http://www.wdalaw.com/ In our traditional adversarial system, each spouse hires a separate attorney to represent themselves. The lawyers then spend substantial time negotiating with each other and then additional time communicating the outcome of the negotiations to their respective clients. This adversarial approach escalates the conflict, stress and anxiety, not to mention the legal fees. If the attorney’s are not successful in reaching an agreement, the issues surrounding the divorce will then be decided by a judge. This turns into litigation that delays the divorce, often times for several years. It also compromises the individuals privacy and depletes any marital assets which could be divided between the parties involved or allocated to provide for the children.

In mediation, the parties, with the help of a trained mediator, negotiate directly with each other to reach an agreement on all aspects of their separation. Couples negotiate and resolve issues such as the division of property, parenting arrangements and child support. The mediator is a neutral third party whose sole responsibility is to facilitate negotiations by identifying issues, exploring potential solutions and advising the parties of all matters that should be addressed in a final agreement. The result is a less hostile and less expensive divorce. After the parties reach an agreement, the mediator, will draft a decree embodying the terms of said agreement.

ADVANTAGES OF DIRECT NEGOTIATION:

Direct negotiation expedites the resolution of issues and often times results in better long term communication between the parties. Many couples with children admit that participation in mediation has improved their ability to resolve on going issues concerning their children following the divorce. Additionally, children of parents who mediate adjust better to their parent’s divorce.

IF WE CAN’T GET ALONG, HOW CAN WE MEDIATE?

In order for a couple to successfully mediate the terms of their divorce, they do not necessarily have to be best of friends. Marital difficulties are often accompanied by anger, distrust and a breakdown in communication between spouses. A trained and skilled mediator can diffuse negative feelings and help each party present their needs in a way that the other can hear and understand. This enables the parties to fashion an agreement that each party finds acceptable.

IS MEDIATION A SUBSTITUTE FOR HAVING MY OWN ATTORNEY?

Mediation does not eliminate the need for lawyers. Mediation simply changes the role of lawyers from adversarial negotiators to legal consultants. Throughout the mediation process, parties are encouraged to consult with their own attorney if they have questions regarding their legal rights. Parties who have not consulted with a lawyer during the process often choose to have the final agreement reviewed by their own counsel before signing it. Mediation substantially reduces legal fees by limiting the lawyer’s function to reviewing the final agreement and serving as a legal consultant during the mediation process.

IS MEDIATION RIGHT FOR ME?

Absolutely - if you are seeking to avoid a contentious, protracted and expensive divorce and you are willing to come to mediation to attempt in good faith to resolve your differences with your spouse. By agreeing to mediate, you are not relinquishing any of your legal rights and the mediation can be discontinued at any point if you, your spouse or the mediator feel that the process in unproductive. It should also be noted that complicated finances do not preclude divorce through mediation and the mediator can help the couple retain appraisers or tax advisors to assist in valuing assets and structuring the agreement.

When you filed your divorce, you thought you and your spouse would be able to agree upon everything, and you would get a divorce as soon as the minimum waiting period passed. Of course, one of the reasons you wanted a divorce is that your spouse is a very uncooperative person. And of course, once you started the divorce, your spouse showed his or her uncooperative nature again and has refused to settle anything. http://www.wdalaw.com/

You receive a call from your attorney advising you that the case is set for trial on a certain date. All of a sudden, you are facing the prospect of having to actually testify about the peculiar facts of your case. Of course, you know that the Judge will administer an oath to you along the lines of “do you promise to tell the truth, the whole truth, and nothing but the truth?” You also know it is perjury to go into court and lie. You would not do that. However, you have never testified before in court. You do not have any idea what to expect. Here are some practical tips for testifying in court:

1. Listen to the question. Make certain you understand the question. If you do not understand the question, ask the attorney to repeat the question.

2. Repeat the question in your head.

3. Only answer the question with the shortest answer consistent with the truth, and shut up. If you are asked “what kind of car do you drive?” answer “a Ford” not “a 2004 Ford Mustang GT Convertible with red leather seats”. 4. Do not volunteer information. If you are asked “do you own IBM stock?” and the answer is no, simply say “no”, rather than “I owned 400 shares of IBM stock back in 2001, but I sold them and used part of the money to buy the Corvette and the rest of the money for our Mexican vacation”.

5. Do not get angry.

6. Answer the question truthfully, even if the answer hurts you. If you have to answer a question that hurts you, do not try to justify your conduct. For example, if you have had an affair and you are asked “did you have sex with ______?” simply answer “yes”. Do not say something like “well, my spouse and I have not had sex for two years so I thought it was okay”.

7. Watch out for the compound question. Our natural inclination is to try to agree with someone asking questions. For example, you may be asked two questions in one - and the answer to one part may be “yes” and the other part may be “no”. If you are asked a compound question, break it down into two questions and answer each part truthfully.

8. Watch out for the question that assumes facts that are not true.

9. Watch out for questions that give a wrongful summation of the facts. For example, you may be asked a question along these lines “isn’t it true that your business revenue has doubled in the last 5 years, the number of employees has doubled in the last 5 years and so we can assume that your business will probably double again in the next 5 years”. Your natural inclination may be to say “well, I guess so”. It may be that you’re your revenue double over the last 5 years because you have had to handle a high volume of low margin merchandise with a decrease in profitability. If that is the situation the respond by saying “Counsel your summation and conclusions not correct” Then stop. Make the lawyer come back and ask you to explain. The tell the lawyer something like this “Because of foreign competition we have had to sell a high volume of low margin merchandise with less profit - and the future does not look good”

10. Do not characterize your testimony. Do not use phrases like “that is the truth” or “honestly” or “I would not lie to you”, etc.

11. Try to avoid using absolute words, like “no”, “never”, and “all”.

12. Avoid getting boxed in with “everything you remember”, or “everything you know”. If a lawyer asks you to tell me “everything you remember” or “everything you know”, always say at the end “that is all I can recollect at this time.” Then, at a later date, if you remember something else, you will not have boxed yourself in.

13. If you do not remember something, say so.

14. Be respectful and formal.

If you live in a city that has a number of different courts, I strongly suggest that you take a day off, go to the courthouse, and watch several trials. I do suggest that you do not go in the courtroom before the judge that you will actually appearing before, in your case. Instead, watch a criminal case, a personal injury case, probate case, or a divorce case in another court. .

You cannot remake the facts of your case. However, by diligent preparation before you go to trial, you will enhance the probability that the court will look favorable upon the facts of your case.

In the last couple of years some Texas attorneys have embraced a completely new way of practicing law in divorce cases’ Collaborative Law. The 2001 legislative session passed HB 1363 which sanctioned the practice of Collaborative Law in family cases in Texas.

Origins

Collaborative law was the inspiration of Stuart Webb, a frustrated family lawyer practicing in Minneapolis in about 1990. While he quickly appreciated the benefit of mediation to families, he felt there should be a process that included early input from attorneys into the negotiation process. http://www.wdalaw.com/ His “settlement only” model emphasized the skills of lawyers as creative problem solvers. Collaborative law arrived in California in 1993 after Minneapolis lawyers presented the idea at a national conference for the Academy of Family Mediators. Collaborative lawyers such as Pauline Tesler and Chip Rose, and others have shared their knowledge across the country and helped practice groups begin collaborative law practice groups. They have been instrumental in the creation of the American Institute of Collaborative Professionals. John McShane, Dallas, and Don Royall, Houston, have led the drive for recognition of collaborative law techniques in Texas.

The New Law

The new bill adds Sections 6.603 and 153.0072 to the Family Code. Both sections state as follows: On a written agreement of the parties and their attorneys, a dissolution of marriage proceeding or a suit affecting the parent child relationship may be conducted under collaborative law procedures.

Definition

The bill defines Collaborative Law as follows: a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.

Provisions of a Collaborative Law Agreement

The new statute also states that a collaborative law agreement must include provisions for: (1) full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case; (2) suspending court intervention in the dispute while the parties are using collaborative law procedures; (3) hiring experts, as jointly agreed, to be used in the procedure; (4) withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and (5) other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.

Judgment on a Collaborative Law Settlement

The new law states that notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule or law, a party is entitled to judgment on a collaborative law settlement agreement if the agreement: (1) provides, in a prominently displayed statement that is boldfaced, capitalized, or underlined, that the agreement is not subject to revocation; and 2) is signed by each party to the agreement and the attorney of each party.

The Court’s Authority

Subject to Subsection (g), a court that is notified 30 days before trial that the parties are using collaborative law procedures to attempt to settle a dispute may not, until a party notifies the court that the collaborative law procedures did not result in a settlement: (1) set a hearing or trial in the case; (2) impose discovery deadlines; (3) require compliance with scheduling orders; or (4) dismiss the case.

The Parties’ Obligations

The parties shall notify the court if the collaborative law procedures result in a settlement. If they do not, the parties shall file: (1) a status report with the court not later than the 180th day after the date of the written agreement to use the procedures; and (2) a status report on or before the first anniversary of the date of the written agreement to use the procedures, accompanied by a motion for continuance that the court shall grant if the status report indicates the desire of the parties to continue to use collaborative law procedures. (g) If the collaborative law procedures do not result in a settlement on or before the second anniversary of the date that the suit was filed, the court may: (1) set the suit for trial on the regular docket; or (2) dismiss the suit without prejudice. (Note: it is also important to know that the parties can opt out of the collaborative law process at any time prior to signing an irrevocable settlement agreement).

Collaborative Law in Practice

Central to the Collaborative process is the idea that the parties and their attorneys work as a “team”. The “team” may also include neutral experts for any issue that requires specific experts. The attorneys model for their clients an attitude of co-operation and respect that allows the parties, their attorneys, and any neutral experts to share their knowledge, skills, and resources.

The Collaborative law model generally includes the following steps:

• a. Orientation: The prospective new client is informed by the attorney of the Collaborative Law model as an option for reaching settlement of their legal proceeding.
• b. Client Conference: The new client who wishes to use the Collaborative law model meets with the attorney and is advised by the attorney about his/her case. Information is gathered from the client.
• c. Settlement Conferences: Generally, the parties and their attorneys meet together in four-way conferences. The parties sign the Collaborative law Participation Agreement at the first settlement conference. The parties decide the timing of the filing of the Original Petition which usually is joint. Information is gathered, parties’ interests are identified, solutions are brainstormed, temporary agreements are reached. Later conferences are scheduled as needed.
• e. Final Agreement: The final agreement is drafted and signed. This agreement can be made irrevocable by the use of the proper statutory language. The culmination of the Collaborative law process is to produce the formal written agreement, which is usually the Agreed Final Decree and other required documents that are needed for completion to finalize the matter on the uncontested docket.

Impact on Texas Mediators

Some of Texas’ most respected family lawyers have already embraced collaborative law and are frequently practicing it in clusters with other colleagues. However, collaborative law can be practiced by any attorney with the appropriate skills.

Surprisingly, many Texas mediators have reacted negatively to the new trend of collaborative law very much like numerous attorneys reacted to the advent of mediation. Among comments the authors have heard are: that this law would eliminate the need for mediators and that it would negatively impact traditional litigation advocacy roles.

Similar to Impact of the ADR Act

The Texas Alternative Dispute Resolution Procedures Act (Texas ADR Act) states that it is the policy of the State of Texas to encourage the peaceable resolution of disputes. The Act emphasizes family law cases by stating that special consideration be given to “disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children”, as well as the early settlement of pending litigation through voluntary settlement procedures. Similarly the Family Code encourages the use of ADR by requiring that an ADR statement be included in the first pleading filed by the parties in several proceedings under the Family Code.

I AM AWARE, THAT IT IS THE POLICY OF THE STATE OF TEXAS TO PROMOTE THE AMICABLE AND NON-JUDICIAL SETTLEMENT OF DISPUTES INVOLVING CHILDREN AND FAMILIES. I AM AWARE OF ALTERNATIVE DISPUTE RESOLUTION METHODS INCLUDING MEDIATION. WHILE I RECOGNIZE THAT ALTERNATIVE DISPUTE RESOLUTION IS AN ALTERNATIVE TO AND NOT A SUBSTITUTE FOR A TRIAL AND THAT THIS CASE MAY BE TRIED IF IT IS NOT SETTLED, I REPRESENT TO THE COURT THAT I WILL ATTEMPT IN GOOD FAITH TO RESOLVE BEFORE FINAL TRIAL CONTESTED ISSUES IN THIS CASE BY ALTERNATIVE DISPUTE RESOLUTION WITH OUT THE NECESSITY OF COURT INTERVENTION.

Collaborative Law is in effect an Alternative Dispute Resolution method and is faithful to the ADR Act’s and the Family Code’s policy of peaceful resolution.

Since the enactment of the ADR statute there is a growing body of evidence, that some families want a save environment in which to work out their own unique solutions without judicial intervention. The practice of Collaborative Law not only incorporates the strengths of both the conference and caucus models of mediation but also addresses their potential weaknesses. For example, attorneys are involved from the beginning of the negotiation sessions in a cooperative mode similar to mediation rather than waiting until the eve of trial when positions are more solidified. The high costs of discovery and experts can be avoided by the use of full disclosure and hiring of mutual experts.

Does it Eliminate the Need for Mediators?

In practice, many of the attorneys who practice collaborative law are also mediators who prefer collaboration to litigation and who believe collaborative law is a positive step towards creating a less contentious culture among lawyers and their clients. It is unlikely that the new law will negatively affect those attorney mediators who also practice family law. On the contrary, Collaborative Law is likely to become the divorcing public’s preferred method of representation.

These attorney-mediators will also be able to use their mediation skills in the furtherance of the spirit of the Texas Alternative Dispute Resolution Act. Attorney-mediators have often felt frustrated that, once they assumed the role of mediators, they were not able to represent or advise parties because of a conflict of roles. In some cases there is no need for an extra layer of expense. Therefore, collaborative law offers the best of both worlds in those cases and attorneys can represent their clients’ interests and at the same time promote the process of resolution at an earlier stage.

There is a chance that Collaborative Law may decrease the need for family mediators. However, mediators will still be needed when the parties do not reach settlement. Also the parties may have important relational and emotional issues and could benefit from mediation before embarking into the resolution of legal issues.

Does it Eliminate the Need for Aggressive Lawyers?

The reality seems to be that there will always be demand for aggressive litigators. As long as there are rancorous litigants and powerless parties there will also be the need for litigators to represent them. These will continue to benefit from mediation.

Judy K. Dougherty is a 1978 graduate and former adjunct professor of the University of Houston Law School with a Masters in Social Work from the University of Texas. She is a former President/ founder of Family Mediation Network of Greater Houston, a former Director/founder of the Texas Association of Family Mediators, former Director of the Houston Bar Association ADR Committee, Director of HBA, ADR Section, former Director of Association of Attorney Mediators, advanced practitioner of the Association for Conflict Resolution (formerly SPIDR & AFM). She is a partner in the Houston firm of Dougherty and Dougherty, and has been a mediator since 1980 for, among others, American Arbitration Association, U.S. Postal Service, World Bank, U.S. Southern District Panel, and trainer for Harris County Dispute Resolution Center. She is also a director of the Houston Chapter of ACR.

Josefina M. Rendon is a 1976 graduate of the University of Houston Law Center. She has been a mediator since 1993 for, among others, the U. S. Postal Service, Equal Employment Opportunity Commission, Texas Education Agency , Department of Justice Civil Rights Section, Harris County Dispute Resolution Center, Better Business Bureau and the World Bank. She was the former Judge of Municipal Court #5 and former Vice-chair of the City of Houston Civil Service Commission. Judge Rendon is also the editor of The Texas Mediator and was on the editorial boards of The Houston Lawyer and the Texas Bar Journal. She is presently a director of the Houston Chapter of the Association for Conflict Resolution, an Associate Municipal Judge and a mediator in private practice.

1. Do not try to remake your ex through the legal system. I frequently get my clients to commit to carry an index card in their wallet or purse during the divorce. Then I hand them a card that says “I will not ask my attorney to make my ex-spouse be a nice person; I will not ask the court to make my ex-spouse be a nice person; I admit that I am powerless to make my ex-spouse be a nice person.” http://www.wdalaw.com/

2. Anchor into your job. Arrive 15 minutes early, cut your lunch time short, stay 15 minutes late - - - in a small way, this may make up for the time you spend daydreaming or being preoccupied with personal problems during the day.

3. Anchor into family and friends.

4. Anchor into your church.

5. Treat yourself kindly. Do not overextend yourself. I frequently recommend to clients the “every other day rule”. If you have anything to do in one night after 6:00 p.m., then the next night, you come home at 6:00 p.m., close the door, and spend the evening relaxing.

6. Prepare your case in advance. If your lawyer sends you discovery and asks that you work on it and make an appointment in two weeks, do not wait until the night before the appointment to prepare. Do your preparation as soon as possible after the request.

7. Take a daily walk. A 30-minute walk is a really good way to relax and put things into perspective. After the first week or so, you will start noticing little things in your neighborhood, little details that provide a lot of depth to life.

8. Tell yourself how good you are. When you get up in the morning, stand in front of the mirror for 5 minutes and repeat over and over “World, watch out! ___your name___ is coming through today!!”

9. Remember the kindest word is “no”. All too frequently, we accept invitations or volunteer for worthy causes that eventually become “have-to-do¹s” ­ usually at the worst possible time.

10. Be leery of drastic changes. If you have driven the same economy car for 7 years, this is no urgent need to buy that new sports car you have always wanted. If you have been in a lack-buster job for many years, now is probably not the time to change careers.

11. Think reflectively, not reactively. If your attorney sends you discovery, an insulting letter from the other side, etc., do not immediately call your attorney and launch into a tirade. Put the communication down and come back to it at a later date. Then re-read it several times, and try to put it in the proper perspective.

12. Do not dwell on the negative. Instead, count your blessings.

13. Look forward, not backward. Instead of wasting all of your time fretting about the bad things that have happened to you in the past, start planning your new life ­ 1, 2 or 3 years down the road.

14. Remember you are crazy one year before divorce until one year after divorce.

15. Remember, there is life after divorce.

Right now, this year, more than ever before; working men and women are facing the long-term financial effects of failed marriages. What can you do today if you are separating assets, because of a divorce?

http://www.wdalaw.com/ First, recognize that since you are emotionally tied to many of the assets to be discussed, that you may need the help of an expert such as a Certified Divorce Financial Analyst™. A CDFA™ is a professional who can work as a neutral financial expert. This advisor is invaluable when it comes to navigating through the personal issues associated with the asset division process and looking beyond the current settlement. A CDFA™ can show you a projected outcome of your financial settlement, 5, 10, or 20 years down the road.

Second, be realistic. Attempt to represent your pre- and post divorce finances accurately and in a legitimate way. Manipulating the facts will only serve to create an atmosphere of distrust and antagonism. This is not only counter productive financially, but the effect on children exposed to feuding parents can be traumatic.

Third, gather your personal, professional, as well as monetary assets to help you face your financial future. Take good care of your self physically and surround yourself with positive people. You may need to get a job, or further your career by continuing your education, obtaining an additional certification or simply letting your boss know that you are ready to tackle a position with more responsibility. Those job moves will most likely result in an increase in income. Also, looking at your assets as a complete financial picture will help you to see where you are secure and where you need to make positive changes.

1. Mediation is a process where the parties and their attorneys meet with a skilled negotiator (mediator) to see if the mediator can draw an agreement out of the parties. The mediator is trained in law and in the art of negotiating.

2. Everything that is said at mediation is confidential. The mediator can never be compelled to come into court and testify about what was said at mediation, and during a trial neither party can testify about what was offered or said at mediation.

3. The mediator is not there to make a decision; the mediator’s role is strictly to pull an agreement out of the parties. quick divorce

4. Many times a mediator “will play both sides against the middle”, meaning the mediator may tell you one thing to try to get you to settle and tell your spouse the opposite.

5. One of the roles of a mediator is to get the parties to look at the down side of their case, along with the benefits of settling.

6. The mediator will have you and your attorney in one room and your spouse and spouse’s attorney in another room. The mediator will shuttle back and forth trying to understand the facts, conveying offers, and offering suggestions.

7. Once in a while the mediator will request that the mediator be allowed to meet only with the parties, and not their attorneys, for a short while. This will happen only if both parties and their attorneys agree. If this does occur, nothing will be finalized until both parties have had an opportunity to meet with their attorneys.

8. The success rate at mediation is about 80%.

9. If the case is settled at mediation, the mediated settlement agreement is irrevocable and binding and not subject to change. If a party signs off on a mediated settlement agreement and has “buyer’s remorse” or discovers that they made a big mistake, they are still bound by the agreement - there is nothing the Court can do to help the person - the Court is obligated to follow the terms of the mediated settlement agreement and enforce it. The Court cannot alter the terms of the mediated settlement agreement.

10. If the case settles at mediation, an Order will be prepared encompassing its terms and submitted to the Court - usually in about 2 weeks. Once the Final Order is signed by the Judge your case is officially over.

11. If the case is not settled at mediation, the mediator can only write the Court a letter saying “I mediated this case and it did not settle.”

If you’ve just become single, then it means this is at least your second experience as a single. You say, “Well, it should be easy, I was single before and got along all right.”

Well, you can get along all right, but if you’re counting on everything being the same as when you were single last time, forget it. http://www.wdalaw.com/ A lot of water has gone over the dam since then and the whole single world is different than it was just a few years ago.

Unless you bring your thinking values up to date, you’ll find your readjustment period painfully prolonged. What relationships you develop and your attitude and frame of mind towards them will be a big factor in your future happiness as a single. You do not just spring from a life oriented around a world traveling two by two into a oneness situation without some trauma. Going from marriedness to a singleness that you thought was something you had been through before leads to upsetting situations when you find it is no longer familiar ground.

Things have indeed changed.

You are going to have to get out and find what’s going on, find out where you’re at. If you’ve just been through the divorce wringer, you’ll probably want to lay low for a while and lick your wounds.

You’ll wonder if it’s really worth the effort, this getting myself together and going out again. Who knows, but if you don’t want to be very much alone the rest of your life, then maybe life is too short to waste in self-pity. So why not start now?

It’s nice you’ll have to admit, to have someone to talk to, to share the good things with, to share the bad experiences and your problems with and sometimes, let’s face it, to sleep with.

How do you find the missing half? Where do you look? Will you know the right one when you run into them? Will you know what to do with them when you find them?

First of all, where do you find them? Let’s be practical now, since you were last single you have added a few years, so despite a new hairstyle and some rejuvenating shots, you’re going to have trouble keeping up with or passing yourself off as a teenybopper. No use hanging out in the teen spots or the young college crowd locations.

You probably aren’t going to do much there or be very happy with what you might develop there.

Then again, you’re probably not quite ready for the nursing home either, so if you’re going to do any good, you’re going to have to mess with Mr. or Ms. In Between.

The question is: Where are they? Well, frankly, a lot of them are just like you. They are sitting at home, watching tv or reading a book and complaining bitterly about being alone. Yes, bitterly, about their last relationship, their divorce, or whatever. They were hurt on the last relationship and they are not going to be hurt again. They just couldn’t face it. Well, if you’re bitter and hostile, the rest of us singles aren’t going to be too enthused or happy about meeting you either.

So, before you venture out too far, best get rid of that hostility. Change your attitude, read some books on the positive approach. Get a good attitude about yourself and toward the people you meet, and life can be pretty darn good. Most all the other singles have gone through the same thing. They have hidden emotional scars, many of which would probably make yours look like nothing. Nobody winds up with a bouquet of roses in these split-ups. So what makes you think you have it so bad?

Some sit around home from one to seven years before they finally pull themselves together and head out - often to retreat right back into their shell, not to appear again for months.

Where is the non-teeny bopper crowd? (Between 25 and 60) Where can a mature single go to find someone exciting? Well, before you find someone exciting, probably you best do what you can to make yourself exciting - otherwise what will they see in you when you do meet (these are all two-way relationships and you’ve got to be exciting to them, too.)

If you develop a distrust of the opposite sex, as a result of your last break-up, remember, you were tied up and have had little current experience in man-woman relationships. Try to believe the other person is being as honest as you are. If you learn to be honest, truthful and a genuine person again with good manners, you will be received in the same way.

Even though your state may be a no-fault divorce state, it doesn’t mean that you or your spouse won’t have to answer in some way for any misbehavior during the marriage. It’s what divorce lawyers and courts refer to as marital misconduct and, in certain states, can effect the outcome of the division of property, an award of spousal support, or an award of attorney’s fees for the victim-spouse.

QUICK DIVORCE The legal definition of marital misconduct is any conduct that undermines the marital relationship. It becomes a factor in a divorce when the offender-spouse’s behavior forces the victim-spouse to assume extra burdens in the marriage. It isn’t meant to punish the offender-spouse or award him or her an inadequate amount of property or income, but to fairly compensate the victim-spouse.

The rationale behind this theory is that the victim-spouse is compelled to contribute more to the marriage because of the offender-spouse’s misconduct, therefore he or she is entitled to have the offender-spouse’s behavior taken into consideration when property or income are divided. Marital misconduct can be disregarded if both spouses are guilty of marital misconduct. In some states, marital misconduct is specifically disregarded as a matter of law.

In those states where misconduct is a factor, there are several broad categories of behavior that might be classified as marital misconduct. They are:

• habitual drunkenness or addiction,
• adultery,
• domestic violence,
• cruel and abusive behavior, or
• economic fault.

Once the offender-spouse’s behavior has reached the level of marital misconduct, it is the court’s responsibility to determine just how much weight to give to it in each specific situation. Some of the considerations the court looks at when deciding this issue are:

• the length of the marriage,
• the character of the misconduct,
• the time period during the marriage when the misconduct occurred, and
• the frequency of the conduct and whether it was continual.

Certain types of marital misconduct may have more of an impact upon a court’s decision-making than others. For example, cruelty or domestic violence might not be a relevant or appropriate consideration for making an equitable division of property because this type of misbehavior typically isn’t relevant to the acquisition of marital property. The same cannot be said for economic fault, adultery or an addiction, all of which can directly influence a couple’s property.

There are several types of economic fault. They are:

• dissipation of assets,
• hiding assets,
• diverting marital or community income to pay for an addiction,
• spending marital or community income on an extramarital relationship,
• excessive or abnormal spending,
• destruction of property,
• the fraudulent sale or conveyance of property, and
• any other unfair conduct that prevents the court from making an equitable division of property.

Some divorcing spouses believe that once they are separated and a divorce filed that marital misconduct, especially adultery or economic fault, has no effect on the outcome in a divorce. That isn’t actually the case. Each divorce is very fact specific and the same logic about the impact of marital misconduct on the division of property applies whether it occurred prior to the separation or during the pendency of a divorce. This is particularly true for economic misconduct.

There are some states that have statutes that specifically permit a court to award a disproportionate or lesser share of property to an offender-spouse, particularly if the misconduct can be classified as economic. The facts of each particular divorce play a heavy role in how the court applies the law.

In cases that involve the dissipation, hiding or destruction of assets, the excessive or abnormal spending of income, or the fraudulent conveyance of assets the court can’t increase the size of the marital or community estate that actually exists. However, it can order a disparate division of the existing and known property to reimburse the victim-spouse for his or her loss in the couple’s estate.

In addition to having a possible effect on the division of property, marital misconduct may also have an effect on the amount of spousal support an ex-spouse may receive provided he or she qualifies for such support. This can work both ways. If the spouse who may be entitled to receive support is guilty of the misconduct, his or her receipt of support may be in jeopardy depending upon the nature and level of the misconduct. On the other hand, a paying spouse might have to pay more, especially if his or her behavior caused the victim-spouse to give up or reduce the ability to earn income.

The following states take marital fault into consideration when determining an award of spousal support: Alabama, Arizona, Connecticut, District of Columbia, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States)

The following states take marital misconduct, especially economic fault, into consideration when dividing marital or community property or in reimbursing the marital or community estate: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wisconsin. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States).

quick divorce Children are the innocent victims of divorce.  They become the center of battles over child custody, support, and visitation.  Worst of all, the lines are drawn between the two people they love the most - Mom and Dad.

Divorce affects a child in ways that parents don’t always consider.  They face losing the only lifestyle that they’ve ever known.  In it’s place are week-end visits with Dad, living with a stressed out Mom, and having reduced resources for everything they used to do. You can’t change this fact, but you can give your children unconditional love and support to help ease their adjustments.

Because each child reacts differently to divorce, you may sometimes question your abilities as a mother.  This can be especially true if your ex suddenly finds fault with everything you do concerning the kids.  This is usually a power-play, but it can weaken your self-confidence as a parent.  Don’t take it personally.  Talking to other mothers can help you regain your bearing, plus give you different ways to deal with the inevitable stress of raising kids.

Raising children is tough, but divorce adds a whole new set of rules to your job.  Beyond dealing with your their emotions, you will also need to handle all the legalities concerning the them and their well being.  A well thought out parenting plan can help you minimize the trauma that they will face.  Take into consideration the following questions as you prepare your divorce.  What will the custody arrangements be? How often will they visit their father? How much child support will you get, and what happens if your ex-husband doesn’t pay?

But most importantly, how can you be there emotionally for your kids, to help them accept and adjust to their new life.  When you’re at the end of your rope, realize that you are tougher than you think, and ultimately, you and your children will survive.

When the terms of your divorce are unjust, or circumstances have changed, you can petition to appeal or modify your divorce decree.  If you want your divorce decree overturned, you will need to file an appeal.  This is usually a drawn-out process, because you are asking an appellate court to overturn a lower court’s decision.  Generally, an appeal won’t be considered unless there are exceptional and compelling circumstances, such as rulings that don’t comply with the statutes, if there is a fundamental inequity in decree, or if it can be shown that fraud or misconduct has occurred.

http://www.wdalaw.com/ You can also petition to modify your divorce decree if the circumstances have changed.  For example, child support or periodic alimony may be adjusted, child custody may be modified, or visitation schedules can be changed.  If you want to have your divorce decree modified, you will need to consult with an attorney to find out what your options are.  The following input from the legal expert may also give you some insight to your own situation.

* How can we modify our divorce agreement?
* Do we have to go to court to modify the divorce agreement?
* Where can I get a modification form to change my divorce?
* Is there a statute of limitations for appealing a divorce judgment?
* Can a divorce be modified if the property wasn’t divided?
* How do I contest a modification of the divorce agreement?
* Can a divorce be modified if the settlement was unfair?
* Can the stipulation that my son not be around my boyfriend be removed?
* Can I appeal the divorce settlement if I signed under duress?
* What can I do if I felt pressured to sign the divorce agreement?
* Can a divorce be appealed if you were never served papers?
* Can he contest the divorce if he never responded to the petition?
* The divorce was finalized before I could contest it.
* Can I still appeal if I didn’t respond in time?
* Can I appeal the court order to pay attorney fees?
* What if he didn’t disclose everything during the divorce?
* Can I have an old divorce settlement revised?
* Can the ruling about retirement and alimony be revised?
* Can the divorce be reopened if retirement wasn’t addressed?

How can we modify our divorce agreement?

Judith’s Question: My ex and I have agreed that we would like to modify the divorce agreement regarding my pension from my teaching job. How can we change this? The Teachers retirement Board has said it must go back to the court. Can this be done easily without huge lawyer’s fees?

Brette’s Answer:  Yes you can submit a stipulation with the agreement. Talk with the court clerk to find out what papers to file or better yet, talk with your attorney to make sure this is a good decision and how to implement it.

Do we have to go to court to modify our divorce agreement?

Rocio’s Question:  I need a review of the alimony and child support that I am currently receiving because it does not match the final decree. My ex is very intimidating and abusive, and he said we can modify the agreement between us with a notary.  Should I trust him?

Brette’s Answer:  To modify your settlement, you need to go back to court. Anything else is not enforceable. You can create another settlement and have it approved by the court.

Where can I get a modification form to change my divorce?

Teresa’s Question: Where can I get a modification form to change my divorce?

Brette’s Answer:  It depends on what you want to modify. If you want to make changes to custody or child support, that case would normally be heard in your state family court. In some cases the trial court includes a provision saying that it retains jurisdiction over all matters - if that’s the case, then you need to go back to that trial court. If you’re looking for a change to the division of assets, you need to go back to the trial court. If you’re not sure where to go, call your local family court and ask them.

Is there a statute of limitations to appeal a divorce?

Robin’s Question: I received the final judgment over a year ago, and the settlement wasn’t fair. Is there a statute of limitations on how long I can have the judgment reviewed?

Brette’s Answer:  Usually there is a very short period of time in which to file your intent to appeal a decision. You should consult an attorney.

Can a divorce be modified if the wife received nothing?

Erica’s Question:  My husband’s grandmother got divorced about 3 or 4 years ago. She is about 80 years old, and did not take anything except for a suitcase of clothes with she got divorced. She did not know that she could get part of their property until she talked to me. She was married to her former husband for about 30 years. Is she still be able to receive half of what they owned while they were married even though time has passed?

Brette’s Answer:  If she consented to the divorce or did not contest it, then she already had her chance to do that and it has passed. She should talk to an attorney though to find out if everything was done correctly and legally. Good luck.  » Return to top

How can I contest a modification of our divorce agreement?

Virginia’s Question: My ex filed to have our divorce decree modified.  If I do not agree to the new terms, how do I fight it?

Brette’s Answer: You either retain an attorney who will handle it for you or you go to the court date and make your position known. You may also be able to file a response, however you will need some legal help to know what paper to file and how to word it.

Can a divorce be modified if the settlement was unfair?

Doreen’s Question: I divorced my husband five years ago after a 20 year abusive marriage.  I receive $800 a month in alimony, but there is a clause that I will lose it if I get a job that pays more than $800 per month. Also, the child support I get no longer provides for my son’s needs. My friends have read my divorce decree and tell me that I should have received a lot more.  Is there anything I can do after 5 years divorce?

Brette’s Answer: My experience is most people walk away from a divorce feeling as if they got the short end of the stick. No one ever comes out a winner in this situation. If there has been a change in circumstances (a worse situation for you or a better one for him), you can seek increased child support. Alimony can be increased with a change in circumstances as well. You should talk to a different lawyer if you want to get information about pursuing this.

Can the clause that my son not be around my boyfriend be removed?

Terri’s Question: My ex husband put a stipulation in our divorce papers that my son can’t be around the guy I’m seeing. I’ve had people tell me that by law it can only stay in the papers for a year.  Is this true and if not what can I do about taking out of papers?

Brette’s Answer:  You need to check with an attorney in your state about the time limit. You can always file for a modification if there has been a change in circumstances.

Can I appeal the settlement if I signed under duress?

Nancy’s Question: Can a property settlement be changed if it has been over 2 years since the divorce. I agreed to pay half of the house payment and half of the utility bills until the house was sold. I left because I did not want to stay in that town. There was a lot of duress and pressure on me, so I just signed to get out of there. My ex still lives in the home, and I do not think I should pay his utility bills. Can I appeal the settlement.

Brette’s Answer:  It is likely too late to appeal and an appeal would not solve your problem most likely since the appellate court only considers whether the trial court followed the law. You should schedule a consultation with an attorney who can review your case and tell you if you have any chance of having the settlement modified.

What can I do if I felt pressured to sign the agreement?

Sherryl’s Question: My attorney didn’t notify me about the court date until two days before, and it was obvious that she wasn’t prepared for it.  She didn’t call for any witnesses to the mental abuse I had suffered, although several people including a therapist, had sent in affidavits and said they were willing to testify. After literally all day of negotiating, I agreed to a settlement that I was not ok with under much duress. On top of this, my attorney set it in stone by questioning me ON THE RECORD to say I was in the right frame of mind to agree to the terms set forth. I wanted to scream NO! but I agreed. Is there anything I can do about this now?

Brette’s Answer:  If you agreed to it, there isn’t much you can do now. I hear this kind of thing a lot. To others reading this, I would urge that you not agree to anything unless you are sure. Don’t let your attorney talk you into it. It’s hard to stand up for yourself, but you have to because no one else is going to do so. I think it is also very common to agree to something, think it is the right decision and then regret it later. You can spend all your life second guessing yourself, or you can try to move forward and make the most of what you have.  It is always possible to go back and modify a custody order in the future if it is not working, so keep that in mind.

Topic: The divorce was granted and I was never notified.

Pam’s Question: What can be done if your husband divorces you, and you did not know anything about it?

Brette’s Answer:  It depends on how it happened. If your husband told the court you were personally served and you weren’t, you have recourse - ask that the judgment be overturned and the case reopened. However, if your husband could not locate you and the court permitted publication of notice, there isn’t much you can do.

Can he contest the divorce if he never responded to the petition?

Lisa’s Question:  When I left my husband and moved in with my mom, I talked with a lawyer about how to proceed with a divorce.  He told me that I needed to be a resident of the state for 60 days before I could file.  After I met the residency requirement, I filed for a divorce and had my husband served by a process server.  He never responded to the papers, so the divorce was granted by default.  Now my ex has retained an attorney and is trying to contest the divorce.  Am I divorced or not, and what can he do now?

Brette’s Answer:  You’re divorced. If he overturns it, then you would have to start over. It sounds like it went by the book though based on what you said. You should have an attorney represent you.

Topic: The divorce was finalized before I could contest it.

Marie’s Question:  My husband went to another state, lived there 6 months, and then filled for a divorce.  On the papers he lied more than once, concerning where we were married and where we lived.  He also lied and said he did not know were I was and did not have any contact with me.  So when I informed his attorney of this and told him that I would not sign the papers because it could be falsifying information, they went behind my back and had the divorce finalized.  I lost custody of my children and he is using them as a pawn against me.  Is there anything I can do to get my children back and make my divorce real?

Brette’s Answer:  You need to speak to an attorney in your area.  Take copies of all the papers and a list of everything that is false in them.  You need someone to sit down and carefully read everything and tell you what your options are.  Ask for a free consultation first so that you can find an attorney you are comfortable with.  If you aren’t sure who to go see, contact your local bar association and ask for a referral to a matrimonial attorney.

Topic: Appealing after non-appearance.

Jodi’s Question:  My ex had a modification to parental visitation sent to me at an address that doesn’t take mail. By the time the mail delivery got figured out, I received the notification while moving to a new house. Unfortunately, the papers were were misplaced during the move and not found until after the deadline for contesting the modification. It got filed by default. Is there anything that I can do to get the visitation agreement set back to something more reasonable?

Brette’s Answer:  You can file for a modification and present your side of the story. I don’t think you have much hope of overturning the judgment since you were served - misplacing it is not an excuse the court will be interested in.

Topic: Appealing an order to pay attorney fees.

Maria’s Question: I am ordered by the court to pay his attorney’s fee.  Can I appeal on that?

Brette’s Answer:  You can appeal any ruling. You need to follow the proper procedures for filing the appeal though, and it is a good idea to have an attorney handle this for you. You may have only a short period of time in which to file papers indicating you wish to appeal, so don’t wait. Good luck.

Topic: Unreported earnings at time of divorce

Beverly’s Question: I divorced 11 years ago for irreconcilable differences. I just found out that there was a significant amount of money he had (money that was earned during the marriage) that was never disclosed at the time of the divorce. Do I have any recourse after all these years?

Brette’s Answer:  Talk to an attorney in your state. At the time of the divorce, both parties have to submit financial information that is sworn to be true. If he was not truthful, an attorney can help you proceed. Good luck.

Topic: Changing old divorce property settlements

Maggie’s Question: My husband was previously married for several years, with one child from the marriage. He is considering retiring, but recently learned that he agreed in his previous divorce that his ex-wife would receive all the survivor benefits from his retirement plan. This would leave me with nothing if he died, and his health is not the best. Can their property settlement be revised or is it too late? The divorce was ten years ago.

Brette’s Answer:  It’s too late, unless he didn’t actually agree to this. Not reading the property settlement agreement wouldn’t be a good enough excuse. Generally, once a divorce is finalized, you cannot go back and change the terms of the financial settlement unless there was fraud or one of the parties was not fully informed.  If you have concerns, you could ask an attorney to read the document and court order. Good luck.

Topic: Can the alimony and retirement ruling be revised?

Anne’s Question:  In my divorce decree I had forfeited all rights to my ex spouses military retirement and alimony so that I may keep custody of my daughter the divorce was in 1996. Can the ruling of his retirement and alimony be changed?

Brette’s Answer:  It is unlikely. Talk to an attorney who can review the entire case. Good luck.

Topic: Can my ex reopen the case if retirement wasn’t addressed?

Sandra Lee’s Question: My divorce was finalized almost 10 years ago, and now my ex has done a ex parte to reopen case to receive payment for an IRA. Can he do that? If so, can I respond and request alimony and part of his pension that I did not receive? He is only doing this because I requested a modification in child support.

Brette’s Answer:  Yes, he can do that, and yes you can ask to have changes made as well. It’s unlikely you’ll get alimony since the marriage ended so long ago, but you can ask for part of the pension, as well as Social Security. Get a lawyer, who can advise you how to best come out of this situation.