Posted on July 22, 2015 in Complex Divorce

When asked for a quick definition of collaborative law, many attorneys may say something like "ongoing mediation." Although this synonym is not entirely inaccurate, it does not capture the essence of collaborative law nor does it explain why it is a viable alternative, at least in many cases.

To briefly summarize, collaborative lawyers work with the parties to resolve property division in a high-asset divorce, complex custody disputes, and related matters.

Structure

Almost everyone knows that divorce litigation takes place in a courtroom, where either a judge or a jury decides factual and legal issues. The attorney's role is to "win" the case by "beating" the other party, although these terms mean different things to different people in different cases. Mediation is typically part of the litigation process, although sometimes the parties simply go through the motions.

Continue Reading ››

 Posted on July 15, 2015 in Prenuptial Agreements

Purchasing a car is nearly always a happy experience. Buyers are understandably focused on the cars' features and their plans for years of freedom on the open road. Auto insurance is only a necessary afterthought. In some ways, marriage is much the same. The bride and groom are understandably focused on their love for each other and their plans for a life together. A premarital agreement is only a necessary afterthought. Although no one plans to get in a car wreck or get divorced, responsible owners, and spouses, should be prepared for any possible outcome.

Content

Especially in a second or subsequent relationship, a premarital agreement can put inheritance plans in writing, virtually eliminating the possibility of a future battle in probate court that no one really wants.

By and large, however, most premarital agreements focus on property division matters, and Chapter 4 of the Family Code lays out the parameters of these documents. A premarital agreement may address almost all property obligations and rights that may be part of a high asset divorce, including:

Continue Reading ››

 Posted on July 08, 2015 in Child Custody

All parents share a common goal: the best interests of the children. That being said, parents often have very different opinions of what is "best." Moreover, they often sharply disagree as to the methods used to achieve that common goal.

In terms of their approach, many lawyers are far too aggressive in child custody disputes. A court hearing is unlike some other forums, where the people with the loudest voices typically get their way. In fact, this approach often backfires. Many judges rightly believe that parents who recklessly attack the other side lack the co-parenting skills needed for a successful post-divorce parent-child relationship.

Controlled aggression, along with thorough preparation, often achieves the best results in complex custody actions. What evidence can support a party's arguments in court?

Continue Reading ››

 Posted on June 24, 2015 in High Asset Divorce

With the possible exception of the marital residence, a retirement account is typically the largest asset in a high net worth divorce. After years of saving and planning, it can be quite disconcerting to learn that a retirement nest egg is divisible just like any other marital asset. But, from both a legal and practical perspective, both spouses have made contributions to this account over the years, either by investing money in the plan or investing time in the marriage.

Most employer-sponsored plans, like a 401(k) or pension, require a Qualified Domestic Relations Order (QDRO); many IRAs can be divided without a QDRO. Many government-sponsored plans, most notably military retirement accounts, require a Division Order (DO), which is similar to a QDRO.

The Formula

In a typical 401(k) or other defined contribution plan, meaning that the level of benefits is tied to the plan's monetary value, a court will divide the portion of the account that is community property.

Continue Reading ››

 Posted on June 17, 2015 in Contested Divorce

Although the vast majority of Texas divorces are filed under the no-fault law, there are times that an evidenced-based action may be more appropriate, particularly in a high-asset divorce.

For many people, a no-fault divorce is not a good option for religious or moral reasons. An evidenced-based divorce helps them paint a picture of an out-of-control relationship which was far beyond salvaging. In a similar vein, some spouses may want to portray themselves as victims. There is another reason. Texas is rather unique in that a judge may consider fault in the marriage as a basis for an unequal property distribution. Specifically, "marital misconduct" is one of the listed factors to determine the amount and frequency of maintenance payments.

The grounds for divorce, as well as some possible defenses, are laid out in Section 6 of the Family Code.

Continue Reading ››

 Posted on June 10, 2015 in Spousal Support

To promote a more effective property division in a high asset divorce, Texas courts recognize and enforce two different types of spousal support.

Statutory Maintenance

The Legislature enacted Section 8 of the Family Code about twenty years ago, with the apparent intent to expand the law over time. But that no longer seems to be the case, as the edict has been expanded only once, and the political winds are now blowing in the opposite direction – Florida, New Jersey, Illinois and several other states have all significantly scaled back their alimony laws in recent years.

A judge may award limited alimony in limited circumstances. These restrictions include:

• Length of the Marriage: The union must have lasted at least 10 years. Marital fault is admissible, and an attorney can sometimes argue that the marriage would have lasted longer if not for the misbehavior of the offending spouse.

Continue Reading ››

 Posted on June 04, 2015 in Child Support

With tassels turning on mortarboards throughout Central Texas, this question is a popular one in divorced families throughout the area. While the short answer is "no, unless the child is still in high school or is disabled" there are some nuances in child support law that both parents should be aware of.

The Law

There is some basis for a post-majority support claim to pay for college expenses. Section 154.123(9) allows the judge to consider "the expenses for a son or daughter for education beyond secondary school" when setting the amount. Forward-thinking parents can use this provision to increase the amount of regular support for minor children by a few dollars a month, and require the obligee parent to set those funds aside exclusively for post-secondary expenses.

Continue Reading ››

 Posted on May 27, 2015 in Child Support

When it comes to child support calculation, Texas is one of only several percentage-of-income states. Non-custodial parents pay a set percentage of their net income on a sliding scale according to the number of children before the court.

Nearly all other jurisdictions use an income share model. It attempts to give the children the same standard of living they would have enjoyed if the parents had remained married, by considering the income of both parents as well as the amount of parenting time of each party. Although this model may be somewhat more equitable – for example, it avoids the unusual result of an unemployed non-custodial parent paying child support to a wealthy custodial parent – the percentage-of-income model is easier to apply and leads to more predictable results.

The Law

Chapter 154 of the Family Code sets forth the law for child support allocation in a complex divorce. The scale begins at 20 percent for one child, and ends at 40 percent for five or more children. There are also rules for determining an obligor's net income, because only some deductions are allowable. This inquiry can become rather complicated if the obligor is self-employed or earns indirect income, such as the use of a company car or an employer-paid insurance plan.

Continue Reading ››

 Posted on May 20, 2015 in Complex Divorce

Collaborative law is quite common in certain areas of North America, including California and Canada, but it has not gained much traction in some areas of The Lone Star State. Is this model an option for your complex divorce or other family law issue?

The Collaborative Family Law Act outlines the procedure in Texas. In a nutshell, the process is somewhat similar to ongoing mediation, with a few important distinctive qualities. The mindset is different. In traditional mediation, it is "every man for himself." The lawyers are determined to walk away with the best deal possible for their respective clients, and they care little or nothing about anyone else's interests. In collaborative law, the parties remain cognizant of how the outcome may affect other people both directly and indirectly involved in their complex divorce.

Continue Reading ››

 Posted on May 06, 2015 in Complex Property Litigation

The marriage dissolution rate for these couples has doubled in the last twenty years. These "gray divorce" matters are often the epitome of a high-asset divorce. While there may be no complex child custody issues to resolve, the property division can be a Gordian Knot of separate assets, community assets, and commingled assets.

Aging baby boomers were the first demographic group to divorce in significant numbers. Many of these people are now in their second or subsequent marriage, and the fact that the divorce rate is significantly higher in these relationships may partially explain the gray divorce phenomenon. In one study, the authors pointed to unique later-in-life issues — such as the empty nest syndrome, declining physical health, and ailing parents — which can put added strain on a relationship.

The study predicted that gray divorce would increase even if the overall divorce rate remained flat, due to the aging American population.

Continue Reading ››