trial separation

Trial Separation Or Divorce: Which Is Right For Your?

trial separation

Right now you may not stand the sound of his voice but, that doesn’t mean divorce is inevitable. 


Couples who have become disillusioned with their marriage but aren’t ready to take the permanent step of divorce have the option of either entering into a legal separation or a trial separation.

I am of the belief that all states should have divorce laws that require a period of “separation” or living apart before a legal divorce can be filed. The decision to divorce can be driven by negative emotions that get in the way of one making a rational choice.

Time away from the marriage and spouse can, at times clear one’s thinking and help reality intrude into the fantasy idea of being single again and all the wonders that they believe come along with flying solo.

John and Amanda had been married for 16 years when John went out of the country on business for two months. John found himself loving his freedom and time away from the responsibilities of being a married, family man.

Once he returned to the U.S. John filed for a divorce from Amanda and moved into his own apartment. He loved life and his freedom until Amanda started dating and became seriously involved with someone six months after their divorce was final.

Suddenly John had to face the reality of his wife with another man and the possibility of another man living and helping raise his children. And this is when he began to regret his move to divorce so quickly. If John had taken time away from his marriage via a trial separation there is a strong chance that his marriage would have survived and he would not be living with the pain of his actions.

Regardless of why you feel the need to divorce it is in your best interest to try either a trial or legal separation before dissolving your marriage altogether.

What Is The Difference Between a Trial and Legal Separation?

A trial separation is an informal agreement between two spouses to live apart. There are no legal agreements, lawyers or judges involved.

During a legal separation, a couple decides to live separately and will use a family court attorney to draw up a legal separation agreement that outlines such issues as child custody, who pays the bills, who lives where, and the duration of the separation.

3 Pros of a Trial Separation

  1. It gives you a cooling-off period to work through any negative emotions you feel about the marriage or your spouse. Spending time apart from each other can, at times, help you see marriage and marital problems in a different light.
  2. You don’t have to spend money on an attorney to take care of any legal issues. I do suggest you set some rules and discuss how you expect each to behave during the trial separation.
  3.  Time away to do some navel gazing and examine how you may have played a role in marital problems. It takes two to make a marriage and two to break a marriage. Identifying your role in the marital problems will make it more clear the changes you need to make in order for the marriage to survive.

2 Cons of a Trial Separation

  1. Any and all financial obligations remain during the time of the trial separation. If your spouse goes out and buys a car during a trial separation that debt will be considered marital debt should you decide to divorce and not have the protection offered by a legal separation agreement?
  2. Any work bonuses and winnings such as the lottery will also be considered marital property and split 50/50 should there be a divorce.

I would suggest that any couple involved in either a trial or legal separation seek professional family/marital counseling during the separation period. Time apart can help cool down negative emotions but it will not teach relationship skills which will be needed because if you don’t learn a new way of dealing with marital problems the same problems will surface again.

The post Trial Separation Or Divorce: Which Is Right For Your? appeared first on Divorced Moms.


Legal Anatomy: Simple Wills Could Lead To Big Problems

Although simple wills are sometimes adequate, planning for the worst-case scenario is the general perspective of the estate planning attorney. You don’t have to be wealthy to need estate planning. The following are facts of a case and solutions from the perspective of the estate planning attorney.

Facts: Married couple has $300,000 of cash resources including checking, savings, investment and retirement accounts. They also have a homestead and a joint interest in property with a disabled son who is receiving “means-tested” Medicaid. One spouse has had a stroke – but is neither disabled nor on public benefits. There are limited family members who the couple trusts to be a fiduciary. They presently have a simple will and general estate planning documents. Long-term care insurance can no longer be obtained by the spouse who had the stroke.

Here are a few of the questions that came to mind for the attorney:

Question 1 – Will vs Revocable trust?

Answer – In this case, a will is best since you can only have a supplemental needs trust (for Medicaid purposes) for a surviving spouse if the trust is created by a will. A will with a contingent supplemental needs trust for a spouse must go through probate. A supplemental needs trust for a spouse created in a revocable living trust would result in the assets held within the trust as countable (unlike if the assets were distributed to the supplemental needs trust by will). Medicaid must be considered for several reasons: (a) the spouse who had the stroke will not pass underwriting for long-term care insurance; (b) if the surviving spouse is the one who had the stroke and needed long-term care, then all countable resources (including the interest held in the home jointly owned with the adult disabled child) would be subject to spend-down. An applicant who is single can only have $2000 of countable resources. So in order for the assets to be stretched so that the government will help pay for care of the adult disabled child after the death of his parents, the will would also include a contingent supplemental needs trust for the benefit of the adult disabled child. The government encourages helping those who are disabled.

Question 2 – Could a trust be created in the will for the surviving spouse’s benefit whether such spouse is disabled or not?

Answer – Yes. Language could give the trustee the option on the trust terms. For example, the trustee could simply be given the power to distribute trust assets for health, education, maintenance and support under Texas law instead of only having language to supplement, rather than support, Medicaid benefits.

Question 3 – Should assets be transferred from one spouse to the other?

Answer – Maybe. Several issues should be considered. Is there a risk of divorce? If so, the assets should not be transferred. If assets were transferred to the spouse who was the survivor, there may have been lost opportunity for a step-up in basis resulting in potential capital gains tax if the surviving spouse sold appreciated assets. The reason for transferring assets to the spouse who is less likely to be disabled or need care is if the spouse died first, the assets in the supplemental needs trust for the surviving spouse would not be subject to spend-down and all assets would be protected. Transfers between spouse’s are not subject to a look-back period for Medicaid.

Question 4 – What if you have no individual you trust to be a trustee for the disabled beneficiary?

Answer – If the assets are large enough, banks could be a trustee for a disabled individual. Some banks are very familiar with this type of trust and others are not. If assets are too small, there are certain pooled trusts (a special needs trust where participants enter into a joinder agreement where assets of others who are disabled are pooled and administered by a professional trustee) who can manage and invest the assets held in the trust.

Question 5 – What if the professional trustee will not accept real estate?

Answer – Sometimes when the trustee is a bank or trust company, they will not accept real estate as they want to only invest the assets. As a result, a condition could be made that if there is no individual acting as a trustee, then there could be a specific bequest of the home to the disabled child since a home is not a countable resource (generally). Assets held in the supplemental or special needs trust could be used to pay the house expenses, although supplemental security income could possibly be reduced.

The preceding paragraphs are only some of the legal issues (Medicaid for spouse and child, capital gains tax, trustee selection, wills vs. trusts, trust distribution options, assets that a trustee would accept, etc.) that should be considered that would not be covered by a simple will.

If interested in learning more about this article or other estate planning, Medicaid and public benefits planning, probate, etc., attend one of our free upcoming Estate Planning Essentials workshops by clicking here or calling 214-720-0102. We make it simple to attend and it is without obligation.


Legal Issues Surrounding Customer Lists

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Privacy, Technology and Perspective

Legal Issues Surrounding Customer Lists.  This week, let’s examine the numerous legal issues surrounding Customer Lists. Customer lists are often among the blue-ribbon prizes in fights among competitors or between employers and their departing employees. “Customer List Litigation” has become almost a specialty, standing in an explosive space where nine (9) or more areas of law intersect.

Especially for lawyers new to the field, obsessing over one of these areas may distract from the others’ useful (or dangerous) aspects.  So let’s step back and consider what these different areas are.

  1. Intellectual Property:  Trade Secrets and Confidential Information (of course).  Under the Uniform Trade Secrets Act followed in 49 states and D.C., Section 757 comment b of the Restatement of Torts (1939) still followed in New York, and the federal “Defend Trade Secrets Act,” a customer list may fall within the definition of a “trade secret” but doesn’t necessarily.  It must still be a “secret” (not generally known or readily ascertainable in the industry), valuable, and the subject of reasonable measures to keep it under wraps. Usually—but not always—the more detailed, valuable, obscure, and protected the customer information is, the more likely it is to constitute a trade secret.

    It may be tempting to bootstrap your facts up to the level of a trade secret, quickly tie the laces of your trade secret’s “misappropriation,” and race straight into court, especially since in many states, the UTSA is preemptive of some—not all—other remedies. But first, consider also:

  2.  Employment Law/Fiduciary Duties.  Fiduciaries, both formal and informal, owe their principals the highest duties of care and loyalty, including protecting their trade secrets during the fiduciary relationship and after it ends. All employees—of high position or low—owe duties not to compete with their employers while in their employ or to spirit away those employers’ trade secrets when they leave. But employees generally can take their “general industry skills, knowledge, and information” with them when they leave and use those skills to compete against their former employer, even if they improved those skills while in the former employer’s workforce. This may extend to skills or information they already had when they joined the former employer.

  3. Contract.  Many legal duties can be rearranged by contract, though not all. For example, employers and others often use Non-Disclosure Agreements (NDAs) to specify what their trade secrets are and hopefully to expand their grasp beyond the prevailing judicial definitions of “trade secrets” and also capture “[merely] confidential information” — information which may not constitute “trade secrets” strictly speaking, but which the employer nevertheless considers confidential as between it and its employee and does not want its employee to misuse.

  4. Business Competition Law.  Customer lists may also be the subject of much business competition law, either directly or indirectly. Indirectly, in most states (not Louisiana) misuse of customer lists or information may form the basis for a claim of tortious interference with actual or prospective contracts. Many employers require Non-Compete Agreements (NCAs) and/or non-solicitation agreements from their employees to enforce the protection of their trade secrets by keeping the former employee out of the relevant industry long enough for the trade secrets to become stale and valueless.  But be careful: while some states think NCAs are good for “bidness,” other states consider them void as a matter of public policy and won’t enforce them at all. (And when California and Alabama agree on public/business policy, that should get our attention!)

  5. Electronically Stored Information.  By now, most customer lists are stored and transmitted electronically. So how the lists are poached may trigger any number of electronics-related statutes, such as the Computer Fraud and Abuse Act (18 U.S.C. § 1030), the Wiretap Act (18 U.S.C. § 2511), the Stored Communications Act (18 U.S.C. Chapter 121 §§ 2701-2712), and others – which may impose their liability or defenses apart from the issue of “misappropriation” of trade secrets.

  6. Unfair Competition.  All states have a “Little FTC Act.” Some of these offer businesses a cause of action against their competitors for acts of unfair competition, which may include purloining customer lists.  Other states’ “Little FTC Acts” do not, but those states (including Texas) often permit a derivative cause of action for “common law unfair competition” which usually applies whenever some other cause of action which sounds in unfair competition has been established, subject however to issues of preemption.

  7. Copyright.  “Copying” customer lists may also constitute copyright infringement, but be careful.  Copyright is exclusively federal, requires prior registration, and is sweepingly preemptive of all other actions which purport to give equivalent remedies or affect equivalent rights.  Preemption especially may offer defendants an opportunity for jurisdictional challenges in state court or outright dismissal where the complaint concerns activity that the Copyright Act would permit.

  8. Criminal Liability.  Under the Theft of Trade Secrets Act (18 U.S.C. § 1832), state criminal statutes such as the Texas criminal prohibitions against theft of trade secrets (Tex. Penal Code § 31.05), and many other state and federal statutes, theft or misappropriation of customer lists which meet the necessary definitions may lead to horrendous criminal consequences, including serious prison time.

  9. Privacy.  For a moment, forget whether your customer list is protected from your competitors or former employees. Instead, consider whether personal information is contained in the list.  If it is, your collection, use, sharing, and protection of that personal information will also implicate your organization’s privacy notice, the FTC Act, and potentially other federal, state, and even international privacy laws, like the EU’s General Data Protection Act (“GDPR”). Have you accurately represented your organization’s privacy practices concerning the personal information in your Customer List?  Were you required to get consent to use that information in the way that you are using it?  Can you prove it?

Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.


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Time To Divorce: Do You Know What To Expect During The Divorce Process?

Time to Divorce.jpg


By its very nature, divorce is not a pleasant experience. Involve divorce attorneys and Family Court Judges and the unprepared person, the situation becomes much more stressful. In most cases, a person is so emotionally worn down by the time they decide it’s time to divorce they’ve not had the wherewithal to consider what the legal process of divorce entails.

Once the legal wheels start spinning, there may be no turning back. The moment those papers are filed, everything you’ve worked for sweated for, and planned for during your marriage is at risk. The wheels spin fast at first, then slow down to an agonizing pace. Days can seem like weeks, even months!

You find yourself smack in the middle of the divorce process with the sinking feeling that things might not go as planned. That great idea that you had…to divorce and move on with your life might not have been so great after all. In fact, it has turned into an absolute disaster.

Welcome to the wonderful world of divorce and its cast of supporting characters…lawyers, judges, interrogatories, continuances, custody disputes and high expectations. Most parties to a divorce have never been involved in legal litigation, used an attorney, or been inside a courtroom. For them, divorce is their first sobering involvement with the world of legal litigation. Divorce is both an end to a marriage and the beginning of an education in family law.

If you aren’t emotionally prepared to maneuver the choppy waters of the legal divorce process, you are not ready to divorce.

Can you answer the following questions?

  • How is custody of children decided in your state?
  • How does the court divide marital property?
  • Can I move to a new location after divorce?
  • What do I need to know before hiring a divorce attorney?
  • Who has to move out of the marital home?
  • What is divorce mediation?

If you are confused by the above questions, you are not ready to enter the legal process of divorce. You’ve got some learning to do! And until you’ve done your homework, believe me, you don’t want to find yourself tangled up in the legal process of divorce.

There are 3 things you should do when it is time to divorce.

Once you’ve come to terms with the emotional ending of your marriage and gotten yourself financially prepared, you will need to do the following:

1. Understand Divorce Law:

Most will tell you that your legal education begins with a divorce attorney. I strongly disagree! No one is prepared to hire a divorce attorney until they have an understanding of their state’s divorce laws which will give them a better understanding of what they should and should not expect from a divorce attorney.

Divorce in the United States is governed by laws that are particular to each state. State divorce laws deal with all aspects of the divorce process, from residency requirements to child custody to the division of marital property.

2. Be Prepared:

There are documents a divorce attorney will need to get your divorce underway. Gathering these documents and having them ready before you hire an attorney can help keep those “wheels” spinning and allow you to feel more prepared.

This is not fun, but you will be glad you took the time to compile these documents at the beginning. You will need copies of tax returns for the last three years. If you filed separately, you will need copies of your tax returns and your spouse’s tax returns. Make copies of all bank accounts, joint accounts, and individual accounts for the last year.

Credit card statements for accounts held jointly and separately should be copied and provided to an attorney. You will also need at least three paystubs or proof of monthly income for yourself and your spouse, a list of all monthly expenses, a list of all marital assets and debts, and a brief description of how parenting duties are handled between the two of you. Once you’ve put together these documents, you are ready to hire a divorce attorney.

3. Hire a Divorce Attorney:

This is the person who will promote your best interest during the divorce process. You won’t find a divorce attorney who has as much invested in your divorce as you do BUT with a little research, you can find one who is invested enough in his/her legal reputation to make sure that you are legally protected.

A look at the divorce process

Below is a loose outline of 8 things that happens during the divorce process. I say loosely because each state and local district handles divorce differently. Regardless of your state’s laws and your district’s legal procedures, you will experience each step in some form or another.

1. File for Divorce:

A divorce or dissolution usually begins with the filing of a form, typically referred to as the original petition for divorce. This must be filed with the court that deals with marriages in the county where you live, which may be called the Family Law Court. After the petition has been filed, a copy must be served on (or delivered to) your spouse.

2. Divide Marital Property:

You will need to either work out an agreement on how your marital property is to be divided or argue about it in divorce court. Courts prefer that the parties work things out for themselves, and some states or counties require mandatory mediation, which means meeting with a neutral third party who will help you resolve conflicts over who gets what. If the parties can’t agree on a way to divide their property, the court will decide.

3. Distribute Marital Debt:

Debts incurred during the marriage need to be divided between the spouses along with the property. Joint debts may be deducted from the amount of property the spouses own together, or some debts may be considered the responsibility of only one spouse. This depends on the system your state uses for dividing marital debt.

4. Negotiate Spousal Support: 

Support paid by one ex-spouse for the support of the other used to be called alimony but is now often called spousal support or maintenance. The laws for spousal support vary a great deal from state to state, and you should be sure you know what your state requires. Spousal support can be awarded to both husbands and wives.

5. Decide Child Custody/Visitation:

The single most important thing parents need to work out in a divorce or dissolution is the way they will continue to raise their children and what kind of custody they will use, and it’s always best if they can work out this plan cooperatively. Some states call this a parenting plan and no longer use terms like custody and visitation.

There are many questions that must be resolved, such as where the children will live, how much time they will spend with either parent, where they will spend holidays, or which parent will make decisions about the children. One or both parents might make legal decisions, such as where the children will go to school and what medical care or medication they will receive. Parents also have to resolve issues about the religious training and activities of the children.

If the parents can’t agree on these issues, the court will consider the best interests of the children in resolving the conflicts. The court will look at the gender of the parents and children, their physical and mental health, emotional bonds, the effect on children of changing their living situation, and—if a child is around 12 years or older—the child’s preference.

The court also considers practical matters such as the ability of the parents to provide the necessities of life, such as shelter, food, and clothing. Court orders involving children are never final. They can always be changed if the best interests of the children require it.

6. Calculate Child Support: 

After a divorce or dissolution, both parents remain responsible for supporting the children. Divorcing parents need to negotiate child support or the courts will use state guidelines to do so. There are several factors to consider in working this out, such as the income and assets of the parents and whether one parent has primary childcare responsibilities. If the parents can’t work this out agreeably, the court will make the decision and order the parents to comply.

7. Mediation:

Divorce mediation is a process where the divorcing parties sit down with a mediator (a neutral third party) to work out and resolve conflicts over property division, finances, debts, and support and/or child custody/visitation. If the state is paying for the mediation, the mediator often reports back to the court with information about the mediation session(s).

The parties can also arrange their own privately paid mediation sessions, which will be completely confidential. Decisions reached in mediation aren’t legally binding but can be included in the court’s final order or decree. Attorneys usually don’t attend mediation sessions, though they may be available to advise the parties on legal issues.

8. Final Judgment of Divorce: 

The final judgment of divorce is the final order of the court that legally ends the marriage. The final judgment can also contain legally binding orders about other issues, such as child custody, child support, visitation, spousal support, property division, and how property division is to be carried out. It can also restore the pre-marriage name to one or both spouses.

Filing for divorce means stepping into the world of the Family Court System.

It is a world of legal rules and, at times, extreme emotional stress. It can change the way you live, the way you think, and the way you do things. Ignorance of what takes place in the system and how to take care of yourself can be the mistake that kills your chances of a successful post-divorce life.

I’m sharing with you information about the divorce process and the negative aspects of the legal process not to dissuade you from leaving your marriage. My concern is that you fully understand the process before putting yourself in the middle of the process.

Knowing when or if it is time to divorce means having a comprehensive understanding of exactly what it means to divorce. Unless you are in a situation where divorce can be handled in a civil manner between you and your spouse having full knowledge of what to expect in a conflicted divorce scenario is the only way you will be able to protect your legal rights.

The steps that I’ve shared above may seem simple, cut and dry but if you are divorcing a spouse who is angry, hurt over your decision to divorce or is unable to accept the idea of divorce you will become involved with a system in which no one wins but the system.

Understanding the emotional, financial and legal aspects of divorce before deciding to divorce means you will be making an informed decision about how and with whom you want to spend the rest of your life.

After Thoughts

I’m not someone with “standard” views on marriage and relationships. I do however have traditional views when it comes to choosing to divorce once you’ve committed to a marriage. It is my opinion that if you get married you should put in the appropriate time and attention to the marriage and do everything possible to save the marriage before making the choice to divorce.

When you take the vow, make the promise to stay with someone for the rest of your life, “for better or, for worse,” it is no small thing. I’m keen on folks keeping promises but for every promise made there is a price to pay and when the price you pay in your marriage becomes too high it is better to break your word than do harm to yourself by keeping it.

Here is the problem as I see it…people get married for a lot of foolish reasons. Some marry because they think society expects it of them. Some marry because they think it will solve some problem they are grappling with. Some believe marriage is the natural end to any relationship, that something is wrong if a relationship doesn’t culminate in marriage vows. Some marry because marriage confirms them as a person.

None of us marry without the expectation that the marriage will last “until death do us part.” But, that doesn’t always happen; our expectations about marriage are not always met. Nothing is more evident of that than the 40% divorce rate we experience in this country. In my business as a marriage educator and divorce consultant I often wonder why people don’t take more seriously the high rate of divorce. Could it be they don’t because there are some very, very good reasons to divorce?

The decision to divorce should only be made if something is radically wrong in the marriage. What do I mean by radically wrong? Well, there is abuse, infidelity, broken trust, disrespect to name a few examples of marital problems that might not be overcome with hard work.

We don’t take lightly the decision to marry; we should not take lightly the decision to divorce!

The post Time To Divorce: Do You Know What To Expect During The Divorce Process? appeared first on Divorced Moms.


Should A Marriage License Come With Warnings?

Should A Marriage License Come With Warnings?

Potential new pamphlets to accompany marriage licenses may list rights and obligations from marriage and on divorce.

The post Should A Marriage License Come With Warnings? appeared first on Divorce Magazine.


6 Things You Should do if You Want a New Year’s Divorce

6 Things You Should do if You Want a New Year’s Divorce

Happy New Year! By the end of next week, I will probably have received at least half a dozen phone calls from prospective new clients eager to get a New Year’s divorce. It happens every year. In the past, I thought it was simply a matter of timing. Unhappy couples wanted to get through the […]

The post 6 Things You Should do if You Want a New Year’s Divorce appeared first on Divorce Magazine.


No One Can Touch My Retirement For Child Support or Alimony, Right?

No One Can Touch My Retirement For Child Support or Alimony, Right?

Retirement funds are not all safe from being taken to satisfy child support or alimony/spousal support obligations.

The post No One Can Touch My Retirement For Child Support or Alimony, Right? appeared first on Divorce Magazine.


How an Injunction During Divorce Can Keep You Safe

How an Injunction During Divorce Can Keep You Safe

When you’re in a scary situation, you need to be able to rely on the law to protect you. This is particularly true when you’re at risk of domestic violence.

The post How an Injunction During Divorce Can Keep You Safe appeared first on Divorce Magazine.


What Do I Do With My Wedding Ring After Divorce?

What Do I Do With My Wedding Ring After Divorce?

Here are some tips and considerations for when to stop wearing the ring, the value of the ring, and the family significance of the ring during a divorce.

The post What Do I Do With My Wedding Ring After Divorce? appeared first on Divorce Magazine.


3 Reasons You Want to Avoid Family Court During Divorce

3 Reasons You Want to Avoid Family Court During Divorce

It is better for clients to make their own decisions about what’s best for their children rather than “the stranger in the black robe.”

The post 3 Reasons You Want to Avoid Family Court During Divorce appeared first on Divorce Magazine.