Toward a Better Father's Day

Too often, parents get into competitions over the kids, and that's usually not a good thing. If you want to be well-remembered as a parent, maybe you should consider treating the other parent nicer and doing what you can to encourage a close parent-child relationship with both parents.

1. Enable and encourage the kids to have regular contact with the other parent. In addition to personal visits, phone calls, texting or computer contacts, initiated by the kids would really be good.

2. Demonstrate a good relationship (if possible) with the other parent. At least be civil. Keep in mind that the kids understand they are part you and part the other parent. They may see you being mean to the other parent as you being mean to them.

3. Help kids learn to show their feelings for the other parent. Help them find gifts, buy or make cards, etc. Encourage the kids to spend some time with their other parent.

4. Help the kids to remember holidays, birthdays and family occasions with the other parent. Kids may not know what to do when they're young, so they need some guidance. When they are older, they may just not think about these events. You can help everyone by talking with your kids about the events and reminding them so they can participate.

Note: All this works equally well for both parents. Moms and Dads should work together to encourage the kids to look forward to various personal and family occasions. Father's Day is coming up, but helping kids stay in contact with both parents is a year-round job. Do your kids a favor and teach them good ways to stay in touch with their extended family.

Do You Really Want a Mean Lawyer?

Over the years, a number of prospective clients have asked about how mean a lawyer I can be. I used to tell them that I could be as mean as I needed to be. Now, I prefer to discuss some other, related issues.

1. What is the client's overall objective in getting (or getting through) the divorce? Is it punishment for perceived wrongs? Is it to end up with adequate resources to be comfortable after divorce? Is it to have primary custody of the kids or to have a way to share time and responsibility for raising the kids? Is it to end up with certain valuable assets? Is it to come out debt free? Or something else? There's no right or wrong answer. It just helps the lawyer to know what the target is.

2. What kind of relationship does the client want to have with his/her ex-spouse? No relationship, a good one, best friends, neutral relationship or a bad relationship? Again, there's no right or wrong approach. The attorney just needs to know in order to work out the appropriate strategy.

3. What "mean" actions would the client want to take? Some actions are not permissible because they are illegal or unethical for a lawyer to do, and the client needs to understand that. Some actions are legal and ethical, but could be considered "mean" in some circumstances. Within that limited category, what would the client want?

4. How does the client think "meanness" will advance his/her cause? Some clients don't realize that being mean to the other side leads to more hostility and less cooperation. Will that help the client meet his/her needs or achieve his/her objectives?

5. Is the client willing to spend the extra money required to be mean? Unfortunately, for the client, "mean" isn't cheap. The attorney's fees increase dramatically when the attorney sends out numerous letters complaining or demanding action, files numerous pleadings complaining or requesting actions, sets hearings, conducts numerous depositions, demands voluminous discovery and so on. Also, the "tit for tat" strategy comes into play, meaning that whatever one side does to the other is returned again to the first party. The result: more letters, pleadings, hearings, depositions, discovery, etc. Being mean keeps the attorney busy, but it also increases the cost of divorce for both parties.

Often, the desire to hire a mean lawyer is just the natural reaction to pain,anger or fear the client is experiencing. There are certainly times when an attorney must act aggressively and firmly, but most clients just don't need or want a really mean lawyer when they learn how that will affect the case and their lives. And many or most clients can't afford or won't want to pay for a mean lawyer. Having the discussion about taking the mean approach can really be surprising to the client, but it can lead to planning for a better divorce.

Fuzzy Logic

James Gross has another succinct comment in his Maryland Divorce Legal Crier blog that deals with a common misperception of people going through a divorce or of the "advisers" to people going through a divorce. Many people have trouble with the fact that there usually are no clear, definitive answers to most of the questions they have during a divorce.

"Lots of my clients are computer consultants, engineers, scientists, economists, investment bankers or accountants. They ask me questions about their cases and they want clear answers. Before I became a lawyer, I was a chemical engineer, so I know something about how they think.In math class there was usually one right answer and everything else was wrong. They are looking for the one right answer. I remember staying up all night at college with my study group working through the equations to get to that one right answer.

"After math, chemistry and physics classes, law school was a shock to me. I still recall the first day of Contracts when Professor Joe Covington asked me stand up and explain to the class what 'justice' means. I am afraid I did not do a very noteworthy job of it.

"I excelled in classes where the rules were hard and fast, like Civil Procedure, for example. But I did not fair as well in those classes where the concepts were harder to get a handle on, like Torts. I can empathize with the puzzled look on the faces of my 'math and science' clients when I explain divorce law to them. It is a human system and humans are full of flaws. There are no right answers – only probabilities.

"They are uncomfortable with these fuzzy answers. But I sometimes remind them that, even in their world, they deal with unknowns, such as the Heisenberg uncertainty principle, dark matter, string theory and Shroedinger’s cat."

Like James Gross, I often remind clients that they cannot use logic to figure things out in divorces or family law matters. Even when there are "rules", there are often exceptions and ultimately, human beings make judgment calls. Emotions can easily overrule logic when a party to a divorce is making decisions. It's best not to rely on someone else being logical in a divorce context. If you need to persuade someone on a point, you will be more effective if you analyze the other person's motivations and try to appeal to them. Forget about logic!

Children’s Extracurricular Activities: Appropriate Or Excessive?

I just ran across the following post by Robert L. Mues of the Ohio Family Law Blog. For me, because of a case I am involved in, it is a very timely post. I believe a number of parents (and children) can benefit by considering the issues Robert raised. Extracurricular activities sometimes become points of contention during and after divorces, as well as in intact families. I highly recommend the post to help anyone struggling with such issues.

"This is the first of a two-part series dealing with children’s extracurricular activities. Next week, I will address the impact the divorce may take on a child’s extracurricular activity schedule when the parents have conflicts with each other.

"There is no doubt that extracurricular activities can be very beneficial to a child. According to a recent study by the Nellie Mae Education Foundation, children who participate in after-school programs are more engaged and have a better attitude about learning, perform better academically and enjoy an increased sense of accomplishment, competence and self-esteem. Additionally, participation also lowers children’s risk of becoming depressed, using drugs and alcohol, and experiencing other behavioral problems.

"Recently, while researching this topic, I came across an excellent article about how to choose after-school activity(ies) for children at www.scholastic.com. It also gives a breakdown discussing appropriate types and numbers of activities per week which are recommended based on the age and maturity of the child starting with kindergarten through middle school. The article offers advice which will help a parent determine if it is time for their child to start an extracurricular activity, what’s the best option and how to find a good program.

"Recently, Gregory Ramey, Ph.D., a child psychologist at Dayton Children’s Hospital and Dayton Daily News columnist, addressed a similar inquiry from a reader wondering if a child can be too involved with an extracurricular activity. Here the reader was asking about their 15 year old daughter, Maddie, who’s been involved in gymnastics since she was three years old and practices about 16 hours during the weekdays and competes on weekends year round. In response to that background, Dr. Ramey gives advice on how you can tell if your child’s dedication is beneficial or excessive.

• Be mindful of the effects on the entire family. While it’s great that kids are passionate about something, you need to carefully assess the impact on others, particularly siblings. Family life involves endless compromises in trying to balance the needs of adults and kids. In families with a high achieving teen, other siblings may inadvertently pay a high cost. The support of one child shouldn’t come at the cost of other family members.
• Keep the activity in perspective. While we don’t want to discourage kids from their passions, they do need a reality check about the significance of their activity for their future educational and vocational aspirations. Maddie’s mom has made it clear to her daughter that 'school is number one.'
• Be willing to walk away from the activity. There have been times when Maddie has encountered tough times and wanted to end gymnastics. How would her mom and dad have responded if she wanted to stop gymnastics? 'My parents are really into it…they wouldn’t be too happy.' Disappointment and frustration are inherent in the passionate pursuit of excellence. There are times when you should offer encouragement and not allow your child to give up when confronting difficulties. However, you should anticipate and be willing to accept the reality that there may be a time when your child abandons their passion for other pursuits.
• Regularly assess the real value of the activity. Most of our kids will never grow up to be professional baseball players or gymnasts. The value of their commitment is less in the acquisition of athletic skills and more in habits and friendships that persist long after the activity has ended. Maddie’s mom described the peer support that Maddie gets daily in the gym as '…the kind of friendships you don’t often get in life.' Maddie has also learned about discipline, persistence, and time management - habits that will serve her well throughout her lifetime.

"Dr. Ramey concluded that, “The child may never back flip her way to the Olympics, but I suspect she will be a successful person in whatever she does.” Click here to read Dr. Ramey’s full article.
One of the points clearly made in the scholastic.com article mentioned above is that it’s important to watch your child for signs of over-scheduling. “In younger children, this most often takes the form of irritability, avoiding eye contact and tantrums. In older children, look out for mood swings, recurrent sickness, such as stomach aches, and complaints about the activities themselves. At any age, if the school work begins to suffer, it’s time to cut back.” Click here to read the full article, by Toby Leah Bochan, at scholastic.com.

"One of the points clearly made in the scholastic.com article mentioned above is that it’s important to watch your child for signs of over-scheduling. 'In younger children, this most often takes the form of irritability, avoiding eye contact and tantrums. In older children, look out for mood swings, recurrent sickness, such as stomach aches, and complaints about the activities themselves. At any age, if the school work begins to suffer, it’s time to cut back.'

"While balancing children’s extracurricular activities can be difficult in a conventional intact family, read next week’s blog article where I discuss the impact that a divorce may have on juggling a child’s activities and parenting time."

There are some very practical ideas about how to evaluate the impact of extracurricular activities that should be helpful to many people. I also encourage you to read other posts in the Ohio Family Law Blog.

What's in a Name? Can I Take Back My Name from My Ex-Wife?

A question that comes up occasionally is whether a husband can make his ex-wife change her last name so that she no longer uses his last name. The short answer is NO.

While adults can change their own names either as part of a divorce or as a separate action, the Texas Family Code does not provide a means to force someone else to change her name.

So, if you can't force her to change her name, can you talk her into it? Maybe, but there are some difficulties associated with the name change. She would have to change her driver's license and Social Security card. She would need to change over credit cards and loans. In other words, your ex-wife may not want to put up with the aggravation of changing everything, just to make you happy.

One other factor is the presence or absence of children. If you and your wife have children together and they have the same last name as you and your wife, she may not want to change her name. On the other hand, if your wife does not have children with your last name, she may be less tied to your name. Or, if your wife has children with a last name different from yours, she might be interested in changing back to that name.

Another factor is that if a husband is pushing hard for his wife to change her name as part of the divorce, she may decide not to go along with it, just to annoy her husband. (Imagine such behavior during a divorce!)

Conclusion: You just don't have much control over someone else's name.

Finally, everything else being equal, husbands should be aware that wives who have used another last name for a short period of time often will be more inclined to change their name.

Conclusion: You just don't have much control over someone else's name.

Can My 12-Year-Old Decide to Live with Me?

No. One of the most common mis-perceptions about Texas law is that once a child turns 12, he or she can decide where he or she will live, meaning the child can decide who has custody.

I would ask all parents out there to think about how many major decisions a 12-year-old gets to make alone and have the decisions bind his/her parents.

• Whether to attend school?
• Whether to do homework?
• Whether to drink or do drugs?
• Whether to get a tattoo or piercing?
• When to start voting?
• When to start driving?
• What films to view?

Those are all major decisions that parents, generally, don't abdicate to the children. Courts don't either. And state law doesn't either.

The reasons: lack of maturity, lack of experience, lack of knowledge and lack of legal capacity. Basically, we know children are usually not prepared to make serious decisions. Some children may be perfectly capable of making some of those decisions, but usually, that is not the case.

If you read the section of the Texas Family Code dealing with a choice of conservator, the Code does permit a child of at least 12 years of age to file a written statement to name the person the child prefers to decide his/her primary residence. In other words, a child can sign a written statement stating his/her choice for custody.

The key phrase follows that part of the Code: "subject to the approval of the court". In other words, the judge always makes the final decision. The child does not get to make a binding decision.

My suggestion is to keep the children out of the court system. They don't need to be involved in choosing sides. Kids usually lack the maturity to make a good decision. Plus, it puts kids in the middle between the parents, and that's not good. If necessary, the judge can interview a child (at least 12 years of age) to find out some facts about the case. Even then, it is unlikely that a judge will ask the child to name who should have custody. The parents are perfectly capable of finding and presenting all the necessary facts for a judge to make the decision.

What do you think about letting kids have a say on this topic?

Can I Get a Do Over?

Recently, a reader sent a comment in response to a post in this blog. The comment asked for legal advice about what could be done in a specific situation in her case. I do not answer such requests for advice for someone who is not a client, but the comment did raise some interesting points about a situation that many encounter. What can you do if you want to change the terms of the property division in your divorce decree after it is final?

The simple answer is: "Nothing." The real answer is: "It depends." Note -- on kid issues, such as possession schedules, custody or child support, you can simply file a petition to modify. On property issues, it's a different ballgame.

Technically, there's nothing that can be done once the judgment is final. Of course, if the second thoughts hit soon enough, the judgment may not yet be final and you can file a motion for new trial or a motion to reconsider. That generally needs to be done within 30 days of when the judge signs the decree of divorce or signs an order overruling a motion for new trial or takes some similar action. These deadlines are critical. If you figure out on the 31st day or later that you want the ruling changed, you are probably out of luck.

If you realize the need to change the terms, or if your circumstances change dramatically, soon enough, you can file a motion with the court and try to convince the judge to set aside the original decree of divorce. With the economic turmoil we are experiencing, there might be a new situation that is compelling to a judge, but don't expect a judge to reverse a prior ruling just because things haven't turned out the way you expected. Getting the judge to set aside the decree of divorce is still a long shot.

But, whether you can actually do something to change the decree of divorce, outside of the first 30 days of when it is signed, depends. It depends on whether you and your ex-spouse can reach an agreement. In many cases, you're probably out of luck. If you don't get along with your ex, you probably can't get him or her to agree to change the terms unless you can show that the change would be in his or her best interest.

What can you do to avoid the problem of being trapped by property division terms that just don't work? Here are my suggestions.

1. Think ahead. It's hard to see into the future, but be aware of what's going on in the world and try to anticipate your needs in the future. Don't just blindly ask for 50% of everything. Put a little thought into your proposal for property division.

2. Don't burn your bridges. Sometimes, you can't help it, but other times there is a possibility of having a mature, civilized relationship with your ex-spouse. That is especially true when there are children involved. Even though you may strongly dislike your former mate, try to be nice because you may need a favor down the line.

3. Try to be agreeable. If you reach an agreement to settle your divorce, you probably have a better chance of reaching other agreements if you need to change things in the future. You can often do things by agreement that a judge would not, and perhaps could not, do.

4. Don't procrastinate. If you see a problem developing that relates to the property division, consult a lawyer and look at your options. Do so at the earliest possible time so that you might be within the initial 30-day window. If you are well past that time, still act as soon as possible so that your ex-spouse will not be as entrenched as he or she may be later on.

5. Be persistent. If a lawyer tells you there's nothing that can be done, consult with another lawyer. Some attorneys are more creative than others and some are more willing to try out-of-the-box approaches. Lawyers have different experiences and perspectives, so keep looking around until you have exhausted the possibilities.

6. Find a reason for your ex-spouse to agree. Put yourself in your ex's shoes. What would entice him or her to agree to do what you want done? What's the benefit to him/her? Be prepared to sweeten the pot a little and give up a little extra to get the deal done.

7. Put your agreement in writing. If you are able to reach an agreement with your ex-spouse, be sure to get it in writing and spell it out so the agreement is clear. If nothing else, create a contract that is binding for both of you.

I don't mean to create false hope here. If you want to change the terms of the property division in your divorce decree, your chances are slim. But you do have a chance, if you act as soon as possible.

If You Need to Wait Because You Can't Afford to Divorce...

There is a lot of discussion going on about whether the number of divorces being filed is decreasing. Many observers say that is true because of the economy, and it makes some sense. As bad as a family situation may be, many people begin to feel that they can't afford to get divorced.

• Some people are experiencing the mortgage crisis in their lives. Home values are plunging in many areas, although not as much in North Texas. Tarrant County home values, so far, are still doing pretty well and houses are selling, but who knows for how long. Even so, it is harder to get mortgages now.

• Many people are losing their jobs. Again, although Tarrant County seems to be stronger than many other areas, unemployment has greatly increased. Everyone is eventually affected by what is happening everywhere else.

• The stock market fall has badly damaged many retirement accounts and investment portfolios. The values are down by a third to a half, sometimes more.

• With prices rising, even for those people lucky enough to hang onto their jobs, it is hard to pay for food, fuel, utilities and other necessities.

• Insurance costs are going up and coverage is falling. Health care costs are increasing. Anyone with health issues now certainly faces greater difficulty in paying for necessary services.

Given those circumstances, it's no wonder that people may be deciding to wait on a divorce until they can better afford it.

For people choosing to wait, here are some other options:

1. Get a post-nuptial agreement. Many people are familiar to some extent with pre-nuptial agreements. I have written about them before. A post-nup is like a pre-nup, only later. Texas law allows a married couple to sign a partition agreement to divide their assets and liabilities. It can also provide for how present and future income will be managed. While it is not cheap, a post-nuptial partition agreement is probably much less expensive than a divorce and it will accomplish about the same thing as a divorce as far as property division. An attorney would be needed for each side. I would suggest using Collaborative Law to work out the agreement on the best possible terms for both parties, so you would be best served by contacting Collaborative lawyers.

2. Do financial planning. This is a less dramatic step than doing a partition agreement. The couple could meet with a financial planner to brainstorm ideas to find the best way to manage their finances during the downturn and into the future. A lot of the stress people are experiencing is from uncertainty about survival now and in the future. Getting qualified help to plan a strategy may resolve the concerns and leave the parties in a better frame of mind. A certified divorce financial planner or a regular financial planner can probably help you with this.

3. Take steps to enhance your marriage. Getting counseling is a common suggestion, but it makes sense. If you feel like you can't afford a divorce, but one or both of you is miserable in the relationship, then maybe you should try to make the relationship more bearable. Sometimes a marriage retreat can be helpful. There may be some groups around that you could join. Or, you could go to individual and couples counseling. Things around the house might really improve if you and your spouse follow through with counseling. Even if your marriage doesn't survive, at least the divorce later on might be more civilized. First, contact a marriage and family therapist and give it a try.

If you are haveing serious problems at home with your spouse, but you think you can't afford a divorce, you should consider the suggestions above.

Alimony-- Craigslist to the Rescue

Craigslist has become known as a great Internet resource for buying and selling various goods and services. It is also a good place to look for a job or an employee. Apparently, a creative man has tried to find a way to save himself the money he spends each month on his ex-wife's alimony. Thanks to Robert M. Kisselburgh of the Mississippi Family Law blog for the following post:

"Man offers to pay for someone to marry ex-wife

"Imagine sitting at your computer and you are browsing the classified ads on Craigslist and suddenly you come across the following ad:

"'Nice well taken care of ex-wife. Mid 40's. Pretty and loyal. Never smoked and very little drinking. Will make someone a good companion (I know).... Will pay 10K to the man or woman who marries her in a way that stops me from having to pay her alimony.'

"There's the hitch. The man, trying to end his alimony payments to his ex-wife, is offering to pay a potential suitor to marry his ex-wife. Not being totally callous, the guy actually had some 'terms and conditions' for this transaction.

"'1. This transaction offer only valid if she is not aware of it.
2. Must treat her good, no abuse tolerated by me.
3. This offer is null and void if it is determined to be illegal in any way -- I am not a lawyer.
4. The end result must be that I am no longer liable to her for alimony and you make best effort to be good to her
5. This ad is not in any way intended to demean my ex-wife. She is a nice person and is a fine catch for anyone.'

"OOPS. I think the cat's out of the bag on condition #1. With news of the post hitting newspapers, she or some friends might find out. He might also have a problem with condition #3. At least he did not want to 'demean' his ex-wife in any way--what a guy.

"In Mississippi, if you are paying alimony to your ex, don't use this tactic to end the alimony. Not only will it fall flat in front of the judge, but you can be assured your ex will not find the humor in being marketed on Craigslist."

In Texas, there is a common misperception that there is no alimony. Actually, we can have a limited amount of alimony that can be court ordered, or the parties to a divorce can agreed to contractual alimony that is not as limited in either amount or duration. It is not unusual for a spouse to later regret an agreement to pay alimony that seemed like a good idea at the time.

A scheme like the one from the Mississippi blog is obviously doomed to failure, but so is almost any other plan to end alimony early. Alimony may have a lot of tax and income benefits for both parties and that's why we often use alimony in Collaborative cases and in other cases with substantial estates. What you should keep in mind is that an agreement for alimony should not be entered into lightly. The best course of action is for you and your attorney to work with a financial advisor to evaluate the tax consequences and to look for the best combination of settlement terms.

Woman Marries 23 Times

James J. Gross, of the Maryland Divorce Legal Crier, has a knack for finding interesting and offbeat stories that relate to marriage and divorce. I have reprinted the following item from his blog which got the information from nbcchicago.com. The story about a true believer is really appropriate for the Valentine Day season .

"Linda Wolfe of Indiana, born Linda Lou Taylor 68 years ago, holds the Guinness world record for being the most married woman in history. She’s said 'I do' 23 times, according to Matt Bartosik writing for nbcchicago.com.

"Linda’s first husband was George Scott in 1957, when she was 16 and he was 31. This was her longest marriage which lasted seven years.

"Her shortest marriage was for 36 hours to Fred Chadwick.

"In 1996, as part of a publicity stunt, Linda married Glynn 'Scotty' Wolfe in Arizona. Scotty was the most married man in the world. Linda was wife number 29 for him. But Scotty died the next year.

“'I would get married again,' Linda told The Indianapolis Star.

Do you know anyone who can top that?