Dallas Divorce Law Blog by Michelle O'Neil

Often children feel out of control during the transition of a divorce since the decision to divorce was not their choice nor made based on their feelings.  Studies have shown that many children would prefer that parents continue to be married and live together rather than make the decision to get a divorce.  This is understandable since children love both of their parents, they have trouble understanding why the two people they love most in the world don’t also love each other anymore.  The divorce will create a lot of change in the child’s life, which will make him feel unstable.

One of the best things you can do for your child in going through the divorce is to given them confidence that the new situation will be okay and they will get used to it.  For example, both parents should be involved in the conversation with the child where the divorce is discussed.  Emphasize that both parents still love the child just the same.  Explain the process of what is about to happen.  For example, explain that the child will continue to see both parents, just at different houses.  “Instead of both of us living at one house, you will have two houses from now on, one with Mommy and one with Daddy, and you will spend time at both houses.”  Also encourage the child that it is okay to continue to have contact with both parents and give the child the freedom to call the other parent and talk to him/her whenever the child wants to.

Most importantly, do not talk negatively about the other parent to the child or where the child can hear.  From the child’s viewpoint, he or she is made up of “half of Mommy and half of Daddy”.  If Mommy thinks Daddy is bad, the child may translate that to the child being half bad.  The child deserves to have a good relationship with both parents, even when the marriage fails.  One judge gives the example, “Having an affair may make a bad spouse, but it doesn’t necessarily make a bad parent.”

Katherine R. Sookhoo has a good blog post on the impact of divorce on children at the Pennsylvania Family Law blog.

The American Academy of Matrimonial Lawyers lists the Children’s Bill of Rights when the parents are not living together:

Every kid has rights, particularly when mom and dad are splitting up. Below are some things parents shouldn’t forget — and kids shouldn’t let them — when the family is in the midst of a break-up.

You have the right to love both your parents. You also have the right to be loved by both of them. That means you shouldn’t feel guilty about wanting to see your dad or your mom at any time. It’s important for you to have both parents in your life, particularly during difficult times such as a break-up of your parents.

You do not have to choose one parent over the other. If you have an opinion about which parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can’t work it out, a judge may make the decision for them.

You’re entitled to all the feelings you’re having. Don’t be embarrassed by what you’re feeling. It is scary when your parents break up, and you’re allowed to be scared. Or angry. Or sad. Or whatever.

You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone — either your other parent or a trusted adult like a teacher.

You don’t belong in the middle of your parents’ break-up. Sometimes your parents may get so caught up in their own problems that they forget that you’re just a kid, and that you can’t handle their adult worries. If they start putting you in the middle of their dispute, remind them that it’s their fight, not yours.

Grandparents, aunts, uncles and cousins are still part of your life. Even if you’re living with one parent, you can still see relatives on your other parent’s side. You’ll always be a part of their lives, even if your parents aren’t together anymore.

You have the right to be a child. Kids shouldn’t worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need your love. They can handle the rest.

IT IS NOT YOUR FAULT AND DON’T BLAME YOURSELF.

If you are in need of a Texas divorce attorney, please contact us.

Continuing with the discussion last week about helping children cope with the reality of divorce, here are ten tips for divorcing parents, from the American Academy of Matrimonial Lawyers:

Ten Tips for Divorcing Parents

Divorce is never easy on kids, but there are many ways parents can help lessen the impact of their break-up on their children:

1. Never disparage your former spouse in front of your children. Because children know they are “part mom” and “part dad”, the criticism can batter the child’s self-esteem.
2. Do not use your children as messengers between you and your former spouse. The less the children feel a part of the battle between their parents, the better.
3. Reassure your children that they are loved and that the divorce is not their fault. Many children assume that they are to blame for their parent’s hostility.
4. Encourage your children to see your former spouse frequently. Do everything within your power to accommodate the visitation.
5. At every step during your divorce, remind yourself that your children’s interests – not yours – are paramount, and act accordingly. Lavish them with love at each opportunity.
6. Your children may be tempted to act as your caretaker. Resist the temptation to let them. Let your peers, adult family members, and mental health professionals be your counselors and sounding board. Let your children be children.
7. If you have a drinking or drug problem, get counseling right away. An impairment inhibits your ability to reassure your children and give them the attention they need at this difficult time.
8. If you are the non-custodial parent, pay your child support. The loss of income facing many children after divorce puts them at a financial disadvantage that has a pervasive effect on the rest of their lives.
9. If you are the custodial parent and you are not receiving child support, do not tell your children. It feeds into the child’s sense of abandonment and further erodes his or her stability.
10. If at all possible, do not uproot your children. Stability in their residence and school life helps buffer children from the trauma of their parent’s divorce.

If you need the advice of a Texas Board Certified Family Law Specialist, please contact us for an appointment.

People often believe that a divorce will relieve each spouse from joint debts.  Unfortunately, this is not true.  In fact, liability on joint debts cannot be relieved simply by dividing the debts and assigning liability in the divorce.  A divorce only apportions liability on debts between spouses and does not affect the ultimate liability to the creditor.  The most common example occurs with liability on a home mortgage.  Often, spouses jointly incur mortgage debt; then, upon divorce, one spouse takes the house and agrees to pay the mortgage balance.  However, the spouse that leaves the house and mortgage is not automatically relieved of that liability to the mortgage company.

Frequently credit card debts are held primarily in one spouse’s name primarily, even where both spouses may have signatory authority.  In these situations, the spouse who is the primary cardholder should take that debt in order to be in the best position to protect his or her credit.  This is true even where the debt is out of proportion to the overall division of the marital estate.  I had one situation where the bulk of the credit card debt was held in the wife’s name, but on divorce the husband was ordered to pay it.  The wife came to see me for help when the husband failed to make the payments, signficantly harming the wife’s credit. Unfortunately, there was very little I could do for the wife in that situation.  The husband cannot be held in contempt for violation of the divorce order for payment of debts because our U.S. Constitution prohibits “debtor’s prison”.  Obtaining a judgment against husband for the unpaid amounts would be meaningless to the wife — if the husband could pay a judgment, he would probably be paying the credit card payments.  In that situation, about the only advice I could give the wife was to seek the advice of a bankruptcy lawyer.

As for joint debts, the only way to be sure that the credit of the spouse not taking the debt after the divorce is protected is to payoff the debt using assets available in the marriage or using debt solely in the name of the spouse assuming the debt.  For example, if the parties are jointly responsible for a credit card debt, then the spouse assuming the debt could open a new account in his/her name only and transfer the debt to that account.  Then, the joint account would be closed by both parties.  Or, where a car loan is in both names, one spouse could refinance that debt into his/her name only.

Several problems exist regarding this proposal.  First, a court cannot force a spouse to refinace or incur debt in his/her name only.  So, this must be done by the agreement of the parties.  Or, where a spouse already has credit problems and cannot obtain new credit, this will not be a viable option.

There is no great solution to the problem of dividing jointly held debts in divorce.  If you know that a divorce is on the horizon, work with your spouse as early as possible to address joint debts.  Of course, if you aren’t able to do this, contact Dallas Divorce Attorneys at The May Firm for assistance.

I often get asked whether it is okay to date while a divorce is pending. Many people “feel” divorced before or by the time a suit for divorce is filed, and they want to begin to move on with their life. Divorces can also take a long time if the issues are contested, which leaves some people feeling lonely and wanting companionship.

However, my advice is NOT to date during a divorce. First, the law says that you are “married” until your divorce is final. The law does not make exceptions for being separated or having the divorce on file. Further, adultery under the law can be alleged based on behavior that occurs even while the divorce is pending. Thus, dating during a divorce can cause problems and unnecessary complications. Many times, tenacious lawyers will subpoena the girlfriend/boyfriend for depositions and ask many questions about the relationship with the divorcing spouse. Also, any money that is spent by a spouse on the pursuit of a dating relationship can be the basis of a fraud claim against that spouse and result in a heavy penalty being extracted. This could include money spent on dating services, like match.com or similar online services, or buying dinner or movies for the date. More extravagant gifts to a girlfriend/boyfriend will certainly result in a complaint from the not-yet-ex-spouse.

So, the better choice of action is to finish one relationship completely before looking for a new relationship. Get your divorce finalized before you start dating. That is my advice as a Dallas divorce lawyer and family law specialist.

Michelle

The most common reasons a marriage fails include: changing life priorities, lack of communication, financial stress, and lack of loyalty to the spouse. Statistics show that husbands and wives spend three to four times more time watching television than communicating with each other. Unfortunately, many divorces have issues of infidelity, but my experience is that other issues preceded and lead to infidelity.

When I meet with a potential client for the first time, I always explore whether the marriage is irretrievably broken or whether reconciliation remains a possibility. If reconciliation is an option, I encourage my potential client to fully pursue those options before proceeding with the divorce. Divorce litigation can be very disasterous to a future relationship and destroy any chance of putting the pieces back together.

When both spouses are committed to making a permanent, lasting changes, a heartbroken marriage can be repaired. Here are some tips for rescuing your marriage before it’s too late:

• Remind yourself of the reasons you fell in love with the other spouse in the first place.
• Become best friends — treat your spouse as the most important person in your life.
• Accept your spouse as he/she is, without demanding changes.
• Don’t involve third parties — your mother, sister, best friend, co-workers — in your marriage.
• Take lemons and make lemonade — turn hurdles into opportunities to strengthen your relationship.
• Admit your mistakes.
• Be a positive influence in your spouse’s life; don’t say negative things to your spouse in public or private.
• Disagree respectfully without personal attacks or bringing up issues from the past.
• Be a problem solver, even if it means you don’t “win” the argument.
• Create opportunities to laugh together.

Although I am a Dallas divorce lawyer, I would rather spouses reconcile than to go through divorce and that is the advice I give my clients.

Michelle

I read an interesting post by Ron Hendricks on his blog Putting Asunder where he talked about why he became a family law attorney. It made me ponder my own answer….

Lawyers are often asked how they can do what they do. Criminal defense lawyers get the question… “how can you represent someone you know is guilty?” Civil defense lawyers get the question… “how do you represent those big companies who take advantage of the little people?” And, divorce lawyers are asked… “why would you want to deal with divorces all day?”

I became a divorce lawyer out of a genuine desire to help people. Going through a divorce is one of the worst times in a person’s life. He or she needs and deserves to have an advocate by their side through the difficult process. I enjoy making a difference in their lives and holding their hand through it. As with any profession, it certainly has its downsides. Some lawyers are difficult to deal with. Some clients are difficult to deal with. Some judges are difficult to deal with. Any of those make me have a bad day, where I’d rather choose another profession. Then, I have a client who really needs my help and I’m able to make a difference for that client or his/her children. Most of my clients are a joy and are truly appreciative of what we do for them. Some of those clients have sent testimonials that I’ve posted here. I didn’t set out as a young person desiring to be a divorce lawyer. In fact, the divorce business more chose me because clients hired me to handle those types of cases as a young lawyer. There are many other professions that I would not be suited for. But, overall, I am glad that I am able to help those who need my help and can benefit from what I do.

If you need the expertise of a divorce lawyer in Dallas Texas, please contact my office to schedule an appointment.

My opinions on legal issues posted to my weblog or any other are provided as a service to the Web community and do not constitute solicitation or provision of legal advice. I try to provide quality informaiton, but I make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of the informaiton contained in or linked from this site. Legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, so nothing in The May Firm website or weblog, or any other weblog should be used as a substitute for the advice of competent counsel. I am admitted to practice law in the State of Texas, and nowhere else, and do not intend to represent anyone desiring representation in a state where this site may fail to comply with all applicable laws and ethical rules. Michelle

Welcome to The May Firm weblog. I hope you will find the information posted here useful and informative. I am a Dallas divorce lawyer and a Texas family law specialist.

New case out of the Dallas Court of Appeals… Magness v. Magness, 241 S.W.3d 910 (Tex. App. — Dallas 2007)… If you owned a house prior to marriage and, through refinance or whatever circumstances, added your new spouse’s name to the deed after marriage, the law creates a presumption that you intended to make a gift out of the interest to the new spouse.

Facts: Wife held title to the home prior to marriage. Ater marriage, she refinanced the home, executing a deed transferring a one-half interest in the home to her husband. The couple divorced and wife claimed that she did not intend the deed to be a gift transferring ownership to husband. Husband did not testify about whether wife had made a gift. The trial court found that husband and wife each owned a one-half separate interest in the home. Wife appealed.

 

Held: Affirmed. The granting of the deed to husband created a presumption that wife intended a gift. The trial court did not err in finding that this presumption was not overcome.

Opinion: Inception of title shows that he house was originally wife’s separate property. The question remaining is whether the wife intended the deed transfer to constitute a gift. “A deed for property from one spouse as grantor to the other spouse as grantee creates a presumption the grantee spouse received the property as separate property by gift.” This presumption may be rebutted by proof of fraud, accident, or mistake. The trial court, as the exclusive judge of credibility and weight given to evidence, determined that this presumption was not rebutted. This was not an abuse of discretion.

Signing what the title company puts in front of you, ignorant of the consequences, is insufficient to rebut the gift presumption.  Affirmative factual evidence – not just conclusions – of fraud, accident, or mistake must be shown.  This case provides fairly clear direction for the all-to-common refinance situations.

Divorce can be a complex process that affects just about every aspect of your life, from financial to emotional, physical to legal.  Unless you have been married a short time and have no property, assets or kids, your divorce may be more complicated than you expect.  The central figure in your divorce (besides the obvious you, your spouse and kids) is your lawyer and her staff.  But assembling the best team to assist you through the process can help achieve your goals for the divorce more efficiently.

Financial planners (here’s one) can be useful in helping prepare budgets and examine the cash flow needed after divorce.  Accountants (here’s one) can help with tracing assets for characterizing as community or separate property and valuing business assets.  A therapist can help you with the emotional turmoil of divorce.  A litigation coach can help you navigate the waters of testifying and making strategic decisions.  Sometimes private investigators (check this out) are necessary to discover certain information.  And, forensic computer specialists may be useful to trace information contained on a hard drive.

Experienced family lawyers are familiar with the experts in these fields and can assemble the right team for your case.  If you are in need of a team that specializes in divorce, please contact us.