Are there any other Dallas Divorce Lawyers out there on Twitter? Following advice from some folks on social networking, I joined twitter. To follow me on twitter… http://twitter.com/michelleoneil . Not sure how it all works… I’m learning, but it seems like a great way to connect with people all over the place.
You can also link to me on linkedin.com — http://www.linkedin.com/pub/7/475/6b0
Are you using social media? Let me know how!
Once the extent of the community versus separate marital estates is established, the next step is to determine the value of the assets and debts. Various procedures are used depending on the nature of the asset. For cash assets, like bank accounts, brokerage accounts, and most types of retirement accounts, the value is obviously the balance of the account. Some retirement accounts such as pension plans have to be valued by a forensic accountant in combination with an actuarial to determine life expectancy. For a real property valuation, the tax value can be used or a realtor may be consulted to give an opinion on value.
For closely-held business interests, a forensic business valuation expert, usually an accountant that specializes in business valuations, will be hired by each party to examine the different approaches to business valuation and give an opinion as to the values of the business. In any closely-held business interest, there must be a distinction made between personal goodwill and professional goodwill. Personal goodwill is that value to the business that is unique to the individual; whereas, professional goodwill is that goodwill separate and apart from the individual.
Personal property, like furniture, clothing, dishes, etc., will be valued at sales value – what the item can be sold for, usually garage sale value.
Telephone Recording Device
A Dallas Divorce client asked me a question last week: My ex left me a really hateful voice mail message – how can I preserve that voice mail message in case we need to use it in the future?
Here’s an answer…. This telephone recording device that I found at Radio Shack. You put part of it in your ear and the other end sticks out a bit. Plug it into a handheld recording device — I use one that records digitally and you can download into the computer as an mp3 file.
So, hook up the device and set it to start recording; dial your voice mail and let it play while you record. Then download into the computer and save it forever.
A couple of hints… if you share your computer with your kids, you might password protect the voice mail file so your kids can’t listen.
Also, if you get an urge to record live telephone conversations, please keep in mind that the law only allows you to record a telephone conversation to which you are a party. If you are participating on the phone, you can record your conversation. Understand, you cannot record your children’s conversations, your spouse’s conversations, or any other conversations where you are not a part of the exchange. That would be a violation of federal law!
Before the wedding, the couple may make a pre-marital agreement (commonly known as a “prenuptial agreement” or an “antenuptial agreement”) that spells out who owns specific property in the event of a death or divorce.
The spouses may also create a post-marital agreement any time during the course of the marriage, as long as the agreement was not created in an attempt to defraud current creditors. A post-marital agreement might also change the status of property acquired in the future.
Both pre- and post-marital agreements must be in writing and signed willingly by both spouses. It is difficult to change the terms of these agreements when enforced at the time of divorce.
I received this from another lawyer that hires me to assist on his cases when complex issues arise:
“My office frequently refers individuals to The May Firm for appellate family issues. Michelle is a wealth of information when it comes to dealing with complicated legal issues. Her office is very easy to deal with and we are extremely comfortable with her legal abilities. I would feel comfortable referring even the most complex of cases to Michelle after having personally experienced her capabilities.” Gregg Gibbs, Baxter, Gibbs, Robison, & Hnderson, PLLC, McKinney, Texas
An attorney recently hired me to assist with one of his cases in preparation for a potential appeal. He says:
“As soon as I realized things may not go smoothly [with my client's case], I contacted Michelle May O’Neil. She immediately became immersed in the facts of my client’s case, pointed out some overlooked issues, and suggested a wise course of conduct. Michelle then provided a timely and very thorough brief that was right on point. Ultimately, my client got what she wanted, the judgment was upheld, and she walked away happy.” Bruce Bain, Tyler, Texas
If a spouse wants to keep certain property after the divorce, it must be proven in court that it should be considered separate property. That determination (also referred to as the “inception of title” rule) is usually made according to when the item was purchased. The simplest way to prove this is to produce a title or receipt that shows the purchase date was prior to the marriage.
Also, if clear and convincing evidence is presented, assets purchased during the marriage using separate property funds can also be considered as separate property. The courts refer to this as “tracing.”
Don’t just take for granted that your spouse “knows” that such-and-such was your’s before the marriage. If you do not prove the separate property nature of the asset, it will be presumed to be community property and subject to division in the divorce. This is where a document trail is very valuable. Show, for example, where your house was purchased before the marriage using deed record. Or, provide a will and transfer documents to prove that a bank account holds only money received as inheritance when your mother died. If you got a piece of jewelry as a Christmas gift, show a picture of opening the gift Christmas morning.
I saw this interesting post on the Dallas Morning News blog this morning commenting about the election results. What interested me what the description of the function of an appellate court:
“Well, appeals courts not only check the work of trial courts, but they often have to make rulings that interpret the law. If a trial court is like an referee in a football game, think of the appeals court as instant replay and a member of the rules committee. So if they see something not addressed by the rules, they have a lot of latitude.”
More than likely, each spouse entered into the marriage with personal assets. Just as likely, once married, the spouses accumulated joint assets including money, real estate, personal property such as cars and investments, and even debt. How to properly and fairly divide this property can turn even the most amicable divorce into a bitter battle.
Texas, along with California, Louisiana and a handful of other states, use a “community property” system of property division, which was derived from Spanish law. Other states follow an English law tradition.
So what does it mean when we say Texas is a community property state? It means that a court can divide the community property between the spouses, but cannot divide separate property.
Separate property is something one person (1) owned before the marriage; (2) individually received during the marriage by gift or inheritance; or (3) in some circumstances, money received in a personal injuries lawsuit during the marriage (except for lost earning capacity.) Community property is everything other than separate property.
There is a presumption that all property owned at the time of divorce is community property. If either spouse insists that certain property is separate property, it is up to that person to prove their claim in court.
However, not every case has to go before a judge for asset division. After filing for divorce, the spouses are free to agree to divide their assets any way they see fit. They can even split their personal property or agree to pay alimony on their own.
After a decision is reached, whether by settlement or trial, a divorce decree is entered. This is the court order the judge signs finalizing the divorce. It is usually a lengthy document that formalizes and finalizes all of the provisions of the divorce – including issues of property division and child custody. The decree must be drafted very carefully, because, once entered, this agreement will become the rules by which you must live. It is hard to forsee in the future every issue that may arise based on wording in the decree. But, careful consideration must be given to the specific wording of the provisions in the decree to avoid future problems.
