This post is in response to the question I find being asked on Facebook, on Google, amongst friends and to me in confidence. These are my opinions as a 35 year old, 10 year lawyer (5 years in family law) and married mother of three. I say again, these are my opinions, this is NOT legal advice. If you want legal advice, hire a lawyer.
- First – Do not look for a lawyer who will fix your problems. Look for a lawyer who will get you a divorce and what you are entitled to under the law. Your problems will work out through therapy, prayer and time. Do not search for a lawyer that will “defend a mother/father’s rights”, that will “stand up to him”, that will “fight for you”. These concepts are marketing plans, not legal strategies. Of course your lawyer will stand up and fight for you, that’s a lawyer’s job period. Looking for a lawyer to represent you strongly is like looking for a pediatrician who vaccinates.
- Get recommendations from like minded people and interview a few. That doesn’t mean ask your friend who is all drama for one of her attorney’s names. Ask someone who is like you, who has the same temperament, budget and life goals as you. Then interview those people in person or over the phone. See if you are going to feel comfortable telling this person both sides of the story, including the one you’d rather not admit to yourself. You have to be comfortable, because if you are not, you will doubt the agreements, strategies and decisions you make later in the process. If you do end up doubting the path you’ve chosen in the process, it’s a time bomb waiting to explode and the subject matter of a different post.
- Reputation = Value. There are lawyers in town that will charge $70k-$100k in less than 90 days making an absolute scene at the courthouse, all in the name of “fighting for their client”. Well, their client might feel empowered to hear their lawyer accuse their spouse of this, that, and the other, but they look like a fool to everyones else, including the judge. And, the community estate is wiped out before the ball even starts to roll. Like preschool, you need a lawyer that plays well with others even when they are opposed on a material issue. Its about communication, respect and ethics.
- Lawyers aren’t like shoes – it’s not “you get what you pay for.” In Tarrant County, lawyers typically charge between $200 and $750 per hour with a $2,500 to $50,000 retainer. Initial court costs/fees are in the $500 range. In many cases, there isn’t a difference between a $250 lawyer and a $750 lawyer. Don’t feel empowered just because your lawyer is more expensive. I hear spouses accusing the other of being “stupid” in their choice of an attorney simply because of the hourly rate. Don’t feel ill-prepared if your lawyer is less. When you interview the lawyer, ask if he/she can estimate the range of fees they typically charge in your type of case. A smart lawyer will not guarantee anything, but can at least give you a worst and best case scenario. Board Certification is a great thing and qualifies that lawyer as an expert in the field. But if you ask some of the best lawyers in town, they will say Board Certification doesn’t have anything to do with it.
- “I’ve never lost.” If a lawyer says that, run. RUN! This means 1. they’ve never fought over close calls and therefore would be too risk averse to be aggressive when it matters and 2. they are liars. No, liars and lawyers are not synonymous.
- Know this before you chose: At some point, YOU WILL HATE your lawyer. That’s because, at some point, you will hear news you did not want to hear. You will find out about debt, you will learn you have to share your kids, you will discover that your lifestyle is out the window, you will find out he or she doesn’t want you back or you will be on the losing end of the judge’s order. Remember that the lawyer you choose wants to avoid surprise. My worst case scenario is when a client is shocked by a bad ruling. My job is to prepare him/her for all outcomes, good and bad, so that he/she can make an informed decision on what they want to fight for. That means, I’m going to sucker punch him/her with the truth so that he/she is prepared to hear it from the judge, when and if that happens.
- Stop comparing. Just stop. Don’t. You do not have the same marital troubles, kids, religion, family support, career and so on as the person who said she got $10,000 in spousal support per month and was able to move the kids to Canada. After you have picked your lawyer, tell him/her everything, and then follow his/her advice.
Background: This anonymous post comes from a client’s wife who unconditionally loves her step son despite being sidelined by the system and the dynamic in which the child came into the world. Here are her unfiltered thoughts:
“What qualities make a stepmom worthy of praise and satisfaction? We have done an extreme injustice to stepmoms in this country. The boundaries of what we should and shouldn’t do are so lost. No one has an answer that feels good. Thanks to Cinderella we stepmoms have a stigma attached that may never go away. People dismiss us all the time! You’re the only one willing to sacrifice and call into work to take your sick stepson to the doctor because God forbid a man calls into work in our corporate world for a “sick kid”, and God forbid his “real” mom takes time away from her needs to do it. And no one says thanks or acknowledges a damn bit of what you do. He needs an allergist, you’re the only one who spends enough time with him to even know he needs an allergist. He needs to work on a project for school and you’re the only one who reminds him or is invested in his grades. He needs new clothes because he hit a growth spurt and you’re the only one who will spend the money or the time to take him. Better yet you’re the only one who noticed he grew out of his clothes. The “real” mom wants the dad to “supply” all his needs. Meanwhile she’s doing happy hours, pedicures, shopping, dating, etc. The dad wants his child support to “supply” his needs. Unless he spent his life savings winning custody. In that case the “real” mom has the whole world feeling sorry for her and giving her monetary handouts. Please. If you lost custody especially in the state of Texas then bet your booty you are not a good mother. Yet as a stepmom you are supposed to go above and beyond to be the most consistent, loving, patient mom of all time. This sounds like a job no one wants hu? I have a secret. I love the job! Guess what sweet child will remember who was always there for them? And for doctors visits? And traditions? And cookies at school for the winter party? And money for the book fair? And prescription refills? It’s me. While everyone else is tallying and hateful I’m making beautiful memories with a handsome young man who will always respect me and love me and trust me no matter what. You simply can’t beat that with your corporate job or your stupid meaningless words. Kids see action and they will always remember who was really there. I’m changing the life of a child and that is something no one can take away or even compete with.”
The first step in having it all is to cross half the things you need to do off your list. Here are the things I have crossed off my list: vegetables at every dinner, birthday parties, hand towels with holiday themes, a clean car, thank you notes, gym workouts, coupon clipping, pleasure reading, facials, making things from scratch, cleaning my own house, deleting old emails, organizing my own closet, responding to all texts, and Christmas cards.
Moms do way too many things that don’t matter. Having a Christmas card doesn’t make you a better person. I promise. I read that in the Bible. No one actually cares if they got your Christmas card. Sure they enjoy seeing your “having-it-all-ness” and for a moment your card is at the top of the stack. But since when does spending a couple Saturdays picking out a card and arguing with your children about what they will wear and how many times they need to smile for the camera sound like a good use of time? Don’t even get me started with the eye-rolling husbands. The cost is pretty steep too, at least a dollar for the card and 49 cents for the stamp. I truly wonder why practically everyone sends one out. Step away from the herd people.
When your household runs like mine and rush hour starts the second you get home – its dinner, bath and brush your teeth before you have any quality time with your child. Its hard enough to have the peace of mind to throw in some time outs and green beans, check the school’s list of disorganized reminders for pajama drives, and make sure they don’t choke on their food. A pajama drive – really? I check my mail every couple of days. Usually its just BCBS denying a claim for something or a $70 ticket for getting caught on a red light camera. If I wanted to do Christmas cards, I’d have to keep track of addresses right? Bahahahaa. . . Ugh. There is just no way. Speaking of tradition, the Elf on the Shelf sounds like a horrible person.
OMG – I just got a text from my housekeeper. She fired me.
Back to my point, for those of you out there looking for an excuse to “forget to do cards”, consider yourself validated. I’m trying to start a trend here. Lower the standard people! The things we toil over are not important!
Christianity: So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets. Matthew 7:12.
Buddhism: Hurt not others in ways that you yourself would find hurtful. Udana-Varga 5,1
Judaism: What is hateful to you, do not do to your fellowman. This is the entire Law; all the rest is commentary. Talmud, Shabbat 3id
1. Say yes and keep saying yes. “Can I bring him back late?” “Will you pack her Christmas dress?” “Can I trade days?” Say yes every time. Always know what your decree or other order requires but then always say yes. Don’t say, “yes if you will do x, y, z.” You can’t make someone else be kind. You can only make sure you are kind. Look for these opportunities because your kids are watching and will notice. Just say yes. Maybe smile a little too.
2. Buy the other parent a gift from your child. This is such a cheap and easy way to show the other parent you acknowledge and support the relationship between your child and his or her mother or father. If you want halos or you are an overachiever, also buy your co-parent’s significant other a present. Think Julia Roberts in Step Mom.
3. Follow your child’s lead on Christmas/Hanukkah. If your child wants mom to come to lunch but its not her day, invite her! If your son wants to see what his father got in his stocking, drive him by his dad’s house.
4. Include other half and step siblings in all traditions. Every child wants to be equal to their siblings and every child wants love from the mother and father, grandmother and grandfather figures in the homes they live in. All traditions should be evenly shared among the children. Tell your parents to bring a gift for your step son and to make sure if there is a family day planned to see Santa, that it’s scheduled around your step child’s visitation day. The only qualifier should be that the child is a child, not that the child belongs to so and so or doesn’t belong to so and so. Remember that halves and steps are terms and types of relationships children learn. Try to teach them that “halves” and “steps” are like “bonus” and “cool”.
5. Take a family photo. Not photo of your family. Take a photo of your child’s family. Who are important to him? Who is his mimi, her sisi, his mommy, her other mommy, his big brother…? Let that picture be his family photo he shares at school. Show him his family tree and how many people he belongs to. You have plenty of photos of your family, but does your child have one photo of everyone in HER family?
Look to your left and look to your right. Chances are you are looking at a victim of domestic violence. Man or woman. Don’t argue with the statistics. It’s true.
Here I sit behind the white ivory tower of my keyboard and tell those who are abused to get out of the relationship, get safe and get a protective order. I read the articles. I know trying to get out could get you killed. Stay safe but don’t lose hope.
Once a judge grants a protective order, and it is served, violations could result in a year in jail and fines. Repeat violations are 3rd degree felonies. It’s a big deal. It’s there to help you reclaim your liberty. Use it.
It’s not easy to get. The hardest part is showing a “clear and present danger with a likelihood of future family violence” per the Texas Family Code. The police, the District Attorney and your lawyer can help you with this. Pack a bag, get a temporary phone, have extra keys, have a lawyer, know where the shelters are.
1. The Business Owner. A properly created business has exhaustive company agreements, succession planning and creditor protection. Unless you have every confidence in your documents, you may want to consider a pre-nup to set up agreements between you and your spouse. I see many family-owned businesses severely disrupted by divorce, especially by the temporary orders phase. Image a couple in crises and both spouses are signatories on the company checking account. Perhaps each believes he/she runs the business and should be able to continue to run it exclusive to the other spouse. Where does a court begin to do what’s in the marital estate’s best interest? It is much easier on the Court if there is an agreement in place.
2. The Second Wife and Step-Mother. The reason wife No. 2 needs a pre-nup has everything to do with the probate code. When a spouse dies without a will and has children from a different marriage, Texas law requires that the majority of the estate goes to the deceased’s children. This is a huge problem for second wives.
Imagine a second wife who has young children being left with almost nothing. She will have her community interest in property earned or acquired during the marriage except for property her husband inherited, but that’s it.
A pre-nup can avoid this problem in two ways. One, a pre-nup can provide for trusts, bequests and contingent awards in a highly tailored manner. Typically, these provisions satisfy the needs of children from prior marriages as well as the spouse and children from the second marriage. Because a pre-nup is created before marriage, it provides answers to these issues before the challenges of marriage influence decisions. Secondly, a carefully drafted pre-nup can trump a will that leaves out a spouse. Yes, that’s right. Spouses do not have to leave their estate to their surviving spouse unless they have a pre-nup.
3. The Stay-At-Home Mom. As you may have read in previous articles, a stay-at-home mom is the most common penniless woman in the family courthouse. If the plan is for you to stay at home — the flexible one, the one who doesn’t climb the corporate ladder and so on — you won’t have much of a launching pad for a career should you divorce or your spouse pass away.
There isn’t a way to provide for a launching pad in divorce, but you could at least ask for yearly retirement savings in the likely amount you would have earned had your career not been the priority. For example, if you leave your advertising job of $80,000 per year to raise children by your never-home regional manager husband, consider asking for him to agree that the family will deposit 10 percent of your forgone salary into a retirement vehicle that would be considered your separate property upon divorce or death. Your resume may not be prepared, but at least you wouldn’t have to start all over on retirement planning.
4. The young (and dumb). Please do not take offense. I say young and dumb because undisclosed credit card debt is a very big and growing problem. Refinancing, consolidating, co-signing … can be very confusing and often misleading to the young and in love. A key element to pre-nups is that they require full disclosure of assets and liabilities. Younger people simply do not have the skills to confirm the credit worthiness of their fiancé. I suppose a good liar would also lie about their liabilities before marriage, but at least with the majority of people, a meaningful conversation can be started about debt, who is paying for it and how to get out of it.
Even after the fat lady sings, it’s still not over. Half of my business is made up of cases where parents need to change their custodial agreements and orders due to changed circumstances. The agreements that worked at the time of divorce won’t necessarily work even 5 years down the road when parents have moved, remarried, had more children, lost jobs and so on. Despite the fact that these life events are common and you would think parents would not have to go back to court over these issues, I find modifications to be the most contentious.
Child support is probably the most obvious reason to modify a prior order. Just today I represented a child support paying mother whose income is steadily decreasing. Although I am sure the father feels that she is intentionally scaling back to avoid additional support, the income was what it was and the Court lowered her support based upon her reduced income. Keep in mind that child support is generally not based on the needs of the child but on a percentage of the parent’s net income up to a certain point.
Another reason why parents end up back in court is because the child decides they would prefer to live with the other parent. After the child turns 12, the court has to interview the child in cases where the right to determine the primary residence is at issue. Although the court does not have to do what the child requests, the child’s input could play a role depending upon the circumstances.
In some cases, the right to determine the primary residence is not at issue but visitation is. When parents can’t agree on their own, they will come to us lawyers and the courts to handle visitation issues. For example, if one parent lives just far enough to make it very difficult to see mom for 30 days in the summer and train for high school football. Or when a daughter wants to spend Thanksgiving doing missionary work and some other time with Dad needs to be arranged. These examples are minor. What gets to be more serious is when mom or dad’s social drinking devolves into alcoholism or other life events that need to be dealt with.
Parents often move over 100 miles from the other parent. When that happens, visitation needs to change from the standard 1st, 3rd, and 5th weekends during the school year for parents that reside less than 100 miles apart to something more flexible or specifically tailored to the family’s needs.
The problem with all these common occurrences is that modification actions can cost quadruple what you paid in the divorce. Typically, divorcing parents just want the divorce done. They disregard a lot of advice from their lawyers advising them to be very specific and forward thinking in their agreements so that they anticipate future problems and therefore avoid costly litigation. But by the time the divorce is being finalized and the documents are being drafted, parents stop caring. They want it DONE.
The reason why these modifications cost so much more is that more than one hearing is needed to walk the court down the road of explaining the basis for the modification. One hearing for child support, one hearing to have the child interviewed, one hearing to argue over what school records are admissible, one hearing to force a parent to go to specific counseling or other parenting classes. This can go on and on and on depending upon the stubbornness of the other side. This of course only hurts children and destroys pocket books. Unfortunately for others though, it is the only way to make a change.
“Does my child get to pick who she wants to live with when she is 12?” I get that a lot. The answer is “yes and no.” I know, I’m a big help.
The Texas Family Code allows a child to be interviewed by the judge in chambers so that he or she can express her wishes, but that does not mean he or she is the decider.
This is a mother’s problem. Fathers don’t worry about this near as much as mothers do. Mothers feel that when their children “live” with dad, that the world must think they are a terrible mother. Think about it. People wonder, “How did she lose her children?” or “what did she do?” If a mother “loses custody,” then she must have been arrested or getting treatment. When a child decides that they would prefer to live primarily with dad, mom does not lose custody. She actually practically gets the same amount of non-school time, weekends, and a long period in the summer.
At the risk of losing my reader’s attention, here is the specific statute allowing a child to be interviewed.
Texas Family Code § 153.009.
(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview child in chambers on the court’s own motion for a purpose specified by this subsection.
(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
(d) (f) (omitted by author to save attention spans)
If you haven’t stopped paying attention or gone to another article, hopefully I can get you back.
Since everyone knows children need meaningful relationships with both parents, let’s not make this a statement on motherhood. Be informed that when a child wants to “live” with dad, it means he or she wants to be with him more. Since when is it a bad thing for children to want to be with a parent? Sometimes children need one parent more than the other during certain times of their lives. If you and your spouse get along, then most likely your child will never have to be interviewed by the judge. If you can agree that the child should spend more time with the other parent, then crisis is averted.
Yes, if a Court determines that the child should live with the other parent, it could have child support implications. But, if your reason to fight your child’s wishes to live with the other parent is because of child support, you need to re-consider the fight.
Obviously, there are other fact patters worthy of the fight. Let’s say the child gets away with smoking pot or cutting school when he or she is with dad. I’m sure the child will tell the Court all about why dad is better, but fighting that makes sense.
In conclusion, a court must interview a child who is 12 years old or other to hear who they would select as the parent with the right to determine the primary residence and may interview a child to hear their take on possession and access or other issues, but it does not mean that the judge will turn around and order who or what the child selected. It does not mean that the child is in charge. Conservatorship, visitation, parental rights and obligations depend on the best interest of the child. The best interest of the child depend upon countless factors, one of which is the child’s wishes.
It’s important, as a mother, to know the difference between your child genuinely needing their father and a situation where your child wants to go clubbing with dad. Be kind to the mothers who are emotionally evolved and can support their child in wanting to be with dad more. Even if he lives with a homewrecker and her evil children.
Note from Kelly:
A client wrote this blog after her divorce was final, with the benefit of hindsight and (probably) the anxiety of my final bill. This client was one of the most organized clients I have had. She also listened well, especially when I told her things that were difficult to hear. This client is NOT an attorney and the below information is not legal advice.
“Choosing to end a 19 year marriage, or any marriage, is not an easy decision. As Dr. Phil says “you have to earn your way out of the relationship.” Once you have decided that it is the right decision for your life, there are steps you can take to make this excruciating experience a little less painful. First and foremost, make sure you have a good therapist to walk you through the emotional process of divorce. The attorney you decide upon is NOT your family therapist.
Second, prepare before the separation. Scan and save all the important information on an external drive or zip drive and include copies of your tax returns and income for the previous four (4) years. Gather pay stubs, bank statements, 401k statements or any information regarding retirement accounts, documents regarding life insurance, health insurance, titles to vehicles, deeds for your home or other property such as a timeshare or even a burial plot, and copy all household bills. Create a clear spreadsheet of monthly income and expenses. Prepare a list of all household items you own from the kitchen table and chairs to the dishes. These are assets that you have acquired over the years and they will be a part of the division of your marital estate. Be clear about what property was brought to the marriage, what was gained during the marriage and what was inherited during the marriage. Take photos of the house, the household items or any large assets. All of this information should be organized in a logical manner that is easily found by you or the Paralegal for your attorney. (These documents should be saved in PDF format.) Now that you have an asset list, prepare the liability list and include the mortgage, rent, credit card bills, doctor bills, loans and any other debt you may owe including any family members who have loaned you funds.
Now that you have gathered the information, prepare a summary or list of what you want to come away with, best case scenario. Think about not only the present moment, but the future. Come back to this list a few days later, and NOT when you are upset, and then decide what you can let go. What is it that is a deal breaker for you? You had to decide what the deal breaker was when you made the decision to leave the marriage, do it again with regards to your financial future and the future of your children if applicable. Be flexible and creative, trust your gut.
Third, find an attorney that is a good match for you. I have been a Paralegal for 20 years and personally know plenty of attorneys. I learned first-hand through my divorce that finding the right attorney is much like dating or finding a mate. It is important to talk to two or three attorneys to find the right match for you. Prior to meeting with the attorney, review the list of what you want to come away with, the issues that are involved in the divorce, and know that you will not get everything on your list.
Fourth, approach the split as a business decision. We all know that divorce is expensive any way you approach it. However, it can be less painful and less costly if you keep your emotions out of the decision making process. The business and finances are the issues that your attorney is skilled and equipped to help you resolve. Regardless of the reason for the divorce, how mad or hurt either party is, neither of you win (certainly the children lose) by continuing to hurt each other while fighting with your attorneys in the middle. In the end, all you come away with are more wounds and less money, so no matter what, stay focused. Time to time, you will veer of the path, but a good attorney will redirect you.
Fifth, do not use the divorce as a means to seek revenge. While negotiating think carefully about what you and your soon to be ex are arguing over. Every phone call, email, letter or communication with your attorney or staff will cost you and your ex significant money which lessens the amount of money to be divided. Look at it this way, most of us can go to a one hour therapy session for a co-pay of $50.00; however you are most likely paying your attorney at a minimum $250.00 per hour, plus paying the Paralegal $150.00 per hour. Mathematically, you are going to get more bang for your buck if you keep the two issues separate. That doesn’t mean that your attorney doesn’t need to know what is happening. You should contact your attorney if your soon to be ex is sending crazy text messages, emails, showing up at your house or taking money from bank accounts. As always, clear communication is essential, however, the attorney and paralegal do not need to hear a blow by blow detail of your day. Keep a journal and notes of all of the issues at hand. When you do communicate with your attorney stick to the subject, be concise and focused. He or she is most likely billing you in 15 minute increments. Each e-mail and/or telephone call will be billed at a minimum of 15 minutes. So send one concise email bullet pointed with the core matter and do not call to ask if the attorney or paralegal received the email, they will respond when it is appropriate.
Sixth, one of the most difficult decisions you make may be regarding custody and visitation with your children. Think about custody based on the age of your children. It is not only the present relationship that is important, but the one you will have with them long after custody is over. That is the most valuable and longest time you will have with your children. Once your children are teenagers they will have a life beyond mom and dad and, they will have more of a voice in where they go and who they spend time with. No one can force a driving teenager to go someplace they don’t want to be. If you have older teenagers, do you really want to spend the next year or two fighting the other parent over custody, visitation, splitting of assets or money? By the time the issue is resolved, you have spent a lot of money and heartache fighting and the children will be ready to go off to college and live their own life. A wise woman once reminded me that your child’s parent is just that, his/her parent and you can never change that. You couldn’t change him/her while you were married to them and you certainly can’t change them after divorce.
Finally, a divorce decree is a contract and in order to enforce the contract you have to take the offending party to court. Are the issues you and your ex are quibbling over in the decree really something that you would take them to court for and spend thousands of dollars to try to enforce? In the end the chances are most likely not. In the same respect, perhaps you can give in on another matter just to get the divorce resolved. Always trust your gut and be true to yourself. You are not going to get everything you want. Determine early in the process the things that mean the most to you and what you might want, but would be willing to give up, so that your attorney has some items to with which to negotiate.
If you choose to incorporate one or more of these suggestions, your divorce will most likely end more quickly with less money wasted fighting and most importantly, with fewer wounds and scars. While divorce is terribly painful, there is the possibility of happiness, peace and hope in the end. I am living it first-hand.” Anonymous
This article was originally published by Plaid for Women https://www.plaidforwomen.com/read-post/two-regrets-of-a-divorced-woman/
The Family Courthouse is paved with women who claim the system is against them. Many feel that they waited too long and some wish they had tried harder to reconcile. Beyond the emotional wasteland left by a divorce, a divorced woman has many economical regrets. Here are two I have heard over and over again:
1. That they didn’t stay employed.
Some women report being frustrated that they were not entitled to spousal maintenance or did not get as much as they would have liked. This is especially true for the homemaker, but in our changing society where women are increasingly doing the “bread winning,” it can be true for husbands as well. Texas law allows for monthly spousal maintenance (a/k/a support) up to $5,000 or 20% of an ex-spouse’s gross income, whichever is lower, if a spouse can prove that she “lacks sufficient property including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs” among other elements. Please refer to Texas Family Code Chapter 8 for the entire law which contains other elements and factors not addressed here.
Flushing out what “lacking sufficient property” actually means is difficult. Case law demonstrates that Courts look to a variety of factors including, the community property award in the divorce and the spouses education, separate property, health, employment experience and business opportunities. There is no formula such as monthly expenses are $3,000 therefor the spouse is awarded $3,000. It’s much broader than that.
The practical application of this law makes spousal maintenance quite difficult to obtain. One, the ex-spouse may not have sufficient income to pay what is needed for the spouse to get by and two, minimum reasonable needs are typically shelter and food, not mani/pedis. Much to the disappointment of many women, the standard is not to keep the divorced spouse’s lifestyle the same as her married lifestyle.
A common example would be a spouse married to a hard working executive who chooses to stay home because it’s hard enough on the family that one parent is gone all the time. The hard working executive works too hard and picks up a nasty addiction to alcohol. The alcohol abuse leads to the couple’s cash reserves being used up for rehab, disability, therapy and suddenly, when the alcoholism finally destroys the relationship, the money is gone. Now, homemaking spouse is unemployed with a ton of bills and the hard working spouse is no longer employed at the rate he was. Her best asset is now her resilience, from which she has to dig deep to find and use to fuel moving on.
On the flip side but on the same side of the coin, had the homemaking spouse stayed employed, she would at least have somewhere to start. Any place other than unemployed and broke is better than that. True, a spouse with some employment opportunity would be less eligible for spousal maintenance but at least she would have a paycheck rather than being subject to the court’s wide-ranging discretion. It can take months before spousal maintenance is ordered by the court and actually paid by the spouse. A judge can only enter orders and enforce them. She cannot babysit the parties to make sure it gets done. And can you hear the “cha-ching”? Every time a lawyer has to go back to court for something, it costs.
2. That they kept documents.
The way assets and debts are awarded in divorce requires some level of proof as to the asset or debt’s status. How do you prove you used your inheritance to buy the house if you don’t have any records? How do you show that you funded your 401(k) for years prior to marriage? How much cash does a spouse earn under the table? How many credit cards and lines of credit are out there? The dining furniture was a gift to both of you right?
Keeping original documents regarding important transactions are important for many reasons, too many of which to cover in this article. I will discuss two. One, having documents is important to show when property or debt is separate since the law presumes all property and debt owned by either party belongs to the community. In order to overcome that presumption, a party must submit proof that a particular asset or debt is separate property. Separate property is acquired before marriage, by gift or by inheritance. Proof is usually in the form of bank accounts, check stubs, contracts, paychecks, letters, titles and so forth. Who keeps up with that stuff? Not everyone, but the divorced spouse wishes she had.
Secondly, keeping original documents is important to show the current status of income, debt and other property rights. For example, wife swears husband got a $50,000 bonus and bought a sports car for his girlfriend in her name with the cash. This stuff happens people. I know you know it does. Continuing on, the company that bonused him is now out of business and the $300 an hour lawyer can’t subpoena documents to prove the bonus ever existed. This leads to another topic for another day. Stay involved in the finances. This scenario can be a huge waste of time and money for everyone to prove either the existence of a lie or to disprove a wild allegation impossible to disprove because it never happened.