Have you ever misunderstood something but never bothered to ask for a clarification? Or have you ever been told something by a friend or relative that you knew in your heart wasn’t right but didn’t try to actually disprove? Both of these scenarios play out in divorces all the time in Texas. The attorneys with the Law Office of Bryan Fagan, PLLC have a front row seat when it comes to speaking with the people in our community who are considering divorce and wanting to know more about the process. Often times these folks will come in to talk with us and will tell us certain things that they think they know about family law. Unfortunately a lifetime of hearing misstatements, untruths and rumors about divorce have left an indelible image on their mind of what divorce actually is.
What if I told you that by reading the next few paragraphs from the Law Office of Bryan Fagan that you could avoid developing the bad habits and bad knowledge that so many of your neighbors have about divorce? What if I told you that the price of learning these things was only the time it takes to sit and read a brief blog post? What if I told you that I would stop asking these questions and start providing that free knowledge?
Retirement benefits are precious- guard them in your divorce
Of all the ways that I could have started off the content portion of this blog post, and I lead off with retirement benefits. The reason I have chosen this “dull” topic to begin our talk is for that reason. Retirement benefits are something that nobody wants to talk about because the topic is dull, dry and everything in between. When you start a new job even the HR people seem like they are about to keel over from boredom just by mentioning the words “401(k)” and “Roth IRA”.
Just because something is boring, however, does not mean it is important. The money that you have saved through wise decisions, discipline and savvy investments have grown and grown through the magic that is compound interest. If you are not aware of how retirement benefits can impact a divorce you are more readily able to lose those benefits and miss out on further growth that should have been available for you to benefit from when you are nearing retirement age.
Retirement benefits are divided up in divorces through a vehicle known as a Qualified Domestic Relations Order (QDRO). This is a document that basically orders a plan administrator of a retirement to divide up the retirement account in question based on the orders of family court judge. Whichever spouse stands to receive a portion of the saver’s benefits (known as an alternate payee in lawyer-speak) will be named as such in the document. A slice of the retirement benefits contained in that plan or account must then be paid to the alternate payee.
But, wait! You’re only (insert age here)- how can you receive retirement benefits under a 401(k), IRA or other plan before you reach age 59.5 or 55? Won’t you be taxed and penalized?? Thankfully the answer to this question is “no.” A QDRO will ensure that you are able to receive your portion of your spouse’s retirement benefits even if you are not ready to withdraw them or are otherwise not of retirement age. This is true no matter the age of either spouse.
Any retirement benefits that you or your spouse earned prior to your marriage are considered to be separate property of that spouse and are not subject to division in your divorce. Any retirement contributions (and their growth) that have come during the time of your marriage are considered to be community property and are subject to a just and equitable division by a judge. Most people who are dealing with sizeable retirement accounts will seek the guidance of a financial professional in order to properly value the account. At the very least you need to be able to turn over whatever documents your attorney requests regarding retirement so that he or she can work with you to determine what portion, if any, of your retirement benefits are subject to division in your divorce.
Do you suspect your spouse of having an affair? Be careful how you collect evidence of it
I can’t tell you how many people have (sadly) come into our office to speak to me about a divorce and have confided that the primary reason for wanting to file is due to their spouse having an extramarital affair. Sometimes the affair has been going on a long time and the person speaking with me has just now worked up the courage to come and speak to a family law attorney. Other times the person had come across text messages that morning which indicated that an affair was going on.
Regardless, often times the next thing that I will be told that he or she has proof of the affair. Many of these folks will take out their cell phone to show me texts, photos or various sorts of evidence that corroborate their accusations. My brain will immediately jump to how the person got what it is that he or she is showing me.
If you have read through your spouse’s emails, installed spyware on your computer or recorded phone calls between your spouse and their paramour you may have violated both federal and Texas privacy laws. You (and your attorney) are then susceptible to criminal penalties if you attempt to use that evidence in a trial or hearing. A more rudimentary, yet still illegal, method of tracking the movements of your spouse would be to install a tracking device on their vehicle. We’ve seen this done in movies and on television but if you attempt to do so in real life the penalties can be quite severe.
On the other hand, the law permits you to record phone calls and other communications between yourself and another person. The basis is that at least one person involved in the conversation must consent to the recording. It is not worthwhile for you to obtain information and evidence illegally. Your spouse and their attorney will have their antennae up in order to look for this kind of behavior as well. At the very least a judge in your case will not deem the evidence as admissible and your efforts to have the evidence included as a part of your hearing or trial will all be for naught.
So what can you do to avoid a situation where you have potentially exposed yourself and your attorney to liability for having violated privacy laws? First and foremost you should check with your attorney before you undertake any method of collecting potential evidence against your spouse. He or she will be able to guide you best as far as what you can and what you cannot do. You should absolutely keep tabs and be aware of the activities of your spouse. However, there is a fine line between keeping tabs and breaking the law. Your attorney is in a better position than you are to make a determination as to what is and what is not appropriate.
More questions about divorce? Stay tuned tomorrow to read more about information that can help
In your divorce both you and your spouse will be looking for every advantage that you can find that is legal/moral/ethical. We hope that the information provided to you all today has gone to help you further you information collecting efforts. Tomorrow’s blog post will continue that effort when we discuss additional tips and tricks for a person going through a divorce.
In the meantime, if you have questions about divorce or need clarification on anything that you’ve read today please do not hesitate contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys. In one of our consultations you can ask questions and have issues addressed in a comfortable and pressure free environment.