Dallas Divorce Law Blog

Questions to ask yourself before filing for divorce.

Nathan Anderson — Wed, 10 Mar 2010 10:59:00 -0600

As a Dallas divorce lawyer, I am often asked what can one do to prepare themselves for the filing of a divorce. A divorce can be one of the most stressful and emotionally involved experiences of your life. So before filing for divorce it is important to ask yourself some key questions to make sure you understand the legal process and are prepared for the emotional involvement a divorce requires. First, ask yourself whether it would be beneficial to speak with a marriage counselor, either individually or as a couple. Even if you think there is no hope for saving the marriage, talking to a professional might help you recognize where things went wrong, and how you can avoid similar behavior in the future.

Ask yourself if whether it is a financially good idea or bad idea to get a divorce in this economy. Although there are signs that the economy is strengthening, a lot of individuals still have not fully recovered from the effects of the economic downturn. Property values are still down somewhat and the stock market hasn’t fully recovered. As a result, getting a divorce now may cost you more than it would if you “stick it out” and wait until the economy is moving in strong positive direction. Obviously, the emotional aspects of considering a divorce sometimes outweigh the financial aspects. However, it is still important to ask yourself how getting a divorce in this economy would effect your overall net worth.

Ask yourself, and others, for a reference to a qualified divorce attorney. A divorce is a complicated procedure and you will need someone to not only advise you but listen to your needs and concerns as well. You’ll be spending a good amount of time, and money, with your divorce attorney, so it is critical that you shop around until you find an attorney that fits your personality and needs. A great resource for finding divorce attorneys are websites such as AVVO.com or your state’s bar association webpage. Referrals from friends and family that have gone through a divorce are also a great resource to consider.

Ask yourself if you have all of your financial documents in order. Again, emotions during a divorce can be overwhelming but it is absolutely critical to have all your financial documents gathered and in a safe place before filing for divorce. During a divorce, your bank account statements, credit card statements, retirement and brokerage account statements will be looked at with great scrutiny. Doing the legwork before filing for divorce and gathering all these documents will help not only keep costs down (from having your attorney search for these records), but also help keep the emotional toil down as well.

Ask yourself what steps you can take to safeguard your assets during separation. One of these steps is for you to take possession or certain assets, especially those you wish to continue using such as your car or other personal belongings. Another step involves protecting your credit score by closing out joint credit cards and bank accounts. By taking these proactive steps, you can help keep things as normal as possible during such an emotional time.

Finally, ask yourself what your goals of the divorce are. For some, the goal is short-sighted: they just want to end their marriage. For others, the goal is to be put in a situation to where they can move on to greener pastures and continue to grow in their personal lives. Whatever the reason, it is important to ask yourself what your goal is and communicate this with your divorce attorney.

Divorce Business Valuation Approach

Michelle O'Neil — Mon, 08 Mar 2010 10:51:32 -0600

Calculating the value of a business can be one of the most important parts of a divorce because a closely-held business may be one of the most significant assets of the marital estate. The best approach to such valuation is to hire an independent business appraiser—a CPA with an Accredited in Business Valuation (ABV) credential or a certified professional, like a Certified Business Appraiser (CBA) or someone recognized by the American Society of Appraisers (ASA). Such expert will begin by obtaining all business books and records, tax returns, and financial statements and reports for at least the last five years.

Using this data, the appraiser will determine the company’s intangible and tangible net assets, an appropriate rate of return for them, and will calculate excess earnings in accordance with various accepted methods.

After finding a proper capitalization rate for the excess earnings (that which remains after taking into account normal costs, return on assets and salaries), the appraiser can place a value on the most contentious aspect of business valuation, the intangible asset known as “goodwill.”

"Commercial goodwill” is the capacity of a business to attract new customers, or keep old ones due to great locations, a reputation for superior service or skill, or anything else that influences a person, supplier or other business to continue a commercial or professional relationship. “Personal goodwill” describes the nontransferable ability of an individual to attract and maintain customers or clients due to his or her skill or reputation for honesty, intelligence, craftsmanship.

Play by the Rules or Pay by the Rules - Death Penalty Sanctions Affirmed on Appeal

Ashley Russell — Fri, 05 Mar 2010 17:16:00 -0600

Dallas divorce attorney, Michelle May O’Neil, prevailed in the El Paso Court of Appeals opinion issued on February 24, 2010, in Cause No. 08-07-00228-CV, In the Interest of P.L.H., S.L.H., and C.H.H., Minor Children. The Court overruled all seven of Appellee’s issues on appeal, upholding the judgment of the trial court, including the entry of death penalty sanctions against Mother, denial of Mother’s request for a continuance, judgment against Mother for $60,000 in attorney’s fees incurred by Father, and a credit in Father’s favor for over $32,000 for prior overpayments of child support.

The parties were originally divorced in Oklahoma in 2000, via a Final Decree of Divorce that improperly omitted the requisite finding for child support under Oklahoma law. Unaware of this deficiency, Father paid child support from 1999 through 2004 in the amount of $981.46 per month. In 2004, the error was corrected by the Oklahoma Court’s entry of a nunc pro tunc Final Decree of Divorce, ordering Father to pay $481.20 per month, instead of $981.46. In 2005, Father filed a Petition to Modify in Dallas, which by that time had become the county of the children’s residence. Mother filed her own counter petition in the Dallas court as well, seeking to drastically reduce Father’s possession time and to increase child support. Mother then requested the Oklahoma Court to decline jurisdiction in favor of the Dallas court as to all issues regarding child support and custody.

A year after the Oklahoma court declined jurisdiction over all child support and custody issues, Mother went back to Oklahoma and obtained entry of another nunc pro tunc order, this time the changes had the effect of increasing Father’s child support obligation. At trial, Mother attempted to argue the validity of this second nunc pro tunc order in the Dallas court. But the trial judge found that, since the correction involved a “judicial” rather than “clerical”, and since the Dallas court had already assumed jurisdiction of all issues involving child support and custody at the time the second nunc pro tunc was entered, the Oklahoma court lacked jurisdiction to make such substantive changes. The second nunc pro tunc was, therefore, void. The Court of Appeals affirmed this ruling on appeal.

The jurisdictional issue regarding the second nunc pro tunc was the most complex of the seven issues presented. The other six issues on appeal concerned mainly Mother’s repeated failure to follow the orders of the trial court and the Rules of Civil Procedure.

Here, the appellate court upheld the trial court’s imposition of death penalty sanctions against Mother as the result of her failure to comply with the pretrial scheduling order were proper. Based on Mother’s history of discovery abuse throughout the course of the litigation, and her failure to comply with the trial court’s orders, the El Paso Court of Appeals found the trial court’s decision to exclude Mother’s trial exhibits was not excessive. The Court’s opinion further states, “[t]he record demonstrates that the trial court considered, and imposed, lesser sanctions when earlier discovery abuses arose, without success. Accordingly, the court’s decision to impose a Rule 215.2(b) sanction was not an abuse of discretion.”

The appellate court also upheld the trial court’s denial of Mother’s requested continuance of trial. Mother’s Motion for Continuance was not verified or supported by an affidavit, as required by the Texas Rules of Civil Procedure. Mother acknowledge that although her Motion for Continuance was procedurally defective, the circumstances of her case, specifically that she was representing herself pro se, made a continuance appropriate regardless of procedure. The appellate court disagreed.

Mother also attempted to argue on appeal that the child support credit Father received was a debt previously discharged by Mother in bankruptcy. Not withstanding the substantive argument against this issue, the appellate court found that Mother failed to properly plead, and, therefore, waived, the affirmative defense of discharge in bankruptcy per Texas Rule of Civil Procedure 94. Therefore, the appellate court did not even reach the merits of Mother’s argument on this issue, overruling the issue on Mother’s pure procedural deficiencies.

Although the facts of this case are somewhat complex, the principles attorneys, as well as their clients, can take away from it are simple. Review orders carefully either before or as soon as you possibly can after entry, especially divorce decrees and child support orders, because you might not have jurisdiction to correct substantive mistakes later on. Be careful what you ask for, like Mother’s request here that the Oklahoma court decline jurisdiction, because you just might get it. Also, play by the rules, the rules of civil procedure and the orders of the court, failing to do so could result in stiff penalties, like the death penalty sanctions entered here. Along those same lines, while legal representation may seem expensive to pro se litigants, the price you pay in the long run if you choose to represent yourself without knowing the rules could be much greater.

Congratulations to Michelle May O'Neil on another successful appeal for her client!

Question to Dallas Divorce Lawyer: My spouse got in a car wreck, can they take my separate property?

Nathan Anderson — Wed, 03 Mar 2010 17:01:15 -0600

Recently I had a potential Dallas divorce client present the following scenario to me. Wife was involved in an at-fault car accident. Wife is sued by the other driver. Husband is concerned that the person his wife was in an accident with will go after "all" the property they own, even husband's prized baseball card collection he had before marriage. The question then became, can they take my separate property for my wife's negligence?

There are two steps for determining what marital property can be seized and sold to satisfy a liability created during marriage. First, determine whether the property in question (to be seized) falls within an overall class of marital property that would be liable for or exempt from seizure under the Texas Family Code.

For a debt arising out of a tort (in this case negligence in a car wreck) the at-fault spouse's separate property can be seized to satisfy the debt. In contrast, the separate property of the not-at-fault spouse (in this case, Husband's beloved baseball card collection he owned prior to marriage) is not subject to seizure to satisfy the debt arising out of the tort.

So, bottom line, the answer is NO. The separate property of a not-at-fault spouse is not subject to seizure for a liability arising out of a tort committed by the other spouse.

Business Valuation in Divorce -- List of Documents Needed

Michelle O'Neil — Mon, 01 Mar 2010 10:56:45 -0600

In any divorce where one of the spouses owns a business interest, that interest must be valued. Usually in Dallas County Texas divorces, the attorneys will hire a forensic business valuation expert with ABV accreditation to perform such valuation services. That expert will need certain documents in order to perform his valuation, including:

Financial Statements for Typical Corporation

Balance sheets, income statements of changes in financial position, and statements of stockholders’ equity for the last five fiscal years.
Income tax returns for the same years
Latest interim statements and interim statements for comparable period(s) of previous year

Other Financial Data

Summary property, plant, and equipment list and depreciation schedule
Aged accounts receivable summary
Aged accounts payable summary
List of marketable securities and prepaid expenses
Inventory summary, with any necessary information on inventory accounting policies
Synopsis of leases for facilities or equipment
Any other existing contracts (employment agreements, covenants not to compete, supplier agreements, customer agreements, royalty agreements, equipment lease or rental contracts, loan agreements, labor contracts, employee benefit plans, and so on)
List of stockholders, with number of shares owned by each
Schedule of insurance in force (key person life, property and casualty, liability)
Budgets or projections, for a minimum of five years (if management prepares)
List of subsidiaries and/or financial interests in other companies
Key personnel compensation schedule, including benefits and personal expenses

Company Documents

Articles of incorporation, bylaws, and any amendments to either
Any existing buy-sell agreements, options to purchase stock, shareholder agreements, restrictions on transfer, or rights of first refusal
Franchise or operating agreements, if any

Other Information

Brief history, including how long in business and details of any changes in ownership and/or any bona fide offers recently received
Brief description of the business, including position relative to competition and any factors that make the business unique
Marketing literature (catalogs, brochures, advertisements, and so on)
List of locations where company operates, with size and recent appraisals
List of competitors, with location, relative size, and any relevant factors
Organization chart
Résumés of key personnel, with age, position, compensation, length of service, education, and prior experience
Personnel profile: number of employees by functional groupings, such as production, sales, engineering/R&D, personnel and accounting, customer service/field support, and so forth
Trade associations to which the company belongs or would be eligible for membership
Relevant trade or government publication (specially market forecasts)
Any existing indicators of asset values, including latest property tax assessments and any appraisals that have been performed
List of customer relationships, supplier relationships, contracts, patents, copyrights, trademarks, and other intangible assets
Any contingent or off-balance sheet liabilities (pending lawsuits, compliance requirements, warranty or other product liabilities, estimate of medical benefits for retirees, and so on)
Any filings or correspondence with regulatory agencies

Download pdf here: Preliminary Documents and Information Checklist for Business Valuation of Typical Corporation or Business Entity

View online here: Preliminary Documents and Information Checklist for Business Valuation of Typical Corporation or Business Entity

Question to Dallas Divorce Lawyer: How long do I have to wait to get a divorce?

Nathan Anderson — Wed, 24 Feb 2010 16:15:37 -0600

I recently had a potential new client ask me how long they have to wait before the court can enter a divorce decree. As a Dallas divorce attorney, I get this question a good bit. Because of the frequency I receive this questions, I felt it would be a good idea to post the basis of Texas family law jurisdiction and the "waiting period" required before a court can enter a divorce decree.

A suit for divorce must be filed in a county where the suit can be properly maintained. Under the Texas Family Code, a suit for divorce is proper in the county where the parties have lived for the past 90 days. In addition to the 90 day requirement, at least one of the parties has to have been a resident of Texas for the past 6 months. Note that only one party to the divorce is required to meet the 6 month and 90 day residency requirements in order to bring a suit for divorce.

Once the residency requirements are met, the next step is to file a suit for divorce in the appropriate county. Once the suit is on file for at least 60 days, the court can enter a final decree of divorce.

In sum, assuming the residency requirements are satisfied, the "quickest" someone can get a divorce in Texas is 60 days after they have filed their suit for divorce.

Minimizing Your Business Value in Divorce

Michelle O'Neil — Mon, 22 Feb 2010 11:09:39 -0600

When spouses own a business and they are getting divorced, the value of the business becomes a major focus of the division of property. Dallas Texas Board Certified Divorce Lawyer Michelle May O'Neil explains the concepts of valuation of a closely-held business entity that affect and even minimize the value of a closely-held business entity:

Valuing a business is a complex, and often expensive part of a divorce. A business consists not only of tangible assets like buildings, bank accounts, inventory, tools, fixtures, furniture and machinery; but also, intangible ones such as mortgages, leases, patents, trademarks, unlisted stock, skilled labor, accounts receivable and most notably, “goodwill.” A business is valued usually based on the fictional assumption of a sale between a willing buyer and willing seller.

The most common legal concept that affects the value of a closely-held business is the distinction between the personal goodwill and commercial goodwill of the business. The personal goodwill is that goodwill attributable to the person of the business owner. Take a small bookkeeping firm, for example, owned by a wife. Most of her clients do business with her company because they like her and trust her work. her business has no reputation separate from her. That value of the business attributable to her presence is personal goodwill. The value of a business attributable to personal goodwill is the spouse's separate property.

Commercial goodwill, on the other hand, is that goodwill that exists independent of the business owner. It is the independent reputation of the ABC Company that exists separate from the business owner. The value of a business attributable to the commercial goodwill is community property if the business would otherwise be community property.

Also diminishing the value of a business is the frequent occurance where a business remains subject to the control of multiple owners. This discounts the value to any one of the owners for lack of control.

Another factor that decreases the value of a business involves marketability, which is defined as the ability to convert an investment into cash quickly at a known price and with minimal transaction costs. The more difficult a business would be to sell, the greater the discount for marketability.

Many businesses have "Buy/Sell Agreements". These cannot be relied upon to calculate a business' value. Such agreements typically protect the majority partner interests and rarely reflect actual value.

The best way to approach valuation of a business entity in a divorce is to hire an independent business appraiser—a CPA with an Accredited in Business Valuation (ABV) credential or a certified professional, like a Certified Business Appraiser (CBA) or someone recognized by the American Society of Appraisers (ASA).

Keeping Business Alive During Divorce

Michelle O'Neil — Mon, 15 Feb 2010 10:55:15 -0600

Divorce is a hard enough time but when you own your own business, managing your divorce and keeping your business alive can be extra challenging. Here are some tips from Board Certified Dallas Family Lawyer Michelle May O'Neil of O'Neil Anderson:

Be an open book. Don't try to hide anything from your spouse. When discovered, the divorce judge may very well impose greater punishment than the value hidden.
Hire a good forenic accountant to evaluate the business. If the business is community property, the value of the business to the community estate will be an essential question in the divorce.
Know the difference in personal goodwill and commercial goodwill and how that difference may affect the consideration of your busines sin the division of your community estate and divorce.
The declining economy may have removed much of the liquidity from your business, which may affect the cash available to pay the increased expenses of separating and paying divorce lawyers.
If both spouses work in the business, it is best to pick one who will stay in the business and one who will exist. Rarely can people who cannot stay married to each other remain business partners.

Dallas Divorce Lawyer Featured Nationally on Avvo Website

Michelle O'Neil — Fri, 12 Feb 2010 13:10:29 -0600

Dallas Divorce Lawyer Michelle May O'Neil is presently featured with the nationally recognized Featured Legal Guide on www.avvo.com, a directory of lawyers across the country. Her article on Valentine's Day Tips From A Dallas Texas Divorce Attorney discusses ways to keep a marriage together and avoid divorce, with tidbits from her 18 years experience as a divorce lawyer in the DFW metroplex area of Dallas, Texas. The article is also featured in the Avvo Advocate electronic newsletter with legal advice for everday life.

When can we get married?

Nathan Anderson — Wed, 10 Feb 2010 16:22:50 -0600

As Dallas Divorce Lawyer, I frequently am asked questions that touch on "legal separation" and its place in Texas family law. Texas law does not recognize legal separation as a status, so in Texas, you're either married you are aren't. The other day I had someone ask me whether she could marry someone who was legally separated from his spouse in another state. To answer this question, we need to look at who can and cannot get married in Texas.

Under the Texas Family Code, same-sex couples, persons related to each other, and currently married persons cannot get married. Under the question presented, the answer hinges on whether a person who is legally separated in another state is still consider "married" for purposes of Texas law. Because Texas does not recognize legal separation as a status, then the person seeking marriage is still technically married to their "former" spouse in the jurisdiction they are legally separated in. Therefore, the marriage cannot occur.

Under Texas law, a marriage is considered void and of no effect if either party to the marriage is currently married. As a side bar, there is one small exception to this rule -- couples who are currently married to each other can obtain a marriage license. In essence this exception allows couples to "legally" renew their wedding vows.

Long Distance Visitation -- Airline Policies

Michelle O'Neil — Mon, 08 Feb 2010 09:31:47 -0600

Many parents have long distances to bear between their children and themselves. On Fridays and Sundays at the ariport, one can see many parents escorting kids to and from flights. Airlines have regulations addressing flights for minor children flying without an adult -- called Unaccompanied Minors. The regulations and fees charged vary between the airlines. Here's a summary of the various airlines policies:

Airline	Kids Flying Solo Age 5-7	Kids Flying Solo Age 8-11	Kids Flying Solo Age 12-14	Kids Flying Solo Age 15-17	Kids Flying Internationally
AirTran	$39 (nonstop or direct only)	$39 (nonstop or direct only)	$39-$59 (optional)	Call airline for options	N/A
Air Canada	Not Allowed	$100	$100	$100 (optional)	$100
Alaska	$75 (nonstop only)	$75 (no codeshare flights)	$75 (optional)	$75 (optional)	$100
American	$100 (nonstop only)	$100 (no codeshare flights)	$100 (no codeshare flights)	$100 (optional)	$100
Continental	$75 (nonstop only)	$75 (nonstop) or $100 (connecting)	$75 (nonstop) or $100 (connecting)	Not Offered	$75 (nonstop) or $100 (connecting)
Delta	$100 (nonstop or direct only)	$100 (nonstop or connecting, no codeshares)	$100 (nonstop or connecting, no codeshares)	$100 (optional)	$100
Frontier	$50	$50	$50	Not Offered	N/A
Hawaiian Air	$35 inter island Hawaii and $100 mainland nonstop only	$35 inter island Hawaii and $100 mainland nonstop and connecting	$35 inter island Hawaii and $100 mainland nonstop and connecting	Optional $35 inter island Hawaii and $100 mainland nonstop and connecting	$100
JetBlue	$75 (nonstop or direct only)	$75 (nonstop or direct only)	$75 (nonstop or direct only)	Optional $75 (nonstop or direct only)	$100
Northwest	$100 (nonstop or direct only)	$100 (nonstop or connecting)	$100 (nonstop or connecting)	$100 (optional)	$120 (nonstop or connecting no codeshare)
Southwest	$25 (nonstop or direct only)	$25 (nonstop or direct only)	Not Offered	Not Offered	N/A
Spirit	$100 (nonstop or direct only)	$100 (nonstop or direct only)	Not Offered	Not Offered	13-17 yrs. only with notarized letter
United	$99 (nonstop only)	$99 (nonstop or connecting)	$99 (optional)	$99 (optional)	$99
US Airways	$100 (nonstop only)	$100 (nonstop only)	$100 (nonstop only)	$100 (optional)	$100
Virgin America	$75 (nonstop only)	$75 (nonstop only)	$75 (nonstop only)	$75 (optional)	N/A
British Airways	$50 (nonstop only)	$50 (nonstop only)	$50 (nonstop only)	$50 (optional)	$50 (nonstop only)
Lufthansa	$60-$120 (within Europe) $150 (outside Europe)	$60-$120 (within Europe) $150 (outside Europe)	$60-$120 (within Europe) $150 (outside Europe) (optional)	$60-$120 (within Europe) $150 (outside Europe) (optional)	$60-$120 (within Europe) $150 (outside Europe)

Valentine's Day Tips from Dallas Divorce Lawyer

Michelle O'Neil — Sat, 06 Feb 2010 10:03:13 -0600

How not to get divorced -- that type of advice is strange coming from a Dallas Divorce Lawyer. But, really I'd love nothing more than to be out of business and into some other line of work, all because people stayed married. Marriage is a great thing if you are with the right person. Unfortunately, divorce is necessary in many circumstances. But, I seriously doubt that anyone enters marriage with the idea that they want to get divorced. So, for those out there trying to hold it together, here's some advice:

"February 15 is one of the busiest days in a divorce lawyer's calendar," says Dan Couvrette, CEO & Publisher of Divorce Magazine and www.DivorceMagazine.com. "Maybe some of these tips will help improve our readers' current relationships to the point where they're willing to try to work things out -- or perhaps the tips will help ensure that their future relationships will be happy and fulfilling."

1. Make time to connect lovingly with your spouse every day.

A couple can significantly improve their chances of marital success by devoting as little as 15 minutes a day exclusively to each other. For instance, choose to go to bed a little earlier and wake up a little earlier, and spend the extra time in bed cuddling, making love, and reaffirming your love for each other. Take time every day to have meaningful conversations with each other; to listen with the same intensity as when you were dating; to touch, hug, and show affection; to tell each other how you feel about your marriage; and to talk about your goals for the marriage and your lives.

2. Compliment your spouse regularly -- both in private and in front of others.

Even if your partner seems embarrassed or shrugs it off at first, the glow from sincere praise lasts a long time.

3. Love your spouse in the way he/she wants to be loved.

We often make the mistake of assuming that the things that touch our hearts the most deeply will affect our partner in the same way. For instance, you may think red roses are the perfect Valentine's Day gift, but to your spouse, they represent a waste of money and an allergy attack. If you don't already know, find out what your spouse yearns for, and then deliver it with love -- and no comments about how "stupid" it is to want a cordless drill/a picnic on the living room floor/a tuna casserole, etc. Remember: the best gift is something your spouse wants -- not merely something you want him/her to have.

4. Take care of your appearance.

Look your best for your spouse: he/she deserves it. Lose the ratty sweat pants or frayed sweater he/she hates so much; you can find other comfortable clothing that aren't a complete turn-off for your partner. This also means taking care of your health .

5. Remain faithful.

Dr. Finnegan Alford-Cooper studied 576 couples who had been married for 50 years or more; she released her findings in a book entitled For Keeps: Marriages that Last a Lifetime. In her study, she found that 95% of the spouses agreed that fidelity was essential to a successful marriage, and 94% agreed or strongly agreed that marriage is a long-term commitment to one person. And these "lifers" weren't making the best of a bad lot: a whopping 90% of the couples she surveyed said that they were happily married after 50+ years.

6. Do things together.

Another common factor of long-term happy marriages is that the spouses regularly do things together that they find fun and exciting. Whether that's ballroom dancing, bowling, playing cards, SCUBA diving, or skiing, participate in at least one activity that you both enjoy every week. If you have kids, make sure at least half of these activities are for you and your spouse only.

7. Spend time apart.

You take a pottery course while your spouse plays hockey; you play bridge and your partner collects stamps. You don't have to love everything your partner loves, but you do have to allow him/her the freedom to pursue cherished hobbies. An added bonus is that separate interests can generate interest between you.

8. Be friends with your partner.

According to John Gottman -- a psychology professor who claims his research will predict with 91% accuracy whether a couple will stay together -- the key to marital happiness and success is friendship. Some of the most important aspects of this type of friendship are knowing each other intimately, demonstrating affection and respect for each other on a daily basis, and genuinely enjoying each other's company. Gottman based his findings on 25 years of marital research, which he presented in his book The Seven Principles for Making Marriage Work.

9. The Terms of Endearment.

Top Los Angeles divorce attorney Stacy D. Phillips says flowers, candy, cards, and gifts are all wonderful tokens of love on Valentine's Day, but if you really want your romance to last, you must practice some marriage-saving steps. She advises couples to spell out the basics of their relationship in a yearly contract -- or at least to clarify them. "Most disputes that break up marriages are over sex and money," she says. "Don't let surprises lead to trouble. Marriage is like any other contract: its terms and conditions must be reviewed and updated. Right before an anniversary is a perfect time, and Valentine's Day reminds you to be flexible and that you have to give to receive."

10. Say "I love you" every day.

This is especially important when you're not feeling the sensation of love; at these times, you have to actively generate it. Saying those three little words, and performing loving gestures, will warm both your and your spouse's hearts.

Hat tip to Divorce Magazine for the idea for this article.

This article is featured on avvo.com: Valentine's Day Tips

Dallas Divorce Attorney Prevails On Appeal: No Garnishment for Contractual Alimony

Ashley Russell — Fri, 05 Feb 2010 14:03:22 -0600

Dallas divorce attorney Michelle May O’Neil and her client prevailed yesterday, February 4, 2010, when the Fifth Court of Appeals issued its opinion in Kee v. Kee, Cause No. 05-08-00013-CV. The appeal in Kee arose from an ex-wife’s appeal of the trial court’s refusal to garnish ex-husband’s wages to satisfy his contractual alimony obligation. The trial court in this case rightfully found the garnishment that ex-wife requested would violate ex-husband’s constitutional rights. The Dallas Court of Appeals agreed.

The Court of Appeal’s determination turned on whether the alimony payments wife sought to garnish from husband’s wages were ordered pursuant to Chapter 8 of the Texas Family Code, or whether such payments were contractual, as opposed to statutory, alimony. In reaching its decision, the Court of Appeals closely examined the language of the 2006 divorce decree’s alimony provision. The decree lacked the requisite findings for Chapter 8 maintenance; including a finding that wife was disabled and a stated duration of the maintenance obligation, with the specific language of the alimony provision providing in part:

“The Court finds that under the circumstances presented in this case, [Wife] is eligible for maintenance under the provisions of [the] Texas Family Code and the contractual agreement of the parties; and that this alimony obligation is contractual as well as statutory.”

Because the decree omitted the specific findings required by Chapter 8 of the Texas Family Code, the Court of Appeals determined that the “statutory” portion of the maintenance obligation could just as easily be Chapter 7 (the code’s provision for informal settlement agreements between parties) as Chapter 8 maintenance. As the alimony ordered by the 2006 decree was contractual rather than statutory under Chapter 8 of the Texas Family Code, the Court of Appeals determined that husband’s wages were not subject to garnishment, and, therefore the trial court ruled correctly.

The opinion in Kee extends the well-established case law prohibiting the enforcement of contractual alimony by contempt, including In re Green and McCollough v. McCollough, to prohibit enforcement of contractual alimony via garnishment of the obligor spouse’s wages absent a specific provision in the decree allowing for such a remedy. The moral of this case, for parties as well as family law attorneys, is be conscious of your drafting – if you intend for a maintenance obligation to be statutory under Chapter 8 of the Texas Family Code, make sure the decree includes the necessary findings. Also, if you intend for contractual alimony to be enforceable via garnishment of the obligor spouse’s wages, this must also be apparent from the terms of the decree.

Congratulations to Michelle May O’Neil on a notable appellate victory for her client.

For more information on alimony in Texas read our prior blog posts:

Alimony in Texas?!? Well, sort of . . .

Alimony in Texas?!? [Part 2 of 2]

To read articles written by Michelle May O'Neil on the topic of alimony/maintenance in Texas:

Comment: Alimony Versus Maintenance

Alimony/Maintenance Enforcement by Contempt

How to get the property you want and help keep costs down.

Nathan Anderson — Wed, 03 Feb 2010 08:56:49 -0600

As a Dallas divorce lawyer, one of the most frequently asked questions I receive is how can a client control the costs of his or her divorce. Understandably, clients expect top notch service in a cost effective manner. One of the more costly aspects of any divorce involves dividing up the community estate. I recently came across a great blog post that offered some practical ways to help keep costs down in dividing the community estate. Although the focus of the post dealt with dividing personal property contained in the home, a lot of the suggestions are applicable to dividing other parts of the community estate. Here are the tips:

1. One spouse makes two lists of the personal property. The lists should contain property roughly of equal value and the spouse who didn't make the list gets to pick which list of property they want. Because the spouse who didn't make the list gets to pick first, there is an incentive to make the lists as equal as possible --- otherwise the drafting spouse will get burned in the process.

2. Hold a silent auction. This creative method allows the parties to ensure they get the property that they really want. In the silent auction approach, each party blindly puts a dollar value next to a piece of property that is listed out on a sheet. Since the parties don't know what dollar amount the other placed on the property, the process is pretty fair to all involved. The spouse with the highest "offer" on a certain piece of property gets to keep it. Once the auction is over, then the parties add up the total winning bids and divide the property accordingly.

3. Arbitration. Alternative dispute methods, such as arbitration, are frequently used in divorce cases. Although there is a cost associated with using alternative dispute methods, couples can use an arbitrator to divide the community estate which is typically less expensive than presenting the matter to a judge.

4. Rotating lists. In this method, the parties simply make a master list of all their property and then take turns selecting one item at a time that they want to keep. Spouses can simply flip a coin to see who gets to go first.

Bottom line is that there are many creative ways to divide up property fairly, and in a cost effective manner. Hat tip to the Minnesota Divorce and Family Law Blog for the idea behind this post.

Can the Divorce Judge Make Me Turn Over My Business' Cash to My Spouse?

Michelle O'Neil — Mon, 01 Feb 2010 09:27:32 -0600

A Dallas Divorce client raised an important question this week. She owns a small professional practice that is an S-corporation. Her business has some cash flow that allows her to pay the business expenses and payroll, but not much extra. Her husband requested the Dallas Divorce Judge to make the wife turn over the cash she presently had in her business to help pay the husband's marital debts.

In a Texas divorce, a judge may only award shares of corporate stock in a divorce, and may not invade the corporate assets. Moreover, a judge may not divest a spouse of separate property corporate stock and award it to the other spouse. Retained earnings (cash) of a company are a corporate asset and are not marital property, either separate or community. The fact that the corporation is a Subchapter S corporation does not determine who owns the corporation’s earnings. A corporation may, in its discretion, distribute its income to its shareholders, but it is not required to do so. Further, it cannot be compelled to do so by a divorce court that lacks jurisdiction over the corporate entity. The shareholder in a Subchapter S Corporation has no greater rights over corporate property than a shareholder in any other corporation.

See McKnight v. Mcknight, 543 S.W.2d 863 (Tex. 1976); Thomas v. Thomas, 738 S.W.2d 342, 343 (Tex. App. – Houston [1st Dist.] 1987, writ denied).

Married men = higher income.

Nathan Anderson — Wed, 27 Jan 2010 17:28:41 -0600

I recently came across an article on Time Magazine's website that was pretty interesting. According to a study completed by the Pew Research Center, married men have a 60% higher income than they did in 1970, whereas unmarried men only experienced an increase of 16% in income.

According to the study, one of the reasons that married men experienced a higher increase in income is because the percentage of men marrying women who earn as much, if not more, than they do has also increased since 1970. Coupled with this is the fact that there has been a dramatic increase in the number of white collar women.

Another interesting point was that there is a decrease in divorce among college educated couples, and an increase in divorce between non-college educated couples. Apart from the homogamy aspect of the studies, it was interesting to learn about correlation between income and duration of marriage.

Feelings of a Father in Song -- Highway 20 Ride

Michelle O'Neil — Mon, 25 Jan 2010 17:46:59 -0600

I wanted to share with our readers a very special song I heard today by the Zac Brown Band called Highway 20 Ride about a father's visitation with his son. Here's the video and lyrics. Hope this is as meaningful to you and it was to me:

Highway 20 Ride:

I ride east every other Friday
But if I had it my way
A day would not be wasted on this drive
And I want so bad to hold you
Son, there’s things I haven't told you
Your mom and me couldn't get along

So I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

A day might come you'll realize
That if you see through my eyes
There was no other way to work it out
And a part of you might hate me
But son, please don’t mistake me
For a man that didn’t care at all

And I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

So when you drive
And the years go flying by
I hope you smile
If I ever cross your mind
It was the pleasure of my life
And I cherished every time
And my whole world
It begins and ends with you
On that Highway 20 ride....

What does "is" mean? The Importance of Drafting

Michelle O'Neil — Mon, 25 Jan 2010 08:59:07 -0600

In a meeting yesterday with a client, he asked me why we couldn't agree for the attorney for his soon-to-be-ex wife to draft the final divorce decree so she would have to bear the cost of the attorney's time for this activity. He wants to pinch the pennies and avoid paying me to do this.

I told him the story of "Joe" -- not his real name, obviously -- who chose not to hire an attorney and let his wife's attorney do all the work. The wife's attorney drafted their agreement and drafted in creatively, even craftily, such that Joe didn't get exactly what he thought he was getting.

An attorney can advocate for a client in just the simple drafting of the wording of a document. Sometimes this wording can mean the difference in having an enforceable court order or a piece of paper that is virtually meaningless.

Take the example given by Sam Hasler in the Indiana Divorce and Family Law Blog:

Take this scenario: parties agree that one gets Y unless x happens. Being even more specific, assume that one party agrees to give the other half a pension, unless the other married.

What happens if the other party does not marry but lives with someone? Does the other party get the share of the pension?

Answer: Yes.

You get stuck with the language you put into an agreement. No better reason exists for getting a lawyer to at least read any agreement put together during any case. A lawyer provides to the parties an objective, critical for catching the problems that might arise out of a proposed agreement.

Married means married. If the Decree/agreement says married, then
living together does not matter. She gets the pension.

One of the most common examples that most people remember is President Clinton's lawyerly dispute about the meaning of the word "is" during his grand jury testimony. Consider Timothy Noah's commentary in Slate magazine on September 13, 1998:

Years from now, when we look back on Bill Clinton's presidency, its defining moment may well be Clinton's rationalization to the grand jury about why he wasn't lying when he said to his top aides that with respect to Monica Lewinsky, "there's nothing going on between us." How can this be? Here's what Clinton told the grand jury (according to footnote 1,128 in Starr's report):

"It depends on what the meaning of the word 'is' is. If the--if he--if 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

In other words, President Clinton rationalized that "is" meant in the present moment, and he distinguished it from meaning over the past spanse of time.

I stress to clients the importance of having their lawyer draft the decree so that they know their best foot is put forward and as much of the advocacy of the nuances of small words -- like "is" -- can be avoided or massaged to their favor.

Alter Ego and Piercing the Corporate Veil in the Context of Divorce

Ashley Russell — Sun, 24 Jan 2010 11:52:44 -0600

Businesses can pose special challenges upon divorce. As Dallas divorce attorneys, we deal with these issues in many of our cases, with businesses acquired during the marriage and also businesses owned by one spouse before marriage.

Texas law typically treats corporations, partnerships, and other types of businesses as a separate legal entity – existing apart from shareholders and partners. Because these businesses are separate legal entities, only the spouse’s interest in the corporation, partnership or other business is up for division by the divorce court. This means that specific corporate assets are often off-limits in a divorce action. But, there is an exception to this rule when alter ego can be established.

If the business is found to be the “alter ego” of a spouse, divorce courts can “pierce the corporate veil” to move assets out of the corporation and divide them between the parties as part of the shareholder's community estate. A finding of alter ego sufficient to justify piercing in the divorce context requires the trial court to find:

(1) unity between the corporation and the spouse such that the separateness of the corporation has ceased to exist, and

(2) the spouse's improper use of the corporation damaged the community estate beyond that which might be remedied by a claim for reimbursement.

The concepts of alter ego and piercing are applied in divorce cases to achieve an equitable result, that is, a just and right division of the marital estate. Generally, the divorce court will pierce to avoid leaving the community estate with virtually no property.

Whether you are a business owner, spouse of the business owner, or the attorney representing either party, when a business interest is part of the community estate, or owned by one spouse during the marriage, keep the equitable principles of alter ego and piercing the corporate veil in mind when evaluating the strategy for a divorce proceeding.

Overlapping jurisdiction - Dallas Probate and Family Courts.

Nathan Anderson — Thu, 21 Jan 2010 14:52:23 -0600

Dallas County is one of several counties that has statutory probate courts. In addition to statutory probate courts, Dallas County also has dedicated family district courts (some counties, i.e. Collin, have district courts of general jurisdiction). Dallas divorce lawyers need to know that the jurisdiction between these two courts can sometimes overlap.

In Dallas county, divorce suits are brought in the family district courts and suits pertaining to guardianship of an individual are brought in the probate court. If a Dallas divorce case involves issues of guardianship, then under the Texas Probate Code, the probate court has jurisdiction to hear matters "appertaining to" or "incident to" the guardianship proceeding. The effect of this is that the entire divorce proceeding can be transferred to the Dallas probate courts.

This overlap of jurisdiction can come up when one party to the divorce has been deemed incapacitated by the probate court and is seeking (or responding to) a divorce. Another instance the overlap of jurisdiction can arise is when an adult disabled child has been declared incapacitated by the probate court and one of the parties to the divorce action is seeking adult disabled child support. In addition to the Texas Probate Code, a provision of the Texas Family Code provides a probate court jurisdiction in a guardianship proceeding for the person after the person is an adult.

Jurisdiction is a confusing area of the law, but it can make a huge impact on the outcome of a case. Knowing which court you can have your matter heard in gives you additional options, and sometimes a more favorable outcome.