A Different View on Prenups

I may be the first lawyer to talk a potential client out of a prenuptial agreement.

Potential client was about to marry her second husband. They both have significant property. Houses and bank accounts.

I explained that property from before the marriage is her separate property and property accumulated during the marriage is community property (belonging to both spouses). In a nutshell, a prenuptual agreement would prevent community property from accumulating during the marriage. But my potential client did not really care if community property accumulated, as long as her pre-marriage property remained separate.

The prenuptial agreement that listed all the separate property could still be helpful in case a divorce ever occurred, so there would be no dispute that those items were separate. But I think my client was reassured that she didn’t need a prenuptial agreement, at least not as much as some friends told her that she did.

And that’s how I seem to have talked somebody out of a prenuptial agreement.

You deserve personalized advice for your situation also. Please call me at 469-322-9238 or email foxlawdfw@gmail.com.

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Temporary Spousal Maintenance

Family Court judges have a huge amount of discretion in ordering temporary spousal maintenance while the divorce is pending. Spousal maintenance in a final divorce decree is much more limited and can seem rare.

Almost any agreement can potentially be better than what the judge may decide for temporary spousal maintenance.

For example, if the other spouse is not working, the Court can order you to pay half of your income to him or her.

That’s because income or during a divorce is community property and belongs to both spouses equally. If you’re still married to someone, the law says you still have a duty to support for them.

In lieu of cash, one solution is for the higher earning spouse to pay some or all of the living expenses of the lower earnings spouse while the divorce is pending.

I heard recently of a man who earned a public servant’s salary along with military retirement who was upset at being ordered to pay temporary spousal maintenance in the amount of $1000 a month. I told him this was a great deal. It puts pressure on him to finish the final divorce, where it is a possibility that no spousal maintenance would be ordered at all.

Compromise can often lead to better results in a divorce or family law case. Smart compromise can save you money and lessen the emotional toll.

Contact the Fox Law Office at 469-322-9238 or foxlawdfw@gmail.com to set up a consultation about your case.

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No fault divorce

Texas is a no-fault divorce state. If someone wants a divorce, they will eventually get a divorce if they keep pushing forward in court.

I had an unrepresented litigant in court today who wanted the judge to deny the divorce! They had only been separated for seven years. 🤦🏻‍♂️

If you don’t get along and there is no reasonable chance of reconciliation, a Court with jurisdiction will grant your divorce as early as 60 days after you file.

Contact the Fox Law Office at (469)322-9238 or at foxlawdfw@gmail.com for more information.

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Mediation: When Your Family Law Matter Goes from Easy to Medium-Hard

The terms of some divorces are agreed to by the parties or  hashed out between the parties’ attorneys or at an informal settlement conference.

When all of these strategies fail, the parties usually seek a trial date from the court at a pretrial conference.

The Court sets the trial date at the conference, and sets other deadlines such as by when parties must conduct mediation. Many courts require the parties to make a good faith attempt at mediation before trial.

Mediation is an alternative dispute resolution process that is usually successful in divorces and other family law matters. It involves the parties sitting in different rooms with their attorneys while a skilled mediator goes between the rooms with offers and counteroffers to help parties reach a settlement.

Mediation may be the first time that an unreasonable client is told that his or her positions will be untenable before the court. Or it may just help parties going through an emotional process to reach a settlement in a fair process with help from a neutral mediator.

When an agreement is reached in mediation, all parties sign a binding agreement that cannot be revoked. If mediation fails, the parties resume preparing for trial.

Mediations can be half a day or a full day. Mediation is usually more cost effective than a trial, and agreements made through mediation help the parties preserve their relationship as opposed to a more protracted and adversarial litigation process and trial where the court imposes an outcome on the parties.

Divorce Postscript

The divorce is complete and the decree is signed. My attorney is no longer needed, right? Maybe not.

Execution of ancillary documents such as Qualified Domestic Relations Orders, special warranty deeds, affidavits to transfer motor vehicle title, etc., will need to be completed if called for in the decree.

Failure to make sure these documents are executed can result in very negative financial consequences years down the road, such as a lost share of retirement plan benefits or equity from a home.

Courtroom etiquette and behavior tips

-Don’t make faces, sighs, or sounds when your ex or his/her attorney speaks.
-Don’t speak when anyone else is speaking.
-Only speak if a lawyer or judge asks you a question.
-Listen closely to the question, answer only that question, then stop speaking.
-If opposing counsel asks you a yes or no question, answer yes or no and then stop speaking.
-Do not show anger when you are on the witness stand and being cross examined by opposing counsel.
-Bring a notepad to make notes when witnesses are testifying.

And last but not least:

-Dress nicely. What this entails could be its own post.

Can you think of any other courtroom etiquette or behavior rules?

The Cost of Breaking Up

How much does a divorce cost?

A divorce can cost $1,500, $3,000, $5,000, $10,000, or $100,000, or any amounts in between. It depends on how much there is to fight about (kids and property), and how much you and/or your spouse want to fight it out in the court system.

First, the current Tarrant County filing fee for divorce is $345, unless you are indigent, and then it is free. However, unless Legal Aid has screened you and certified your indigence, Tarrant County is unlikely to accept your word for it and will try to make you pay the fee. Count on paying the fee.

A process server (to serve the papers on your spouse) will cost about $100 or more.

Most family law attorneys bill by the hour. Flat fees generally don’t work in family cases because it is unknown at the outset how long a case will go on. An experienced attorney will cost at least $250 per hour, while a board certified attorney will cost at least $500 an hour.

Clients pay attorneys retainers which the attorney draws from as work is done and hourly fees are paid on the case. A retainer for an uncontested case may be $1,500. A retainer for a contested case, meaning the other side does not agree on some or all issues, is usually at least $3,000.

When the retainer is depleted, the client must replenish it if there is still work to be done on the case, or pay the attorney month to month. If the client does not pay the attorney, the attorney can withdraw.

Self Represented Litigants

Can you save money doing your own divorce? Almost certainly not and the costs down the road could be very steep.

Doing your own divorce is generally a terrible idea if you have kids or property, and it is nearly impossible not to have at least some property. Attorneys have horror stories of how clients messed up their cases and hired an attorney to try and fix it, but some things cannot be easily fixed or fixed at all.

For example, what if division of a retirement plan was left off of a divorce decree? This is probably not fixable later and you will not have a comfortable retirement.

What about the otherwise fit mother who signed a divorce decree that did not have a possession schedule for her? The father denied access, and the mother was left with no rights to see her twin daughters and the judge would not make any changes at a temporary orders hearing on her motion to modify the decree due to “no material and substantial change.”

An Amicable Divorce?

If you are truly fortunate you and your ex may agree on the basic terms of your divorce, trust each other completely to be honest about each other’s assets, and may be able to work almost everything out (child custody, child support, health insurance, and property division).

In that case, it is totally possible for the divorce to be completed around the cost of $1,500 including filing fee.

This includes drafting the divorce petition, ensuring service of the decree on the other party or properly executed waiver of service, drafting of the divorce decree and other documents. Drafting of real estate documents increases the cost.

But is this type of budget divorce really such a good idea? It depends on your comfort level. Do you have complete trust that your soon to be ex is totally upfront on his or her assets? Texas is a community property state and you presumptively own 50 percent of all assets accrued during the marriage.

It is very wise in such cases for each party to make an inventory of all their assets, and swear to the list under oath, so each side can provide the list to the other side and the divorcing couple can have confidence in the eventual outcome and recourse if one party is dishonest. An inventory will also add to the cost but is worth it.

Courthouse Showdown

Temporary orders hearings may be needed at the beginning of a divorce case to obtain temporary orders for child custody, child support, and possession of property while the divorce is pending. Often passions are high at the beginning of a divorce, necessitating a trip to the courthouse for a temporary orders hearing.

Assuming passions cool later, and the case is eventually settled in mediation, a case requiring at least one court hearing will probably cost at least $5,000 if not more.

But the initial temporary orders hearing may beget another temporary orders hearing, plus other costs, such as drug or alcohol testing, parenting classes, child custody evaluations, fees for parenting facilitators or attorney ad litems, counseling, and many other costs.

Often these costs can’t be avoided. If the other parent commits family violence or is a drug addict, you have to take action to protect yourself and/or your child, or your safety and parenting rights will be at risk.

If the other parent is unreasonable and unfairly denying access, you have to stand up for your rights to see your child.

After the temporary orders hearing, both sides may request the other side to produce discovery, such as lists of potential witnesses and other basic information, written answers to questions known as interrogatories, voluminous requests for documents such as paystubs, bank records, property documentation, and other documents.

Parties may be ordered to sit for depositions where they are questioned by the other party’s attorney about various matters. The discovery process can be very expensive and invasive, and detailed questions about acts of infidelity are part of standard discovery questions in divorce cases.

Initial divorce filing-service of process-temporary orders hearing-custody evaluation-discovery-sworn inventories-mediation-drafting of final decree. This sequence will probably cost somewhere from $7,500 to $10,000, or more.

Getting Serious at Mediation

Mediation is a fantastic process where even highly contested, high conflict cases are settled by highly skilled mediators.

Each party sits in a separate room with their attorney and the mediator goes room to room conveying offers and counteroffers. Mediation is highly recommended, usually successful and often mandatory in family district courts. And it saves thousands of dollars or tens of thousands of dollars, and can help parties get on with their lives faster and preserve their relationship for co-parenting of minor children.

What if the case does not settle at mediation?

Unless the case is miraculously settled later, you are going to trial. And this is where it gets really expensive. A trial could last a day or several days, and the attorney’s time and effort preparing as well as time spent at trial is expensive, not to mention the cost of psychological experts, etc. This is an exhausting process that some people find traumatizing.

Now we are talking tens of thousands in costs or even six figures. At this point, your divorce is taking at least two to three years to resolve.

An experienced attorney knows the process, is comfortable with it, and ready to do battle to protect his or her client and advance his or her interests.

But an experienced, compassionate attorney does not want to put you through this entire gauntlet unless it is unavoidable. A client is best served by a fair resolution of the case through informal agreement, mediation, or other means, avoiding angst, stress, and uncertainly that will affect you and your children.

Find an attorney with the skills needed to help you resolve your case amicably and save thousands and even tens of thousands.

Please call (469)322-9238 or email foxlawdfw@gmail.com to set up a consultation with attorney Jonathan Fox to discuss your case.

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Side Deals not Allowed in Child Support

As an attorney who handles child support cases, I am approached constantly by men who have a decree ordering them to pay a certain amount of child support, but claim an unwritten agreement with their ex to pay a lesser amount.

(If ordered to pay child support, women could also fall into this trap, but so far I have been approached by only men.)

These men pay the lesser amount for many years and are then shocked when the Attorney General’s child support division or a private attorney tell them their child support is not paid in full, but they actually owe thousands, tens of thousands, or possibly hundreds of thousands in child support arrears.

I have seen even well educated men with advanced degrees fall into this trap.

The problem is that the side deal, if never turned into a court order, cannot be used as a defense to the child support arrears. The only thing that can modify a court order to pay child support is another court order. You still owe all of the money you were ordered to pay under the original order.

If you owe a large child support arrearage, your bank accounts, retirement plans, and many other assets will be at risk.

Also, do not pay your ex child support directly. Direct payments can be considered a gift and you may not get credit for them at a later time.

It is crucial to pay all the child support ordered through the State Disbursement Unit located at P.O. Box 659791, San Antonio, Texas 78265-9791. Sending all payments to the SDU protects both parties by making a record of all payments.

If you have any questions about child support, or are interested in possibly modifying your child support, please contact the Fox Law Office at (469)322-9238.

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