Blog Topic

Children with Special Needs and Divorce
Posted by: Bob Kalish
February 16, 2010

Divorce is difficult for everyone, but there are additional challenges for a family member with special needs.

When considering support and care of the child, it is important to have a complete and accurate picture of the present and future needs. This information will be considered in deciding custody, visitation, child support and medical support. It will be important at the initial stages of the process (to determine stability for the child in support and visitation while the case is pending) and it will be important in deciding the final allocation of the marital resources and debts. Depending on how much care and supervision the child needs, it may also determine the need for spousal support or payment for in-home help or care.

Consistency is important. Well-thought out "temporary orders" (which apply while the divorce is pending) can help the parents know exactly what is expected of them in regards to custody, visitation, duties and support and assist them in keeping misunderstandings to a minimum.

It is important to be sure that the attorneys in the case have an understanding of the child's condition, so that legal fees can be spent in meaningful negotiations or trial preparation.

In certain cases, child support may extend beyond the usual time (in Texas child support most often terminates when a child is over 18 and out of secondary school). When a child is very young, it may be difficult to determine whether or not this will be necessary because there may not be enough facts available at that time.

Just as in any divorce case, the court will make the decisions that the parents cannot agree upon, and will do so with "the best interest of the child" as the primary criteria.

Final divorce orders may include provisions for specialized medical care, psychological care, or training. At the time of the final divorce, every effort should be made to draft a final decree that is "long-lasting", in order to prevent the trauma and expense of returning to court in the early post-divorce years.

Even if every effort is made to predict the future situation, it may be necessary at some point to go back to the court for a modification of the previous orders. If so, information from doctors, psychologists and school counselors can be invaluable, especially if these professionals have good communication with both parents and a long-term history with the child.

It is important that all professionals who are working with the family, including attorneys and mediators, have an understanding of the situation so that they can properly advise the family.

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Dealing with a Financially Complicated Divorce
Posted by: Bob Kalish
February 05, 2010

Certain facts in a couple's financial situation can create a complicated situation when divorced is filed. In such situations, it is important to be sure that the attorneys involved in the case understand the financial picture, and have the experience to deal with it.

If a couple has a large, high-dollar marital estate (even if the value is held in "non-liquid" assets), there will be certain steps that must be taken to insure proper valuation and division of the property. This becomes even more crucial in today's economy. This can often be accomplished between the parties and their attorneys, using information that is already available, but in some cases it is necessary to include CPA's, appraisers, financial planners, realtors or other professionals in the process.

Another complicating factor is separate property estates. An issue arises when the parties disagree in how the existence of the separate property should affect the split of the marital property. (For instance Husband wants the marital property to be split 75% to him and only 25% to Wife because she has a large separate estate and he has none. Wife disagrees and wants 50% of the marital estate, as well as her own separate property).

Separate property can also become comingled with the marital property, creating a fertile ground for disagreements.

When there is a disparity in income-earning ability between the spouses, it will need to be addressed as well. Factors that will weigh into this evaluation include education, health of the parties, ability to work, willingness to work, length of the marriage and whether there are minor children of the marriage. Payment of spousal support and child support will be evaluated when appropriate.

Ownership of a business can create its own unique fact pattern. The ability to keep a business running without disruption, while the divorce is pending, and work to insure its continued successful operation after the divorce is final is an important goal.

Assets with value that is not easily determined must be given careful consideration. (For instance, stock options, intellectual property rights and the like).

Fortunately, there are many options available to arrive at resolution. Some of these vehicles are collaborative law, mediation and/or consultation with other professionals.

Proper planning and communication between attorney and client will help insure that all options are considered and that money spent for legal and professional fees will be used wisely.

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Dealing with Property Issues Long After the Divorce is Over
Posted by: Bob Kalish
February 02, 2010

Although a final divorce decree is supposed to "split" the property once and for all that is not always the case.

There are a variety of reasons why a couple may find themselves dealing with property issues months or years after the final decree has been signed. Here are some of the most common:

Retirement assets (401K, private and governmental retirement benefits and accounts, etc.) Some of these accounts cannot truly and finally be 'split' until the retirement actually occurs. Even if the paperwork is done at the time of divorce and is submitted to the benefits department or managing investment company, there can be additional steps before the benefits or funds are cleared for release. Specific court orders for this purpose (called "QDROs" for Qualified Domestic Relation Orders") are usually required. Requirements for allocation of retirement benefits vary from company to company and these QDROs can become quite complicated at times. Because this issue can also become time-consuming, some couples who are anxious to be finished with the divorce process decide to just "deal with it later".

Real Estate Issues: The most common scenario here is the sale of the marital residence and split of the proceeds. The divorce decree should specify the allocation of equity, but the actual sale may not occur until months or years later, depending on the terms of the decree. There may also be additional real property (usually income-producing) which the divorced couple has chosen to keep as co-owners for financial reasons. Another common situation occurs when the final paperwork transferring real property was not finished, signed or filed at the time of divorce for a variety of reasons (for example, one spouse refuses or forgets to sign, or cannot be found).

Split of debts: A divorce decree can allocate a joint debt between thespouses, but it cannot take away a creditor's right to be paid by co-debtors. For instance, if a husband and wife owe Credit Card Company $ 10,000.00 and the Judge orders Husband to pay the $10,000.00, Credit Card Company may still legally sue both spouses if the husband does not pay the debt. In that event, the wife will be able to sue the husband for not paying the debt, but she still is held responsible to Credit Card Company.

Titled Vehicles: For any vehicle with a title, the title should be changed to reflect the name of the party to whom it was awarded. This is a step that often gets overlooked, especially for property which isn't used often or doesn't have a lot of monetary value (trailers or boats that aren't used often, "spare" pickups or heavy equipment). This can be remedied with a proper power of attorney for transfer.

Other Accounts: Bank accounts, stock, and safe deposit boxes fall into this category. Some of these assets may be accessed and split by showing a certified copy of the divorce decree, available through the district clerk's office of the county in which you received your divorce.

Fraud in the Divorce: If a spouse has hidden assets from the other spouse fraudulently during the divorce process, the innocent spouse may have a legal remedy. In this case, it would be important to contact an attorney to determine if there is anything that should be done.

Some of the above problems can be remedied without the assistance of an attorney and others can become very complicated and may even require court intervention.

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Pre-Divorce Planning
Posted by: Sio Ramirez Pitre
January 11, 2010

If a potential divorce is on the horizon, it pays to do some pre-planning. During a pending divorce, emotions often run high, and day-to-day routines are disrupted. Important decisions may have to be made under stress.

There are many situations in which pre-divorce planning can be beneficial to one or both parties.

1. When there may be violence or threats: If you are in an abusive relationship, or one in which your partner may become violent, you should plan in advance. You will need to have a safe place to go, access to funds, important papers and transportation, and quite possibly have protective orders in place prior to the time your spouse is served with papers. You will need to make arrangements in advance to keep children and pets safe, as well as yourself.

2. When you or your spouse own or operate a business together: You will want to be sure that the action is filed and proceeds with as little disruption as possible to the business, its employees, and its customers. An attorney who is also familiar with business law can be helpful in these situations, as you will need your lawyer to help you have reasonable expectations about what to expect from the business if your divorce proceeds.

3. When one spouse controls the finances: If your spouse controls the finances and assets, you will need to know what to do to protect your interests from the beginning. If you are the one who pays bills and manages funds, you will need to have a realistic picture of what will be expected and required during the divorce action so that you can budget accordingly.

4. When you and/or your spouse have debt: It can be very helpful to know in advance what will be expected of you individually if you proceed to a final divorce. You may need this information prior to deciding whether to return to work or change jobs. You will also want to pay particular attention to keeping up payments on real estate and vehicles to avoid losing hard-earned equity in these assets.

5. When you have separate property concerns: Although Texas is a community property state, you or your spouse may have property which can be considered "separate property". There are often "gray areas" as to whether property is separate or has become part of the marital estate. Deciding these issues can use up a lot of legal fees during the divorce, so it is a good idea to gather documentation in advance.

A divorce is a life-changing event and you shouldn't guess when it comes to your legal rights and obligations. A confidential consultation can help you decide how to handle a potential divorce in the best manner possible under the circumstances.

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What Are "Temporary Orders"?
Posted by: Sio Ramirez Pitre
November 23, 2009

If you have filed or are about to file for divorce, you may need "Temporary Orders."

These orders are called "temporary" because they are in effect from the day the judge signs them until further order of the court. That "further order" will often be the final order of divorce, but it could be a second set of temporary orders.

The temporary orders instruct the divorcing couple on what to do about bills, child visitation and support, and property until the divorce is final.

A court hearing on temporary orders can happen very quickly after the divorce petition is filed. In many divorce cases, the parties really need immediate direction on what to do about these issues. The terms of the orders may be reached by negotiation between the parties, a mediation agreement, or a hearing in front of the judge, or a combination of the above.

Once the document is drawn up and the Judge signs it, it has the power of law. It is a legal order, and anyone who willfully violates it is subject to contempt!

The temporary orders can be a great relief to the parties, giving specific direction on rights and duties and helping to protect the marital estate. Since the orders tell the parties what to do about child support, and give visitation specifics, there is a good possibility that many misunderstandings can be avoided.

In Texas, where there is no such thing as "legal separation", temporary orders are the closest thing to a "separation agreement" that exists.

If you believe that you will need temporary orders in your divorce, you should tell your attorney your concerns right away. Not everyone needs to have temporary orders, but in many cases, they are very valuable.

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