Monday, February 1, 2016

Starting Over After 50

There seems to be a lot of discussion about people over 50 years old getting divorced now.  Of course, there are a lot of Baby Boomers who are still alive and in relationships. 
  • Many of them are suddenly facing a divorce they hadn't planned on.  
  • The flip side is that many Boomers have finally decided to go forward on the divorce they kept thinking about, but which they just couldn't face.  
  • And some couples in second or third marriages are also facing divorce as they pass 50 years of age.
All of these people face somewhat similar circumstances.  If you find yourself in such a situation, here are some suggestions to help you get through the process.

1.  Shock or relief.  The first stage, after at least one spouse decides to leave the marriage, is shock, if the other spouse somehow isn't expecting it, or relief, if the spouses have been discussing the decision openly until one or both commit to ending the marriage.  It's a difficult decision for so many reasons.  Once that decision is made, both parties need a little time to let it sink in.

2.  Fear.  A common second emotion is fear about the future.  Past plans come undone.  Finances get stretched thin and new arrangements need to be made. The need to work may put off retirement and will affect spending.  Relationships with grown and nearly-grown children may change and will probably be a little awkward for a while.  So many things that are taken for granted suddenly have to be changed.  There's a lot to be concerned about.

3.  Recognizing opportunities.  With the changes comes some new freedom to change course and try something new. Most people at 50 will still have 30-40 more years to live. You can move to a different job or another town or a new neighborhood.  You might downsize and streamline your life.  New hobbies and activities are possibilities.  You can also make new friends.

4.  Start with small changes.  With so many new and different directions you can take, don't go crazy and completely start over.  Generally, you will be more comfortable with adding small changes at first and then making bigger changes as you get used to new arrangements.  Everyone needs some stability which can come from some carryover aspects of your life.  Especially -- Don't rush out and get remarried.  Take your time and get to know the person.  There's plenty of time!

5.  Expand your horizons.  Use this opportunity to try completely new things that maybe you couldn't do while you were married.  You don't have to re-create your old married life.  Try some new interests and make some new friends.  Take some classes.  Reconsider your assumptions about how you want to live your life.  This could be the beginning of an interesting new life.  If you don't want to do a lot of new things, you still can have a fresh start to some old activities.

One other thought:  If you are facing divorce after 50, you should look into using the Collaborative Law process for a civilized, less-destructive divorce.  Be sure you talk to a trained Collaborative attorney who actually handles Collaborative cases.  Collaborative Law won't work in every case, but it will in a great number of them.

Friday, January 1, 2016

Are You Ready to File?

With the holidays behind us, you may be ready to file for divorce.  Of course, it's one thing to be emotionally ready and another to actually file.  Here are some practical considerations if you think you are ready to file for divorce.

1.  Decide on the timing.  You have already made it through the holiday season and that's usually a good idea.  Now, you need to think about whether you have your life in order.  Do you have a job?  Do you have money available to pay for the divorce?  Do you have information on the finances?  Do you have your personal effects secured so that they don't happen to "disappear" later?  Have you planned where you would live and how you would pay your bills? It's important to plan ahead for many different issues.  Don't start until you are ready.

2.  Decide on the process.  You need to know that, even though every divorce must be filed at the courthouse, you can work through reaching the final terms in a variety of ways.  In extremely rare cases (when both parties are friendly, knowledgeable and cooperative), you can just negotiate directly with your spouse and reach agreements.  At the other end of the spectrum is the standard litigated divorce, which is often the most contentious and expensive approach.  In between is the relatively new process of Collaborative Law in which the parties work out an agreement through a series of meetings out of court.  You can read up on the options and you should probably talk to a trained and experienced Collaborative lawyer.

3.  Find and meet with an attorney.  Although many people are opting for the "do it yourself" approach, that is probably not your best bet if you have children or assets, including retirement plans, real estate or investments, among other things.  Unless you have had an extremely short marriage or you have no assets, you probably should at least meet with a lawyer.  My suggestion would be to meet with an experienced Collaborative Law attorney to find out your full range of options.

Good luck getting started!

Tuesday, December 1, 2015

Don't Fear Mediation!

Almost every litigated divorce will end up in mediation, unless the parties can somehow come to agreement just by talking directly or talking through the attorneys.  Because those voluntary agreements are very rare and because trials are expensive and involve a long wait, most divorce cases are resolved through mediation.

Texas Mediation.  In case you aren't familiar with mediation yet, it is a negotiation and settlement process in which both sides work with a neutral third party, the mediator.  In Texas, or at least North Texas, most family law mediations involve each party sitting with their lawyer in a separate room and the mediator going back and forth between rooms.  Sometimes, the parties and their lawyers all share the same room with the mediator, and that can be effective, but most of the attorneys prefer to have the separate rooms.

The main reason mediation is used so often is that it works.  Here are some key points to know about mediation.

1.  It's voluntary.  No one imposes a judgment or just makes a decision that binds everyone.  There's no "decider", other than both parties.  To have an agreement or resolution, both parties must come to the same agreement.

2.  It's confidential.  What's said and done in mediation stays in mediation.  You can make statements and propose agreement terms and they can't be used in court if the process fails.  You have more freedom to be creative and not have it come back to bite you. That helps make the process safe.

3.  The mediator is neutral.  The mediator doesn't make a decision and doesn't take sides.  The mediator's role is to facilitate communication and keep the parties talking. The mediator will play the "devil's advocate" and try to help each party better understand the other side's positions, but the mediator won't work for one side against the other. Neutrality also helps make the process safe.

4.  You can learn information in the process. Frequently, facing mediation encourages both sides to update information and look at all the issues.  Parties can learn a lot about the side's issues and about property and other matters that may not have been fully disclosed or answered previously. Exchanging information is a major part of mediation.

5.  It's cheaper than a trial.  While there is definitely a significant expense associated with mediation, from the mediator's fee to the attorney's time at mediation and preparation, a trial is still generally more expensive.  With a trial, there's more preparation, with several special documents normally required to be prepared.  A trial will usually be the same amount of time or more, but the preparation time is much greater.

Don't fear or be anxious about mediation.  Look forward to it!  You can expect to get your litigation over so you can get on with your life.  Good luck!

Thursday, October 1, 2015

Getting Through the Holidays -- Post Divorce

If your divorce is final and you are now facing the major holiday season, there are lots of adjustments for you to make.  If you have children, you have to work with them to both keep some of the family traditions and create some new ones.  Even if it has been several years since the divorce was finalized, holidays can still be a difficult time.

With that in mind, here are some tips on how to deal with the holidays.

1.  Start by checking the court order on scheduling.  Is it your year for Thanksgiving?  How is the time allocated when the kids are out of school?  You probably don't have to stick with the official schedule if you and your ex both agree on something else, but it's a good starting point.

2.  Go ahead and send any notices that are required.  Some orders provide that one parent must notify the other parent by a certain date if they are going to have the children or if they are going out of town or perhaps for some other reason.  It doesn't hurt to send a notice early and that could give early warning which might help avoid conflicts later.

3.  Make reservations, if you are traveling.  With the way hotels and airlines book up early, it's a good idea to start as soon as you can. You can get a better deal, plus it's a good way to reinforce with your ex that the children will be with you at certain times. It will also be less stressful for you if you have reservations worked out early.

4.  Be prepared for compromises and last-minute complications.  It's not always the fault of your ex.  Sometimes, kids forget to tell their parents about plans, projects or messages until the last minute.  Don't get angry if something comes up.  Be willing to talk things through and find a solution that works for the kids, and hopefully, both parents.  Consider meeting with a counselor, if there's time.

5.  Be flexible.  Remember that kids are young for just a limited time.  Both parents should work together to share that time and make things right for the kids.  There are always alternatives that can be found.  If you find out about conflicting plans or other problems, don't blow up.  If you find out early enough, you can work with a counselor, attorney or mediator.  If it's a last-minute issue, and you can't figure out a solution, call an experienced attorney who can brainstorm with you and maybe tell you what others have done in similar situations,  Be open to compromise.

The keys to having pleasant holidays include planning ahead, working through conflicts and being flexible.  Start early in dealing with how you will be sharing time with the children.

Tuesday, September 1, 2015

5 Tips for Successful Divorce Mediation

If you are getting a divorce and are getting ready to try to settle the case, chances are you are about to go to mediation.  In Texas, mediation usually involves both parties and their attorneys attending a single session of mediation, although it may be for a half day or a full day.  No matter the length of time set aside, here are some helpful ideas for preparing to attend mediation.

1.  Preparation:  Each party should meet with his/her attorney and go over the rules for mediation and how the process works.  It's not rocket science, but you will probably be more comfortable if you know the process ahead of time.  In addition, each side should have a current Inventory of assets and liabilities with supporting documents.  It also helps to put yourself in the other party's position and try to understand their motivations and objectives.

2.  Plan:  It really helps if your know where you want to end up.  You should figure out an appropriate opening position and plan how you can reach the preferred result.  Try to think of alternatives you can offer.  Be open to changing your plan, but you'll have a better chance of getting a good result if you plan your path.

3.  Don't assume:  It's easy to assume things will happen a certain way and it's easy to assume the law will do certain things, but those assumptions may not be accurate.  It's better to  spell out everything and don't rely on shortcuts.  Be precise and complete so there's nothing left to negotiate later.  Don't stop with an incomplete agreement.  Don't assume that everyone will be cooperative later just because they are at the end of mediation.  Go ahead and invest the time to decide all necessary details while everyone is getting along, even if you are tired.

4.  Read it all:  Read the entire agreement and make sure you understand it before you sign it.   Don't trust that everything is written correctly just because it was discussed for a long time.  Read it and think about how problems could arise.  Think the worst.  Expect difficulties and think about how they might play out under the agreement.

5.  Don't sign until you're sure:  Remember, once everyone signs, there's no undoing it!  There is no cure for buyer's remorse once the document is signed. 

Mediation is a great way to resolve disputes.  Please invest time and take it seriously.

Wednesday, July 1, 2015

Don't Try These at Home: Good-Sounding Ideas that Lead to Conflict

Although I am all for compromise, creativity and maximum contact with the kids for both parents, I have to recommend against using the following, based on my experience in actual cases.

1.  Frequent phone calls to the children.  Many parents want to be able to call the children, or worse, want the children to call the parent, every evening or at other times and frequencies.  Almost always, that leads to arguments.  The parent who has the children doesn't want to interrupt their activities.  Sometimes the kids are out somewhere, but the other parent doesn't believe it, or sometimes the parent in possession intentionally makes it impossible for the other parent to talk with the kids. Often the kids don't want to stop playing, watching videos, texting or talking with their friends, even doing homework, in order to talk with the other parent.  In some situations, the parent with the kids sets up something that conflicts with the scheduled call time so the kids are available or the kids don't want to stop what they're doing.

For some parents insisting on the calls, it's a control scheme.  They want to lock down the other parent and prevent them from being able to plan activities at certain times and they like to threaten court action against the parent in possession

There are so many different ways that problems come up, it's generally  better to not require such calls.  Another alternative, depending on the age of the children, is for the non-possessory parent to provide cell phones to the children.  Then, the kids can call or text the parent or the parent can call or text the children anytime.

2.  Right of first refusal.  While it sounds like  nice idea for the non-possessory parent to have the right to take care of the children if the other parent won't be around to care for them for a while, the devil is in the details.  How much time is needed to trigger the provision:  2 or 3 hours, 6 hours, overnight?  What are the notice provisions?  What if the kids just want to spend the night with their friends or other relatives?  Why shouldn't grandparents get some time with the kids?

While this sounds like a parent wanting to spend more time with their kids, it often is a control mechanism as well.  It's a way to isolate children from one side of their family if they don't get to spend the night with relatives.  There is frequent conflict over how the right of first refusal applies in a given situation.  A big part of that is threatened litigation and punishment.

Given the fighting and stress over this issue, you should think twice before incorporating it in a court order.

3.  Weeknights in the summer.  In the Texas standard possession order, the non-possessory parent usually gets the children every Thursday night during the school year.  It's limited to the school year because the schedule changes so much in the summer when each parent can have the children for 2 to 3 to 4 weeks at a time.  Adding weeknights in the summer ends up potentially shorting the time of the possessory parent.  I have seen a schedule where the schedule was manipulated and planned so carefully that the possessory parent ended up with only about 4 days total in June and July.  That's not right for the parent or the children.

Extra weeknights are not needed for the summer.  The standard possession schedule gives plenty of time for each parent and it doesn't encourage fighting or greed.

These are all three ideas that sometimes can be good for both parents and children.  However, I recommend against using them because most often they lead to conflict that could be avoided.

Monday, June 1, 2015

Creative Ways to Pay Your Attorney

One of the main reasons why people change attorneys in the middle of  divorces and other court cases is inability to pay for the attorney.  Attorneys prefer to not withdraw and often will be patient up to a point, but they can't work and not be paid.  It's best to deal with the issue early on.

What can you do if you think you can't afford to pay your attorney?  Here are some options to consider.

1.  First, do a realistic evaluation up front.  Sure, you want the best attorney available, but can you afford that attorney? Look at your income and resources, including the suggestions below.

2. Find an attorney you can afford.  Did you know that there are a lot of very good attorneys around who would be happy to represent you?  A higher hourly rate doesn't necessarily mean an attorney is the best one for you.  There are many good attorneys who charge a variety of hourly rates.  Don't stop with the most expensive attorney.  Try to start off with an affordable attorney you have good chemistry with.

3.  Some attorneys will work out a payment plan for you.  Some don't.  It's a good discussion to have up front, rather than waiting until you fall behind on payments.

4. You may be able to pay a flat fee for services.  Very few attorneys do that, but some will.  I have done it in contested cases with payment in stages, and that can work out. Keep in mind, "Flat fee"  doesn't  equate with "cheap".  The fees may sound high all at once, but there is certainty about the total amounts to be charged and you can plan how to pay it.  It's another good discussion.

5. Most attorneys will take credit cards for payments of attorney fees.  It's not exactly free money, but it can help you manage the payments.

6. You might be able to get money from your spouse by agreement or court order.  If there's money available, most courts will try to get attorneys paid so the parties can be represented.

7.  Maybe you can take funds from an asset.  There may be bank accounts, investments or other savings that could be tapped. If there's an injunction or restraining order, you may need permission to access some funds.

8. Maybe the attorney could be paid from the proceeds from the sale of  your house, if it's going to be sold.  That would take agreement by all parties and attorneys, but it's frequently done.

9.  You could take out a loan from a bank or a 401K account or use a line of credit. If there are court orders in effect already, make sure you get permission and don't violate the orders.

10. You may need to borrow from family or friends.  No one likes to do that, but it might be your only option.

As you can see, there are potentially many different ways to pay attorney's fees.  The best approach is to talk early and often with your attorney about the fees so payments can be managed.

Tuesday, May 26, 2015

Tuesday Tips: How an Attorney Helps in Mediation

Mediation is a great process for resolving disputes. I'm not neutral on the topic because I am also a mediator, and I have been promoting mediation for over 20 years.  It's a peaceful way to resolve cases and the parties usually come out with agreements they are satisfied with. 

One of the reasons why mediation can work is that the mediator is strictly neutral.  The mediator must avoid taking sides, but that also limits the amount of help a mediator can provide to a party in mediation.  One of the mediator's chief  roles is to keep the parties talking. The mediator is not there to suggest solutions.  Those come from the parties or their attorneys.

I have participated in mediations where there were attorneys for both parties, where neither party had an attorney and where only one party had an attorney.  Generally, the best results come where both parties have attorneys.  The most difficult cases are usually the ones where one party has an attorney and the other party does not.  In that situation, the represented side has advantages in knowledge and skill in negotiating (unless the attorney does a poor job).

How does an attorney help in mediation?

  • The attorney can understand the issues and the law.  Sometimes, unrepresented parties want to argue about non-issues or may want to do something that is impossible to do.  An attorney can help a client understand what issues need to be addressed and what possible solutions are.  If a client wants to do something that can't be done, the attorney can present some alternatives.
  • An attorney makes sure issues aren't overlooked.  A party may be unaware of some issues and they might not get discussed if there's no attorney on the case.
  • Unlike a mediator, the attorney is not neutral.  An attorney can tell the party that something won't work or is a bad idea.  An attorney can suggest better ways to do things.
  • An experienced attorney is generally an experienced negotiator.  (From  my perspective, an attorney-mediator is an even better mediator.)  Mediation is so ingrained in Family Law now, attorneys have to learn and practice negotiation skills all the time.  Having an experienced negotiator can lead to a smoother process and better results. Knowing when and how to bring up some issues can make a huge difference.
One of the smartest moves you can make is to hire an attorney before you go to mediation. If you are not yet represented and are facing mediation, do yourself a favor and find an experienced negotiator-attorney to help you. You will appreciate the help.

Tuesday, May 19, 2015

Tuesday Tips: Help Your Attorney Help You!

In every divorce, there are financial issues.  They may be about a home, investments, a business or businesses, retirement assets, bank accounts, employment benefits, debts or taxes, among other things.  Dividing assets and liabilities is at the heart of every divorce.  Some cases are more or less complicated than others, but finances are always involved.

In addition, when there are children, child support is often a consideration and that brings up the income of each party.  You will need pay stubs, tax returns and a monthly budget.

All of that means when you are getting divorced, plan on gathering and producing financial records for your attorney.  Those records are generally going to be shared with the other side, either voluntarily or in response to formal Discovery.  You will need bank and credit card statements, retirement account statements, mortgage statements, investment records and probably many other records.  Your attorney can tell what will be needed.

The sooner you provide financial information to your attorney, the sooner your attorney can understand the marital estate and start helping you meet your needs and interests.

Remember, there's no 50-50 rule in Texas for dividing assets.  You need to think ahead and decide what you want to end up with.  Your attorney can try to help you achieve you goals if the attorney knows your goals and needs and if you have provided the information the attorney needs.

Sometimes you may not have access to all or some of the financial information.  Your attorney can request that information from the other side, but you need to give your attorney some information to know what to look for and ask for.

Be an active partner in your own divorce.  Help your attorney by providing financial information as soon as possible!

Tuesday, May 12, 2015

Tuesday Tips: Don't Try to Do-It-Yourself Without Your Own Attorney!

In these days with a contagious "do-it-yourself" attitude about so many things, many people have taken that approach to getting divorced.  That may be a mistake, unless it is a very short marriage, with little or no assets, and no kids.

Part of the motivation is to save money.  That's understandable, but keep in mind that you don't have to hire a high-priced lawyer to get good representation.  For smaller estates and parent-child issues, and even for more complicated estates,  younger, less-expensive attorneys can be fully capable of providing quality representation for you.  Just because an attorney charges a higher fee, that doesn't guarantee quality and doesn't mean that attorney is a good match for you.

So you can hire a good attorney and not break the bank. Should you hire an attorney or just go all out to save the money and do it yourself?

If any of these conditions exist, you should probably have an attorney assist you in resolving your divorce:
  • You have children with the spouse.
  • You or your spouse have retirement assets.
  • You have investments.
  • You have a house, with positive equity or negative equity.
  • You have significant debts.
  • You have been married for at least several years.
There are many different ways to handle those issues and you may not even realize the significance of some matters.  There are lots of rules in Family Law. It may not be easy to translate your ideas into legally-acceptable court orders.  If orders aren't drawn properly, they may not be enforceable.  You may lose all rights to some things if you don't deal with them correctly.

Don't assume that common sense applies to the law.

At the very least, you  should have a consultation with an attorney (or several) to check out your options and what their consequences are.  It may save you money in the long run.