Brian Walters and Jake Gilbreath celebrate 90 episodes of the For Better, Worse, or Divorce podcast by sharing a few of their favorite recent episodes and what listeners can look forward to in upcoming episodes. The partners also discussed recent trending family law topics and answered some listener questions.
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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.
Brian Walters:Thanks for tuning into the For Better, Worse, or Divorce podcast where we provide you tips and insights on how to navigate divorce and child custody situations. I’m Brian Walters here with Jake Gilbreath. We’re the managing partners of Walters, Gilbreath, PLLC, as you can probably tell by the name. We’re celebrating our 90th episode today. If you follow along, you’ll know that about every 10 episodes or so we’d like to recap some of our recent episodes. We’ll discuss any recent family law news, as well as talk about what’s to come in the next 10 episodes or so. We will also answer some listener questions toward the end. So let’s talk about some recent favorites. Jake, do you have any that come to mind on your end of things?
Jake Gilbreath: I do, and they actually both relate to my two favorite themes. First of all, there’s a good friend and former client, he was actually a client before he became a good friend. Mikael joined us to talk about his experience as a client. We also had conversations about him as a dad and me as a dad, of course. Both of our oldest children are actually around the same age and they have known each other since they were little. So we got to talk about that, talk about the client experience, and then also talk about how Mikael sees the world as a dad and a business owner who’s been through the family law process. That was important to me. One because Mikael is really dear to my heart and is a very close friend. Also just with the way we met and the way our paths crossed. Starting out in that attorney client relationship and then developing to what it has over the years. It was nice to share that with everybody and it was really nice of him to join us. I liked that.
And then of course, we did a jury trial series recently. For those of you all who follow the podcast, the website or both, you know that jury trials are something that Brian and I like talking about a lot. I think it’s one of the areas of practicing family law that we really can bring a particular skill set to the courtroom that we’ve honed over the years. That’s one of our many differentiators, but that’s one that we really enjoy talking about. Especially sharing with clients, listeners, and other lawyers our experience. We never view any of this stuff as a huge secret. We like sharing the knowledge and experience that we’ve gained because us learning from other folks is how we’ve learned and improved ourselves as lawyers. I really enjoyed walking through the jury trial series since that is sometimes considered to be the great unknown for both clients and lawyers. What about you, Brian?
Brian Walters:Yeah, I agree with the jury trial series. I did a couple of episodes recently with two out-of-state lawyers comparing the different legal systems in our different states. One was from Colorado, one was from Washington State.We also spent time discussing the issues of what happens if you have connections to both states. If you’ve lived there or if you just moved from one state. If you have to modify something and the kids are now living in a different state, they just moved to Texas or something along those lines. I always find those interesting. It’s really interesting how we have 50 different family law systems in a lot of ways, especially as it relates to property division in a divorce. It was interesting talking to those two folks.
We’ve also had a series about understanding the cost of a case. I get this question often. If it’s not 100% of the time, it’s 98% of the time. I just answered it this morning in an email to a potential client. “How much is it going to cost?” It’s a really important question. It’s related to the question of how long is this going to take? There are very similar answers to both of those. I think the case budget calculator is really useful, especially for new clients or for someone who’s in an existing case and wondering, is it normal for me to be spending this much on my lawyer or is that abnormal?
Jake Gilbreath: Right, or they ask “Is it normal for me to spend that much? When I ask my lawyer how much is this going to cost moving forward I’m not getting an answer.” So that was probably one of my favorite episodes too, just because I think it shows who we are as a law firm. We actually want to put out there as much information as we can, including information that most lawyers won’t address or just refuse to address with their clients. I was really proud of that. Not only do we do that with our clients, but Brian, you went through and really talked about putting it out there for everybody. Even if they don’t hire us, it is for everybody. What a divorce or a child custody case should look like.
Brian Walters: Absolutely. We also have a new pop culture series for a little variety. Talking about famous people in the news that are going through family law issues, which is evidently there’s never a shortage of that. So we’ve started to do that. We’ll try that a few times, see how it’s received and then we’ll go from there.
Jake Gilbreath: You and I are trying to appear up to speed and cool. I think we’ve done a good job, a decent job so far. Then we’ve had these trending topics that I’m sure you’ve noticed Brian, I have noticed it. This is kind of the season for it. Post holidays and moving towards engagement and wedding season. We get a lot of calls about prenuptial agreements. Of course, sometimes postnuptial agreements as well. Episode 86 addresses that head on. I think a lot of people will find that resourceful.
Brian, can you talk about what’s coming up on the podcast? We have the next 10 series. I know we have some interesting things coming up.
Brian Walters:Despite us not having any particular training or maybe even great skill, this podcast has not only been going on a while, but has gotten to the point where we start to have people from all over the country contacting us. Other podcasters or other professionals contact us saying, “Hey, I’d love to do a podcast with you guys.” So we’re going to do that. I mentioned a moment ago doing that with some other lawyers out of state, but this one that is to come is with another podcaster. We’re going to discuss stepparent rights, which is again something we hear about a lot and have a lot of questions about it. It’s an increasingly common issue and with problems. That’s coming up soon. That will be with the prominent other person, which should spread the word even a little bit better.
Another thing that’s distinctive about our firm is that we’ll handle a case in any place in Texas. Obviously most of our practice is concentrated where most of the population lives, which is in the big urban centers where we have our four big offices, but we’ll handle counties anywhere in the state. On top of that, they’re very big differences. If you live in Dallas, there are four big counties. Two of them are more urban, two of them are suburban, but there’s also another five or six counties around those four counties that are places that people who live in the Dallas Fort Worth area live in and cases are there. So we’re going to cover some of those different counties, some of the more common ones here soon.
So if you live in Harris County, Dallas County, Travis County, wherever you live or one of the outlying counties, you might be interested to know that there are differences between different counties, judges, and procedures. And different perceived views you might get on a jury, for example. So we’re going to do that and we’re going to do that with some of our local associate attorneys in those other areas that practice in those countries quite a bit. I’m pretty interested to hear that. I think that’s going to be pretty interesting.
We also had some listener questions. Do you want to take the first of those?
Jake Gilbreath:Yeah, I’ll read one and go ahead and answer it. Then I’ll pose the next one to you, Brian. Somebody asked, “If I’m expecting to receive an inheritance, how would that be divided if my spouse and I end up in a divorce? Should I consider a postmarital agreement?” So let’s take it two-pronged. There’s a question about how it’s going to be divided if I’m going through a divorce, and then should I consider a postmarital agreement? First of all, the inheritance, if you’re receiving an inheritance for those who all know from our other episodes, an inheritance would be separate property. If you remember, separate property is property that you own before marriage. It is property that was gifted, inherit or personal injury recoveries that don’t include loss of earnings. Inheritance is going to be your separate property. If I’m inheriting a hundred thousand dollars from my dad or somebody left with me or what have you, that’s my separate property.
Now, remember it’s going to be my burden at the final trial to prove that it’s my separate property. That’s going to have to be proved by clear and convincing evidence. We see a lot of people get jammed up on that if they receive an inheritance. It kind of goes all over the place. Maybe some of it got spent on living expenses, which won’t be reimbursable.
If you’re receiving inheritance and you do wish to protect it, the first step would be make sure to segregate it. I usually tell people, open up a separate account. If this is something that you and your spouse want to do and you want to protect your inheritance, open up a separate account. Put it there just so it’s clearly segregated. It’s easier to trace and carry your burden of proof if in the unfortunate event that you end up going through a divorce. If you can prove that your inheritance is your separate property then it won’t be divided. It’ll just be confirmed as your separate property as the court.
Also, remember though, like we talked about in prior episodes, income off of separate property is community property in the state of Texas. So in my scenario, I inherited a hundred thousand dollars. If I stick it in a brokerage account, which is shooting out interest and dividends each month, that’s going to be community property. It’s going to be reinvesting the account and that’s why we have to do line item tracing. It isn’t horribly difficult, but can be considered if money’s moved around. So it is a good idea to segregate it.
As far as a postmarital agreement, a postmarital agreement could probably address this in two ways. One, it’s just the basic identity of where the inheritance is. One of the many things that they could do is make sure that we’re identifying assets that are separate. The other thing that a postmarital agreement can do is you could agree that the income off of that separate property remains separate. That’s something that we commonly see both in premarital agreements and postmarital agreements, then you don’t have that tracing issue. You don’t have to worry about it getting what we call commingled. That is where the interest in dividends are getting reinvested and we’re not sure what’s separate and what’s community. That can be done at the spouse’s degree.
At a minimum, if somebody’s talking about receiving a large sum of money either through inheritance or a gift during the marriage you should do your best to segregate it so you can identify it easier in the unfortunate event of a divorce. I hope that answers that one. And then Brian, somebody asked, “What can I do if my spouse is hiding assets during our divorce?”
Brian Walters:I think the first question is to kind of prove that. There’s often a lack of trust with somebody who’s starting to go through a divorce for obvious reasons. Very frequently trust has been violated in other ways. I hear this a lot. I’m not sure what my spouse has done with our money or assets, or why we don’t have more money or things like that. That’s often very much a concern of the spouse who doesn’t keep a close eye on the finances, which is the way a lot of people set up their marriages. One typically manages most of the money, the other one just kind of sits back to some extent, although everybody’s different. So first of all, we needed to figure that out.
Generally, that’s not that hard to do if there really is hiding of assets because their money comes in. Typically they’re employed and they get a paycheck that you can trace. You can go back and look at the history of those payments going into which account. Your pay stubs tell you that type of thing. If money comes out, it’s either most commonly going to be some type of wire transfer or withdrawal. I have seen people occasionally withdraw $300 a week in cash and for years and years and years and have that disappear. We can usually figure that out. The most common practical end of that is transfers of money overseas or to family members in the guise of, “Hey, my family back in my home country is going through some hard times, so I’m going to send them some money.” Then we get into the issue of “Was that agreed to? Was it a loan, was it a gift?” All of those kinds of things.
If it’s not that way, the actual hiding of assets is usually pretty easy to figure out. It’s going to be in something that’s easy to hide. That’s typically their cash, jewelry, gold bullion, that type of thing. Those are more difficult. For example, if you have a business that generates a lot of cash and it isn’t being deposited every day, then that is the kind of thing that can be hidden. It’s the same thing with jewelry. If someone has hundreds of thousands of dollars in jewelry, that is typically a community asset, but suddenly it’s not. Usually in cases where “Oh, what jewelry? I don’t have any jewelry.” Or, “Oh, I sold that.” Those types of things. So those can be more difficult to do.
If we can show that a spouse has been hiding assets during the divorce, the court will order it to be returned. Or if it’s not in some form that can be returned to compensate a spouse out of other assets or a warrant of judgment or things like that. Generally the court’s going to be really upset if you can prove that and do all kinds of bad things to that person who’s been hiding assets and impose attorney fees, provide a disproportionate division of the assets, et cetera, et cetera. There’s a lot of things that can be done and courts are not going to put up with that if it can be proven.
Jake Gilbreath:Here is the last question somebody asked, and I’ll answer it. It says, “I signed our prenuptial agreement blindly without fully understanding the agreement. What are my options in getting that changed before we start the divorce process?” The family code does address enforcement of a postmarital agreement, and it’s good to know that we do have a public policy on forcing premarital agreements. The case law is that we start from the presumption that we are wanting to enforce these. Now, depending on how it was done, a court may not enforce a premarital agreement if it was done under duress. It’s really clear and it’s important to know that under duress means more than just he pressured me or she pressured me. But rather, literally somebody’s threatening to do an illegal act to you if you don’t sign it.
Or if the agreement was what we call unconscionable when it was signed. It’s not just enough to say it’s unconscionable. It’s not just enough to come in and say it’s unfair and this is ridiculous. That it’s unconscionable when it’s signed. That before signing it that you didn’t receive a fair disclosure of the property of financial obligations of the other party. Or you did not voluntarily and expressly waive the right to disclosure. So you weren’t given a disclosure, you didn’t waive disclosure, you couldn’t have known on your own, you did not have reasonably, or could not have had adequate knowledge of the property or financial obligations. The unconscionable burden is really high. Obviously, the duress one is too. Either somebody committed duress where you didn’t sign the agreement voluntarily or not. The unconscionable burden is really high because most of the time if a good lawyer drafted these premarital agreements, they’re going to both provide a disclosure and both voluntarily waive the disclosure.
If you’ve done those things then it could be extremely difficult, maybe impossible to undo the premarital agreements. They are very, very serious documents, both premarital and post marital agreements. Every single case is different. Every single case is fact specific. You need to know from a general proposition, premarital agreements are a very serious document and you should have a lawyer look it over. People can always amend them, they can revoke them, and they can add to them. Before going through the divorce process, if that’s where you’re at, it’s best to set up a consultation with a board certified lawyer. Have the premarital agreement available so she or he can review it. Then you will kind of have a full picture of what it would look like if you did go through a divorce. They’re serious documents and it’s something you’re going to want to bring up immediately when consulting with a lawyer.
Brian Walters:I’ll add one quick thing to that. I do these fairly often and I get a lot of, “Well, here’s the word version of the prenup, and I’m pretty sure we signed the same thing.” It’s important to bring to that lawyer the actual signed prenup with everybody’s signature on it. That would be helpful.
Jake Gilbreath:Absolutely, I’ve had those. I’ve had factual disputes about whether or not this was actually signed or not. I had one recently where it did not waive the disclosure, but it had attached a disclosure. So the premarital agreement didn’t waive the disclosure. There was no way that my client could have known about the husband’s finances, but it did have a disclosure attached to it. Which would typically mean that it’s binding even if it is unconscionable. It was clearly unconscionable, but every single page was initiated except for the disclosures. The disclosures weren’t initiated which was really suspicious.
Our client, I think they had been married 20 years or something said, “I never initiated a disclosure. I never saw it.” So that’s a factual dispute about whether or not the disclosure was made. That just goes back to every single case that’s fact specific. It’s just really, really important to consult with a lawyer on those things if you have a premarital agreement or a postmarital agreement. It’s also really, really important to consult a lawyer before signing a premarital or a postmarital agreement because they’re serious, serious documents. I can’t emphasize that enough.
Those are great questions and that’s what we love about the podcast. We have podcasters from other states reaching out to us and asking us to do podcasts with them. We’re getting great listener questions from y’all and great feedback. We really appreciate it. We get phone calls at the office all the time, sometimes for potential new clients, sometimes folks that are just looking for more information. We love that. That’s what this podcast is for. I’m just really happy that we are on episode 90 and still going strong. I hope y’all are enjoying it.
That’s what we have for today. Like I was just saying, if you like what you’ve heard today, please do us a favor and leave us a review. We appreciate all the feedback that we get and that we’ve gotten, especially when it helps us better the podcast. If you have any questions, just please reach out to us at podcast@waltersgilbreath.com. You can correspond on our website and contact us there as well. I’m Jake Gilbreath, joined by Brian Walters, and thank you for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.
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