By: Manjula Shaw, CFP®, CDFA®
“Tips from the Trenches” is a series of articles based on conversations with professionals who advise individuals facing or considering the prospect of divorce. Watch this space for discussions with professionals in Family & Collaborative law, Forensic-Certified Public Accountants, Mediators, Marriage Counselors, Family Court Judges, and Valuation Specialists.
Manjula Shaw is a Certified Financial Planner (CFP®), and an Asst. Vice President at Tanglewood Legacy Advisors. As a Certified Divorce Financial Analyst (CDFA®), Manjula works with individuals facing late-stage divorce.
The first segment of the conversation with Amy Allen a Partner in the family law practice of Gray Reed was released in May, you can find it here Facing Divorce? Tips from the Trenches – Family CFO (family-cfo.com); this is the second segment.
Once You’ve Decided to Divorce: Next Steps
What to Expect
Many divorce cases where a divorce attorney is involved settle in mediation, and assets are partitioned and exchanged after mediation. A process in which a neutral third party, called a mediator, helps a couple going through divorce reach an agreement on the terms of the divorce. Typically the cases that go to trial happen when a couple has intractable issues they cannot agree upon. Bottom line, “If a couple is at the courthouse, that means they have not managed to agree, and they would rather a third party give a judgment,” Amy explains. Amy heads the family law practice of Gray Reed. She helps her clients navigate complex, emotionally charged property/family disputes.
Divorcing couples must consider whether they want an outsider making life decisions for them.
Selecting The Type of Divorce
Texas law allows three methods of divorce: Pro Se Divorce, Litigation, and Alternative Dispute Resolution (ADR).
● Pro Se Divorce – when the couple chooses not to retain an attorney.
● Litigation – when the couple goes to court and a judge makes a decision.
● ADR– consists of three methods.
I. Mediated Divorce: A neutral third party guides the spouses to an agreement. The two parties share the decision-making.
II. Arbitration: The couple meets with the arbitrator, presents evidence, and the arbitrator makes the decision on behalf of the couple. It is recommended that both spouses retain an attorney to represent their interests.
III. Collaborative: The process is similar to mediated divorce. However, the spouses may need to collaborate transparently with their attorneys and other neutral professionals such as financial planners and mental health counselors. The advantage of choosing the collaborative method is that it is a holistic approach to divorce. “If you believe a spouse is forthcoming about the financial situation,” Amy advises, “work with a financial advisor that you both trust.”
In addition to selecting your method of divorce, you will need to decide whether you will pursue the divorce as no-fault, fault, or default.
No-fault divorce (divorce that can be granted without the need to prove a spouse guilty of marital misconduct) is accepted in every U.S. state. This type of divorce has become the most common and ensures that marital assets will be split equitably (in Texas). Typically, fault divorce applies in cases of adultery and can play a role in the division of property, award of custody of children, and spousal and child support. A default divorce happens when one spouse files for divorce and the other spouse does not respond to the suit.
Defining Your Objectives
Because an attorney’s job is to prioritize what the client wants and manage the client’s expectations according to the boundaries of the law, Amy advises that clients start by defining their objectives. The attorney will then seek to understand any background information that may help her to achieve those objectives. They could include the perceptions of each party that led to the couple’s current situation, family dynamics, or past financial information. For example, was the couple’s house purchased by separate property funds? The answer could mean that the ownership of the home lies strictly with one spouse. If one spouse stays at home and Amy’s client is the working parent, Amy looks to maximize the amount of time her client has with the kids. By laying out all of the options available to a client according to the law, Amy gives her clients the tools to decide their best choice.
Stay tuned for the next segment: How do you pick a family law attorney?
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