitator to gather the information needed for
2819the parties to negotiate.
2820All collaborative case should sign a sworn inventory spreadsheet (list of
2821debts and assets with a sworn affirmation) prior signing a final order or a
2822settlement agreement. In most cases, particularly where there are minor
2823children, the parties work with the financial professional to put together
2824budgets. Depending on the nature of the case and wishes of the parties, the
2825financial professional prepares projections for the clients, based on their
2826individual budgets. Sometimes we do a “child budget” to try to assist with
2827negotiating child support. The second meeting is usually focused on the
2828financial professional going over initial asset and liability spreadsheets and
282989
2830budgets. This is referred to as the information-gathering phase of the case.
2831The vast majority of my clients with minor children get most, if not all, of
2832their parenting issues resolved in off line meetings with the facilitator.
2833Usually at the second and other future meetings, the facilitator will give a
2834status report or update of where the parties are in their parenting plan and
2835what homework (if any) needs to be done. Homework from the facilitator
2836usually consists of things like finding out costs of daycare or aftercare,
2837coming up with a list of the extracurricular activities that the parties agree (or
2838disagree on) for the children, etc… While most parties do get their child
2839issues resolved with the facilitator, nothing is final until it is discussed with
2840the attorneys and memorialized into a final order or a collaborative law
2841settlement agreement.
2842Once all of the necessary information has been gathered, the case enters the
2843option generation phase. At this stage, the lawyers may do some educating
2844about what the court model might look like in your case. This is to help you to
2845think outside of the box. If you do not know what the “box” looks like, then
2846you cant very well think outside of it. The team members may generate
2847options also. Some may seem ridiculous to you—that is okay. You will not
2848agree to something that is ridiculous, right? Putting it on the board as an
2849option does no harm…and it might help you think of something else. In a
2850collaborative case, like other out of court settlements between parties, we do
2851not have the same limitations that the court has. For example, in court, a
2852Texas judge cannot deprive a party of his or her separate property… even if
2853that person is the worst spouse and parent in the world. They can use it for
2854child support purposes, but they cannot take one party’s separate property and
2855award it to the other. In a collaborative setting, I have seen a party agree to
2856give some of their separate property to their spouse in order to resolve the
2857case or in order to get something else that they wanted. Likewise, I have even
2858heard of a case where a spouse allowed his stepdaughter and ex wife to
2859remain in his separate property home for minimal rent, for several years, so
2860that his stepdaughter, whom he loved, could finish high school in the
2861neighborhood and home where she began it. There is no way a judge could
2862have ordered this man to do this. But it worked in this case and the parties
2863probably wouldn’t have arrived at this conclusion without serious
2864collaboration. In a nutshell, this is brainstorming of settlement options.
2865Sometimes this is a live discussion during a joint meeting, where the
2866facilitator is writing options on a dry erase board. Other times (usually in
2867more complex cases), each party will meet with the financial professional and
2868their lawyer to come up with 2-3 acceptable options to put on the table at the
2869next joint meeting.
287090
2871More often than not before entering into a final order, parties in a
2872collaborative law settlement agreement (“CLSA”). This agreement is akin to a
2873mediated settlement agreement (“MSA”) or a final binding settlement
2874agreement (called a Rule 6.604 agreement in Texas), wherein, the parties
2875reach a final irrevocable settlement of their case. A CLSA typically contains:
2876(1) the division of assets and liabilities spreadsheet (made from the sworn
2877inventory spreadsheet) and (2) the parenting plan (usually developed with the
2878facilitator). Other agreements reached (for example, how taxes will be
2879handled, or provisions for selling the house) are in the body of the CLSA. A
2880CLSA, like a MSA and a Rule 6.604 Final Settlement Agreement, can only be
2881overturned in the event of fraud or duress. The parties are “entitled to
2882judgment as a matter of law” on these agreements. In other words, the
2883threshold to undo one of these types of agreements is extremely high and it is
2884rare that a party will be successful in “undoing” a signed CLSA. At the time
2885of writing this book, the trend, at least were I practice is to enter into a CLSA
2886before the attorneys draft the final decree and closing documents. Generally,
2887this is to prevent parties from changing their minds or to prevent a case from
2888unraveling after everyone thought it was over.
2889Once the CLSA is signed, then the lawyers draft the final order. Some
2890people actually get divorced on the basis of their CLSA (the same can be
2891done with an MSA or Rule 6.604 agreement). If this occurs, one party
2892accompanies one lawyer (typically their own) to the courthouse for a very
2893brief hearing where the divorce is granted. The prove up hearing is not an
2894evidentiary hearing. It is simply confirming the sworn agreements reached by
2895the parties based on the settlement agreement. If the prove up hearing is
2896performed on the basis of a settlement agreement, then one of the lawyers will
2897typically have the final decree (which is the order) entered at a later date. No
2898court appearance by either party will be necessary if an order is entered after a
2899prove up hearing based on a settlement agreement. Getting a decree drafted
2900and approved by both lawyers and both parties typically takes 3-4 weeks. In
2901my opinion, best practice is to get both lawyers on the same page before
2902having the parties review the decree. Hopefully this prevents the parties
2903having to review multiple drafts and does not seem one-sided. In my opinion,
2904it is not collaborative to say, “My lawyer drafted the decree, so I get to see it
2905first.” That is an adversarial attitude. I have my clients agree upfront that
2906when we get to that stage, the parties will be given the draft at the same time.
2907Usually, once we are in the drafting stage, no additional meetings are
2908required. There are, of course, exceptions. For instance, we might need to
2909meet if we realize we left something out or if something new comes up. It is
2910rare though. In a perfect world, most collaborative attorneys and teams would
291191
2912prefer to have a final meeting, just to bless everything and confirm
2913agreements. However, in reality, this is often cost prohibitive and the parties
2914do not wish to incur the cost of an extra meeting to finalize.
2915Collaborative practice has come a long way since it made its appearance in
2916Texas back in the early 2000s. Hopefully, it will continue to grow. As a
2917family lawyer, I believe it is a way to take better care of our clients and give
2918them tools for success with their ex spouse in the future. Above all, I think it
2919is the best system for keeping children out of the middle and minimizing the
2920trauma to them caused by a divorce or custody suit. I believe that it is a
2921process that empowers individuals in a family law case and as a lawyer, I
2922sleep better at night knowing that I offer this service to the people who pass
2923through my office. I have never, not once, seen a co-parenting or “ex spouse”
2924relationship improved down at the courthouse. I have witnessed it many times
2925in collaborative law.
292692
2927C H A P T E R 2 4
2928Tools and Strategies for Navigating High Conflict
2929Situations
2930It seems like today, more than ever, we are seeing a proliferation of high
2931conflict cases in family law. These cases often involve individuals with
2932personality disorders or mental health problems. These core issues are often
2933exacerbated by a substance abuse problem, parental alienation or domestic
2934violence. Over the past decade, I have watched as my profession and our
2935judges turn to the mental health community for solutions on what to do with
2936these cases. They are tragic and toxic for all involved.
2937In a courtroom setting, these are the cases that end up requiring
2938psychological evaluations, court ordered anger management, court ordered
2939treatment programs, court appointed guardian ad litems, court ordered parent
2940coordinators or facilitators, etc. Regardless of how big the estate is or the
2941resources of the parties, these cases are incredibly expensive to try in the
2942courtroom. The experts have to be paid. We often need multiple subpoenas to
2943issue, witnesses to interview, depositions to take, etc. It is the absolute most
2944expensive route to take in family law. It is also the absolute most damaging
2945thing for children - in my humble opinion.
2946At the time of writing this book, I am recently certified in the New Ways
2947For Families Program.
2948New Ways 4 Families - www.newways4families.com
2949This is a program that judges are ordering for some high conflict families in
2950the jurisdictions where I practice. At this time, the program is in its infancy
2951and I do not know whether it will be a permanent fixture in our court system
2952or not. If parties are ordered into New Ways, they will be required to either
2953(1) attend a series of individual counseling sessions, followed by parent
2954counseling sessions and mediation (a 12 week program), or (2) attend a new
2955ways class where they will not discuss their individual case, but will go
2956through hypothetical cases to try to learn the same skill set at a lower cost.
295793
2958The first option is the only one being currently offered or ordered where I
2959live. Professionals are hopeful that since it is therapy that is being ordered,
2960some participants may be able to utilize health insurance to ease the cost.
2961There is also a New Ways model for collaborative law and well as for
2962mediation. There is skepticism among professionals regarding costs and how
2963this differs from appointing guardian ad litems and ordering parties into
2964counseling. Having taken the training, I believe that it differs from the “old”
2965method, in that it uses a copyrighted workbook system, along with a
2966specifically prescribed set of counseling sessions. My hope is that it will
2967ensure more accountability and keep cases from stalling out.
2968High conflict cases are the most difficult part of what we as family lawyers
2969do. I am willing to try anything to help these clients and ultimately, their
2970children. I am hopeful that New Ways is a step in the right direction.
297194
2972C H A P T E R 2 5
297315 Ways to Guarantee a Divorce from Hell
2974This book is designed to help you have a civilized divorce. A divorce
2975without mass destruction. A divorce that allows you to reach long-term
2976positive results.
2977But, sometimes, I come across people who are intent on NOT having a
2978better, more civilized divorce. They may even be good people apart from their
2979divorce. But, for whatever reason they are hurt or angry or frustrated and they
2980have decided that they are not willing to do the things necessary to divorce
2981with dignity and avoid the collateral damage that often results from a nasty
2982divorce. They want the divorce from hell.
2983If you think that's something you're interested in, I thought I'd give you
2984some tips that I've learned from some of these people. Ignore the rest of this
2985book and follow these steps instead. It will guarantee that you will maximize
2986the pain and damage of your divorce.
29871. Lie. Lie to your spouse. Lie to your lawyer. Especially, lie to the
2988Judge. Trust and honesty are overrated. They will all deceive and
2989scam you, so you should beat them to it. Cheat, trick, deceive,
2990swindle, and scam. Don’t disclose all of your assets and hide money,
2991too. It is a great strategy and sure to help you have the divorce from
2992hell.
29932. Get your kids involved. Divorce is unpleasant enough on it's own. If
2994you really get your kids involved and start using them against your
2995spouse it's easy to make it much, much worse - on you and your kids.
2996Tell the kids all of your spouse’s faults. Use them like your best
2997friend and tell them absolutely everything. Make them a go between.
2998Put them in the middle. Force them to choose between you and your
2999spouse. Fight a custody battle even though you know your spouse is
3000really a good parent. They were not a good spouse, so they deserve it.
3001Yeah, you might scar your kids for life, but your spouse can pay the
3002therapy bills for them. They will need them for a long time.
30033. Don't listen to your lawyer. Instead, get legal advice from your
3004friends and family. This is a personal favorite of mine. I know you
300595
3006hired a qualified attorney who specializes in divorce to guide you
3007thought this legal matter, but he or she couldn't possibly know as
3008much about the law as your aunt Dorothy who has been divorced 3
3009times...or Susie from the nail salon or country club or Billy from the
3010golf course or bar - better yet, the dude from the local strip club. Tell
3011your lawyer what she should be doing in your case. Turn down
3012settlement offers that your lawyer tells you are reasonable, but that
3013your well meaning, but untrained friends and family tell you are
3014outrageous. Sure, it is not their life and they aren’t paying the
3015financial and emotional costs of unnecessarily prolonging your
3016divorce case, but how could they be wrong. I mean they know
3017someone who got divorced and their spouse had to pay much more
3018than your spouse if offering to pay.
30194. Raid the bank accounts. I mean clean them out. This is a great way
3020to let everyone know who is in charge, and it really sets the tone
3021early. Besides your spouse would probably do it if they thought of it
3022first. So, cut your spouse off from all of the assets. Don't let them
3023have any money to live or to hire an attorney. The Judge won’t care.
3024You probably earned that money anyway, right?
30255. Start dating immediately. If you'd like to make your spouse even
3026less willing to try to reach an agreement, then start dating and make
3027sure you tell them about it. Forget the effect it might have on the kids
3028when their friends’ start asking them questions. The marriage has
3029been over for years. Why pretend? The divorce is just a formality at
3030this point anyway. And, it doesn’t matter that it is technically still
3031adultery. Judges don’t care about that stuff anyway. Heck, your
3032spouse would do it if they could find someone willing to date them.
30336. Blow money. Make big purchases. Incur as much debt as possible.
3034Spend, spend, spend. This one does two things. First, it is just more
3035stuff to try and divide during the divorce. Second, since money is
3036often an issue in struggling marriages n the first place, it can give you
3037just a little bit more to argue about and cause everyone more anxiety.
3038Plus, the judge will stick your spouse with all of the bills anyway,
3039right?
30407. Don't do anything. If you really want to frustrate everyone, including
3041your own lawyer, don't do anything. Don’t cooperate with moving the
3042case forward. Don't call your lawyer back. Don't respond to emails or
3043letters or show up for meetings. Don’t cooperate with providing the
3044documents your spouse’s lawyer requested or that have been asked
3045for by the other side in discovery. Just ignore it all. Maybe it will go
304696
3047away.
30488. If your spouse denies visitation, don’t send child support. If your
3049spouse doesn’t send child support, don’t let them see the kids. Forget
3050the fact that child support and visitation are legally considered
3051independent of one each other. If your spouse isn’t doing what they
3052are supposed to, why should you? You’re a cowboy/cowgirl, take
3053matters into your own hands and show them what for. Two wrongs do
3054make a right in a divorce. Forget the effect this might have on your
3055own children (see #2 above regarding your children’s therapy bills).
30569. Falsely accuse your spouse of domestic violence, or better yet,
3057sexual abuse. This is a very effective trick. After all, it’s your word
3058against theirs. You know all of the buttons to push. Surely you can get
3059them to lose their temper and put their hands on you. And, as soon as
3060you do, call 911. This will give you a leg up in the divorce. Forget
3061that your spouse has never abused you. Those are just details and the
3062ends justify the means. Desperate times call for desperate measures.
3063Don’t worry that law enforcement and the court systems have trouble
3064enough serving real victims of domestic abuse or that false claims of
3065abuse make it harder for true victims to be believed and protected.
3066This is your divorce case we’re talking about. Oh, and don’t worry
3067about the damage it will cause the children when their parent is
3068arrested and put in the back of a police cruiser in your driveway. They
3069are tough and they will get over it.
307010. Threaten, cajole and intimidate your spouse into settling. They are
3071very effective. Ignore the fact that it will prevent you from ever
3072working out a settlement with your spouse because they won’t trust
3073you. Plus, it just feels good to see them squirm, doesn’t it? Here are
3074some good ones you can use:
3075Your lawyer doesn’t know what she is doing.
3076My lawyer knows all of the Judges.
3077I’ve got the best lawyer in town and he is going to destroy you.
3078I’m going to take the children from you and you’ll never see them
3079again.
3080I’ll never give you a dime.
30811. Believe your spouse’s threats and not your own lawyer. This is the
3082converse to number 10. And, it is a great way to add to your anxiety
3083and stress and to make poor decisions. If your spouse makes those
3084threats to you, believe them even if your lawyer says not to worry
3085about it. Ignore the fact that your lawyer is on your side. Ignore the
3086fact that you are going through a divorce with this person so maybe
308797
3088they are trying to intimidate you. You should take every threat to
3089heart, worry about it a lot and then capitulate and give your spouse
3090whatever they ask even if it is against your lawyer’s advice.
30912. Hire the meanest lawyer in town. Ask around for the divorce lawyer
3092who is the “biggest S.O.B. in town.” He or she won’t be hard to find.
3093Then make him your “personal weapon of mass destruction.” This is
3094the surest way to guarantee the divorce from hell. Heck, they might
3095even coach you to do some of the other things on this list. If they do,
3096you know you’ve got your man (another way to tell if you’ve got your
3097man is that, if asked, they will tell you that the rest of this book is not
3098worth reading, that the idea of a civilized divorce is silly at best and
3099ignorant and damaging at worst, and that this book’s author is an
3100idiot). They won’t settle. They will stonewall the other side. They will
3101help you to use every technicality you can to avoid disclosure whether
3102it benefits your long term interests are not. They will not suggest
3103alternative ways to resolve your case like mediation. Yes, fighting
3104everything and never giving an inch will make sure they make a lot
3105more money off of you and nuke your family's financial resources,
3106but it will be worth it to see them hammer your spouse on the stand.
3107Cooperation is for wimps, and divorce is war.
31083. Hire the cheapest attorney in town. My momma taught me that
3109things were cheap for a reason, and you get what you pay for. But,
3110what did she know? A lawyer is a lawyer, right? If they have a law
3111degree, they must know how to handle a divorce case. Never mind
3112that they are not sure where the divorce court is. How complicated
3113can a divorce be anyway? Tax ramifications of a property settlement,
3114proper determination of income, custody of your kids – it is all pretty
3115straight forward, right? No need to pay for a specialist. It doesn’t
3116matter that if I need knee surgery or heart surgery, I won’t go to a
3117general practitioner. That’s different.
31184. Boss your lawyer’s staff around and be rude and demanding to
3119them. Lawyers love this! This will ensure that everyone in the office
3120wants to take your calls and work on your case. Complain a lot and
3121yell at the staff. You will be that “special” client.
31225. Drink a lot of alcohol (or do drugs) - especially the night before a
3123hearing or important meeting. If you’re lucky, maybe you will get a
3124DWI and have to miss your hearing. Then your lawyer can refer you
3125to their criminal attorney friend and you can pay yet another lawyer.
3126Needless to say, this will do wonders for your custody case!
312798
3128C H A P T E R 2 6
3129What’s Next?
3130I have tried to provide you some general information in this book to help
3131alleviate some of the questions you may be asking. But, as I noted in the
3132book’s opening, it is impossible for me to give you specific advice about your
3133particular case without meeting with you and discussing your situation in
3134some detail.
3135It is understandable if you are worried. Divorce is a fateful decision. Maybe
3136you do not want the divorce. Many people in a troubled marriage need to
3137know their alternatives and choices, but are afraid to see an attorney because
3138it seems an irrevocable step on the road to divorce. It needn’t be. Seeing a
3139lawyer does not mean you have definitely decided to divorce, but it can
3140remove one important source of stress: fear of the unknown.
3141Wherever you are in the process, I strongly encourage you to meet with a
3142lawyer in your community who can answer your specific questions. I have
3143tried to give you information to help you decide with whom to meet. If you
3144are in Travis, Williamson, Hays, Bastrop or Caldwell counties and think you
3145would benefit from meeting with me, then read on to see how to set up a
3146meeting with me. If you are outside of the counties where I practice, seek a
3147local referral. You can even e-mail me and let me know what county your
3148case is in and if I can, I will try to provide you a referral to a qualified lawyer
3149in your area. Another good way to find an experienced divorce attorney is to
3150go to www.tbls.org and search for a board certified family law attorney in
3151your county. If you are looking at a collaborative case, another step you might
3152take is searching on the site for the Collaborative Law Institute of Texas
3153www.collablawtexas.com or going to the site for the International Association
3154of Collaborative Professionals www.collaborativepractice.com. The main
3155thing is for you to meet with someone that will help relieve some of the
3156anxiety you are probably feeling.
3157Need Help in Travis, Williamson, Hays, Caldwell or Bastrop County?
3158If your case will take place in Travis, Williamson, Hays, Caldwell or
3159Bastrop County and you would like to find out about me handling your case, I
316099
3161invite you to call and schedule an initial consultation.
3162We will schedule a personal, private consultation where you will find out
3163everything you need to know to make an informed decision, without
3164committing yourself to any specific course of action. You’ll find out the
3165things you should do “just in case” and the things you absolutely should not
3166do. And, you can find out how the general information in this book will apply
3167in your specific family circumstances.
3168I view my job as to compassionately listen and explain your alternatives,
3169not to encourage you to get a divorce or fan the flames of conflict you may be
3170experiencing. In fact, I do not promote divorce at all. But, I do help my clients
3171and their families deal with its harsh realities when it becomes unavoidable.
3172What does an Initial Consultation cost?
3173There is a fee for the meeting (you can contact my office or visit our
3174websites to determine the current pricing). At the time of the writing of this
3175book, I am offering initial consultations at a greatly discounted hourly rate of
3176$150 per hour for up to 2 hours of meeting time.
3177It’s guaranteed.
3178I know. Lawyers don’t guarantee anything. But, in this case, I do. If, after
3179the Initial Consultation you feel the information you received was not
3180valuable or important enough to warrant the fee, I will refund your money and
3181we will part as friends, no questions asked.
3182Call my office at (512) 481-0330 to schedule your discreet, guaranteed
3183Divorce Initial Consultation. If an in-office visit isn’t convenient, I do
3184consultations via Skype or phone too. You can also schedule an initial
3185consultation online here:
3186Schedule Initial Consultation -> http://www.truslerlaw.com/initial-consultation/
3187If you end up coming to see me, then I am glad the end of this book is not
3188the end of our relationship, but just the beginning. If I don’t have the
3189opportunity to meet with you then I sincerely hope this book will help you
3190and your family avoid a nasty, protracted and damaging divorce. If it plays
3191even a small role in doing so, then it will have been well worth the effort in
3192writing it.
3193100
3194A P P E N D I X A
3195Glossary of Divorce Terms
3196Adultery. Consensual sexual intercourse when one of the participants is
3197legally married to another person.
3198Alimony. Financial payments made to help support a spouse or former
3199spouse during separation or following divorce. In Texas this is typically
3200called post divorce spousal maintenance. It is also referred to during the
3201pendency of the case as temporary spousal maintenance or temporary spousal
3202support.
3203Alternative dispute resolution (ADR). Methods of resolving legal
3204disputes without going to trial, in a less adversarial manner, such as through
3205mediation or collaborative divorce.
3206Answer. An answer is the written response to a petition or motion.
3207Arrearage. The amount of money that is past due for child or spousal
3208support.
3209Caucus Style. The type of mediation where opposing parties are generally
3210in separate rooms with their lawyer and the mediator travels back and forth
3211between the rooms in attempt to facilitate a settlement. This is the most
3212common type of mediation in Texas divorces.
3213Child support. Money that a parent pays to the other parent or conservator
3214for their child(ren)'s support.
3215Child support guidelines. Guidelines established by the Texas Family
3216Code that set forth the manner in which guideline child support is calculated.
3217Community property. Generally, all property acquired during the
3218marriage.
3219Contempt. The failure to follow a court order.
3220Custody. Having rights to your child. In Texas, custody is primarily related
3221to making important decisions about your child's welfare, or physical, which
3222is related to where the child resides.
3223Decree. The court's written order or decision finalizing the divorce.
3224Default. A type of judgment that can be taken when the respondent fails to
3225answer a Petition for divorce or when notice if given for a final trial after a
3226waiver or answer is filed, but a party fails to appear, despite proper notice.
3227101
3228Failing to file an answer or appear in court as required can result in the court
3229awarding everything requested by the filing / requesting spouse.
3230Deposition. Part of the discovery or information-exchanging process of a
3231legal proceeding, in which the attorney for the other party asks you questions,
3232you answer with your attorney present, and a transcript of the proceedings is
3233prepared. The answers you give in a deposition are given under oath.
3234Discovery. The information-exchanging process of a legal proceeding,
3235including serving and answering interrogatories and requests for production
3236of documents, and taking depositions.
3237Dissolution. Another word for divorce, which is the legal termination of a
3238marriage relationship.
3239Divorce. The legal termination of a marriage relationship.
3240Equitable distribution. A division of property that is “just and right under
3241the law” Equitable does not necessarily mean equal.
3242Interrogatories. Written questions served by the opposing party that must
3243be answered in writing as part of the discovery process.
3244Joint managing conservatorship. The sharing, by both parents, of the
3245rights and duties to make important decisions about a child's welfare.
3246Mediation. A form of alternative dispute resolution (ADR) for resolving
3247legal disputes without going to trial, by the use of a trained and impartial third
3248party who attempts to bring the parties together in mutual agreement.
3249Minor. A child below the age of 18.
3250No Fault Divorces. Divorces in which neither spouse is required to prove
3251"fault" or marital misconduct on the part of the other.
3252Non-custodial parent. The parent who does not have physical custody of
3253the child(ren).
3254Petition. The documents filed by a party to formally begin a lawsuit. In a
3255Texas divorce, this is called the Original Petition for Divorce.
3256Physical custody. The day-to-day rights and responsibilities associated
3257with having your child in your home and being responsible for his or her care
3258and upbringing.
3259Petitioner. The person who initiates legal proceedings.
3260Premarital agreement. An agreement entered into before marriage that
3261sets forth each party's rights and responsibilities should the marriage
3262terminate by death or divorce. Also called a prenuptial agreement or a marital
3263property agreement.
3264Qualified Domestic Relations Order (QDRO). Pronounced "kwah-dro,"
3265an order issued by the court to divide retirement benefits.
3266Reconciliation. When a married couple that is facing divorce decides to
3267remain married.
3268102
3269Respondent. The person against whom legal papers are filed in a divorce
3270suit.
3271Restraining order. An order issued by the court requiring the subject of
3272the order to refrain from taking some action.
3273Separate property. Generally, property owned by either spouse prior to
3274marriage or acquired by them individually, such as by gift or inheritance,
3275during the marriage.
3276Service of Process. The formal act of providing a copy of the papers being
3277filed to the opposing party.
3278Split custody. A form of custody (generally not looked upon favorably) in
3279which some or one of the parties' children is/are in the custody of one parent
3280and the remaining child(ren) is/are in the custody of the other parent.
3281Spousal support or maintenance. Financial payments made to help
3282support a spouse or former spouse during separation or following divorce.
3283Also called alimony.
3284Subpoena. A form issued by the court requiring someone to appear in
3285court and/or bring documents.
3286Visitation. The time that a non-custodial parent spends with his or her
3287child(ren).
3288103
3289A P P E N D I X B
3290Recommended Resources
3291Websites
3292www.austindivorcehelp.com - The author’s Divorce Education Center with
3293tips, information, and legal news related to divorce, child support, visitation,
3294and other family law related matters.
3295www.getmarriagehelp.com - Contains Texas Counselor directory and other
3296resources to help couples in struggling marriages to reconcile and avoid
3297divorce.
3298www.collablawtexas.com - The website for the Collaborative Law Institute
3299of Texas, which lists professionals trained in collaborative law from the legal,
3300mental health and financial communities and provides educational materials
3301and resources about collaborative law in Texas. The site has different sections
3302for members and for the public in order to get the right information to the
3303right people.
3304www.collaborativepractice.com - The website for the International
3305Association of Collaborative Professionals, which lists members by location
3306from around the world trained in collaborative law. This is an
3307interdisciplinary site which has educational materials and resources for the
3308public as well as for professionals.
3309www.tbls.org - The website for the Texas Board of Legal Specialization.
3310This site lists lawyers who are board certified, according to area of
3311specialization and location. The author is board certified in family law and
3312listed on this site.
3313www.texasbar.com - The website for the State Bar of Texas. You can
3314search for information about a specific attorney on this site to find out when
3315they were licensed, what their primary practice area(s) are, whether they are
3316Board Certified in any area and whether they have been disciplined by the
3317State Bar of Texas within the last 10 years.
3318www.aaml.org - The website for the American Association of Matrimonial
3319Lawyers. Contains educational materials and resources for individuals with
3320104
3321divorce and/or custody matters.
3322www.texcclaw.com - The website for the Texas College of Collaborative
3323Law. Contains information and materials for individuals considering
3324collaborative law or wanting to learn more about it. Also contains a
3325searchable list of lawyer members. The author is a member of the college.
3326www.austincollaborativelaw.com - The website for a local practice group
3327of collaborative lawyers in Austin, of which the author is a member.
3328www.highconflictinstitute.com - This website offers information and
3329resources for lawyers and judges, as well as individuals in family law dealing
3330with high conflict personalities.
3331www.newways4families.com - A new program in Texas at the time of
3332publishing this book. The author is certified in this new method for dealing
3333with high conflict family law cases. Judges are starting to order its use in
3334certain cases.
3335www.warshak.com - Excellent resource for families dealing with parental
3336alienation.
3337Books for Individuals Facing/Recovering from Divorce
3338The 7 Pitfalls of Single Parenting: What to Avoid to Help Your Children
3339Thrive After Divorce. Ellis, Carolyn. iUniverse, 2007
3340Custody Chaos, Personal Peace: Sharing Custody with an Ex Who Drives
3341You Crazy. Wittman, Jeffrey. Penguin Publishing, 2001.
3342The Collaborative Way to Divorce: The Revolutionary Method that Results
3343in Less Stress, Lower Costs, and Happier Kids-Without Going to Court.
3344Webb, Stuart and Ousky, Ronald. Hudson Street Press, 2006.
3345Mom’s House, Dad’s House: Making Two Homes for Your Child. Ricci,
3346Isolina. Fireside, 1997.
3347The Newly Divorced Book of Protocol: How to Be Civil When You Hate
3348Their Guts. Lintermans, Gloria. Barricade Books, 1995.
3349Putting Children First: A Guide for Parents Breaking Up. McDonough,
3350Hanna and Bartha, Christian. University of Toronto Press, 2000.
3351Spiritual Divorce: Divorce as a Catalyst for an Extraordinary Life. Ford,
3352Debbie. Harper Collins, 2002.
3353Don't Alienate The Kids! Raising Resilient Children While Avoiding High
3354Conflict Divorce, By Bill Eddy, LCSW, JD
3355Divorce Poison, By Dr. Richard A. Warshak.
3356Helping Your Kids Cope With Divorce the Sandcastles Way, By Neuman,
3357M. Gary/ Romanowski, Patricia, 1999.
3358Collaborative Divorce: The Revolutionary New Way to Restructure Your
3359105
3360Family, Resolve Legal Issues, and Move on with Your Life, by Pauline
3361Tessler, 2007.
3362Parenting After Divorce: Resolving Conflicts and Meeting Your Children's
3363Needs (Rebuilding Books) by Philip Michael Stahl
3364Children’s Age Appropriate Books on Divorce
3365Books for Your Preschooler
3366Dinosaurs Divorce: A Guide for Changing Families. Brown, Laurene
3367Krasny, and Brown, Marc, Boston: Little, Brown, and Co., 1986.
3368Mama and Daddy Bear’s Divorce. Spelman, Cornelia Maude. Albert
3369Whitman. 2001.
3370Mom and Dad Don’t Live Together Anymore. Stinson, Kathy. Annick
3371Press. 1985.
3372Please Come Home: A Child's Book about Divorce (Hurts of Childhood
3373Series). Sanford, Doris. Multomah Press. 1985.
3374Two Houses. Masurel, Claire. Candlewick Press. 2003.
3375Books for Your 5 to 8 Year Old
3376All Families Are Special. Simon, Norma. Albert Whitman & Co. 2003.
3377All Kinds of Families. Simon, Norma. Albert Whitman & Co. 1987.
3378At Daddy’s on Saturdays. Girard, Linda. Albert Whitman & Co. 1991.
3379Break-Up (Facing Up). Padoan, Gianni. Milan, Italy: Child’s Play, 1987.
3380Dinosaurs Divorce: A Guide for Changing Families. Brown, Laurene
3381Krasny, and Brown, arc. Boston: Little, Brown, and Co., 1986.
3382I Don’t Want to Talk About It: A Story About Divorce for Young Children.
3383Ransom, Jeanie Franz; Finney, Katherine Kuntz. American Psychological
3384Association. 2000.
33851. It’s Not Your Fault, KoKo Bear: A Read-Together Book for Parents and
3386Young Children During Divorce. Book Peddlers. 1998.
3387My Family’s Changing: A First Look at Family Breakup. Thomas, Pat.
3388Barron’s Educational Series. 1999.
3389My Mom and Dad Are Getting a Divorce. Bienfield, Florence. 1st Books
3390Library. 2002.
3391On the Day His Daddy Left. Adams, Eric J. Albert Whitman & Co. 2003.
3392When Mom and Dad Divorce. Menendez B. Aponte. Abbey Press. 1999.
3393Books for Your Preteen
3394Amber Brown Sees Red. Danzinger, Paula. Scholastic. 1998.
3395106
3396Dear Mr. Henshaw. Cleary, Beverly. Morrow, 1983.
3397Divorce Helpbook for Kids. MacGregor, Cynthia. Impact Publishers, Inc.
33982001.
3399Divorce is not the End of the World. Stern, Zoe; Stern, Evan; Stern, Ellen
3400Sue. Tricycle Press, 1997.
3401It’s Not the End of the World. Blume, Judy. New York: Dell, 1972.
3402Reissue.
3403My Parents are Divorced Too: A Book for Kids by Kids. Ford, Melanie, et
3404al. American Psychological Assoc. 1998.
3405Strider. Cleary Beverly. Harper Trophy. 1992.
3406What in the World Do You Do When Your Parents Divorce?: A Survival
3407Guide for Kids. Beyer, Roberta; Winchester, Kent. Free Spirit Publications,
3408Inc. 2001.
3409Books for Your Teen
3410Divorce Helpbook for Teens. MacGregor, Cynthia. Impact Publishers, Inc.
34112004.
3412Divorce is not the End of the World. Stern, Zoe; Stern, Evan; Stern, Ellen
3413Sue. Tricycle Press. 1997.
3414Moonlight Man, The. Fox, Paula. New York: Dell, 1988.
3415107
3416ABOUT THE AUTHOR
3417Cristi Trusler is a divorce lawyer in Austin, Texas who believes that with the right approach, you can
3418minimize the emotional and financial damage done to your family when couples decide to end their
3419marriage.
3420108
3421Table of Contents
3422Who I Am and Why I Wrote This Book 8
3423A Note About Legal Advice 11
3424Important Information About Hiring a Lawyer 12
3425Deciding Whether or Not to Divorce 13
3426Preparing for Divorce 16
3427Find a Wise Guide 17
3428Make an Accounting of the Family Finances 18
3429Gathering Financial Records and Information 21
3430Further Preparations for Divorce 26
3431What if Your Spouse Surprises You With the Divorce? 30
3432Do You Need to Hire a Lawyer? 31
3433How Do I Choose a Lawyer? 37
3434Lawyer Styles: The Lamb, the Pit Bull, and the Fox 43
3435Your Options 45
3436Reconciliation 45
3437Physical Separation 45
3438Separation 46
3439Negotiated Settlement 46
3440Collaborative Divorce 47
3441Mediation 48
3442Cooperative Litigation 48
3443Adversarial Litigation 49
3444Anatomy of a Divorce Case 51
3445The Divorce Process 51
3446The Issues 57
3447Custody and Issues Related to the Children 57
3448Division of Property and Liabilities 58
3449Post Divorce Spousal Maintenance 58
3450109
3451Checklist of Issues 58
3452Division of Assets and Debts 61
3453Maintenance in a Nutshell 64
3454Child Support 67
3455Child Custody, Possession and Access, and Co-parenting 70
3456Legal Procedures After the Divorce Trial 78
3457Tying Up Loose Ends 80
345811 Steps to a No Nonsense Divorce 82
3459Collaborative Law 85
3460Tools and Strategies for Navigating High Conflict
3461Situations 93
346215 Ways to Guarantee a Divorce from Hell 95
3463What’s Next? 99
3464Glossary of Divorce Terms 101
3465Recommended Resources 104
3466Websites 104
3467Books for Individuals Facing/Recovering from Divorce 105
3468Children’s Age Appropriate Books on Divorce 106
3469110