Texas Divorce News

People often ask me privacy questions about their divorce. Here are my clients' three biggest concerns:

• When will my spouse learn that I have filed for divorce?
• Will my neighbors / the folks at church / the members of my bridge club learn that I have filed for divorce?
• How much dirty laundry is there for the public to view?
• Can someone steal my identity from the information in the divorce papers?

I'll take this on, but with the understanding that I'm only licensed to practice law in Texas, so I don't know what information is public in other states, and I only handle agreed divorces, so I see a lot less dirty laundry than the average divorce lawyer.

The way you start a divorce is to file an Original Petition for Divorce. The person who files the Petition is called the Petitioner, and the spouse is called the Respondent. When I do a Petition, it's pretty minimal, and about all the information it contains is:

• Names of Husband, Wife, and minor children
• The last three digits of the filer's SSN and DL
• Dates of marriage and separation
• The statement that the marriage isn't working and that there's no reasonable expectation that the parties will reconcile
  

If the lawyer is much more aggressive, and expects a fight, here's other information that might be in the Petition:

• Allegations that a party has committed adultery, is hooked on drugs, has abused or abandoned a child, has been convicted of a felony, has left the area, and so forth
• Statements that the Petitioner needs protection from the Respondent by ordering the respondent to do certain things and not do other things (like intercepting mail, canceling credit cards or insurance, and things like that).
  

In either case, the Petition is filed with the District Clerk and anybody can go to the District Clerk and ask to see the file, and even pay the District Clerk to make copies for them at $1 a page. As of March, 2008, when I write this, you can't go online and see what's in court documents, but you can look up names to see if they are a party to a lawsuit (such as a divorce), and if they have, you can see a list of documents that have been filed in the suit (you can only see the list, not the contents of the documents).

But, what are the odds that it will come to the attention of your spouse, or your neighbor, that you have filed for divorce? Generally, the odds are pretty low. If your spouse goes online to the District Clerk's web site every day and searches for your name, he or she will learn right away that the divorce has been filed.

Lists of divorce filings are published weekly in highly specialized newspapers who only publish lists of public data like this. Almost nobody really reads these newspapers, but may use the information for their marketing purposes. For instance, if I started a business called Hal's Welding, I'd need to file an assumed name document with the county clerk to tell the world that Hal's Welding is really just another name for Hal Davis. CPAs comb through these listings to find new businesses that need accountants, and other folks would use these listings to sell all kinds of services to them, such as insurance services, computer hardware, phone services, and on and on. But it's really unlikely that your neighbor is going to subscribe to the paper and read the list of folks who have filed for divorce just to see if any of the names ring a bell.

Sometimes divorce lawyers will use the published lists to solicit business. For instance, if I see that John Quincy Adams filed for divorce against Mary Jane Adams, I could look at the property records to see if I can find any real estate that's owned by John Q Adams and MJ Adams. If so, I could send a letter addressed to Mary Jane telling her that her husband has filed for divorce and she really ought to hire her own lawyer, and by the way, I'm a mighty fine lawyer and I'd like to meet with her. So, it's possible that Mary Jane Adams will learn about the divorce when she gets a letter from a lawyer who wants to represent her. The odds of this happening are reduced if the parties don't own any real estate in the county where the petition was filed.

A similar question is "when will my spouse be served with papers?" When I file for divorce, knowing that I expect it to be agreed, I almost never have respondent served with papers. Only if the case drags on and the spouse is not being cooperative will my client pay me the extra fee to have their spouse served with papers.

In an agreed divorce, there is seldom any information filed with the courts other than the Petition for Divorce and the Final Decree of Divorce. Things are different with a contested divorce, as there may be documents that infer the presence of some of the ugly things I mentioned above (adultery, drug use, and so on).

But the Final Decree of Divorce can also be a source of private information even in an agreed divorce. And, any member of the public can go to the courthouse and look at the Final Decree of Divorce after the divorce is final.

We try to take care to list only limited information about the parties in a divorce. Rather than list the entire SSN and driver's license number, we're taking more care to list only the last three digits of those numbers, such as a SSN of xxx-xx-x123. This is enough for an employer or creditor to be pretty certain that the person in the divorce decree is the same person as their borrower, but not enough for someone else to steal their identity.

Credit card information is often listed in a divorce decree. My preference is to simply state that the husband will be responsible for any credit cards in his name, and wife will be responsible for any credit cards in her name, so no credit card information is listed. But sometimes the fair thing to do is for one party to pay a credit card in the other person's name. In that case, we'll have to list the credit card information with enough specificity that it can be enforceable in the courts, but not enough that someone else can try to charge purchases to that card. Some folks like to list the credit card number as xxxx xxxx xxxx 1234. The problem is that the credit report lists them the other way, and makes it difficult to explain to a loan officer that what the credit report lists as 1234 5678 9101 xxxx is the same obligation as the xxxx xxxx xxxx 1234 listed in the divorce decree. So, I prefer to list the card numbers as they appear in the credit report (1234 5678 9101 xxxx).

We have a similar problem with bank accounts. The most private way is to say that husband keeps all bank accounts in his name and wife keeps all bank accounts in her name. But that won't work if wife is concerned that husband has a bank account in his name that he hasn't told her about. Or, if they agree to divide the IRA in the divorce. In these cases we may have to be quite specific, including full account numbers, and if so, the only protection is to get divorced, divide the bank accounts, and then change all the account numbers (close the bank account and open a new one with a different number).

So, remember that anything that's filed with the courts is public information, and anybody with enough curiosity and time can get the information in the documents. And, if there's still some trust between the parties, consider leaving detailed financial information out of the pleadings.

Labels: privacy divorce pleadings identity theft notice

This has nothing to do with Civilized Divorce, but in this political season I'm reminded of Nevil Shute's theory of the Seventh Vote.

Nevil Shute (1899 - 1960) was a fiction author. He believed that British socialism after WWII would tend to destroy what he conceived as the British way of life, and he put forth a theory that only what we might call "stakeholders" should have a say in how the country was run. The more one contributes to society, the bigger a voice one should say in how the government should run.

Here's an excerpt from his novel In the Wet:

'I remember when the multiple vote started... It was when I was in Townsville, in 1963. They brought it in for West Australia.'

'Why did West Australia start it?' asked Rosemary. 'Why not New South Wales, or Queensland?'
'I don't know,' ... 'Labour was very much against it.'

'West Australia was always pretty Liberal,' the pilot said. 'People had been talking about multiple voting for a long time before that. I reckon it was easier to get it through in West Australia.'

'How did it come to be taken up by the other States, if Labour was so much against it?' asked Rosemary.

'Aw, look,' said the pilot. 'West Australia was walking away with everything. We got a totally different sort of politician when we got the multiple vote. Before that, when it was one man one vote, the politicians were all tub-thumping nonentities and union bosses. Sensible people didn't stand for Parliament, and if they stood, they didn't get in.' (p.101).

...

'Stevie', I said, 'I am Roger Hargreves. You know me; I am the person from Landsborough. Remember me?'

'I am bad...I have been bad three days.'

'We'll get you into Landsborough tomorrow, and then the ambulance will come and fly you to Cloncurry.'

'I have flown further than that,' he muttered. 'Up'n down, up'n down, all across the world, carrying the Queen, Ottawa, Keeling Cocos, Nanyuki, Ratmalan. I know all them places. I got the seventh vote - did you know that, Cobber?' 'Did you know I got the seventh vote?'

Between dream and reality, a man in a coma recounts a memory of a life lived or to be lived. He is in England in the RAAF. His dinner host Captain Osborne asks: 'There's one thing about Australia I wish you would tell me. How does your multiple vote work? Have you got more than one vote yourself?'

The pilot nodded. 'I am a three-vote man.'

'What do you get your three votes for?' The captain asked.

'Basic, education, and foreign travel.'

'The basic vote - that's what everyone gets, isn't it?'

'That's right.' The pilot said. 'Everybody gets that at the age of twenty-one.'

'And education?'

'That's for higher education, there is a whole list of other things, like being a solicitor or a doctor. Officers get it when they are commissioned. That is how I got mine.'

'And foreign travel?'

'That's for earning your living outside Australia for two years.'

'You can get more votes than three can't you? Is it seven?'

'The seventh is hardly ever given.' 'Only the Queen can give that.' 'The others are straight forward.'
'You can get a vote if you raise two children to the age of fourteen without getting a divorce. That's the family vote.'

'The fifth is the achievement vote.' 'You get an extra vote if your personal exertion income, what you call earned income - in the year before the election is five thousand a year.' 'It is supposed to cater for the man who's got no education and has never been out of Australia and quarreled with his wife but built up a big business. They reckon that he ought to have more say in the affairs of the country than his junior typist.'

'And the sixth?'

'That's if you're an official in the church,...you don't have to be a minister, what it boils down to is that you can get an extra vote if you're doing a real job for the church.'

Adapted from "In the Wet",1st Edition, pp. 97-99.

------

I'm not sure how I feel about straying from our one-person one-vote system. But I do like two things about it. First, it's the concept that the highest honor the country can bestow on someone is an extra vote. Second, it seems appropriate that the more you contribute to society, the more say you ought to have (similar to, but less extreme than, the concept of shareholders in a corporation voting: one vote for every share of stock they own).

I'd love to have your thoughts.

I just saw a Reuters story about a New York court making a unanimous ruling. Even though New York does not have same-sex marriages, the courts there must recognize a same-sex marriage performed elsewhere (in this case, Canada), unless the state passes legislation to the contrary. This particular case involved a Lesbian couple, married in Canada, who then moved to New York. One of the couple worked for a company that refused to give spousal health insurance benefits because the "married couple" wasn't one each male and female.

Texas classifies some marriages as "void" or "voidable." For instance, a purported marriage when one of the parties is already married to someone else (bigamy) is a void marriage, and instead of filing for divorce to terminate that marriage, one files a Petition to Declare Marriage Void. However, a purported marriage of folks of the same gender would simply be no marriage at all: by state law, a marriage is between a man and a woman.

There are movements afoot to change our constitution both ways. Some want to change the constitution to allow same-sex marriage, and others want to change the constitution to prohibit same-sex marriage.

My divorce clients are often confused by the terminology and procedures we use in dividing retirement benefits in Texas. I prefer to explain things rather than simply say "this is the way we do it," but a full explanation often takes more time than the client wants. So, this is the 5-minute answer to the question "how do we divide that retirement account?"

Texas is a community property state, mostly because land rights (before the USA came along) were governed by the Spanish customs and laws, which tried to make sure that a rich señorita who got married and was divorced would still have the land she inherited from daddy. The law was really quite progressive for its time. English common law theory eventually got to pretty much the same place, but by way of a different legal theory.

Money a husband makes during a marriage in Texas is community property, and if he puts it into a retirement account, and then the parties divorce, the wife has an ownership interest in that retirement account.

There are all kinds of retirement accounts and systems. Each retirement system recognizes that folks get divorced and retirement plans need to be divided up because of it. But many of these plans are governed by federal law. Under the concept of Federalism in the US Constitution (as clarified by the war between the states), states cannot control the federal government. By extension, state divorce courts have no direct power over federal retirement systems. Accordingly, the regulations for each type of retirement account have provisions for allowing a state divorce court to control what happens to a federal government regulated retirement account.

The type of retirement account I see most often in my divorce practice is a 401(k) plan. "401(k)" refers to the section of the law which created this particular type of retirement account, the Employee Retirement Income Security Act of 1974 ("ERISA"). The ERISA legislation refers to an order from a divorce court to divide retirement benefits as a "domestic relations order," and if the order meets the criteria within ERISA, it becomes a Qualified Domestic Relations Order, abbreviated as QDRO and typically pronounced KWAD-ro.

Most (not all) retirement systems need a court order to divide retirement benefits, but it's only called a QDRO when it's a plan governed by ERISA, including 401(k)s, 403(b)'s, and many pension funds. For other systems (such as retirement systems for government employees), the document may look exactly like a QDRO, but it'll have a different name, and I tend to call them QDRO-like-things.

A notable exception is the IRA, whether it's a traditional IRA, Roth IRA, or something else. These are not governed by ERISA, but they don't need a separate court order, either. We just spell out in the Final Decree of Divorce that a particular IRA is to be divided or reassigned (giving the spouse a portion or all of the account). Remember that the "I" in "IRA" stands for individual, so there's no such thing as a Joint IRA.

If you divide a retirement account properly, it does not trigger taxes and penalties. The spouse's share of the retirement account will usually be moved into an IRA in the spouse's name. For a pension, a separate pension account will usually be created for the spouse.

I don't do QDROs or QDRO-like-things, because they're quite specialized. I have another attorney do these for me, and right now the first order she prepares costs either $350 or $400, and if more than one is required, the additional ones are usually $100 each. However, I do coordinate and communicate with the QDRO lawyer.

For more information on this sort of stuff, please click here to visit my web site.

Hal Davis

I don’t know how interesting this may be to my readers, but recently I’ve looked into the seasonailty of my business.

My business is bound to be more seasonal than most divorce lawyers. Most divorce lawyers will have to go to hearings and such, and will do discovery, and they’ll earn their money over a much longer period of time. My fees are generally earned when I’m hired, in part so as to remove an incentive for me to drag the case out.

I’m surprised by how erratic my business is. I expected gentle seasonal variations in my business. For instance, I expected that November and December would be a little lower than January, because folks would postpone their divorce until the holidays are over. Then I expected that summer would generally be a little higher, or a little lower than the spring.

To find out, I took the last four years’ data for my revenue, broken out by half month. So, I had January 1-15 for 2003, 2004, 2005, and 2006. Then I had January 16-31 for those same years. And so forth. Then I plotted a typical year, with the average January 1-15, the average of January 16-31, and so forth for a year. I found the data jumped all over the graph.

I redid the data, this time throwing out the high and low figures for each period, and averaging the two in-between figures. But the data was still all over the map. So, the data says what the data says.

I found no gentle seasonal variations. I saw huge spikes and valleys from one 2-week period to the next. My worst half month (March 1-15) is 40% of average, and my best (January 16-31) is 160% of average. And I generally don’t see a trend from period to period. A really good fortnight may have a terrible one right before it, and an average one just after it.

A little of it makes sense to me. It’s not surprising that four of my worst periods are early November, late November, late December, and early January, as folks are delaying their divorces until after the holidays. And, it makes sense that late January would be among the busiest, for the same reason. But, some of it makes no sense whatsoever: someone explain to me why early March is the worst half month of all, but the half months on either side of it are 120% of normal.

If you have any explanation for the huge variations in when people file for divorce, I’d like to know about it.

Sometimes my clients and I experience frustration over non-standard possession orders in divorce decrees. For those of you who don’t live and breathe divorce law, a possession order is what governs who has the kid(s) when. If mom has the right to determine the legal residence of the child, then the possession order says when dad has the right to have the kids with him.

The problem is that people tend to think of this as a rather simple proposition, but simple possession provisions tend to be unenforceable. Then, people try to take something simple (but doesn’t work) and add stuff on to it to make it work. This can result in lots more attorney time trying to work through the drafting, and the client doesn’t understand why there are additional charges for attorney time.

Also, all I handle is agreed divorces, and the parties are rather amicable toward one another, and have confidence that they’ll be able to work things out, but it’s my duty to make sure my client’s rights are protected even if the parties are no longer interested in working things out.

If you agree, please stop reading
First, it’s important to remember that every standard possession order starts off with a sentence that says something like, “as long as y’all agree on who has the kids when, don’t pay any attention to the divorce decree; but if y’all stop agreeing, then the following provisions control…” So, the entire purpose of the possession order is to cover what happens when the parties STOP agreeing.

The Standard Possession Order is battle-proven
Texans have been fighting over post-divorce possession of children for decades. The Family Section of the State Bar of Texas eventually prepared a suggested standard possession order and the legislature passed it into law. The Standard Possession Order doesn’t push any particular agenda except clarity, consistency, and predictability. Over the years fighting parents have found new and innovative ways to find loopholes in the standard possession order, and over the years the Family Section of the State Bar of Texas has found ways to rephrase and rework the Standard Possession Order to eliminate loopholes and increase predictability. So, it’s fair to say that most of what’s in the Standard Possession Order is the way it is to eliminate confusion and promote tranquility.

The biggest problem my clients have with the Standard Possession Order isn’t the summer provisions, Christmas, other holidays, or anything like that. It’s the week in, week out provisions for exchanging the children in “normal” times. Most people would prefer one of the three provisions below over what the Standard Possession Order provides:

• The non-possessory parent has the children every other weekend. All the stuff in the standard possession order about “weekends beginning on the first, third, and fifth Friday of each month…” seems unduly complicated
• Alternating week possession: Mom has the kids one week and Dad has them the following week
• Split week possession: Mom gets the kids for about 3 1/2 days, then Dad gets them for about 3 1/2 days. Or, this week Mom gets the kids 4 days and Dad gets them 3 days, and next week Mom gets them 3 days and Dad gets them 4 days.

Clients assume that the standard possession order doesn’t do what they want to do because lawyers and the legislature just don’t understand what the clients want. Unfortunately, lawyers thoroughly understand what the client wants, but they’ve found that doing what the client wants is highly likely to result in post-divorce litigation and very unhappy clients (who want to know why the lawyer didn’t prepare the decree to eliminate the possibility of post-divorce wrangling).

There are two basic types of problems with doing a possession order the way the client wants to do them: (1) counting weekends; and (2) resetting the clock after holidays.

Counting Weekends

If you’re doing something that involves “every other week”, eventually you or your spouse are going to disagree on whether a given day is in the “A” week or the “B” week. The only way to solve the problem is to dig out the divorce decree, see when it was signed, pull out a calendar, and count weeks (or weekends, or Fridays, or whatever) up to the date in question. Cumbersome, but not rocket science.

Resetting the Clock After Holidays, etc.

This isn’t really a separate issue from counting weekends (above), but it’s a complicating factor. Suppose that Mom has Spring Break (a week off from school with the weekend on each end) with the kids in even-numbered years, and Dad has Spring Break in odd-numbered years. And, suppose we’re in 2007, an odd-numbered year. After Dad has possession of the kids for 9 or 10 days, is it automatically Mom’s turn, or do we count weekends and consider that it’s possibly still Dad’s turn? Similar issues occur after any holiday, but the situation is most pronounced after the longer holiday possession periods, such as Christmas, Spring Break, and extended summer possession.

The Family Section of the State Bar of Texas has found only one way of eliminating problems with the inherent conflicts of “every other week/weekend” and resetting the clock after holidays. That solution is to replace “every other week/weekend” with “weekends beginning on the first, third, and fifth Friday of each month.” It eliminates counting weekends since the date of divorce, and eliminates the inherent problem of whose weekend it is after an extended holiday possession. It may not be great, but it’s clear enough to eliminate a great deal of confusion, and post-divorce attorney’s fees.

Implications for Drafting (and Attorney’s Fees)

“Legal boilerplate” is standard language. It gets to be standard because it has been proven to work. If I prepare a divorce decree with the standard possession order (boilerplate), I know that language is going to cover 99% of all possible post-divorce disputes, and will provide a roadmap without the need to go back to court and pay additional attorney’s fees. And, if you do have to go back to court, the possession order will be pretty easy to enforce. There won’t be anguished cries wondering why your attorney didn’t tighten up the langugage to eliminate this sort of confusion.

If you choose to go with non-standard language, you’re going to open up a bunch of loopholes, and a bunch of opportunities for post-divorce problems. All I ask is a recognition that we’re “out of warranty” if you use non-standard possession language. If we start tweaking your language during the divorce, I’ll charge for my time above and beyond the flat fee agreement. And, if there are problems enforcing and following the non-standard possession order after the divorce is final, I won’t be guilted into trying to fix the language that I messed up.

Remember, the first paragraph in the possession order says that as long as you agree, you should ignore the Decree. So, the rest of the possession language in the Decree needs to be based on the assumption that you have stopped agreeing, and one of you needs to impose your will on the other (preferably without resorting to court action and attorney’s fees).

This will be a theoretical ramble followed by a practical observation.

First, folks have debated for years whether it makes sense to elect judges. There are arguments pro and con, but if you don’t trust the the governor to appoint the best and brightest, then the only real alternative is to have elections. There are, of course downsides.

The skill set to be an effective (elected) polictician is by no means congruent with the skill set to be a fair, efficient judge. Indeed, running for political office and being a judge are just about opposite in terms of the personality types involved. Even more particularly, to be elected you have to be very staunchly allied with one political party or another, and much of being a fair judge is being rather ambivalent about such things.

In Collin County, arguably the most Republican county in the state, nearly all political contests are settled in the primary. The exception is that sometimes they’re settled in the runoff of the primary. This year we’ll have two new judges that handle divorces. Judge Betty Caton decided to retire, and John Roach, Jr. will be taking her place. Judge Nathan White also retired from the bench and Greg Brewer will be taking his place.

I don’t think Denton County had any changes in their district courts.

The big story is Dallas County. All (or almost all) Family District Judges in Dallas were Republicans. Dallas County has suddenly become predominately Democratic. I believe that every Family District Judge in Dallas that was up for election was defeated by a Democrat, except for one. And, only about half the judges were up for election (they serve 4-year terms, and about half of them are up for election every other year). So we have 3 new Family District Judges in Dallas County.

(In Denton and Collin Counties, the courts are all general jurisdiction: the judges handle criminal, family, and civil matters. In Dallas county, the courts are specialized: there are a lot more courts, but only 7 that handle divorces: Family District Courts).

It’s said that a good lawyer knows the law, but a great lawyer knows the judge. That doesn’t mean that you know them socially, but that you have a good feel for how a judge would likely react to a given fact situation. Being predictable is a good thing for a judge. Cases are more likely to settle out of court if the lawyers have a pretty good feel for how the judge would rule. But with so many new judges on the bench, it’s just a whole lot harder giving good advice to your clients about whether or not to make or take a settlement offer from the other side.

In my particular situation, about the only thing I frequently ask the judges to do is approve an office proveup. It just so happened that nearly every judge that had been telling me “no” is being replaced by a new judge. So, while we have yet to see what the new year brings, my best guess is that a higher percentage of my clients will be able to wrap up their divorces in the privacy of my office.