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Divorce

Monday, November 16, 2015

Seven Tips for Negotiating Your Divorce Settlement

Regardless of how long you have been married, negotiating a settlement is the most important part of the divorce process. Although it is no easy task, working with your spouse to arrive at mutually agreed terms of your marital dissolution is easier on your wallet and your psyche. Whatever conditions caused the breakdown in the marriage are likely still present throughout the divorce negotiation, exacerbated by emotions such as anger and fear as you each transition into the next stage of your lives.

However, staying focused on what’s best for your future will serve you well as you navigate these tumultuous waters. Taking your divorce case to trial and letting the court decide what will become of your property or children is rarely in your best interest. Although you may not get everything you hoped for during a settlement negotiation, you will save a tremendous amount of money, time and emotional anguish.

Divorce settlement negotiations involve a degree of both skill and art, both of which can be attained by following a few simple tips. Even if your attorney is doing the negotiating on your behalf, it is important that you are clear regarding your priorities, so you can make decisions that are truly in your own best interest for the future life you are establishing post-divorce.

Negotiating a divorce settlement agreement necessarily involves a certain amount of give and take, on both sides, so keep in mind that you most likely won’t get everything you want. But following the tips below can help ensure you get what’s most important to you.

  • Establish clear priorities.
  • Know what you can give up completely, where you can be flexible and those critical items where you are unable to budge.
  • Be realistic about your options and the bigger picture, so you can be reasonable when you must “give” something in order to “take” something.
  • Stay focused on the negotiation itself, and your future; avoid recalling past resentments or re-opening past wounds. Your divorce settlement negotiation is no place for “revenge” which can ultimately delay your case and cost you thousands in unnecessary legal expenses.
  • If your soon-to-be-ex-spouse becomes emotional or subjects you to personal attacks, don’t take it personally. This may be easier said than done, but it is important to stay focused on your priorities and realize that such “noise” does not get you any closer to a settlement agreement.
  • If your spouse presents you with a settlement offer, consider it carefully and discuss it with your attorney. It may not include everything you want, but that may be a fair trade off in order to finalize your divorce and move on with your new life.
  • If you are negotiating your own settlement agreement, consult with an attorney before you make an offer to your spouse or sign any proposed agreement.

By keeping the focus on your priorities, and avoiding the emotionally-charged aspects of your failed marriage, you can ensure you negotiate a divorce settlement agreement that you can live with.


Monday, November 9, 2015

Mediation: Is It Right For You?

Mediation is one form of alternative dispute resolution (ADR) that allows parties to seek a remedy for their conflict without court intervention or a trial. Parties work with a mediator, who is a neutral third party. In addition to formalized training in mediation, usually, mediators also have received some training in negotiation or their professional background provides that practical experience.

Unlike a judge, a mediator does not decide the outcome of a matter or who wins; rather, a mediator facilitates communication between the parties and helps the parties identify issues and possible solutions to their conflict. The goal is for parties to compromise and reach an acceptable agreement.

Mediation can be an appealing option because it is much less adversarial. This might be important when the relationship between the parties has to continue in the future, such as between a divorcing couple with children. The process is also less formal than court proceedings.

Mediation often costs significantly less than litigation, which is another benefit. Another advantage to using mediation is that it generally takes much less time than a traditional lawsuit. Litigation can drag on for years, but mediation can typically be completed in a much shorter time frame. Court systems are embracing mediation and other forms of ADR in an effort to clear their clogged dockets. There are some programs that are voluntary, but in some jurisdictions, pursuing mediation is a mandatory step before a lawsuit can proceed to trial.

Mediation can be used in a variety of cases, and it is sometimes required by a contract between the parties. Mediators can be found through referrals from attorneys, courts or bar associations, and there are companies that specifically provide ADR services. Ideally, a mediator will have some training or background in the area of law related to your dispute.

Mediation is often a successful way to reach a settlement.

Contact our law firm today to help determine if mediation would be a valuable tool to resolve your dispute.


Wednesday, April 15, 2015

Don’t Let Your Social Networking Activities Undermine Your Divorce Negotiations

According to the American Academy of Matrimonial Lawyers, in the past five years 81% of its members have represented clients in cases involving evidence from social networking sites, such as Facebook, MySpace, Twitter, YouTube and LinkedIn.  Posted pictures and comments can make the job all-too-easy for your former spouse’s attorney to attack your credibility and ensure you do not receive the relief that you are requesting from the court.

A picture is worth a thousand words. And that picture you posted of yourself, in various stages of undress, or with a marijuana cigarette in one hand and a drink in the other, speaks volumes to the court and can result in unfavorable rulings regarding child custody or visitation. But the information posted doesn’t even have to be tawdry or illegal to land you in trouble. What about the ex-husband who claims he has no income, but his Facebook profile is chock-full of photos of luxury purchases or exotic vacations? What about the parent who posts profanity-laden status updates, insulting the judge’s competence? Should it find its way into the court, none of this information is going to help your case.

All of these communications can be considered by the court in making its rulings. Nothing you post online is 100% private, regardless of your privacy settings. Opposing attorneys can always subpoena the records, share your dirty secrets with the court, impeach your credibility, and obtain a favorable ruling for their client – your ex or soon to be ex-spouse.

The lasting implications of a negative court ruling can far outweigh the momentary, fleeting satisfaction of venting your frustration at the judge or your ex, or sharing “fun” photos on your Facebook profile. The bottom line is that you have to think before you post. It has often been said that you should not publish anything that you wouldn’t want your Mother to see. A similar standard should be applied for those going through a divorce. What if that comment you are about to make, or the photo you are about to post, were to fall into the hands of your soon to be ex-spouse’s lawyer? This can have far-reaching consequences, affecting your income and support obligations, or visitation and custody of your children.

To avoid the pitfalls of information sharing in the digital age, you must assume that anything and everything you post will be obtained by opposing counsel and find its way into the courtroom. Family law cases involve some of our most private matters and care should be taken to ensure you protect your own privacy. Preserve your attorney-client privilege by refraining from sharing any details of your relationship or conversations with your attorney with other people. Avoid posting compromising photos, or making derogatory remarks on your social networking profiles.

Above all, do not post anything you wouldn’t want your ex, his or her attorney, or the judge to see.  Regardless of how restrictive your privacy settings may be, this information can easily be subpoenaed and become a part of the court record.  If there is any doubt, do not post.  Remember, you cannot “unring that bell!”


Sunday, February 22, 2015

Know the Risks of “D-I-Y” Divorce

“Do it yourself” divorce is fraught with risks – even if your case is “simple” and both parties agree on all issues regarding division of property, support, and child custody and visitation. As many have learned the hard way, it is all too easy to make critical missteps today that will come back to haunt you down the road.

The proliferation of DIY websites and non-attorney legal document preparers give the impression that the process is simpler than it is. These services can help you deal with the court forms required to dissolve a marriage, including financial disclosures, motions, hearing notices and child support paperwork. It’s tempting to save money by using one of these services to prepare and file your divorce forms without using a lawyer.

Unfortunately, these services won’t be able to help you when things do not go as planned, as they cannot offer you any legal advice or engage in any negotiations on your behalf. Worse still, they cannot point out the pitfalls contained in your paperwork which can pose risks to your financial future long after you think you’ve put the marriage behind you.

The typical do-it-yourselfer believes that everything is correctly resolved because the court accepted and processed the forms and has issued the divorce decree. However, this may or may not be the case; and potential problems can remain undiscovered for years until, for example, one spouse embarks on a significant financial transaction such as purchasing a home.

A common scenario involves incomplete (or incorrect) provisions in a marital settlement agreement, leaving both spouses legally on the hook for a mortgage. What happens when the spouse who kept the home and obligated to make the monthly payments fails to do so? What happens when the other spouse applies for a mortgage on a new home, but the amount of the monthly payment of the previous mortgage is still considered when calculating the debt-to-income ratio? This is just one example of how “saving money” on the front end of your divorce can cost you greatly in the future.

Even if your divorce is “uncontested,” in that you and your spouse agree on all of the settlement terms, getting legal advice upfront will ensure the process goes smoothly and that you do not encounter any unpleasant surprises in the future. A consultation with a family law attorney can identify what issues must be addressed, point out potential negative consequences of certain decisions, and let you know what to expect throughout the divorce process.

If your divorce case is “contested,” meaning you cannot agree on terms regarding your property or children, it is important that you consult with a lawyer to obtain a realistic idea of what you can expect based on your legal rights under the circumstances. And, unlike the DIY services, an attorney can also represent your interests during settlement negotiations. If settlement negotiations are unsuccessful, your lawyer can ensure the court fully considers all information in your favor prior to making any rulings. 

Sometimes, it really is true that “you get what you pay for.”


Monday, January 5, 2015

Top Ten Child Support Myths

Child support disputes can bring out the worst in many parents, conjuring images of greedy ex-spouses and children who are used as pawns in games of parental posturing and revenge. While there may be a certain degree of truth to some of the stereotypes, there are many myths that are prevalent in the context of children, support and divorce.

Myth: Child support payments are based on the needs of the children.
Fact: Support payments are based on the parent’s income and/or ability to earn income and have no basis in the actual costs to raise a child.

Myth: Child support payments must be spent on the child.
Fact: No state requires child support recipients to account for expenditures or prove they were necessary to meet the child’s needs, or even whether they were spent on the children at all. In fact, some states view the purpose of child support as protecting the standard of living of the custodial parent.

Myth: I can move out of state to dodge my child support obligations.
Fact: Each state has its own child support enforcement agency and these agencies all work together. You cannot escape this obligation.

Myth: I can quit my job in order to avoid making child support payments.
Fact: The courts are permitted to “impute” income to a parent who intentionally quits a job, whether or not that parent is currently earning a paycheck. Obligations will continue to accrue and payments must be made.

Myth: I have lost my job and can’t make my child support payments, so I will be sent to jail.
Fact: You can be incarcerated if you have the ability to pay but refuse to do so. If you have lost your income and do not have the ability to pay, you will most likely not be criminally liable for non-payment.

Myth: My ex-spouse uses child support payments for shopping, dining and to support a lavish lifestyle; therefore, my support payment should be reduced.
Fact: So long as the custodial parent pays expenses to feed, clothe and house the minor children, which is the ultimate purpose of child support payments, whatever else she spends money on is generally not scrutinized.

Myth: My living expenses are high and I cannot afford the child support payments; therefore, my support payment should be reduced.
Fact: Generally, expenses must be necessary and extreme in order to be considered as a basis for child support calculations.

Myth: Child support payments are deductible on my income taxes.
Fact: Child support payments are not deductible to the paying parent; nor are they considered “income” to the receiving parent.

Myth: If I have children with a new partner, my child support payments will decrease.
Fact: The birth of a new child will not reduce your obligations to make child support payments to a prior spouse. New children may affect the existing child support order if you get another divorce and must pay child support for the second set of children.

Myth: My ex-spouse claims she can modify the child support order and take my house, bank account or other assets.
Fact: A future child support modification can only address the amount of child support payments going forward. Assets cannot be seized and typically are not considered in modifications.
  


Tuesday, November 4, 2014

(Grand)Parenting 2.0

According to the National Census Bureau, grandparent-headed homes are among the fastest growing household types in the United States. Grandparent-headed homes are defined as living arrangements where the primary financial and caregiving responsibilities are held by one or more grandparents rather than a parent. Though the reasons that lead to this type of arrangement vary, many speculate that a difficult job market and economy has led to an increase in the past few years.

At the height of the financial crisis, the Wall Street Journal published an article describing the financial strain placed on grandparent-headed households. For grandparents who have already retired, finding a job at an advanced age can be next to impossible. The unemployment rates for this demographic are disproportionately high as are levels of ‘discouragement,’ or the part of the population is so frustrated with trying to find work that they are driven from the workforce. The degree of financial hardship is exacerbated by the increase in the price of everyday goods and necessities, like food and clothing.

Beyond the financial strain, taking care of a young child can also have a significant impact on a grandparent’s mental and physical well-being. If an infant is placed in the grandparent’s care, he or she may have disrupted sleep due to nightly feedings. Grandparents raising young children are also frequently exposed to diseases and infections common in childhood. Depression and anxiety disorders are not uncommon and for children with developmental delays or behavioral problems, the demands placed on caregivers are that much greater.

In some cases, grandparents may become the head of a household even when parents are present. In situations where a parent has become unemployed or otherwise cannot care for the children, he or she may move the entire family into his or her parents’ home. In addition to grandparent-headed homes, other types of arrangements where the parent is not the primary caregiver are on the rise. These may include instances where an aunt or uncle takes responsibility for a nephew or niece.

Fortunately, many federal and state governments have started to recognize this trend and are putting resources in place to assist non-parent-headed homes. The American Association of Retired Persons has also created a comprehensive guide and resource center for grandparents parenting a child.



Friday, October 10, 2014

How to Ask Your Partner for a Prenuptial Agreement

Discussing your desire to establish a prenuptial agreement with your future spouse has the potential to be a complete disaster, but approaching the topic with the comfort of your partner in mind can help alleviate much of the stress associated with the process of creating a premarital agreement.

A prenuptial agreement is a legal document drafted and signed before marriage that lays the groundwork for the distribution of assets should the marriage fail. Although these agreements aren't a requirement for engaged couples, many attorneys agree they are an important part of the pre-marriage process, as they provide a binding agreement that each partner must adhere to in the event of a divorce. Many are sensitive to the idea that signing an agreement of this kind means one partner thinks the marriage will fail, but prenuptial contracts are really just meant to serve as a contingency plan.  Think of a premarital agreement like homeowners’ insurance – you purchase it and then hope and plan to never need to use it. 

Below are three ways to make the discussion easier.

Know the basics of a prenuptial agreement.

You likely have an inkling as to how your partner will react to you bringing up the subject of a premarital agreement. Whether you think they will be neutral or get defensive at the very mention of the idea, explain that drafting the agreement as a couple gives you the ability to design it in a way that could financially protect both of you in the event that your marriage fails or one spouse passes before the other. Make sure your partner is aware that their feelings during this process are of the utmost importance to you. It's best to seek the guidance of an experienced family law attorney prior to discussing a prenuptial agreement with your future spouse in order to gather all the information you need to have a thorough discussion on the subject. These small preparations can help the conversation flow more smoothly between you and your partner, hopefully resulting in a relaxed and honest discussion about what you both expect from your marriage.

Don't wait until the last minute to tell your fiancé you want a premarital agreement.

Both of you should be involved in the process of drafting the prenuptial agreement. It shouldn't be one of you presenting the other with a contract at the rehearsal dinner right before the wedding. Not only are last-minute agreements on "shaky ground" legally speaking, but you're more likely to upset your partner if you expect them to read and sign this type of contract without any warning or independent legal advice. Prenups that are signed shortly before the wedding aren't necessarily lawfully invalid, but they are much more likely to be legally challenged than agreements that were signed well before a couple says "I do." In order to avoid inflicting massive pre-wedding jitters on your partner, talk about your desire to have a prenup as soon as possible following your engagement. Working together to draft the agreement provides both of you with a chance to state how you feel "work" will be divided throughout your marriage, which can make you more secure with your decision to marry. The prenuptial agreement takes the guesswork out of a divorce, as it determines who owns what property and how things will be divided.

Consider working with a mediator to draft your premarital agreement.

Working with a mediator allows you, the couple, to draft a contract that combines both of your best interests. Before meeting with a mediator, couples should come up with some issues they would like to address in their prenuptial agreement. Discussing what key points you want the agreement to include beforehand ensures that you are on the same page as a couple, and it will make the meeting with the mediator more productive. This method is a smart way to guarantee each spouse equal bargaining power. As a matter of protection and precaution, it is always a good idea for each spouse to hire their own independent attorney to advise them and to draft and/or review the agreement.

 


Tuesday, March 25, 2014

No Longer Spouses, But Still Partners

Workplace romances are never advisable, but sometimes co-workers and business partners fall in love and get married. Unfortunately, they also sometimes fall out of love and get divorced. What happens next?

For some couples, the end of the marriage parallels the end of their working relationship—and possibly the end of the business itself. There are a number of options in such cases. The couple can sell the business and split the proceeds as part of the divorce settlement, or one partner can buy out the interest of the ex-spouse. Or they can try to split the business, with each taking half. Speak with an experienced business lawyer about the pros and cons of these options for your situation.

However, some former spouses do figure out a way to maintain their business partnership after the divorce. The personal relationship may have hit a dead-end, but the investment involved in building and growing a successful company can make it hard to walk away—and unless the business is wildly successful, with plenty of prospective buyers waiting in the wings, it is feasible that neither party can afford to walk away.

Overcoming the Challenges

There are challenges in every business partnership, and ex-spouses can adopt some basic business strategies to cultivate and maintain a healthy working relationship:

  • Sign a partnership agreement. Be clear about your separate and joint responsibilities, and matters of liability. Make a contingency plan outlining how assets will be divided in case either partner decides to leave.
  • If necessary, divide up responsibilities or tasks you once did together so you each have more autonomy.
  • Establish a board of directors. Trustworthy business people may have valuable perspectives about the direction and goals of your company.
  • Keep the company finances transparent. Money is often one of the most difficult issues in a divorce. Get help if necessary to streamline your accounting processes.
  • Be professional around other staff members and employees. It is not fair to put employees in a position where they feel pressured to take sides or respond to inappropriate complaints about their other boss. A toxic work environment is never good for business.

Thinking Outside the Box

Even with the best intentions, a divorced couple may keep falling back into their old patterns at the workplace. If you still think that the business is viable and worth the effort to make a go of it, get professional help. A good marriage therapist is trained to help couples understand the point of view of the other person and gain insight into their dynamics, and this can be valuable information post-divorce, as well.

Most entrepreneurs have a knack for thinking outside the box. Maybe you and your ex- can alternate day and night shifts for a few months. Build a partition between your desks. It might take a while before you move from being unhappy exes to friendly partners - but it just might be worth it.

 


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