Dallas Divorce Law Blog by Michelle O'Neil

Houston televisions stations had a boone of advertising during the superbowl from an online dating site for married people ashleymadison.com.  The CEO said in the Houston paper that it made financial sense because Houston and other Texas areas are a fast growing market for the company.  You can imagine that local marriage counselors and clergy criticized the ads.

Maybe they did target the Dallas market.  Did you see any ads for this company during the superbowl?

As a Dallas divorce lawyer, it makes me think that I need to investigate whether the opposing parties in my divorce cases might have a profile on such websites.  Having been playing on facebook today, I am pondering creating a new question for discovery interrogatories and production inquiring about opposing parties’ online presence.  Also, I’m thinking I might ought to investigate my own client’s participation online to prepare for what might be out there for some other interprising attorney to find.

It’s all over the news today (here and here and here) about a New York surgeon who’s getting a divorce from his wife and asking for the kidney back that he donated to her.  He gave her a kidney in 2001 and 18 months later, the husband claims, she’s taking his kidney out with another man.  Divorce ensues.  Custody issues abound… regarding their three kids.  Then Husband sues to get his kidney back… oh, or he’ll take $1.5 Million in lieu of the kidney.

Divorce lawyers in Dallas as well as nationally agree that he’ll probably be unsuccessful in his efforts.  “The kidney is a gift, which, under Texas law, would be the wife’s separate property,” says 17-year family law specialist Michelle May O’Neil.  “The affair certainly entitles the Husband to a divorce, and he may get an unequal division of the property in his favor because the Wife is a bad actor in the relationship, but he won’t win the lottery as a result.”  Husband should have thought about that possibilty before he parted with the organ.

Even so, it makes for good fodder for news media coverage.

Whether or not the couple has children, the legal procedure for a divorce is similar to the procedure for other lawsuits.

The first step should be to hire an attorney. Although, it is possible to get a divorce without the assistance of an attorney, the process will be incredibly difficult, and it will be virtually impossible to know if your rights are being protected. An attorney will be able to guide you and make sure you have full knowledge about the applicable statutes. But, perhaps most importantly, an attorney will be able to approach the issues objectively, without succumbing to the emotion of the divorce.

Like many states, Texas has a no-fault divorce system, which simplifies the divorce procedure. Under a no-fault system, the spouse seeking the divorce merely files a petition with the court saying that the marriage has failed due to conflict of personalities, with no reasonable expectation of reconciliation. Under a no-fault system, a divorce can be granted without either spouse being forced to prove that the other was at fault in breaking up the marriage.  Under a no-fault divorce, usually the property and debts gathered during the marriage will be split evenly (50/50).

That does not mean that fault is never considered in a Texas divorce.

A spouse may still note in the petition for divorce that the other person was at fault in breaking up the marriage. If a court agrees that one spouse’s actions created fault, a bigger share of the property may be awarded to the spouse who is not at fault. Under Texas law, “fault” is defined as (1) adultery, (2) cruelty, (3) conviction of a felony and/or (4) abandonment.

The effect of claiming fault in the break-up of the marriage depends in large part of which county your case is filed in and which Judge will hear your case.  Some judges apply less “penalty” for fault to the division of property than others.  For example,  some judges feel very strongly against adultery and will penalize a party heavily if he or she has engaged in extramarital activities.  Other judges believe that an affair doesn’t break up a marriage — it was probably broken before the affair — so they don’t change the percentage of the division of property very much based on adultery.

No matter the fault in the break-up of the marriage, there is rarely a case where a spouse is so much at fault that one spouse will “get everything” and the other spouse will get nothing.

The current economic crisis may be putting a strain on some couples.  According to the American Psychological Association, 83% of women and 78% of men are currently stressed out about money.  But what happens when one spouse lies to the other about money.  Take, for example, the Muniz couple interviewed on Good Morning America this morning.  When the wife was pregnant and due with their child, the husband changed insurance, resulting in no coverage for the wife and child at birth.  This caused the couple to incur significant medical bills for the hospital stay and some complications.

What is financial infidelity?  It is a subtle form of cheating — disloyalty to your spouse.  Many people think it is benign because you just leave out some information — like you bought a new dress and told your husband it was on sale when it really wasn’t.  Or, your spouse gets a credit card that you don’t know anything about and hides it, with the purchases, from you.  But, any lie can be damaging to the trust relationship in a marriage and can cause cracks in the foundation.

As a Dallas divorce lawyer, I see many couples who have issues of infidelity or lying about finances.  It is too common to see a wife who has zero information about the finances.  This causes such disparity in the divorce process.  The divorce lawyer for one spouse cannot get vital information from that spouse, so the information must come, unreliably, from the other spouse.  That can also raise the expense of the divorce because the other spouse may not be forthcoming in turning over the information.  This can leave the spouse without the information, usually the wife, in a vulnerable position, subject to the dictatorial demands in negotiations of the other spouse, usually the husband.

So, if you are married, encourage your spouse to be forthcoming about the finances.  If you find out that your spouse is withholding information or lying about the finances, carefully examine the relationship for other cracks in the foundation. 

If you are contemplating divorce in Dallas, Collin, Tarrant, or Denton Counties in Tx or anywhere else for that matter, gather information about your finances and educate yourself on your marital estate before you get taken advantage of!

Continuing with the myths of divorce post from Rutgers University’s National Marriage Project:

8.  Myth:  “Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes.”  Marriages of children of divorce actually have a much higher rate of divorce than the marriages of children from intact families.  A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents.  In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.

9.  Myth:  “Following divorce, the children involved are better off in stepfamilies than in single-parent families.”  The evidence suggests that stepfamilies are no improvement over single-parent families, even through typically income levels are higher and there is a father figure in the home.  Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a very high risk of family breakup.

10.  Myth:  “Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce.”  All marriages have their ups and downs.  Recent research using a large national sample foudn that eighty-six percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier.  Indeed, three-fifths of the formerly unhappily married couples rated their marriages as either “very happy” or “quite happy”.

Extra Myth:  “It is usually men who initiate divorce proceedings.”  Two-thirds of all divorces are initiated by women.  Reasons for this vary and are somewhat speculative.  Women tend to receive custody by agreement in many cases, so they have more reason to file the divorce.  Also, husbands are more likely than wives to have problems with drinking, drug abuse, and infidelity, creating the impetus for the wife to initiate the divorce.

Married internet browsers beware:  information obtained from internet browser history and spyware is being used as evidence in divorce cases.  One survey shows 79% of divorce attorneys reported use of internet browser history as evidence, while 44% show increase in spyware use.  Many people use the internet to act anonymously, but in reality using the internet is one of the more public things a person can do.

Trackers should also beware.  Some tracking software can be considered an invasion of privacy in violation of certain laws restricting wiretapping.  Keystroke analysis is one such type of tracking that can cause problems. 

In Dallas divorces, we are seeing an increase in invasion of email accounts to obtain evidence.  This can also be problematic and a violation of the law.

Parade Magazine ran an interesting story on marriages and divorces in America.  Their survey confirmed that money and sex are the main sources of stress in a marriage.  Of their respondents, 43% reported that they squabble over money.  Household chores ranked second, although men consider chores less of an issue than women – telling since men still do considerably less housework than women.  As for sex, three-quarters of the respondents in the survey reported their sex lives were fulfilling, while 25% put their sex lives on the tolerable or terrible end of the spectrum.  Even so, 60% of the men reported that they don’t have sex enough, while 51% of the women shared that feeling. Despite those complaints, most of the respondents reported being faithful to their spouses, although 25% of men said they’d strayed outside their marriage or refused to answer the question.  Only 15% of women reported cheating or refused to answer the question.

Of the women, 44% have thought about leaving their husbands, where 31% of men have had the same thought.

Question… with a national divorce rate holding around 50% (and a slightly higher rate of divorce in Dallas Texas area) the respondents of the Parade survey must not be typical of the whole of society. 

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