Implications of GPS Phone Trackers on Divorce cases

IMPLICATIONS OF GPS PHONE TRACKERS ON DIVORCE CASES

The evolution of technology continues to have implications for lawyers and clients in divorce and custody cases.

Smartphones store GPS coordinates and information about a user’s whereabouts which can allow someone to obtain very detailed information about where a user has been. Additionally that information is transmitted back to the companies to use for research.

As with any technology, there are good and bad uses for the technology.

Pros:

1. Law enforcement uses the information to obtain criminal evidence and obtain convictions;
2. Phone users get to use apps for maps, restaurant reviews, etc.;
3. The information help companies learn more about you so they can market goods or services that you may be interested in.

Cons:

1. Further erosion of your privacy and the chance for hackers to obtain information about you that can be misused. This can be used against you in many ways. Stalkers can hack into your phone and get information to discover where you live or what your daily patterns are so they can contact you. This has serious ramifications for victims of family violence. In divorce/custody cases, the information is a double edged sword depending on which side of the case you are on because lots of information can be obtained to determine what is really going on with someone. Did they violate a court order about drinking by going to Clubs? Did they really take the kids to school? Do they have a job?

There is an entire generation growing up in an era where there is basically no privacy and no concerns about losing privacy (“Facebook Generation”). The Facebook Generation is generally not concerned about privacy; however, we need to be aware of situations in which we may want to increase our level of privacy.

It is important to note that there are state and federal laws that govern hacking into cell phones, and one should always seek legal counsel before engaging in such activity.

Money Questions to Ask Before Marriage

Money can be a major source of contention in marriage, and it is certainly a hot button item at the time when couples decide to divorce.

Too often people fail to realize that a marriage is the beginning of business relationship as well as an emotional one.  Upon marriage, the couple begins to create a community estate (absent a premarital agreement), and also becomes liable for debts created during the marriage.  A spouse can also become indirectly responsible for premarital tax liabilities of the other spouse, because the IRS has the authority to attach tax refunds and levy against accounts and real estate that is community property.

A little pre-divorce financial planning can save a lot of conflict down the road, and as difficult as the conversations may get, they are well worth it to protect your financial future.

Before you say “I Do”:

1. Exchange credit reports
2. Discuss how bill-paying responsibilities will be handled
3. Exchange recent tax returns
4. Discuss expectations about how bank accounts will be maintained
5. Discuss expectations for saving money
6. If one or both of you have children from prior marriages, discuss expectations for handling their expenses.
7. If there is an expectation of monetary gifts from parents, or receipt of inheritance, discuss how those will be handled (under Texas law they are the separate property of the recipient; however, many times the other spouse considers it “their” money also.
8. Consider beneficiary designations on life insurance, retirement accounts, and bank accounts.
9. Review your estate planning.
10. Determine if a premarital property agreement is appropriate.
11. Consider meeting with a financial planner to assist you with putting together a financial plan for your future – sometimes the conversation is easier with a neutral professional to guide it.

Our firm can assist clients to protect themselves financially as they enter into a marriage.  Jody Lynn Johnson, P.C.; www.jljfamilylaw.com; 469-429-0093.

A Satisfying Agreement

Nancy Kurn (CPA, JD, LLM, MBA, CDFA)

A prenuptial agreement is a contract that two parties enter into in contemplation of marriage. It can also be referred to as a “premarital agreement,” “antenuptial agreement,” or simply a “prenup”; in Canada, it is called a “marriage contract.”

In most states, until the 1980s, prenuptial agreements were deemed against public policy and not valid to the extent they pertained to divorce or separation. They were considered against public policy, because it was thought that they encouraged divorce and allowed the husband to thwart his legal obligation to support his wife. Prior to that time, they were valid to the extent that they pertained to the death of one spouse.

A postnuptial agreement (a marriage contract in Canada) is similar to a prenuptial agreement except that it is entered into after the parties have married. In some states, postnuptial agreements are not valid if either spouse is contemplating divorce or separation.

Canadian law also recognizes cohabitation agreements for couples of the same or opposite sex that currently, or intend to, live together.

First, a brief overview of U.S. law. In community-property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), any assets that are acquired during the marriage are marital assets and divided equally between the spouses upon divorce. In equitable-distribution states, any assets acquired during the marriage are divided between the spouses in a fair and equitable manner. In many states, the appreciation in value of a separate asset during the marriage is a marital asset.

Generally, a prenuptial agreement sets forth how the marital assets will be divided in the event of divorce or either spouse’s death. It can also address what assets remain the separate assets of each spouse and what happens to the appreciation in value of the separate assets. For example: Joe has an IRA worth $200,000 at the time he marries Barb. When they divorce, six years later, the IRA is worth $500,000. In some states, $200,000 would be considered Joe’s separate property and $300,000 would be considered a marital asset to be divided between Joe and Barb.

Barb has a home worth $250,000. Joe moves in after they marry, and they use the home as their marital home. When they divorce, the home is worth $400,000. The court is very likely to decide that Barb made a gift to the family, classify Barb’s home as a marital asset, and split the entire asset. If Joe and Barb created a prenuptial agreement, they could have agreed that Joe’s IRA — including any appreciation during the marriage — would have remained his separate property and that Barb’s home — including any appreciation — would have remained her separate property.

Although there are limitations in many areas, prenuptial agreements may also cover issues of spousal and child support. The spouses can agree not to contest any estate-planning documents prepared by the other spouse and to give up certain statutory rights upon the death of one spouse. They can also agree to file joint or individual tax returns during the marriage.

Some couples also cover issues that arise during the marriage, such as their children’s religious upbringing, how household duties will be divided, how finances will be handled, and sometimes even how often the couple will have sex. These provisions are best left out of the agreement, because a judge has no mechanism to enforce them. In addition, you have to be very careful with these provisions, because if they are too unusual, the entire agreement may be deemed invalid by a judge.

In addition to addressing how the assets will be divided, it is also important to decide how debts, particularly those acquired before the marriage, will be divided.

Limitations

Generally, two parties can agree to anything that does not violate any law or oppose public policy (interest). For example, contractually encouraging someone to divorce would be against public policy and invalidate the agreement. A prenuptial agreement has several limitations; some are unique to prenuptial agreements:

1. The parties must fully disclose their assets to the other party. Otherwise, one spouse is giving up rights to assets that he or she knows nothing about.
2. Some states do not allow prenuptial agreements to limit or eliminate spousal support. In addition, the agreement may be deemed invalid if the spousal support is very high, because the agreement then encourages divorce and is against public policy. In Canada, spousal support provisions are valid.
3. Child support cannot be limited pursuant to a prenuptial agreement. In some states, child-support provisions will be upheld as long as the support is not less than the statutory guidelines. In other states and in Canada, provisions regarding child support are invalid. Anything limiting child support to less than statutory amounts cannot be enforced. Child support is governed by state guidelines in all 50 states.
4. In both the U.S. and Canada, any agreement regarding child custody or visitation in a prenuptial agreement is invalid.
5. A judge could deem the agreement void based on typical contractual theories such as fraud, misrepresentation, duress or coercion. A unique circumstance with the prenuptial agreement is the timing of the signing of the agreement. If the groom takes the agreement to the bride the night before their wedding, then she could certainly argue that she signed the agreement under duress, or that she was coerced into signing it. To avoid the argument that the agreement was signed under duress, it should be signed long before the wedding takes place. Some would argue at least 30 days and others recommend before the wedding invitations are sent to the guests.
6. The prenuptial agreement cannot be unconscionable. If one spouse is left destitute, the court may decide that the agreement is not valid, because it is unconscionable.
7. In Canada, any provision in the prenuptial agreement regarding the right to live in the matrimonial home, or the right to sell or transfer the matrimonial home, will be invalid.

Benefits

Prenuptial agreements are not just for the wealthy. They are particularly useful in second marriages, where one or both spouses have children from a previous marriage.

Mike and Carol are going to be married. Mike is a widower and has three sons. Carol is a widow with three daughters. Both of them have assets that they are bringing to the marriage, including the death benefits they received upon the death of their first spouses. Mike and Carol are contemplating hiring attorneys to prepare a prenuptial agreement to ensure that the assets they received from their deceased spouses will go to their respective children.

A prenuptial agreement has numerous benefits. Some of these benefits include:

1. The certainty it provides as to what happens in the event of a divorce or the death of either spouse.
2. Protecting children from a prior marriage.
3. It is prepared, in theory, when there is harmony instead of at a point when the relationship is very contentious.
4. The parties can negotiate the terms of the agreement; instead of having a third party (a judge) and state and provincial laws decide how to divide the couple’s assets.

Challenging a Prenuptial Agreement

If you’re going to have a prenuptial agreement, you should each hire a lawyer to ensure that it is valid and will hold up in court. Do not try to prepare one yourselves! Steven Spielberg and Amy Irving allegedly drafted their prenuptial agreement on the back of a napkin; the court did not recognize it as a valid contract, and it has been reported that Irving received over $100 million in assets after their four-year marriage ended.

A prenuptial agreement can be successfully challenged in the following ways:

1. If it has not been signed. Most states require the prenuptial agreement to be signed by the party to be charged with the agreement.
2. By proving the other party did not fully disclose their assets.
3. By proving that you were not represented by independent counsel. Each party should be represented by his or her own attorney. Generally, this alone will not be sufficient to invalidate the agreement.
4. By proving that the agreement was unconscionable when it was signed.
5. By proving that the agreement is now unconscionable based on today’s circumstances.
6. The agreement can be challenged based on duress, due to the timing of the signing.
7. It can be challenged on any other typical contractual theory such as fraud, misrepresentation, or coercion.

Additional Issues to Consider

Each spouse should draft their estate plans so that they conform to the terms in the prenuptial agreement. You do not want to force your children and surviving spouse to get involved in litigation involving your estate. The costs could result in everyone getting significantly less.

You may also want to consider using life insurance to replace assets that go to either your children or your spouse. For example: Mike and Carol purchased a new home with the proceeds from the sale of Mike’s previous home. Mike wants Carol to have the home upon his death. He can purchase insurance, naming his sons as beneficiaries, to replace the proceeds from the sale of his previous home.

Prenuptial agreements can be amended or revoked at any time. Some couples add a sunset provision terminating the agreement after a certain period of time, such as ten years.

Case Study: Sarah and Brad

Sarah has a technology business that she thinks is worth approximately $1,000,000. In 2003, it had gross sales of approximately $750,000 with profits of approximately $300,000 (including Sarah’s compensation). The income has steadily increased at about 20% annually. She is about to marry Brad. This will be the first marriage for both of them, and neither of them have children. Brad’s net worth is approximately $50,000 and his annual income is approximately $40,000 and increases at about 3% per year. Should Sarah have Brad sign a prenuptial agreement to protect her business?

If Sarah wants to protect her business and its future growth, then she should have Brad sign a prenuptial agreement. Otherwise, any future increase in the value of the business during the marriage would likely be split between both parties. Without a prenup in place, if Brad sometimes helped Sarah with the business, then a judge may find that the business is a marital asset and split the business. Sarah must hire an expert to perform a business valuation; better still, she and Brad could jointly decide on the expert that will perform the valuation, or each of them could hire their own expert and then average the two valuations. If this is done, then Brad would have a difficult time challenging the value of the business.

This article originally appeared on www.divorcemag.com. For more information on prenuptual agreements, visit www.jljfamilylaw.com

Separate Property: What it is and How to keep it

Under the Texas Family Code, separate property consists of (1) property owned or claimed by a spouse before marriage; (2) property acquired by the spouse during marriage by gift, devise, or descent, and (3) recovery for personal injuries sustained during marriage, except for recovery for lost wages or earning capacity.

Community property is defined as all other property acquired during the marriage other than separate property.

These rules apply whether a marriage ends by divorce or death of a spouse. For instance, if a person’s Will gives separate property to someone, then it will be important to determine what the separate property consists of.

There is a higher standard of proof under the law to prove a claim for separate property. At the time of divorce, all property is presumed to be community property unless proven otherwise. Separate property must be proved by clear and convincing evidence. The key to proving a claim for separate property is good record keeping. Maintain documents of assets and debts existing on the date of marriage, and keep on-going records. It is not sufficient to show you had an investment account at marriage with $10,000 in it, and that the account at divorce is your separate property. Why? Income earned during marriage from separate property is community property (because it was earned/acquired during marriage). Additionally, it is unlikely that there would be no deposits or withdrawals in the account during the marriage, and it needs to be determined if those were separate or community.

Let’s look at some common divorce scenarios:

1. Investment account value was $50,000 at date of marriage and $100,000 at date of divorce.

There will most certainly be fluctuations in the value of stocks during marriage, up and down. Those don’t change the character of the stock. One share of Southwest Airlines stock worth $50 at marriage is still separate property at divorce even if the stock is now worth $75.

Interest income is community. Deposits into the account after marriage from community property (e.g. wages) are community, and any investments purchased with those funds are community.

The typical scenario at divorce is that the investment account is mixed: community and separate. If the spouses cannot agree on what is separate then it is necessary to hire a forensic accountant to trace the account from the date of marriage to divorce. This is where good records come into play. Without them it is unlikely that a clear and convincing case can be made.

2. House Owned Prior to Marriage, Sold after Marriage, and Proceeds used to Purchase New Home with Spouse

Maintain all closing documents from the sale of the first house and purchase of the second house. Keep bank statements to show what happened with the proceeds from the sale of the first house (e.g. deposit into bank account, copy of check and statement showing money going toward the purchase of second house).

This is another typical situation of mixed title, because usually there is a down payment, which, in this case, is separate property, and a mortgage note signed by the husband and wife. The separate property interest equals the down payment divided by the purchase price.

The Texas Legislature allows spouses to change the rules of characterization, and that can be done through pre-marital and post-marital agreements. There are technical rules to follow in drafting the documents, and you should consult an attorney if you think that you need such an agreement.

In the meantime, keep all of your records

What is Collaborative Divorce?

By Jody L Johnson
As Seen in Divorce Magazine

How would you like to resolve your family-law dispute in a manner focused on the needs of the clients and not on pointing the finger and tearing down each other? How would you like to take control over the outcome of your case, rather than surrender control to lawyers, judges, or strangers on a jury? If this sounds appealing to you, then consider resolving your case collaboratively.

Collaborative law came to Texas in 1999, and it is increasingly becoming the process of choice for clients with family-law disputes. Collaborative law is client-centered. The entire focus is on the goals and needs of the client. The process is designed to provide the clients with a forum in which to find a best possible outcome for all parties and their children. A traditional litigation model is not client-centered. It is driven by the attorney and judge, as well as the rules of procedure and evidence. The primary focus is on getting ready for trial (even through 95% of cases settle), and ending the lawsuit, but not on the quality of the end product.

The process also provides a safe and confidential forum for the resolution of disputes, whereas the litigation model is public and the parties are subjected to cross examination, depositions, and court-imposed rulings. Parties who agree to handle their dispute collaboratively agree that they will not go to court to resolve disputes. They also agree to schedule four-way settlement conferences that involve the collaborative lawyers and each party. The meetings are private and organized — agendas are mutually prepared to list topics to be discussed and resolved. The rules of evidence do not apply; therefore, the parties are free to discuss whatever is important to them, regardless of whether a judge would consider it. Likewise, the parties have the ability to create tailor-made settlements for their particular family. Many times, the parties reach agreements that a court would never consider or have the authority to impose. And most importantly, nothing happens that the client does not agree to.

A frequent concern raised by clients is that their spouse may not be forth coming in providing information. Parties who contract to handle their case collaboratively also commit to full disclosure of information. Your collaborative lawyer is still there to make sure that all important information is disclosed. Additionally, many clients have a misconception that a litigation model will insure that they receive full disclosure. In fact, a litigation model is an ideal process for parties who want to play “hide the ball”, because there are many ways to abuse the court rules or use loopholes to avoid disclosure.

In order to effectively work, collaborative law requires each party and attorney to agree that if the parties cannot settle their dispute collaboratively, then the collaborative attorneys must withdraw and the parties must hire litigation counsel. This may sound scary to clients at first; however, this is what makes this innovative process work. Everyone has a stake in continuing to “think outside the box” in order to problem-solve, rather than run to the courthouse. Otherwise, the collaborative lawyers are out of a job. Your collaborative lawyer is still present to assist you in gathering and assessing information, analyzing your options, and negotiating a solution. Additionally, experts are still used as necessary (e.g., psychologists, financial advisors, and appraisers).       Collaborative lawyers have additional training in communication and negotiation skills to assist you, and they are committed to problem solving for their clients.

The skills that parties learn throughout the collaborative process allow them to end their divorce or other family law dispute in a dignified manner, and assist parents in working together beyond the end of their lawsuit.

For more information, visit www.divorcemag.com.
For more information on collaborative divorce and family law solutions, visit www.jljfamilylaw.com

Alimony in Texas

By Jody L. Johnson

Clients frequently ask about their obligation to pay or ability to receive alimony. Texas Courts have limited authority to order alimony after a divorce is granted. However, while your case is pending, the Court has unlimited authority to award temporary spousal support. The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The Court will additionally consider the health and age of the parties, ability to work, responsibility for children, availability of funds, and the length of the marriage. As a general rule, temporary spousal support will be ordered for a limited period of time and in an amount necessary to cover the basic necessities of life. To receive alimony after divorce (referred to as “spousal maintenance”), generally you must have been married for a period exceeding 10 years, and in certain situations, you may be qualified to receive up to $2,500 per month for a maximum of three years. It is also necessary that you show that you have been diligent in seeking suitable employment or developing skills necessary to become self-supporting. There are some exceptions, such as in the event you have an incapacitating physical or mental disability or you are the custodian of a child of the marriage who requires substantial care because of a physical or mental disability that impacts your ability to work.

For more information on family law solutions, visit www.aj-familylaw.com

Collaborative Law and the Affair

by Carla Calabrese
As seen on The Collaborative Alliance Blog

Affairs are one of the leading reasons sited for divorce. And while traditional divorce attorneys often tell clients that affairs are not appropriate cases for Collaboration, the opposite is actually true. (In fact, a quick poll of the attorneys on this blog roll would confirm that most of their cases involve affairs.)

Whether you’re the spouse who’s discovered the affair, or you’re the one who is having it, Collaboration can create a better outcome than giving up control to the courts – healthier for children, more private, and more financially beneficial.

Now, If your spouse had the affair, you may be thinking, perhaps even justifiably, “I want him/her to suffer. I want their paramour to be scared or embarrassed by a subpoena – serves them both right!”

While these emotions are natural, acting on them is dangerous and just plain bad business. Unfortunately, there are attorneys who fuel this bitterness and acrimony. And by stoking adversarial fires, they can actually protract the proceedings. Guess who “wins” then.

Traditional divorce involving a workplace affair is especially problematic. If the boss finds out, your spouse could be fired! And if that spouse is a substantial or even sole source of income, everyone loses.

Worse, sometimes having an affair with a colleague could give rise to a lawsuit for sexual harassment. Community dollars that you could get in the divorce settlement would be spent on lawyers defending a sexual harassment suit or more likely, paying off the paramour. (Yes, it happens!)

Yet there are adversarial lawyers who pursue workplace affair cases for “stay at home moms,” knowing that litigation may be jeopardizing the couple’s only significant asset – the husband’s job and/or career.

Collaborative Divorce works best for affairs because:

1. It protects all parties’ privacy. No matter which side you’re on, you want privacy. Collaborative divorce is a confidential process. No court, no hearings, no deposition of your boyfriend reciting all the sordid details, no girlfriend being cross-examined on the stand at your trial. No public statements from the cheating spouse about why they “needed to look outside the marriage…” Privacy is your friend. Collaborative Divorce is the only real way to assure it.

2. Legal costs can be lessened. In the collaborative process, the affair is dealt with mainly by the mental health professional. If one or both spouses desire, the mental health professional can meet with them individually and/or together outside the purview of the lawyer. This can dramatically decrease legal costs.

3. It keeps the control where it belongs – with the clients, not the courts. You can reach your goals with more dignity and more efficiently than litigation could ever provide.

Sometimes, despite an affair, a couple actually reconciles during Collaboration. Given the confidential and non-blaming nature of the process, this makes sense. The opportunity is there and has not been destroyed by aggressive, alienating actions often taken in a traditional divorce case.

That’s the benefit of Collaborative Divorce in every case – less damage, more dignity. And that’s something all divorcing couples can use help with, especially in the case of an affair.
For more information on The Collaborative Alliance, visit www.thecollaborativealliance.com
For more information on family law solutions, visit www.aj-familylaw.com

Contemplating Divorce?

By Jody L. Johnson
Contemplating divorce is scary, and lack of information further drives fear. There is so much information on the internet about divorce that it is virtually impossible for a lay person to separate fact from fiction. The best course of action is to talk to more than one competent attorney. I recommend getting personal referrals and then checking out those individuals by reviewing their website, checking out whether they have any complaint history with their State Bar, as well as looking at other peer review ratings that might be available for attorneys in your area. Just as you wouldn’t generally select a doctor randomly, you should be just as cautious in selecting an attorney. Consider talking to friends, your minister, CPA’s, or attorneys you may know who do not practice in the area of family law. Martindale-Hubbell Peer Review Ratings attest to a lawyer’s legal ability and professional ethics, and reflect the confidential opinions of members of the Bar and Judiciary. The ratings cannot be purchased by attorneys.

You should expect to pay some kind of consultation fee to see an attorney. Again, think about if you were going to see a doctor to get advice on what is wrong and how to treat the problem. You expect to pay for their expert advice, and seeing an attorney is no different. Although there are good attorneys out there who don’t charge for consultations, most do, because good attorneys are busy and can afford to charge for their consultation time.

Before the consultation, write out a list of questions that you have so you don’t forget to get your important concerns addressed. A good attorney will be patient in responding to your questions. You will want to ask about the attorney’s level of experience: do they have experience with the particular issues in your case, and how often do they go to court in the area where you reside. You will also want to make sure that you understand the steps involved in your divorce, and ask the attorney how you can best protect yourself during the process. Again, the attorney should gladly respond to all of these questions. If it feels as if the attorney is putting you off (“we’ll get to all of that later”), I would say that is a red flag that the attorney is more concerned about signing you up as a client then serving your interests.

Look for an attorney who asks you lots of questions about what is important to you (e.g. quality time with your children, keeping your business, etc.). You want an attorney who is listening to your concerns rather than one who does all the talking and tells you what they will do. Be wary of attorneys who make promises about the outcome of your case. No competent attorney can tell you that in a consultation; they don’t have nearly enough information. Also be wary of attorneys who act as if they will come out with “guns blazing” for you. Although that may feel good to know that someone will be your protector, more often than not, an extremely aggressive approach is counter-productive to your interests. It will likely increase the level of hostility with your spouse and decrease your ability to reach a favorable settlement. At the same time, it will increase the attorney’s fees dramatically, which benefits the attorney but not you. That being said, you need to know that your attorney knows how to prepare a case for trial if necessary and then actually try the case. Find out how much experience they have at the courthouse.

As far as steps you can take before you see an attorney, the best thing you can do is to gather and organize information. Absent a true emergency, do not make any major decisions in advance of consulting with an attorney. Don’t move money, withdraw money from financial accounts, cut off your spouse’s ability to use credit cards, etc. without getting some professional advice.

It will help you and your divorce attorney if you are able to organize your financial information. Make a budget that lists all current monthly expenses of the family, including any unusual expenses that are coming up (replace roof; college tuition payment, etc.). Also make a list of all of the assets (house, bank accounts, retirement, life insurance, cars, etc. – not a list of your furniture and furnishings) and debts. Include accounts numbers if you have those. Make copies of the last 3 years of tax returns, most recent pay stubs for you and/or your spouse, and the most recent statements for your financial and retirement accounts. Don’t worry if you don’t have access to this information. Lots of people don’t and your attorney can help you obtain it. However, if you do have it, it helps you stay ahead of the curve.

Depending on the issues in your case, it may also be helpful to copy cell phone records, emails, credit card statements and Face book pages if there is concern about an affair.

For more information on Kip Allison and family law solutions, visit www.aj-familylaw.com

Planning for Divorce

By Jody Johnson

The most important step you should take in planning for a divorce is to hire an attorney who will inform you about your options and help you make decisions for your futures. This is your divorce. The decisions you make now will have lasting effects on your children and your financial security. Now is not the time to surrender control. You want to find a lawyer who will act as a professional partner with you; one who will inform you about all of your legal options, help obtain relevant information, and explain the pros and cons of each possible option so that you can make the best decision at this critical time.

If you don’t like everything that you are hearing from the attorney, then the attorney is probably shooting straight with you. No client has a perfect case. You do not want a cheerleader or best friend who tells you what you want to hear. You need accurate information to make informed decisions. If you are contemplating divorce, you are not functioning at your best. You need a clear-thinking advocate.

Even at the initial consultation, an attorney should be able to clearly explain to you a general strategy for getting you divorced, and explain the reasons why the strategy is recommended. You should feel comfortable with the attorney and if you don’t, find someone else. Rely on your instincts.

Clients have the option of litigating or collaborating their divorce. Litigating means that your disputed issues are resolved through the court system. A collaborative divorce is an option if you want to resolve issues away from the courthouse, focus on you and your children’s interests, and have control over the outcome. The process incorporates the benefits of a neutral financial professional and mental health professional (sometimes referred to as “divorce coach”) to help you and your spouse communicate more effectively and develop and negotiate parenting and financial plans. There is a contractual agreement to stay out of court. You should inform yourself about these options in advance of seeing an attorney and consult with an attorney who is knowledgeable about both options. A lawyer who only practices family law one way cannot fully inform you and you may end up selecting a process that is not best suited for your situation. Also be cautious of an attorney who only practices in one arena and tells you that your case isn’t suited for the other; there is an obvious financial incentive on the part of the lawyer who will lose your business if he recommends an options for you that he can’t provide. For more information about the collaborative option, see the website for the International Academy of Collaborative Professionals (www.collaborativepractice.com) or the state organization in your particular state.
For more information on Jody Johnson and family law solutions, visit www.jljfamilylaw.com

Having a Collaborative Divorce with an Alcoholic or Drug Using Spouse

By: Jody L. Johnson of Allison | Johnson

There are lots of lawyers who will tell their clients that it is not possible to have a collaborative divorce with an active alcoholic or drug user spouse. Although it does present special challenges, it also presents an opportunity to protect children and reach settlements that would not be possible in traditional litigation. There are those limited cases where a person is so deep into their addiction that they cannot participate effectively in the collaborative process. However, those same people cannot effectively participate in litigation either and likely need to be in a treatment program in order to proceed in any process.

In Texas, the Courts are mandated by law to order a parenting time schedule that has the minimum restrictions required to protect children. As a result, in most cases an addict parent will have parenting time with their children, and it may not be supervised (or be supervised for a limited period). Almost always, the other parent is extremely upset with the outcome at the courthouse. Additionally, the parents become more polarized because the addict parent is angry as a result of being embarrassed at the courthouse by having his/her addiction “on display”. The addict parent typically sinks deeper into denial, all to the potential detriment of the safety of the children. They also become angry at the other spouse and take an attitude that “I won’t give them a penny more than the court orders”. In the collaborative process we are much more able to monitor the addiction and keep a lid on the situation. By discussing the addiction in a completely private and confidential setting, and without pointing fingers or assessing blame, we are more likely to get cooperation from the addict parent. Rather than focus on the addict parent, we focus on the addiction as a family problem and look at options for everyone to deal with it. Once they realize that we are not going to focus on them as the bad guy, they tend to be more open to exploring ways to keep the children safe and many even agree to seek treatment. When the addict parent feels like he/she has had some measure of control over the situation, then they are more invested and more likely to be compliant with the agreements they make. I have seen addict parents acknowledge that they are not ready to go into treatment and come up with parenting plans that are very protective of their children but allow them to have some form of relationship. I have also seen addict parents admit to relapse at some point in the process because they feel safe in doing that. In the litigation model, they hide their addiction because they know it will likely be used against them harshly.

By avoiding the blame game, clients are also more likely to obtain more favorable settlements than they might in court. When backed into a corner, most of us dig in our heels and become focused on not giving the other person what they want. In collaborative, clients are often open to favorable trades in exchange for their spouse showing them some respect and not using their addiction as a weapon.
For more information on Kip Allison and family law solutions, visit www.aj-familylaw.com