Neal Ashmore Family Law Group | Divorce .+Add.Feed Info1000FOLLOWERS
Neal Ashmore is committed to taking a different approach to divorce, child issues and matrimonial law. Considering that – as with so many things in our lives – divorce can be an opportunity for a new beginning rather than a sign of failure, this blog is focused on accentuating the positives.
For the last few years in my practice of Family Law, it seems every case involving children there has been the issue of equal (50/50) possession. I applaud both parents wanting to step up during or after a divorce and share the tremendous rigors of raising kids alone (or, most likely, down the road with a step-parent). When discussion ensues, and it gets analyzed and laid out on the table, you can’t avoid the issue of money – or child support. Why? Well, our Texas Family Code does not address child support and equal possession. Child Support is only provided for in the Family Code if one parent has a standard, or “expanded”, possession Order and the other parent has the rest of the time with the child or children. The question I always get very early in this conversation is “Why am I paying child support if I have them the same amount of time as my ex?”
The Answer? You are paying child support because your income and your ex’s income aren’t the same. The higher income earner can provide a better home, better clothes, more cell phone apps – basically more and better of everything. Therefore, Judges (although not bound to do this by legislation or statute) almost uniformly offset the child support obligations of each. If Dad is making $125,000 a year and Mom is making $50,000 a year, using the Texas Child Support Guidelines, the Court will figure what Mom’s child support would be and then calculate what Dad’s child support would be then offset the two amounts. The bottom line is someone is going to pay and having equal possession will not stop that outcome UNLESS – both Mom and Dad make the same (or close – no definitive definition here on “close” – so beware) income.
So, agreeing to and fighting for, equal (50/50) possession of your kids when you and your ex-spouse do not make the same money can reduce the amount a parent will pay in child support thus reduce the amount a parent will be receiving. Often, (if not most) of the time the higher income earner can survive paying out whatever the amount of support works out to be – but the lower income earner can’t afford to lose the money they would have gotten had a standard or expanded possession order been in place.
Folks that come to see me for consultations about divorce with children are always worried and always have the lingo down wrong. They have talked to their neighbor, a co-worker, a friend, or a family member living in another state who has been through a divorce and they want to know about “joint custody.” They have heard this term being bandied about with their spouse during talks (or arguments) about potential divorce and they want to know if this “shared custody” is going to mean their soon to be ex is going to have the children equal (50%) of the time post-divorce?
First, learn and understand the lingo. There is no legal terminology in the Texas Family Code referring to “Joint Custody.” None. Same is true with the phrases “shared custody” and “equal custody.” The terms get all knotted up in discussions and arguments, and it knots my clients’ stomachs when they hear it. They naturally think it means equal time with the kids between them and their divorcing spouse.
What Texas does have is called “Joint Managing Conservators” (or euphemistically referred to in the legal world as “JMCs.”) That’s what our legislature back in 1973 decided to nickname Mom and Dad after divorce legally. It is merely a label – a name the law has put on divorced parents. It confers nothing on divorcing parents other than the label (and all of you are going to be living within a set geographic restriction of each other after the divorce). The name doesn’t mean there will be equal possession of your kids. It doesn’t say neither parent will pay child support. It doesn’t mean all future decisions about your kids are going to have to be agreed equally. It means none of that. It merely connotes what the law in Texas is going to call you after divorce.
When you know and understand the terms, then the possible fear that shoots through you when you hear your spouse proclaim he/she is going to have “joint custody,” “shared custody,” or “equal custody” shouldn’t affect a single nerve synapse in your body. Instead, you should smile and know that your divorcing spouse doesn’t know the lingo – and you are already a step ahead because you do.
When spouses decide to move on from their marriage, each spouse must wrestle with decisions about the future, affected relationships and about the divorce process itself. Navigating a divorce can be such a taxing process that it can become easy to overlook how relatively routine choices can affect all the other decisions you are trying to make.
When you are trying to decide where to live, how to construct a child custody agreement and which attorney will represent you, your online etiquette may not seem like a pressing issue. For better and for worse however, your behavior online during your divorce may affect your future in more substantial ways than you may imagine.
If a judge, your spouse’s attorney or another interested party finds any of your online activity to be suspect, that activity could affect your divorce settlement, your child custody dispute and your child custody award. As a result, attorneys often advise their clients to temporarily close all social media accounts and to be extra careful when sending emails for the duration of any family law proceedings they are involved in.
If you choose not to temporarily shut down your accounts, it is critical that you treat every word you type and picture you post as something that may be viewed by everyone involved in your dispute. Simply because you enable certain privacy settings does not mean that your information will remain private.
Please take special care not to rant about your spouse online, talk about the process online or post any compromising pictures of yourself or your kids. In addition, do not discuss any large purchases, vacations or property if it may affect the judge’s perception of what could be considered fair in a divorce or child support order.
Divorce can have a significant impact on the tax status of the divorcing parties. The time of the divorce can determine the taxpayer’s bracket and the eligibility for certain credits and deductions, which can impact the amount of income tax paid.
For IRS purposes, if the couple is still legally married on the last day of the tax year, usually December 31, then the couple will still be considered married for that tax year, even if their divorce is finalized before the tax return is filed. If a couple is still legally married on the last day of the tax year, they can choose to file jointly or separately. The benefits of filing separately are that each spouse is only responsible for the tax due on their own income and for the accuracy of information filed on their tax return. The major disadvantages of filing separately are that each taxpayer will likely end up paying a higher tax rate, and it may be more difficult to use certain tax credits, such as the Earned Income Tax Credit and education credits.
After the divorce is finalized, there are other tax issues that couples should be aware of. For instance, alimony received is taxed as income for the receiving spouse and is tax-deductible for the paying spouse. Also, while most costs of divorce are not deductible, a taxpayer may claim a deduction for legal fees incurred for tax advice related to the divorce and for legal fees incurred while trying to obtain or collect alimony.
Often when couples are considering divorce, they neglect to consider all of the financial and tax consequences of the divorce. This may lead to problems or unintended tax consequences. A divorce attorney may be able to help a client avoid or prepare for these consequences.
Source: Yuma News Now, “How Marriage And Divorce Can Impact Your Taxes”
I have been through the gamut during my four decades of practicing law when it comes to allowing children to give their opinion as to where they want to live and when they want to see their parents. I saw the age a child can do this go from 14 to 12 to 10 then back to 12. I saw the law allow a child to sign an affidavit in the case, to now be “interviewed” by the Judge in Chambers. The rationale behind all this, I suppose, (because I do not understand the logic behind these schemes), is for the “child” to have a “say” in post split up and divorce life. Now, keep in mind, neither Mom nor Dad asked for their child’s “input” as to whether there should even be a divorce. No, that was an adult decision made without consultation with their kids. Now, however, after the gate to the corral has been opened and the horses all let out, we deem it wise and pragmatic to enlist this child’s mature thoughts, feelings, and insight on how we can make this situation better and get some of the horses back in the corral. This entire practice of letting children, at any age, tell Judge’s directly, with no one else around, what the child thinks is best is flawed at best and a disaster at worst. Here are five (5) reasons why we should not allow it.
1. Children, regardless of their age, are simply too young and too immature.Whether a child is twelve or seventeen, most are too young. You would not give your 13-year-old the right to decide what concert he or she will attend and with whom they will go with to the show. You would not give your 16-year-old the right to decide if he or she wants to finish this semester of school because he or she is not having enough “fun” or “it is too hard.” Pick an example of your own. However, we have this little Motion to Confer that is a statutory provision enacted by our Texas Legislature that mandates a Judge in a family law case interview the child.
2. Judges do not Like it. It takes time away from their job of making decisions in disputes brought before them. Ethically, a Judge is strictly prohibited from having ex parte (one on one without the other side present) discussions about the case with lawyers or the parties. In this situation, they are allowed and told they have to sit down and discuss the contested outcome with the very child about whom they are making the decision. It goes against everything they have been trained to do. They do not like doing it.
3. Lawyers do not Like it. If a lawyer is representing the parent who believes their child will pick them in the auction of best parent available, then that lawyer is either trusting their client is right, serve up the child to the Judge without verifying, and risk your client got it wrong. If the parent did – then you are done for this round of custody the Price is Right. If you are representing the parent whose child has now turned against them, then you have to go through much money, time, and angst trying to get to the truth. Does this child wants a change of view or has the other parent has been setting this child up for a long time with the promises of bigger ponies or new cell phones, alienating the child against your client, or psychologically manipulating the child to their side. Either way, it is expensive, emotional, and with no guiding principles as to how it will end.
4. It is emotionally damaging to the child and the entire family. There is no way to sugarcoat the fact that when a party files for a change of primary conservatorship or possession time based on a child’s wishes just because they have passed that ripe old age of twelve, you are asking, or telling, that child to choose between Mom or Dad. You do not have to have a psychology degree to figure that one is not going to turn out well in the long run. You would not make your child pick just one of his or her two best friends to invite to a birthday party, so how can you ever justify asking the child to choose from his or her parents?
5. It is a ruse for avoiding child support. I regularly hear my clients’ stories about how the weekend parent is telling their child to just “wait until you turn 12, and you can tell the judge you want to live with me.” The person offering this advice to their under 12-year-old child is 98% of the time the one paying child support. Budgets are constantly being done and redone with child support and without child support. It is a double swing in income should you get your child to take your side and come live with you. Multiple that times six years and you are talking some serious cash. There is an easy way to solve this financial motivation which might stop all these motions to have the child confer with the Judge. Have the legislature pass a law that mandates child support continue for six months or a year after any change of primary conservatorship and give the court the power to order that child support pay into a college fund for the child. The parent gets no break for a year, but the child benefits by getting a college fund started or increased. Just as deep throat in the Watergate Scandal advised – “follow the money.” Take away the financial incentive to turn children against their parents and you will, in my opinion, decrease this ugly side of custody by a significant percentage.
The five reasons set forth above is not meant to say all child modification suits brought when a child is over twelve years of age are wrong or brought for the wrong reasons. What it means to say is there should be no difference in how courts and judges determine what is the best interest of a child under twelve.
If you are involved in a divorce in the State of Texas, chances are you are going to have a “Morality Clause” slapped on you. What is a “Morality Clause”? Well, in simple terms, it is a prohibition against a parent allowing anyone with whom they are involved in a dating or romantic situation to spend the night while the divorce is ongoing. The intent and purpose of the clause is well-meaning and noble. It is designed to protect the stability, routine, and provide consistency for children while Mom and Dad are divorcing. No one could debate this goal as virtuous and protective of children. However, in the real and practical world we live in, the real questions are: does it work and is it worth it?
Does is work?It depends. If the parents are mature and grown up and believe that following the rule of law is important – then yes, it works. The fear of being held in contempt of court (yes, you can be put in jail for a violation) for allowing the high school sweetheart Mom or Dad reunited with online and are now trying to rekindle their passion can temporarily deter a parent from doing something that instinctively they know is not good for the kids. They will toe the line even when their self-centered emotions tell them otherwise. The children are saved from the angst and psychologically devastating effects of simultaneously being forced to deal with the loss of their family unit AND the introduction of a new adult figure in their lives. If the children are protected from this situation for even a few months, then they will be better off in the long run. If having a Morality Clause in place does nothing more than strike a moral chord in a parent to think more about their children than themselves, and they begrudgingly adhere to what it dictates, then it is a good thing.
On the other hand, if a parent views the Morality Clause as nothing more than an intrusion into their adult and private lives, then what will occur is a conscious and intentional course of action to find ways to “get around” the clause or to make sure they don’t get caught. The divorcing parent who won’t buy into the purpose of the clause will concoct all sorts of ways to avoid it. The morality clause is designed to avoid a child getting up on a Saturday morning to watch cartoons from being met with some guy or girl they don’t know drinking coffee in their pajamas in the kitchen. The Morality Clause doesn’t prohibit the new boyfriend or girlfriend from being around the kids – only from staying the night. Therefore, most of the clauses have a time limit to define “overnight.”
The Denton County Standing Orders sets the hours of an overnight between 10:00 p.m. until 7:00 a.m. Dallas County, Collin County, and surrounding counties vary as to the starting and stopping times, but each defines what an overnight will be. So, the parent that can’t accept the purpose of the Morality Clause will go through all kinds of machinations to give the appearance of compliance. They might make a big deal of the paramour leaving right before the start time of the overnight time then put the kids to bed and slip the new boyfriend or girlfriend in the back door and into the bedroom. The alarm is set early the next morning and Mommy or Daddy’s new friend leaves early out the back door only to reappear right at 7:01 am with donuts and kolaches for everyone. What a great guy or girl. This is but one of many ways to try and skirt the Morality Clause and it is played out thousands of times each weekend by custody litigants.
So, if you are a rules follower because you believe the law is there for a reason or only because you are afraid of negative consequences – then it works. A psychologist friend of mine once told me that the #1 universal truth he has found in all his years of treating his patients was that “people are going to do what they really want to do.”
Is it worth it?If your divorce is in a county that has standing orders and a Morality Clause, like Denton County, you really have no choice while the case is pending. However, the issue always comes up in finalizing the divorce as to whether the parties will agree to extend it post-divorce or whether the Judge of the Court will make it extend into the divorce decree. The spouse or litigant that is not involved in a new relationship may want it included and the one who is looking to continue their relationship with the new “soulmate” after the divorce may fight to keep it out – or water it down.
There are as many variations of the Morality Clause as there are leaves on a tree. Lawyers can bill many hours crafting, negotiating, drafting and trying Morality Clauses. This is not a financially sound idea. In addition, even if you can get one into your divorce decree – what benefit does it have to you? If your ex is determined to violate it and you bring an action to enforce it, guess who your number one witnesses are? Your kids! The only indisputable proof you are going to have is your kids testifying about waking up in the middle of the night scared and going to see Mommy or Daddy and finding someone else there. Are you going to call your kids to testify? Of course not – that double or triples the harm you are trying to protect them from. Can you use a private investigator? Yes, but that now adds another layer of cost to your already too expensive litigation and all that PI is ever going to be able to say is that the paramour was seen entering the house or apartment and never leaving until the next morning. While this may be persuasive, such proof is never conclusive.
Repeated violations (even if proved circumstantially) can help significantly in a post-divorce custody change lawsuit. However, that edge is immediately reduced to moot if your ex simply decides to get married. Paramour now becomes stepmom or stepdad.
After 44 years of drafting countless Morality Clauses and then filing actions to enforce them, it is my opinion that they are, over the long term, not worth the investment of money and time. The money and time is better spent with quality mental health experts working with your kids (if necessary) to deal with the new situation and good old common-sense parenting. If you continue to harbor anger and resentment, rely on your family, friends, church and professionals to get your kids beyond it. Doing otherwise will only make the situation for your children worse.
Years ago, when I was a very young attorney, a wise District Judge gave me this advice. He said: “It is an axiom of divorce that the more a paramour is at the forefront of the case the more complicated, expensive, and time it will take to get it done”. He was right – Morality Clause or not.
When you and your spouse decide to go your separate ways, the financial burdens and benefits you shared previously will be ultimately split between you. As a result, the financial consequences of divorce can be significant. Adding to that already daunting situation is the cost of the process itself. Thankfully, there are a number of ways that you can help to ensure that your divorce process costs remain as low as is prudent.
Perhaps the most cost-effective approach to divorce involves keeping tensions between you and your spouse low. The more that you and your spouse fight about property division, child custody and other matters, the more hours that your attorneys will be required to bill. If you and your spouse can largely settle matters amicably and out of court, your costs will remain relatively low.
With that said, it is important to fight for the property and rights that truly matter to you. Make sure to hire an attorney who is on the same page as you about how these matters should be handled. When you do need your attorney to put in hours on your behalf, make sure that the advocacy you are employing meets your needs.
It is not always wise to pinch pennies during the divorce process. The decisions you make now will almost certainly impact your future in substantial ways. But if you can keep your costs low through an amicable process without compromising what is truly important to you, it will likely be in your best financial interests to do so.
According to research conducted by the Pew Institute, as of January 2014 the number of American adults owning cell phones is 90%. A new study from Common Sense Media reveals that the percentage of U.S. children who’ve used a mobile device has jumped to 89 percent of all children in 2013 – up from just 38 percent in 2011. It is now routine practice to have multiple text messages, audio recordings, videos, and testimony about cell phones in hearings and trials involving divorce and child custody. The iPhone, Android, or BlackBerry that is carried around daily and you can’t live without can become a weapon of destruction to your success in a courtroom. Here are my Top Ten Rules to make sure that doesn’t happen in your case.
1. Don’t hit send on that nasty text to your estranged spouse or ex immediately. Let it simmer and think about how it would sound being read out loud in a silent courtroom on some Monday morning. Rethink what you are texting before you send it. Do you really need to point out again how stupid and ignorant you think they are?
2. Don’t buy your child a cellphone until that child is mature enough to handle it and you have an agreement with your estranged spouse or ex about its use while out of your possession. Courts really aren’t equipped to manage the use of cellphones between warring parents by the implementation of Orders. If you and the child’s other parent can’t agree on the rules of use between households – let the child use your phone or a landline for communication with their Dad or Mom. It is far less expensive than the alternative of letting a Court or Judge referee the dispute – and Court’s don’t like doing it.
3. Don’t take pictures on your cell phone of every bruise or scrape your child comes home with after being with the other parent. If there is a serious injury – go to the ER and get it documented there.
4. Don’t talk to that “new companion” of yours on your cell phone. Every call or text is logged with the number that was called and the time it was made. Cell phone records are easy to obtain. Twenty-five calls between 9 pm and 2 am to a “co-worker” suggests something other than you are putting the final touches on that project report.
5. Don’t think that deleting that text or picture removes it from your cell phone. It doesn’t! The look of horror on a litigant’s face when their cell phone is confiscated and handed to an expert for examination is priceless – or devastating – depending on who’s phone is being taken.
6. Don’t delete – but preserve – abusive texts, pictures, or recorded calls from your spouse or ex. While cell phone records are easy to get, servicers don’t save text messages on their servers – you have to protect those types of important information.
7. Don’t tamper with your child’s cell phone when it suddenly appears at your house after coming home from the other parent. Removing the battery, “accidently” letting it fall into the bath, or taking it away for disciplinary reasons will only assure that this action will become the focus of an expensive court “inquiry”. Let your lawyer handle this.
8. Don’t put your child in the middle of any cell phone controversy. Don’t pass your message about the rules in your house as to cell phone use through your child. Get that straight parent-to-parent with your estranged spouse or ex directly – or do it through your lawyer.
9. Don’t buy a full-fledged smart phone for your child. There are a number of phones and plans that limit how and what your child can do with their cellphone. If the goal is communication with your child when out of your possession – then find a cell phone and plan that will accomplish only that goal. Do they really need access to the internet with a cell phone that they have all day – even when you are not around?
10.Don’t make your child talk to the other parent on their cell phone in front of you – or worse – make them turn on the speakerphone. If you’ve allowed the cellphone into your house, then your children deserve privacy.
Texas residents who are planning a divorce may be interested in an article detailing some of the common mistakes that spouses make. Many of these involve the misuse of social media and other traceable data.
Every time a spouse fills out a credit card or loan application, sends an email or posts on Facebook, they are creating a trail of data that can potentially be used against them. Attorneys recommend that spouses looking at a divorce be civil and think twice before they create a permanent record of anything. For example, if a spouse puts financial information on a credit card application, this could be used against them when they ask for spousal support. Often, people put inflated income numbers on applications like this, which could end up being very costly.
Spouses who use social networks could also run into trouble regarding support payments. If a spouse claims that they do not have a lot of money, but posts show vacation photos and other glamorous moments, this could seriously impact the amount of support they are awarded. Blocking the other spouse and their acquaintances from specific social media information may not help, either. There are many ways for that spouse to get possession of seemingly private information, whether through creating a fake account or getting other friends to take screenshots of the incriminating evidence.
Attorneys caution against deleting any harmful posts that may end up on social networks. This, they say, could constitute destroying evidence and could be more trouble than just leaving the post up.
Many spouses may find the help of a family law attorney useful in sorting out these and other divorce matters. The attorney may be able to review the spouse’s social media usage and help to spot any serious problems.
Human nature is such that we do well in those things that we have some experience in – things we have done before – things we are accustomed to doing. Going through a divorce is not one of those things! For most everyone, it will be “their first rodeo.” So, we are naturally afraid, concerned, and lost as what to do. We don’t even know where to start. Like in all things, though, controlling those things that you can – and not worrying about the things you can’t – is a good way to approach an impending divorce. Getting started has three easy steps:
1. Seek legal advice at the earliest point that you believe your marriage might not make it. Getting all your questions answered as early as possible and being informed of how your specific circumstances might play out in your divorce is the single most important thing you can do. You will feel better and less anxious. All the stories and anecdotes you have heard from friends, neighbors, and co-workers will get put in perspective . Getting educated on divorce and all it entails is the one thing you can do to relieve the fear and lessen the anxiety.
2. Gather all important documents and save them. Don’t know what to get? Well, if you followed Step 1 above, you would know. But if you didn’t, it’s easy. Anything that shows income, assets, debts is what is needed. Tax Returns, financial statements, retirement statements, checking & savings statements, documents dealing with real property you own. Records on property you owned before you married or that you received from an inheritance are especially important. Once copied – get them out of the house and store with a friend or family member.
3. Prepare as if the divorce is going to happen. It may not. Counseling or a change in your spouse may take you from the path of divorce. But if not, then preparation for the divorce is the best thing you can do. Don’t know about the family finances? Find out. Work too many hours and not spend much time with your kids? Change your schedule and start being more a part of your kids’ lives. Not worked in years? Find out about jobs in the market place and how you would get one or how you would need to be retrained to earn a living. No credit on your own? Get some. Have partners in a business you own and no agreements as to what happens to the business in a divorce? Call a Board meeting to get this discussion going.
Understanding early those parts of your marriage partnership that you are weak in and have let your spouse handle and then taking back control is great preparation not only for a divorce – but for you as a person.
Taking these three easy steps starts to put you back in control of your life. It prepares you for a bad situation should a divorce happen and puts you in control of your future. We’ll break down in more detail these three steps and the next stage of the divorce process in future blogs.