This was originally published on Divorce and Your Money here. "Unfortunately, a lot of people make mistakes that they’re not even aware that they’re making.” - Amber Shemesh, Partner at MAS Law Firm In this episode we interview Amber Shemesh, a partner at MAS Law Firm and an excellent family law attorney in Dallas. We cover some important topics, such as:
- How to choose a divorce attorney—and how picking the wrong one will cost you dearly
- When to use mediation in divorce
- How to determine if you should keep your house
- Why a No Fault divorce does not automatically mean a 50/50 split in assets (in Texas)
Regardless of where you live, you will get to hear inside information from a top family law attorney. So stick around and listen to the full interview. The full transcript and Amber’s contact information is below. She has so much helpful advice. For those of you in the Dallas area, here’s Amber’s contact info: Amber Shemesh, Partner MAS Law Firm 972-789-1664 http://dallasarealaw.com This transcript has been edited for clarity. Shawn: Today I’m honored to have Amber Shemesh, an excellent Family Law attorney in Dallas and partner at MAS Law Firm. She is highly rated by her clients and does excellent work. We are going to discuss some important topics in divorce relevant to you. Before we get started, Amber, thank you for being here. Amber: Thank you for having me. Shawn: Can you tell us a little bit about your background? Amber: Absolutely. I grew up in Richardson, Texas. I am one of six siblings. My parents had a very nasty divorce, which I think paved the way for me to go to law school. I went to undergrad at UT in Austin, and went to New York and worked in advertising for a little bit, before deciding to go to law school in Miami, Florida. After graduating law school, I came back to Texas, which is home, and decided that I wanted to do family law and to hopefully help some people that are going through the divorce process in a better way than my family went through it. Shawn: It seems to me that a lot of people in this profession had that divorce experience that led them to help other people as a profession, afterwards. So when you say that you work in family law, what does that encompass? It’s not just divorce right? Amber: That’s correct. It’s not just divorce. It can include child custody, for example. It’s called the Suit Affecting the Parent-Child Relationship. It can include premarital agreements or even post marital agreements, which are essentially contracts between the parties. It also includes any child support enforcement actions, it includes some temporary restraining orders, protective orders – in regards to family violence. So there’s a lot more than just divorce, and not to mention adoptions too. Shawn: Can you talk a little bit about how Texas handles divorce and the laws in Texas, particularly as they apply to things like dividing property and custody? Amber: Absolutely. Texas is a community property state. Typically, what happens in Texas is if a party files for divorce, the first thing we do usually is get what’s called an Inventory and Appraisement from both parties, and we go through that and figure out what all the assets and debts are. Texas being a community property state, anything and everything from the date that you are married, until the date that you’re divorced, is going to be divided 50/50, unless certain circumstances occur. One of those would be a history of family violence, for example. Another one would be where spousal support would be needed, in a case where one party is making significantly more money than the other, or one party has a disability. Those are circumstances where it wouldn’t be a 50/50, but typically it’s a 50/50 split. Anything that was owned prior to the marriage is separate property. Shawn: In Texas, does the date of separation have an effect? What does Texas think about that? Amber: Some states have a date of separation where the parties can be living apart, and they go back to that date that they separated, to divide up the assets. Texas, however, does not recognize that. They do look at the date of separation to get some sort of a time frame but they don’t actually go back to that date in terms of dividing up the assets. People could be married for eight years, be separated for seven of the eight years, but still have to divide up stuff that they currently have in existence. Shawn: Thank you. How does Texas think about child support, spousal support, and determining how much gets paid, or how much someone receives? Amber: That’s a good question. Child support is based on the Texas child support guidelines that come through the Attorney General of Texas’ office. Typically, it’s based on the percentage that you’re making, and also based on your income. The more money you make; the more money you’re going to have to pay. The more children you have, the percentage goes up, unless you have children with other parents, and then the percentage could decrease. If I have a client that has one child, he is paying twenty percent of whatever his net income is, and that means after taxes. If he has multiple children, then he is actually going to be paying a little bit more to that parent, and based on the children that he has, it’s going to be a percentage higher. For example, with two children it would be 25 percent, three children at 30 percent and four children at 45 percent. If he has children from another marriage, then it would be a little bit different in terms of the calculations. It would actually be a decrease. If he has one child with one mother and another child with another, but two children total…instead of 20 percent it would actually be decreased by a little bit. Also, in terms of child support, if the parent is paying some health insurance then there could be a deduction for that as well. Shawn: So it’s very formulaic it sounds like, in many cases when it comes to child support. Amber: Absolutely. Texas puts a cap on child support as well. So if you’re making above $8,500 a month, then there’s a cap on your child support. There are arguments, so it’s not an open and shut kind of case. There are arguments that can be made, where the court can actually increases the child support depending on the needs of the child, and depending on the case. For example, if you have a wealthier family that has been paying for years and years of private ice hockey lessons for their child, most likely that’s going to continue. The court wants to keep stability and repetition for the children. Shawn: That’s great. What about for determining alimony or maintenance payments? How does that get decided? Amber: Spousal support is something that Texas entertains on quite a regular basis. Usually you have to be married for about ten years or longer, prior to even requesting long-term spousal support. Temporary support is something that can be asked for during the divorce process to allow that person to hire an attorney, to get on his or her feet if the other party makes substantially more, and has access to more of the assets and accounts. You’ll see this in a situation where there’s a stay at home mom, and there’s a father who’s the breadwinner making the majority of the money and household income. All of the accounts would be in the father’s name. For example, 401k, checking accounts, saving accounts as well, and then we would have some temporary spousal support even if they weren’t married ten years or longer, given to the wife so that she can support herself during the process of the divorce, prior to the division of all the assets. Shawn: That’s very interesting. I want to shift gears just a little bit. Every state has “no fault” divorce but it’s interpreted differently depending on the state. What does that actually mean in Texas? I know there’s some tricks that aren’t necessarily obvious to someone who hasn’t been divorced before. Amber: That’s a good question too. Before Texas became a “no fault,” you had to have a reason, and list the reason to get a divorce. Now Texas has what is called an insupportability and a conflict of personalities with no reasonable expectations of reconciliation, which basically means you can’t get along. Before this came into effect you had to have a reason such as abuse or cruelty, which is still one of the options that Texas offers, bit it’s not a requirement. Another one is abandonment, and another is living apart. Another one is a felony conviction, for example. What I typically do, depending on the facts and circumstances of that particular client’s needs, we’ll look at all we can put into the petition. If it is a case where the parties just didn’t get along, we’re going to put a conflict of interest, and the personalities that couldn’t get back together. If it’s not, and there’s a little bit more than just that, we’ll have that and we’ll add “due to cruelty, family violence, abuse which could be physical, or emotional”, as the reasons. The more reasons you have –remember going back a little bit we said 50/50 division of assets. The more reasons that you have that are legitimate, and you can show evidence to provide that, the more circumstances you’re going to get above the fifty percent. For example, getting sixty percent out of the divorce assets, as opposed to getting fifty percent. Shawn: Got it. So basically if there is abuse or something to that effect you can end up with more assets as part of the split? Amber: Correct. Shawn: As an attorney you don’t just litigate every case that comes in. I know you are a mediator as well, is that right? Amber: That is correct. Shawn: If someone’s listening, we’ve talked about on the show the difference between litigation and mediation, and just other options to get divorced. Some people might have to go the do it yourself route, but for people who are comparing litigation versus mediation, how do you guide people to determine what’s the best option for them? Amber: I usually have the clients come in and meet with me for a free thirty-minute consultation, and kind of get an idea of what their case is looking like. Most of the time my cases end up settling before going to court. I recommend anybody and everybody that’s in this situation to try to settle with the other side first. If that doesn’t happen then go to court. Mediation is one of the tools that you can use for settlement purposes. Mediation allows both parties typically to be in the same room, or they can be split into separate rooms. You have a mediator as well who is a non-biased third party that comes in and goes into one room and asks them, “What are your requests? What are you wanting out of this divorce, or this case?” And then going into the other room as well and seeing what they want and trying to get somewhere that’s a happy medium that is reasonable. If it’s beyond the line of reasonable to where I can inform my client, “Your chances of going to court and getting more than this or higher…”, then I’m going to tell my client, “Let’s take our chances in court.” Otherwise, if it’s within a reasonable area, then I usually push for a settlement because you also have to look at the long term effects of harm emotionally to both parties, especially if they have children involved. You also need to look at the additional court costs and attorney’s fees that come into play as well. You have to look at the cost that changes between everybody, the cost for that person to make the decision of whether to continue the case or not in terms of stress and emotional abuse, and stuff like that. Sometimes they want to end the case sooner. Shawn: You just mentioned a lot about cost. If someone’s thinking about a range of costs for a divorce, what might that range be? Amber: It really depends on all of the assets and debts involved in the case. It depends if they have children, it depends if they are coming and going and traveling on a regular basis, or if they are currently domiciled in state. It really needs to take a look at several factors. For example, our uncontested cases, which means that the parties actually reach an agreement and came in and told us what the agreement is, ready to sign it. If they’re in the Dallas County area, it’s less than $1,000. That includes the filing fee and the court costs. We usually get the party to sign what’s called a waiver so we don’t have to pay for a process over, to go and serve them. If it’s more than that, and for example, it’s a family that has two or three homes or a lot of credit card debt, we’re going to need to subpoena different banks and it could end up costing more where we’ll ask for a retainer, which is kind of like a deposit down. Usually that retainer is about $3,000 or $4,000, depending on the issues. It could be a little bit more or it could be a little bit less. Shawn: That’s very good information. When someone comes into your office for the first time, they call the office and I know your receptionists are extraordinarily busy and they say, “I have a new case.” What’s the process like for someone who’s thinking about that? Amber: Usually when they call in the secretary will transfer them to someone on the family department team that knows what specific questions to be asking. “Where do you live?”, “How many children do you have?”, “What kind of a case is it?”, just to get the basics first. Then they set them up for a free 30 minute consultation, where they can actually meet with one of the attorneys here at our office to go way more in detail, and figure out what exactly they’re going to be needing from the court, and to lay out what the pros and cons of going forward with the case will be, to find out whether it’s worth their while to move forward with the case. I have several clients that come in and have an issue that may not necessarily be appropriate for going to court. Sometimes a letter can handle the situation to where it can get resolved. Sometimes a phone call will work because it’s a misunderstanding that, that client didn’t understand what was in their previous order. Some maters can be dealt with without actually having to sign up for a case. Other matters we need to go forward and either file something with the court or set a mediation, or at least start the process, specifically in regards to a divorce case or a custody case. Shawn: Are there some common mistakes or common issues that you see people making as they go through the divorce process? Amber: Yes. Unfortunately, a lot of people make mistakes that they’re not even aware that they’re making. One is choosing the wrong attorney. I can’t tell you how many people have come into my office after the fact, saying “Well, I got screwed in my divorce case because I made the mistake and chose the wrong attorney.” There’s no going back. Once you get a final order it’s very difficult to modify that order, especially in regards to assets and debts. In regards to child related issues, it’s a little easier to modify but not so simple. First and foremost, do some research and make sure you find an attorney that is good, not only for your case, but good for you. Look for an attorney that is explaining things in the way that you understand them, an attorney that is on your level that says, “this is the goal I’m going to go after” and understands what the goal is that you’re wanting to achieve. Also, do some research. There’s a lot of attorneys out there that scam people. I hate saying that because it gives my profession a bad name, but there’s a lot of resources online that you can go to. One of them is Martindale-Hubbell. They have all of the attorneys you can look for in a specific area. For example, if you’re in Dallas County, look at Dallas County. If you’re Collin County, look at Collin County. If you’re in Rockwall County, you’re going to want to look there as well. So that’s another thing. A lot of people think when they get served with divorce papers that if they don’t respond it will just go away. That never happens, it never works. Sadly, it will always come back to bite you. If you don’t show up then what happens usually is the court will put what’s called the “default judgment” into place, which is kind of like a forfeiture. Any and everything that the opposing party was asking for, usually, they get granted because no one was there defending it or arguing against it. As soon as you get served with something, I would highly recommend, whether me or somebody else, talking to an attorney that knows what they’re doing that’s in your area to help you. Shawn: So it’s not something that you can just close your eyes and hope that it goes away? Amber: No, they never go away. Shawn: That’s great information for people looking for an attorney. I have one question in a slightly different direction. When people think about splitting property especially in a community property state like Texas, what advice do you give for people who want to stay in their homes? Or, should they sell their home? How do you think about that with your clients? Amber: So generally when it comes to the home, the first step is that I ask them when was the last time they had an appraisal done on their house. “Is their any equity in the house?”, “How much mortgage, if anything is owed, on the house?” Some people say, “Oh, well I looked online on Zillow and this is the value of my home,” and they think that the value is equal to the equity, which is not the case. Generally, I’ll say if it’s been six months or longer then we’re going to need an updated appraisal, and you want to actually hire someone that is licensed to do that. They’re going to come in and look for foundation issues, they’re going to look for roofing issues, and they’re going to be able to give us an exact amount that shows the equity of the house. That’s the first step –figure out what’s the equity, if any. Sometimes the houses are under water and we’re left with the negative and it’s more of a debt. Either way, that needs to be divided too. The next step is we figure out from the parties of how they want to divide it up. Generally, if they don’t reach an agreement the court will just split it. Whether it’s 50/50 or 60/40 or however the court decides. If they do reach an agreement then the court will say, “one or the other could refinance and buy the other one out.” Sometimes we have issues with credit, so I would recommend knowing your credit. If you don’t know, you need to start looking on a regular basis and check out your credit score. Also, have an idea of what the value of your house would be. Shawn: That’s great. For anyone in the Dallas area, what’s the best way to contact you? Amber: The best way to contact us would be either by phone or online. Our phone number is 972-789-1664 and our website is dallasarealaw.com. You can find out information on not only our firm, but also about all of our attorneys, including myself. You can actually find out information about Texas law, depending on what kind of case you have. Shawn: Thank you very much, Amber. Amber: Thank you so much, this was great. Thank you for listening to the Divorce and Your Money Show. We hope this podcast helps you through one of the most difficult periods of your life. Shawn Leamon is also author of Divorce and Your Money: The No-Nonsense Guide. His one-on-one divorce coaching services are available at www.divorceandyourmoney.com. If you enjoyed the show, please take a moment to leave a review on iTunes, as it will help other people discover this free advice.
