FINANCIAL ISSUES

Question: How is property divided in Texas?

The separate property of a spouse, that which is owned either prior to the marriage or received during the marriage as a gift or inheritance is not divided, but rather retained by the owning spouse. The burden of proof is on the claiming spouse and at times is a very onerous evidentiary task. The remainder of the estate is community and if the case goes to trial it will be divided by the judge in a manner the judge deems to be just and right. There is no requirement of an equal or 50/50 division. Many estates have very complicated asset structures including deferred compensation plans that may require the assistance of an expert to explain the division problems to the judge. The bottom line is that each case is unique and may present its own special set of facts that impact upon division.

Question: I am worried that my spouse will try to hide assets from me. How can I be sure I get a fair share of the business and other assets?

It can be very difficult to know for sure if all of the assets are full disclosed and thus made subject to division. If a spouse has been willing to hide assets from the IRS, and been successful in doing so for a long period of time, they may have some very secure and secret hiding places. However, we frequently engage the assistance of forensic accountants to assist in a careful review of life style, cash availability as opposed to checks or credit cards, how vacations and eating out are paid for and other habits that may indicate "undisclosed money". We often times research tax returns, real estate records, motor vehicle ownership, bank accounts and other sources for years back if we feel there is a reason to do so. We will ask the court to issue injunctions prohibiting the destruction of financial records and orders requiring a full disclosure of assets and liabilities under oath.

Question: I want a divorce but I am not sure I can afford it. What should I do?

The process can be very expensive. The reason is that matrimonial lawyers usually charge by the amount of time incurred handling the case. A case that has very little in assets may still have complicated economic, emotional or children related issues. These matters can all be time consuming. It is very hard for the lawyer to know at the onset of the case what roadblocks may be encountered, how unreasonable your spouse may be or what other issues may require resolution. Thus, to answer "can you afford a divorce", my answer is NO if there is any possibility of reconciliation. Consider counseling. Consider self-help and programs to help you improve both emotionally and physically. If the answer is that there is still NO hope, then interview and select a lawyer you feel you can communicate with, that appears to be able to understand your issues and that you feel you can work out an acceptable fee payment arrangement. Do not be afraid to interview more than one lawyer. You want to be able to start and finish with one lawyer on your case if you can.

EMOTIONAL ISSUES

Question: When should I take action to protect myself from an abusive spouse?

The very FIRST time it happens. Call the police. Call family members. Call your clergy. You may want to try counseling and have both you and your spouse in anger control classes. But get help IMMEDIATELY.

Question: My ex is telling our daughter lies about me. What should I do?

The first is being sure you are right as to what is being said and by whom. If that is in fact happening you will not likely meet with much success in confronting the former spouse. The advice of a competent counselor to meet with you and your daughter should be considered. In responding to the child, do not attack the other parent, but make it clear that you love the child and will always try to do the right thing. Sometimes a close family member such as a grandparent can intervene. If the conduct still prevails, try to document it and if need be, take the abusive former spouse to court.

Question: How do I know if I have a problem with controlling/repressing my anger?

If you have to ask, then most likely you do. But many times the one with such a problem is quite capable of overlooking it totally. Every single person going through a divorce is going to be confronted with anger problems. Anger at your self, your spouse, your lawyer, and their lawyer. The system, or someone else. I strongly suggest counseling for every person that I interview about a matrimonial problem. This can be a devastating and emotionally volatile set of circumstances, even when all is "amicable". You will almost never be harmed by seeking counseling and anger control. But let the anger get out of control, even one time, you may have irreparable damage to yourself or another.

LEGAL ISSUES

Question: Can I make modifications to my divorce decree? My circumstances have changed and I am going to need more support.

A Texas court will retain jurisdiction to modify matters such as custody, visitation and child support until the last child graduates from high school. But as to the division of property, once the decree is granted, there is no going back to change it, except in very rare appellate related matters.

Question: How does a mediator differ from a lawyer? Are lawyers always involved in mediation?

To serve as a mediator one does not have to be a lawyer. However, in most instances it is beneficial to have a lawyer serve in that role so that all issues can be clearly and finally resolved. The mediator does not take sides, nor make rulings. Rather, they listen and act as a facilitator to keep a positive flow of settlement negations flowing in what is often a very emotional process.

Question: Can one lawyer represent both my spouse and me? I would think it would save us both time and money.

This type of representation is not approved by the state bar disciplinary board. Dual representation creates a conflict of interest. You need an advocate for your rights. You need to know that advocate is partial to you. Perhaps you could save some fee expense and time if you could do this. But the net result is one you would in all likelihood get the shaft and the other the key to the mine at least.