By LeAnn W. Diamond in collaboration with Michael D. Wysocki, O’Neil Wysocki, P.C. Family Law
I have had the honor of being featured on the cover of Frisco Style Magazine for the last six months or so but wanted to tell you a bit more about what we at O’Neil Wysocki do – every day, 365 days a year. We are frequently asked to consult with clients who are contemplating divorce and worried about the impact of that on themselves, their family, their friends and the future of all involved.
Doves are said to mate for life - humans not so much. However, with doves as with humans, incompatibility is the number one reason for terminating relationships. When that realization hits – no matter how much effort has been or is expended – that the relationship has run its course and the incompatibility of the couple is causing anguish to themselves and to all they care for, it is time to consider alternatives.
PrioritiesThe first order of business is to decide what your priorities are. Do you want to terminate the marriage through divorce while making provisions for all your assets and liabilities, along with your family obligations? Do you want to reach some other creative resolutions such as dividing all your marital assets and liabilities without divorcing? Do you want to reach other agreements which may not be the typical standard Texas Family Code orders? You and your spouse have that power, so long as you are in agreement, and certain procedural requirements are satisfied. If I have heard it said once, I have heard it said a thousand times – once you walk in that courtroom you lose your power to make decisions for yourself and your family. You turn that power over to a stranger who knows nothing about you or your family, much less your priorities.
HomeworkIn preparing to take the step of terminating the marriage relationship, you need to do your homework. Have all your accounts identified, talk to your financial advisors and your CPA, and verify that you know where you stand financially. Copy all investment-related documents in your possession. Copy all work/income-related documents such as W-2’s, 401(k) statements, individual retirement account statements, 1099’s, pensions, and personal bank and brokerage account statements. Copy all tax returns for yourself, your spouse, and any businesses in which you hold ownership. Run a credit report on yourself to verify that you have identified all liabilities associated with your name and social security number. Consider freezing your credit file so that no new credit can be obtained without your knowledge. Now is the time to nail all that down.
Marital Vs. Nonmarital Property
Distinguish between marital assets and separate nonmarital assets. Nonmarital assets include inherited property, investments brought to the marriage or earned before the marriage, gifts given specifically to one person, or proceeds from personal injuries. In Texas, there is a presumption that all property owed at the time of divorce is marital (or community) property and subject to division upon divorce. To overcome that presumption, documentation is required to trace the property back to where it originated. The paper trail must be sufficient to show that the original asset came from a nonmarital source. Furthermore, when nonmarital investments earn interest during the marriage, the earnings are marital property so the earnings must be distinguished from the original nonmarital investment.
BehaviorYour behavior at this stage will be subject to greater scrutiny. Conduct that was acceptable before commencing the divorce process will no longer be acceptable. Consider yourself to be under a microscope - no extramarital activities, no illicit substances, no questionable behavior. Just because you have taken the step to begin the divorce process doesn’t mean that you can act single. In Texas, you are married until you are pronounced divorced by a judge. Change passwords on all social media accounts and refrain from posting anything on social media that would upset your children or spouse. In fact, it is best to avoid social media altogether while in the midst of a divorce. Act as if every email, every text, every voicemail will be Exhibit 1 in the event of a trial.
ChildrenIf you have children, start thinking in terms of how you and your spouse will make the new normal of two homes an acceptable and supportive norm for your children. Talk to each other now about what that will look like, keeping in mind that divorce can have long lasting effects on your children – whether they be positive or negative. Be sure to know all details of the children's lives, who are their doctors, teachers, and friends and what activities they are involved in. Hopefully, you already have a solid relationship but, if not, there's no better moment to start spending quality time with your kids. You and your spouse will need to put any animosity aside and do not expose your children to adult issues. They didn’t ask for this disruption of their lives. Show respect for each other and reassure your children that they are loved.
Consult With an Experienced AttorneyConsult with an experienced divorce lawyer. Divorce can be very confusing and difficult to manage in many ways. There is a large amount of information, often fact specific, that must be considered. For these reasons, it is important to consult with and have an experienced divorce attorney who will be able to walk you through the process.