1

PRE-DIVORCE PLANNING

If you are considering a divorce, or suspect that your spouse may be, you should consult with an attorney immediately. Find out what your rights are and how vulnerable you are to losing custody of your children or losing property. Even if a divorce is not imminent, even if it never occurs, a good lawyer can help you get your affairs in order so that your heirs will not have to confront difficult legal questions about property acquired during your marriage. People with marital problems usually have immediate and urgent questions.

A. DEFINING COMMUNITY PROPERTY AND SEPARATE PROPERTY.

At the outset it is important to understand that you are living in a "community property" state. For purposes of divorce, probate, and many other legal matters, all of the property owned by you or your spouse is categorized as either community property or separate property.

"Separate property" is defined as all property which you owned prior to marriage; all property inherited during the marriage; all gifts received by you during the marriage; certain judicial awards for personal injuries; and, other property traceable to separate property. All other property is community. However, a pre- or post-marital agreement could alter how separate and community property assets and liabilities will be viewed by the court.

Upon divorce a court will set aside your separate property to you and divide the community property between you and your spouse. It is important to clearly identify separate property for these purposes because all property owned at time of divorce is presumed by law to be community property unless identified otherwise.

Texas does not recognize "legal separation". As a result, community property continues to accrue up to the date of the divorce, regardless of the length of the separation.

B. DEBTS

In order to determine who is liable for which debts it is necessary to further define community property as "special community" and "joint community". Your special community property is property acquired during the marriage and under your sole management and control. Joint community property is property under joint management or control. A creditor of either spouse can usually look to joint community property for satisfaction of its debts, regardless of who incurred the debt.

2

If you are able to keep your funds or property under your sole management or control, such property may be protected from debts incurred by your spouse prior to marriage as well as contractual debts incurred by your spouse during the marriage.

C. COMMON PROBLEMS.

1. Credit Cards

You have basically three options with regard to your credit cards:

(a) leave them as they are;

(b) write the financial institution which issued the card and advise it that you will no longer be liable for charges made on that account; or

(c) write the financial institution which issued the card and advise it that you want to lower your credit limit and that you will not be liable for charges over that amount.

The dilemma most people face is that they do not want to be liable for expensive items charged by their spouse while the marriage is insufferable, but they also do not want to shock their spouse by cutting off all of his or her credit cards, an act which may be viewed with hostility and which may exacerbate marital problems. Therefore, we usually recommend the middle ground of lowering the credit limit.

If you decide to take some action of this sort, send your letter by certified mail and keep a copy for your records. You should advise your spouse that you are doing this so that he or she does not learn it in an embarrassing situation.

2. Bank Accounts.

Any cash you have in a joint account or joint certificate of deposit is vulnerable to attack by your hostile partner. If your spouse is angry enough, he or she may clear out these accounts and it can be very difficult, if not impossible, to recover the funds taken. If you keep significant sums of cash in a joint account, or accounts, you have the following options:

(a) clear out these accounts yourself;

(b) take one half of these funds and leave the other one half for your spouse; or

(c) proceed at your own risk.

3

You may think the first option sounds ruthless but sometimes it is justified. If, for example, you are a woman with small children and get very little financial support from your spouse, you may need all of the funds in your joint account for support. If your spouse is financially irresponsible, any joint account is vulnerable to his or her creditors; money which is half yours may wind up paying for your spouse's new golf clubs or a new fur coat. If you take control of the funds, and act responsibly, you can give your spouse money when necessary; if you lose control of these funds you will not have this option.

If, on the other hand, you have no good reason for assuming control of all or most of the community funds, you may put yourself in a very bad light with a court at a later date. If you are irresponsible with these funds you may wind up being sued for what is called "breach of fiduciary duty". Therefore, unless you have a good reason to take all of the funds, and while not wanting to lose them all, withdraw one half. Then, tell your spouse so he or she will not bounce any checks.

3. Separation.

Separation is usually the most difficult phase of a divorce. This is typically the time when emotions are the most intensely charged. Many spouses are reluctant to move out of their residence because they are concerned with appearing to give ground, or losing "territorial rights".

What can you do if your spouse refuses to move? Your options are:

(a) move out yourself;

(b) persuade your spouse to participate in some form of joint counseling; or

(c) file suit for divorce immediately and seek a court order awarding you exclusive use and possession of the residence until the divorce is final.

If you have children and are willing to give up primary custody of them, you may consider moving out of your residence voluntarily. Most judges will leave the children in their home with the anticipated custodial parent, the "temporary managing conservator". If you anticipate a custody battle, think hard before you move.

Only in very extreme cases can a judge order a spouse to move out immediately upon the filing of a divorce petition. This could get an abusive

4

spouse out of house as soon as the Constable served the papers, however this relief is very difficult to obtain. If you have a very bad situation, consider staying with a friend or checking into a motel with your children until you can get a ruling from a divorce court.

4. Changing the Locks.

If you are going to remain in your residence and your spouse has moved out, or has been ordered to move out, change the locks immediately upon his or her departure. Do this despite the fact that your spouse may have personal effects in the house. Failure to heed this advice may cause you embarrassment, loss of property, and other problems.

5. Gathering Records.

One of the first things a good divorce lawyer will do is inspect all of the documents that are relevant to your particular divorce situation. This will usually include:

(a) tax returns for at least the past few years;

(b) bank statements, canceled checks and deposit slips for at least the past few years;

(c) deeds and closing statements regarding purchases and sales of real estate;

(d) all written materials regarding investments;

(e) all loan documents;

(f) all financial statements prepared by you or your spouse; and

(g) all other documents which relate to your income or property.

If your records are incomplete, contact your bank, the IRS, or any other source to get duplicates. This should be done without delay because it may take weeks to get these reproductions.

6. Tracing Assets

If you have had separate property and you have not kept that property intact and separate throughout the marriage you may have to "trace" this separate property in order to avoid dividing it with your spouse upon divorce.

5

Your burden is to trace and clearly identify by clear and convincing evidence all property you claim as separate property. Tracing can be a time consuming and complex process and should be started early on. If you think this may be necessary for you, you should consult your attorney as soon as possible.

7. The "Financially Irresponsible" Spouse.

Many times we see people who are married to someone who shows no responsibility about finances. They incur debts without any thought of how these debts will be paid. When the relationship gets worse, the problem grows. Whatever their justification, they find a reason to spend money that they do not have. This may go as far as forging your signature or endorsement on checks. If this is similar to your situation, you should consider filing suit for divorce immediately.

There are two reasons for this. First, in conjunction with the filing of your divorce petition you may seek a temporary restraining order, "T.R.O.", which prohibits your spouse from spending any money, incurring any debts, or transferring any property except for ordinary living expenses or in the ordinary course of business. If your spouse violates the T.R.O. he or she is in contempt of court and can be jailed or fined. Second, many judges view the filing date of the divorce petition as a cutoff date after which any debts incurred by a spouse will be adjudged against him at the final hearing.

8. The "Financially Uninformed" Spouse.

Many people have no idea what their spouse earns, owns, or spends. If this is your case, then begin your investigation immediately. Financial statements submitted to your spouse's banker are a good source of information; so are tax returns. Your lawyer can assist you with this, but the more you can do on your own, the less costly this investigation will be.

9. The NonWorking Spouse.

If you do not work, you should try to find employment unless, of course, the community estate is such that your portion will be sufficient to support you after the divorce. If your spouse is working and you are not, the court may award you support to be paid by your spouse. This period may be 60-90 days or it may be longer. It can be hard to predict. However, a Texas court cannot award you alimony after the divorce is final. Your spouse may agree to it, usually for tax purposes but, otherwise, you will not get it. If you have custody of the children you will get child support, but rarely will this be enough to support you, too.

6

10. Emotional Confusion and Ambivalence.

Do not start the divorce process unless you are absolutely sure that a divorce is the only solution to your problems. If you are not sure, seek counseling.

11. Your Affair/Their Affair.

If you are having an affair, terminate it or, at least, be as discreet as possible. Dating after separation maybe okay if there are not children involved, but you should discuss this candidly with your attorney at the outset of your case. Intercourse is not o.k. You will be providing your spouse, your opponent, with ammunition to harass you into a favorable property settlement. Discovery of a lover can have devastating effects if custody is at issue.

12. Telling Your Children.

The children should be told, but not prematurely. Make sure that a divorce is the only solution before telling them. When you tell them, be honest, but there is no need to fill them in on details, and in fact, to do so will probably be harmful. Under no circumstances should you repeatedly discuss the divorce process with them. If you anticipate this being a problem, consult a counselor.

13. Coping With the Stress of Marital Problems.

Marital problems can be just as stressful as the most difficult business problems or the most serious health problems. In extreme cases marital problems can kill. Regardless, it will be a day-to-day drain on you which may lead to sleeplessness, excessive drinking, erratic behavior, developmental problems with your children, headaches, fatigue, and a myriad of other stress-related problems. If you have serious marital problems, or find yourself in the midst of a divorce, set aside extra time to remove stress in a healthy way. Run a few extra miles. Start doing yoga. Learn racquetball. Go camping for a few days. Practice relaxation technique. Do whatever you enjoy that is not destructive but, remember, extra stress will take its toll if you do not do something about it.

14. Keeping a Journal.

Begin now. Keep a journal until you divorce is resolved. Write down everything that happens between you and your spouse including telephone, conversations, confrontations regarding the children, settlement discussions, etc. If you have children, continue to keep a journal after the divorce. Not only is it good therapy, it can be good evidence. If you keep it private, it will remain

7

confidential. If you show or tell someone other than your lawyer or the law firm about its contents, you may forfeit the privilege of confidentiality and have to produce it for your spouse and his or her attorney to look at and possibly use against you. Diaries or journals kept in anticipation of litigation (divorce) or during litigation are privileged. Be careful that you do not unintentionally waive this privilege.

D. FINANCIAL DOCUMENTS.

1. Importance.

Although the spouses involved in divorce have difficulty embracing it, the legal system has worked hard in the last few years to "de-emotionalize" the divorce process. The result is a divorce system which is no longer the mudslinging, name-calling system of the past, although some of this continues. The system is now more concerned with the financial aspects of the divorce. For this reason, in most cases, the preparation of accurate financial documents is the most important part of the case.

2. Personal Financial Statements.

The most helpful thing you can do for your attorney is to have an accurate, current personal financial statement. You, as a client, can save yourself a lot of time and money by doing this yourself. How detailed should it be? As detailed as possible.

3. Cash Flow/Budget.

If you have children, or anticipate any issue in your case regarding financial support for you or your spouse, you will need to prepare a monthly cash flow statement that shows your average monthly income and expenses.

4. Documentation.

Your financial documents should be supported by appropriate evidence, such as paystubs, mortgage coupon books, amortization statements, appraisals, bank statements, and credit card statements. This is especially important if you anticipate going to court

5. Timing.

In many cases, once the petition is filed, battle lines are drawn. This may mean more difficultly in gaining financial information than in a pre-petition setting.

8

Consider "doing your homework" before you start a legal proceeding. The results will help you better understand the strengths and weaknesses of your case.

E. OTHER DOCUMENTS.

1. Estate Planning.

Married couples often sign wills benefitting the other spouse primarily. This is also true of beneficiary designations for non-probate assets such as life insurance, retirement plans and IRAs. A typical restraining order issued by the court after the filing of the divorce will prohibit each of you from changing your will, changing life insurance policy beneficiary designations, and changing retirement plan beneficiary designations.

For that reason, consider re-evaluating your estate plan before the divorce gets under way.

Although it may be difficult for you to focus on these issues early in the divorce proceedings, it is the period prior to the filing of the divorce or the temporary hearing which may provide a window of opportunity to protect your other heirs from any control your spouse would have over your estate should you die before the divorce is final. If you have no Will during a divorce, you may be surprised to learn that should you die before the divorce is final, your spouse could be the primary or sole beneficiary of your estate.

If you can not or do not change your estate planning prior to the divorce becoming final, you should address the issue as soon as the divorce is final, especially if you have minor children. Without additional planning, your ex-spouse could exercise more control over your children’s inheritance than you ever intended.

You and your spouse may have used the same attorney to prepare your current wills, and you might feel more comfortable using the services of a different attorney for changes to your estate plan in view of your marital situation.

2. Chronology.

A chronology of salient events during the marriage will be very helpful to your attorney.

9

3. Witnesses.

If you think that your case might go to court, prepare a list of anyone and everyone who knows anything about the disputes between you and your spouse. Include the address and telephone number of each witness and a brief synopsis of what the witness knows that is important.

CHAPTER II

INTRODUCTION: START NOW!

If you wait until you are served with a divorce petition, you may find yourself at a serious disadvantage in a contest which may affect the rest of your life. If you are contemplating divorce, it's a safe bet that your spouse has thought about it, too. Perhaps he or she has had the foresight to have consulted with an attorney. You could be in a very vulnerable position. Consult counsel now to find out if anything needs to be done to protect your rights.

A. USING ONE LAWYER.

Lawyers are ethically prohibited from representing adverse parties in a divorce. This is because it is impossible to advocate both sides of a case. The parties to the suit can waive this conflict if they so choose, but beware. You may have rights you do not know about. Your spouse's lawyer will have no duty to advise you.

B. AN EMOTIONAL OASIS.

Many spouses view the divorce process as a transition through difficult and trying times. We try to provide the emotional oasis which is sometimes needed while going through the dissolution of a marriage. We provide a firm staffed with some of the most experienced counselors, paralegal assistants, and legal secretaries found in the United States.

C. THE INITIAL INTERVIEW: WHAT TO ASK.

You may have numerous questions for your first interview with your divorce lawyer, but make sure to ask the following:

1. How will you be charged?

2. Who will actually handle the case?

10

3. Has he or she handled other divorce cases similar to yours?

4. Does he or she do divorce work exclusively, or is his or her practice varied? If the latter, what percentage is divorce, or family law, related?

5. Does he or she employ young lawyers, paralegals, law clerks or legal assistants? If so, what is the charge for their time?

6. If your case goes to trial, who will appear to represent you?

D. THE FEE STRUCTURE.

1. The Retainer. A retainer is an attorney's security blanket, his cushion. Most attorneys have high overhead to pay on a monthly basis and cannot afford to extend a lot of credit; therefore, they want to get paid "upfront". If they do not get enough of a retainer, you may get behind paying your bills. If you get too far behind you may find yourself without a lawyer.

2. The Contract. Many lawyers want you sign an employment contract before they begin working for you. This can be mutually beneficial because a good contract should clearly spell out how much you will be charged for the handling of your case. Do not sign it, however, unless you understand it. The Firm’s contract of employment will be provided to you for your review and understanding at the initial interview. Do not sign it if you do not understand it. Do not be reluctant to ask questions about terms or provisions in the contract.

3. Fee structures vary a great deal. Be certain you discuss the fees in your case in detail so you fully understand your obligations.

E. THE SPECIALIST.

Specialists are a fairly new phenomenon. Many are not certified specialists and many times a specialist is not necessary for your case. But the fact that your lawyer is certified by the State Bar as a specialist in family law does give you some measure of assurance.

Many times the fees of family law specialists are higher than those of a good general practitioner. So, unless you have a very complicated situation, you may save money by using a nonspecialist to handle your case.

11

F. OTHER FACTORS TO CONSIDER.

1. Will you enjoy working with this person for a year or longer? Do not choose a lawyer you do not like. Otherwise, your divorce may be a miserable experience.

2. Telephone calls Most lawyers charge you for time spent on the telephone. Many will charge a minimum of a quarter hour per call. Find Out. If you are being charged for phone calls with your lawyers, write out your questions before you call and write down his answers so you do not forget what he or she told you and have to call back.

3. Is your lawyer's office in a convenient location? You may have to make numerous trips to your lawyer's office. Make sure it is not a hardship on you.

4. Do you trust this person? This can be a crucial consideration in complex cases where the fees will be significant.

CHAPTER III.

THE DIVORCE PROCESS

A. INTRODUCTION.

When the divorce process begins you may find yourself immersed in a legal system you are not familiar with. The purpose of this chapter is to give you a preview of the legal system in order to better prepare you for divorce and reduce the anxiety to the divorce process.

B. INITIAL CONSIDERATIONS.

1. The Temporary Restraining Order.

a. Definition: The purpose of the "T.R.O." is to immediately freeze the estate of the parties, disallowing all transactions except expenditures for normal living expenses, normal business expenses, and legal fees. A T.R.O. also prevents harassment between spouses.

b. You have the option of having a T.R.O. issued when a divorce suit is filed.

c. A T.R.O. should always be used when:

12

(1) there is any concern regarding abuse or violence, or

(2) there is any concern regarding a spouse running up debt, cleaning out bank accounts, or transferring assets.

d. If you choose to have a T.R.O. issued, the cost to you of filing the divorce suit will be slightly higher.

e. A T.R.O. is only good for 14 days. It may be renewed once without the agreement of the other party. After that a hearing will be necessary to extend it further. If it is extended for the duration of the case, which is commonly done, it is called a "temporary injunction."

2. Service of Process.

a. The law requires that every "Respondent" to a lawsuit must be personally served with the petition which has been filed.

b. Typically, this means that a process server goes to the home or business of the Respondent and hands him or her a copy of the petition which has been filed. The Respondent then has until the Monday after 20 days to file a written answer with the court. If he or she does not, a "default judgment" may be rendered against him.

c. Service may be waived to save the cost. This is customary in divorces which are uncontested.

d. Service may also be affected if your spouse's attorney agrees to accept service on his or her behalf.

3. The Divorce Petition.

a. The divorce petition is a document which is filed with the court which sets out your request for a divorce and any other requested relief, including:

(1) division of property

(2) conservatorship and support of minor children

(3) name change

(4) attorney's fees

13

(5) temporary relief

b. You must also certify in writing that you are aware that the case may be subject to alternative dispute resolution called mediation.

c. If you have been a victim or perpetrator of a family violence you should disclose it to your attorney immediately.

4. The Counterclaim.

a. If a divorce suit has been filed against you, you have the option of filing a counterpetition seeking your own requested relief, or simply filing an answer to the suit filed.

b. A simple answer is sufficient if you do not want a divorce and think reconciliation is a definite possibility.

c. The counterclaim will prevent your spouse from dropping his suit unexpectedly, leaving you in a state of uncertainty. If you want a divorce, and your spouse's suit is dropped, you will have to refile and start the process all over again, at unneeded delay and expense.

5. Suits Against Third Parties.

a. Lovers

(1) Suits for "alienation of affection" are no longer allowable.

b. Other Legal Entities

(1) Corporations are viewed as distinct legal entities unless they have been used for purposes of fraud.

(2) If any relief is sought involving a corporate asset.(i.e., a company car) the corporation may be made a party to the divorce suit.

(3) The same may be true of trusts and partnerships.

14

c. Torts

Suits against spouses and third parties for a variety of reasons are viable in Texas. Discuss these aspects with your attorney.

C. TEMPORARY ORDERS.

1. Definition: Temporary Orders are normally issued within the first few weeks after a divorce has been filed. These court orders govern the conduct of the parties until the divorce is final. Like the T.R.O., Temporary Orders are issued by the court to prevent harassment and maintain the status quo until the case can be resolved. Temporary Orders typically deal with the following:

a. Temporary Child Support

(1) If you have custody of minor children, even if only on a temporary basis, you are entitled to receive support for their benefit.

(2) Normally, the amount of child support to be paid is determined by a percentage of the aftertax earnings of the noncustodial parent.

(3) See Appendix for current Texas guidelines.

b. Temporary Alimony

(1) If you are in need of financial support during the divorce you may petition the court for "temporary alimony."

(2) The amount to be paid is discretionary with the court but is often based upon the amount normally provided to you, or by you, for support.

(3) For marriages of relatively short duration temporary alimony is usually restricted to the 60-90 days after filing.

(4) Temporary support may include payment of existing debts, costs of relocating, and continuance of insurance or other benefits usually provided to you.

15

c. The Temporary Injunction

The temporary injunction is an extension of the T.R.O. during the entire duration of the divorce case.

d. The Inventory and Appraisement

(1) Both parties are required to file a sworn Inventory and Appraisement with the Court.

(2) The Inventory and Appraisement lists all of the assets and liabilities of the parties, and characterizes each as community or separate. It is a variation of your personal financial statement. A copy of the form for this instrument will be given to you at the initial interview.

(3) Except in custody cases, this is usually the most important document in your case.

e. Custody

(1) In their best interest, the children will usually be left with their primary caretaker unless he or she is otherwise disqualified.

(2) If custody is contested, the court will generally hear evidence from the parents, doctors or friends as to whom the children should reside with or be cared for by on a temporary or permanent basis.

(3) Some courts now require both parents to go through mediation before a custody suit is presented to the court.

(4) Most Courts require an Amicus Attorney to be appointed if custody is at issue. The cost of an Amicus Attorney is often split 50/50 between the parties.

f. The Exclusive Use of Property

As part of the Temporary Orders, the court will usually award exclusive use and possession of certain property until the divorce is final. This prevents interference with such items as residences, vehicles, and bank accounts.

16

g. Interim Attorney's Fees

If you do not have money in your possession to pay your lawyer, but your spouse has sufficient funds to do so, the court can order that he or she must pay a certain sum to your attorney, provided the fees can be justified.

h. Debts

The court may order that certain debts be paid during the divorce. The assignment of debts to a spouse is usually based upon a determination of which spouse is better able to pay.

i. The Contested Hearing

(1) If temporary relief is requested, and an agreement cannot be reached as to a particular issue, e.g., the amount of child support to be paid on a regular basis, it will be necessary to schedule a hearing with the court.

(2) Expect to wait one to two weeks, and possibly longer in metropolitan counties for a temporary hearing.

(3) It is customary for all divorce lawyers to agree to inventories by both parties and to entry of a mutual temporary injunctions.

(4) Disputes usually concern the amount of temporary support to be paid, or the exclusive use of the residence of the parties.

(5) Be prepared to show your normal monthly income and expenses. Forms will be given to you at the initial interview to fill out if the Firm is retained by you.

(6) Expenses which are greater than normal should be documented with canceled checks or other evidence.

Go through your canceled checks and credit card statements for the past six (6) months. Take an average for your normal income and expenses.

17

(7) Temporary hearings can last anywhere from less than an hour to several hours. Be prepared to miss at least one-half a day of your time for this hearing.

(8) Your temporary hearing may be heard before a "Master" or a judge. In metropolitan counties, Masters are commonly used.

(9) If you do not like the Master's ruling, you have three days to appeal. The hearing may then be rescheduled and heard in its entirety before a judge, unless that right is waived.

j. Violations

(1) Temporary Orders are enforceable by contempt. This means that a violator may be subject to a fine of $500.00 or imprisonment of up to six (6) months for each violation. For this reason they are a good deterrent to bad behavior during the divorce.

(2) As a practical matter, do not expect much relief for minor infractions. You are always allowed to spend or borrow money for ordinary living and business expenses and that can be a broad category.

D. INVESTIGATION OF YOUR CASE/GETTING IT ALL ON THE TABLE.

1. Is It Necessary?

a. If you have all of the information available regarding your case, set it for trial and push it through as expeditiously as possible.

b. If you do not, you have two options:

(1) Settle the case on the basis of partial knowledge.

(2) "Discover" more about the case.

c. An attorney cannot, and usually will not, give you an opinion based upon insufficient information. However, if you are comfortable with the situation, and feel like a good offer to settle has been made, you may instruct your attorney to settle the case without further legal proceedings.

18

d. Sometimes, no matter how diligent you are, you may need your attorney to subpoena documents that are being secreted, or witnesses who are potentially damaging to your case and not willing to come forward voluntarily.

2. Methods Lawyers Use for Investigation

a. Request for Production of Documents

This is usually done in a contested case and should be done early on. Attorneys routinely check all legal documents regarding the property of the parties, including tax returns, stock certificates, financial statements, and correspondence.

b. Interrogatories

(1) Interrogatories are written questions which may be asked of any party to a suit.

(2) Written answers are due in thirty (30) days.

(3) Interrogatories are useful to establish facts about the case, e.g., when a retirement program began, or when a business was incorporated.

(4) The usefulness of interrogatories is limited because answers are often prepared by opposing counsel and signed by your spouse before a notary.

c. Depositions

(1) A deposition is an out-of-court statement in question and answer form, taken under oath.

(2) It is usually taken in the office of one of the attorneys during business hours before an official court reporter.

(3) The cost is relatively expensive. You can expect to pay approximately $100 per hour of court reporter time, plus the hourly charge of your attorney for attending and for preparation. A total charge of several thousand dollars per deposition is not unusual.

19

(4) You only pay the reporter's time for depositions that you have requested. If your spouse requests that your deposition be taken, he or she pays the reporter. However, if he or she is spending community funds, who pays may not matter.

(5) You cannot refuse to give your deposition. You are legally entitled to reasonable notice but you cannot, ultimately, refuse to answer questions which are relevant. Your spouse is allowed to attend your deposition.

(6) When giving your deposition, be as brief as possible. You and your attorney should discuss this in advance. Deposition pointers will be given to you.

(7) If you request that your spouse's deposition be taken, yours will probably be scheduled as well. Most lawyers are adept at playing "tit for tat".

(8) Upon proper request a deposition may be videotaped.

d. Appraisers/Expert Witnesses

(1) Only property which will not be liquidated upon divorce should be appraised.

(2) If your case goes to trial, it may very well become a "battle of experts" with regard to values of real estate, business interests, or on other issues.

e. Witnesses

(1) Witnesses include anyone with personal knowledge of facts relevant to your case, e.g., family members, friends who have witnessed family violence, doctors, psychologists, expert witnesses employed by your spouse, accountants bank officers.

(2) All potential trial witnesses should be ascertained early on in your case.

(3) Hostile witnesses should normally be deposed.

20

f. Special Problems

(1) "Tracing" assets

(a) If you own or have owned separate property and wish to claim it as yours at the time of divorce so that it will not be divided with your spouse, it must either be intact or traced.

(b) If you had $10,000.00 in a bank account before marriage, and that same $10,000.00 is in the same account, you have no problem. If, however, all or part of that money was disposed of, you have no claim for separate property unless you can "trace" the funds into a particular asset or assets.

(c) If you need to trace separate property, start now.

(d) Hire a C.P.A. to help, if necessary.

(2) The family business

Closely held businesses can be very difficult to value. If you think a family business has any significant value, consider hiring an appraiser.

E. NEGOTIATING A SETTLEMENT.

1. Property Division

a. What are you entitled to?

(1) It is a common myth that all property is divided down the middle at the time of divorce. This is not true. A divorce court has the discretion to divide the property as it sees fit.

(2) You may be entitled to more than 50% of the community estate if:

(a) your spouse is at fault in the breakup of the marriage;

(b) there is a disparity of earning power between the parties; or

21

(c) there are other reasons for sympathy.

b. Which assets will you get?

You will virtually always be awarded your personal effects, including jewelry and furs, in your possession at the time of divorce; the automobile you drive at the time of divorce; and, many times, the furniture in your possession at the time of divorce.

c. Who pays the bills?

If a debt which exists at the time of divorce was incurred solely for your benefit, the court will usually stick you with it. If the debt was incurred for the benefit of the children, or the mutual benefit of the spouses, it will usually be ordered paid by the spouse most capable of paying it; in some cases it may be divided proportionately between the parties.

d. The "buyout".

(1) If one party wants to keep an asset and there are no other ways to compensate the other spouse, he or she may buy the other out at an agreed price or a value determined by the court. Sometimes this is merely an accounting procedure involving large sums of money paid out over a long term. If this is your case, make sure you have an attorney experienced in such cases.

(2) The alternative to the buyout is to sell the asset and divide the proceeds.

2. Custody.

a. Typical custody arrangements

(1) The Sole Managing Conservator has virtually all legal rights with regard to the children including the important right to establish legal domicile.

(2) The Possessory Conservator has only the right to visit with the children and consent to emergency medical care.

22

(3) Typical visitation for Possessory Conservators:

The Texas Legislature has passed uniform guidelines for visitation, commonly called an "SPO" or Standard Possession Order. Courts generally award an SPO unless custody is contested or a parent is closely bonded to the children.

b. Joint Custody.

(1) The Texas Legislature has created a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child.

(2) If you do not like the normal plan but you also do not wish to engage the family in a potentially destructive custody battle, you may agree to joint conservatorship, or "joint custody".

(3) Joint custody can be anything you want it to be provided that it is in the best interests of the children.

(4) Joint custody does not necessarily put the parents in identical positions.

(5) On the other hand, joint custody can be problematic. After all, if you and your spouse were successful at resolving problems between you, you probably would not be getting a divorce.

c. Child Support

(1) Child support will be determined by the legislative guidelines and the child support is based upon the obligor’s monthly net resources up to $7,500 as the following notes:

1 child - 20% of obligor’s net resources2 children - 25% of obligor’s net resources3 children - 30% of obligor’s net resources4 children - 35% of obligor’s net resources5 children - 40% of obligor’s net resources6+ children - not less than the amount of 5 children

Beyond $7,500 in monthly net resources the court looks at the income of the parties and proven needs of the children.

23

(2) Child support is usually paid through a local agency or State Disbursement Unit. This entails a small administrative fee but is beneficial for both parties.

(3) Child support must be paid until a child is 18 or has graduated from high school.

(4) Child support may be increased or decreased if there is a material change in circumstances after divorce.

3. Alimony.

a. Texas courts can order the payment of alimony not exceeding $5,000 or 20% of the spouse’s average monthly gross income for a period of 5 years if the spouses were married to each other for less than 10 years; for a period of 7 years if the spouses were married to each other for at least 20 years but not more than 30 years; and 10 years if the spouses were married to each other for 30 years or more. The eligibility for spousal maintenance consist of a rather strict circumstances of family violence or financial destituteness.

b. The parties can contractually agree that alimony will be paid.

c. Contractual alimony can be taxable as income to the recipient and deductible on the federal income tax return of the payor or the parties can agree that it is non-taxable. Either way, it is not dischargeable in bankruptcy.

4. Taxes.

a. Who pays any taxes owed for present or past years is negotiable between the parties, but agreements are not binding on the I.R.S.

b. Many times attorneys will agree to a formula whereby each party pays a percentage of any tax liability based upon his or her gross income less credit for prepayments.

c. If one party agrees to pay all of any potential tax liability, he or she usually gets any potential refund as well.

d. Joint tax returns cannot be filed unless you are married at yearend.

24

e. If separate returns are filed, the law requires you to report onehalf of the income of your spouse.

5. The Settlement Agreement.

a. It is common for there to be a written settlement agreement, usually called "Agreement Incident to Divorce".

b. Some attorneys forego preparing a settlement agreement and put all of the terms of the settlement in a Divorce Decree.

6. The Divorce Decree.

a. The Divorce Decree is the official order of the court granting the divorce and ordering any other relief determined.

b. It is always prepared by the attorneys in the case.

c. At the time it is presented to the judge, at least one of the parties will have to be present in court to give sworn testimony and request approval of the agreement by the court.

F. ALTERNATIVE: THE TRIAL.

1. Jury or Non-Jury.

a. Your attorney can advise you whether a jury trial is appropriate in your case.

b. Jury trials are more expensive than nonjury trials.

2. The Docket.

a. A "docket control order" setting deadlines for various aspects of the case will be issued by the court. Absent agreement between the parties this order must be strictly followed.

b. When your case is set for trial, there will be numerous other cases set the same day.

c. Your attorney will be required to appear on the first day. You may not, depending on your court's policy

25

d. At the "docket call" the judge should tell your attorney when your case will be reached or advise him that you will not be reached and your case will have to be reset.

3. Witnesses.

a. Witnesses should be reinterviewed a week or so before trial.

b. Contact all witnesses as soon as you know when your case will be heard. Have them contact your attorney.

4. Demeanor.

a. Never speak out in court unless on the witness stand.

b. Bad behavior in the courtroom may reinforce the allegations of opposing counsel.

c. If you want to communicate with your attorney, pass him a note. He or she cannot listen to you, the judge, the witness, and opposing counsel, all at the same time.

d. Dress conservatively. No flashy jewelry.

e. Do not get ruffled during crossexamination. Listen to the Question asked before attempting to answer.

f. Always be polite and cordial to opposing counsel.

g. When you testify, speak to the judge or the jury.

5. Your Testimony.

a. On direct examination by your lawyer, fully answer a question, as long as detail and description are relevant to your answer.

b. Be as brief as possible when you are being cross-examined. Do not give opposing counsel voluntary information with which he or she can examine you further. Answer only the question which was asked.

26

6. Helping Your Lawyer.

a. Do not bother your lawyer at trial. He or she will have a lot on his mind.

b. Listen carefully.

c. Take notes and make note of inaccuracies or discrepancies in the testimony.

7. The Adverse Ruling.

a. Posttrial motions.

(1) In some circumstances, the law allows you reconsideration. If you get an adverse ruling, your attorney may be able to attack it.

b. Appeal.

(1) You must decide within thirty (30) days after a Decree of Divorce is signed if you want to appeal.

G. CONCLUSION.

After reading this, you should be prepared for the divorce process.