JLJ Family Law » Posts for tag 'Divorce'

Divorce and Religious Upbringing of Children

A ruling is expected Tuesday in a contentious case testing the role of religion in divorce and child custody disputes, and the extent to which courts can involve themselves in religious observances, according to a recent article in the Chicago Tribune.
The divorce of Joseph and Rebecca Reyes began receiving national attention last year after Joseph, the father, violated a court order by having the couple’s daughter baptized in a Roman Catholic church. Rebecca Reyes is Jewish, has full custody of their 3 year old, and says that prior to their break-up Joseph had converted to Judaism and agreed that the child would be raised in the Jewish faith. According to the Los Angeles Times, a judge hearing their case refused last month to issue a temporary injunction that would have allowed Joseph Reyes to take the girl to church on Easter Sunday.
By all accounts the Reyes case has become particularly bitter. Joseph Reyes claims that Rebecca has only made religion an issue out of spite. Rebecca Reyes’ attorneys, speaking to the Times, accused Joseph Reyes of using religion “to deflect attention from the father’s lack of financial support and parenting skills.”
All of which places the courts in a difficult situation. Joseph Reyes contends that America’s traditional separation of church and state makes any court ruling on his daughter’s religion unconstitutional. Scholars studying the case are not as certain. Eugene Volokh, a first amendment expert at the University of California, told the Tribune that courts, as a rule, can only intervene in a child’s religious upbringing if “the religious conflict” between the two parents “puts that child at risk.” How risk is determined – especially when it concerns the emotional, as opposed to physical, well-being of the child is a complex matter and is subject to wide interpretation.
Texas courts don’t typically make specific orders related to the religious upbringing of children of divorce. §153.074 of the Texas Family Code states that “Unless limited by court order, a parent appointed as a conservator of a child has the following right during the period that the child is in the possession of the parent:

The right to direct the moral and religious training of the child.”

The Texarkana Court of Appeals reviewed a case in which the trial court modified a provision in the prior court order by removing the requirement that the possessory conservator take the children to the managing conservator’s church when he had possession of children. The managing conservator appealed and said the trial court violated her right to determine the religious training for her children. The Court of Appeals disagreed and denied the appeal.

It is permissible for parents to make agreements regarding the religious upbringing of their children and to incorporate the agreements into the Parenting Plan which will then be approved by the Court. Our firm reviews these options with clients to make sure they are properly addressed. Jody Lynn Johnson, P.C.; www.jljfamilylaw.com; 469-429-0093.

Chicago Tribune: Religion used as a weapon in divorce
Los Angeles Times: Child custody and religion

College Expenses for Your Child

Payment of college costs is a concern of most parents, and especially those going through a divorce. Although the payment of college expenses may be negotiated in a divorce and specified in a decree of divorce, the courts do not have the ability under Texas law to order a parent to pay for college expenses for a child. Once a child graduates high school and is 18 years of age, they are no longer eligible for child support; therefore, the court cannot make orders for their support.

Student loan reform legislation was signed into law on March 30, 2010 that promises to lessen the financial burden for those applying for student loans. The law affects loans that originate beginning July 1, 2010. Besides increasing money available for the Pell grant program, the program is supposed to lower the fees charged because banks will no longer be middlemen in the process. The law also helps students with regard to paying back the loans. Monthly payments will be capped at 10 percent of discretionary income rather than 15 percent.

For additional information see: http://naicu.edu/news_room/the-student-loan-reform-bill-a-perspective

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

How will Health Care Reform impact divorcing women

By Jody L Johnson of JLJ Family Law

Health Insurance for Divorced Women

Most women going through divorce are covered as a dependent on their husband’s health insurance; therefore, it is important to be aware of your options for coverage post-divorce.

1.         COBRA

COBRA (The Consolidated Omnibus Budget Reconciliation Act) is a federal mandated law that was designed to protect employees and their families from losing coverage as a result of divorce, death, job loss or other specified circumstances.  If your spouse’s coverage is through a company that employs at least 20 people, then you are eligible for coverage for up to 36 months post divorce.  Unless you and your spouse agree otherwise, you will be responsible for payment of the premiums which can unfortunately be significant.  As a result, many view COBRA coverage as a stop-gap option until better coverage is available.  Under COBRA, you do not continue as a dependent on the policy.  Instead, you are offered individual coverage similar to what you had as a dependent. It is fraudulent to remain as a dependent post-divorce.  It is possible to negotiate for your spouse to pay some or all of the cost of COBRA coverage either as part of the financial settlement or as a form of alimony.

2.         Current Employer

If you obtain employment and your employer offers an affordable health plan, then it is recommended that you look into enrolling in the plan.  Unfortunately, many divorced women who seek employment after divorce, find that employers either don’t offer insurance benefits or don’t offer enough hours to qualify to enroll in the health insurance program.

3.         Individual Health Plans

An individual policy may be your best or only option in some situations.  It is important to weigh the cost of the policy against the benefits and perceived need of coverage.  There are policies that are less costly for healthy individuals that basically insure against catastrophic health concerns. Essentially you would self-insure for everything else.   Try to negotiate for the cost of coverage to be factored into the settlement, especially if your cost will be much greater than your spouses cost.

What is the impact of the new Health Care Reform legislation?

The full impact is yet to be seen.  However, one important cornerstone of the new legislation that will significantly benefit divorcing women is the ability to obtain health insurance regardless of pre-existing conditions.  It is not uncommon for women of divorce to have one or more pre-existing conditions.  Those conditions can either prevent them entirely from obtaining insurance, or preventing them from obtaining insurance for the condition they most need it for.  The new legislation is designed to eliminate this impediment.  For more information about how the new legislation may affect you, please refer to http://bit.ly/az5LM7

For additional answers to questions about health insurance and divorce, please refer to http://bit.ly/bu36aW

For more information on family law solutions, visit www.jljfamilylaw.com

Same Sex Relationships

Although Texas does not currently permit same sex couples to marry, and the issue of whether same sex couples legally married in other states may obtain a divorce in Texas is currently be litigated, it is possible to enter into contractual agreements regarding many issues that same sex couples face when they are beginning or ending a relationship

Protecting and Defining Financial Interests and Property Rights

When entering into a relationship, it is important to define financial and property issues such as: how bills will be paid, how property will be owned (and divided upon separation), financial support for a partner. It is possible to draft cohabitation agreements that address the issues that are important to couples in order to achieve their goals.

Same Sex Parenting

Whether a partner has children from a prior relationship, or the couple has adopted a child or conceived through artificial insemination, it is important to ensure parental authority for non-biological parents and to protect the child’s continuing relationship with parents. In such situations, it is recommended that parenting agreements be memorialized in writing.

Ending a Relationship

Many same sex couples assume they have no process to assist them with ending a relationship. However, there are two viable process options available: mediation and collaborative law. Both processes have the advantage of being confidential, and give the couple a forum for reaching contractual agreements regarding the division of property, child support; partner support, child custody, and other issues that are specific to the needs of each particular family. For more information on collaborative law, visit www.jljfamilylaw.com.

Just because it’s a Gay Divorce doesn’t mean it’s a happy one

As seen in The Collaborate Alliance Blog, October 2009

Even the most amicable divorces can be emotionally difficult. Rarely do you hear, “This is huge news. We’re ecstatic,” from involved parties, even in lopsided court settlements.

Then again, rarely are same sex partners given the go-ahead to divorce…in Texas, anyway. In fact, it’s never happened before.

But last week, as reported in The Dallas Morning News, Dallas state District Judge Tena Callahan ruled that two men married in another state can divorce here and that the state’s ban on gay marriage violates the U.S. Constitution.

Now, we’re not here to argue the merits of gay marriage. In fact, we’re not here to argue at all. (That’s one of the proud hallmarks of Collaborative Divorce.) The Collaborative Alliance exists simply to make dissolution of relationships a more reasoned and respectful process – one that creates healthier outcomes for all parties.

Why might a same sex couple in Dallas consider The Collaborative Approach?

• The Collaborative Process is private – between you, your partner, and your Collaborative team. Instead of a public fight in a courtroom, your Collaborative dispute is handled respectfully, discreetly and without public drama.

• Life decisions are made by clients, not the courts. Whether or not Judge Callahan’s ruling is upheld or struck down, why would any client want to put their fate into the hands of the courts? The Collaborative Alliance facilitates respectful, efficient conversation, avoiding intervention by courts.

The Collaborative Process helps you maintain a more complete community network. In any adversarial dissolution, friends can feel forced to side with one partner or another. But the cooperative tone established in collaboration helps prevent such disruption of other life relationships, so your support network is more intact.

• Collaboration paves the way for more effective co-parenting after divorce. Open dialogue, respectful communications and the assistance of legal and mental health professionals assures both partners that they’ll be building a foundation that will allow for better co-parenting even after their relationship is dissolved. And that’s healthier for everyone – parents and children alike.

Whether dissolving a marriage or untangling a long-term relationship, The Collaborative Alliance can help couples, gay or straight, achieve a healthier outcome. Talk to us, and we’ll help you talk to each other.

For more information, visit The Collaborative Alliance http://www.thecollaborativealliance.com/blog/?p=83

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

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

Good Communication Starts With Listening

by Nancy Foster

Many of us think that communication is talking – and talk we do. We interrupt, advise, reassure, judge, analyze, criticize, argue, moralize, threaten, divert, diagnose, etc., etc. But, good communication requires good listening as well as talking. In fact, since we have two ears and only one mouth, listening just might be the more important skill. However, we receive almost no training in good listening and usually do not realize that really “hearing” someone is not a passive activity.

To be a good listener, we must, first, pay attention. The remainder of this article will focus on “attending” skills. The next article will discuss how to listen “actively” rather than passively.

When you are speaking and someone is not paying attention, how do you feel? Annoyed, frustrated, discounted, rejected, anxious or angry? Such feelings usually make communication more difficult. So how can we show someone who is speaking that we really are paying attention to them? We can do this both nonverbally and verbally.

Research shows that about 85% of what we communicate is nonverbal. This includes our posture, physical movements, eye contact and our psychological presence. So, when someone is speaking to you, is your posture inclined toward the speaker, so as to invite and encourage expression? Or is your back turned or your arms or legs tightly crossed, which discourages and cuts off involvement? Are you fidgeting or otherwise distracting the speaker or yourself? Are you making good eye contact with the person? By looking at and observing the speaker, not only will the speaker feel “attended” to, you will learn more about what is really important to him or her. Finally, we cannot pretend to pay attention by employing these physical techniques without also being psychologically present. We can’t fake interest. The speaker will know if our hearts and minds are not really there.

Verbal ways of showing that we are paying attention include

1. an open invitation to talk,

2. using one or two words to encourage talking to continue,

3. asking open-ended questions and

4. knowing when to be silent.

For example, “You look like something is bothering you. Do you want to talk about it?” describes a person’s body language followed by an open invitation to talk. It is important to silently allow the person time to decide whether to talk and what to talk about. If someone chooses not to accept the invitation, don’t try to force them. Back off and respect their privacy.

Brief responses to encourage continued talking include “mm-hmmm,” “I see,” “Oh?” “Right,” “And?” “Go on,” “Tell me more,” etc. These don’t imply either agreement or disagreement. They simply mean “Yes, I hear you – please go on.”

A good listener uses questions sparingly because questions tend to focus the conversation on the questioner’s perspective and concerns and can derail the focus of the speaker. Work on asking fewer questions, and when you do, ask “open-ended” questions. Compare “Did you call the

police?” to “What did you do?” Or, “Do you feel anxious about the meeting tomorrow?” to “How do you feel about the meeting tomorrow?” An open-ended question is like an essay question which allows the speaker, rather than the questioner, to lead the conversation and clarify his or her own concerns. A closed question is like a true/false question and often suggests or narrows the agenda.

Finally, knowing when to be silent can be a powerful communication tool. Silence allows the speaker to become aware of his or her own feelings, to explore more deeply and to proceed at his or her own pace. Because many listeners become self-conscious with silence, they feel the need to “break” it by talking or asking questions. Unfortunately, this usually disrupts and derails the speaker. How can silence be handled? Pay attention to the body posture of the speaker and “listen” to what it says to you. Try to imagine what the speaker might be feeling, consider various ways that you might respond, and then choose the most helpful response.