BASIC INFORMATION REGARDING
DIVORCES
The information provided below is intended to better
enable my clients to understand some basic concepts about divorces. I do not intend this to be advice because the
information herein does not take into consideration the facts surrounding my
client’s situation. Attorneys as well
as judges must apply the law to the facts.
Nevertheless, the information herein is valuable and I hope it benefits
my clients during those initial stages of a divorce action when most clients
feel somewhat in the dark. This
document is not intended to replace the advice I will give to you during
personal office visits. We will go over
much of the information contained herein if it applies to your situation. And, we will go over it in much more detail.
BASIC INFORMATION ABOUT DIVORCES
Texas law does not require persons
seeking a divorce to use an attorney.
The parties to a divorce are entitled to represent themselves. In most instances, it is impractical if not
impossible to represent oneself in a divorce due to emotional involvement of
the person seeking the divorce. I
recommend that each party to a divorce have their own attorney for this reason
and because many legal issues which the client is unfamiliar with will be
addressed by an attorney. This is
especially true if custody and visitation of children are involved, if future
or present retirement benefits are involved, if worker’s compensation claims
are involved, if personal injury claims are involved, and if real estate is
involved not to mention personal property and choses-in-action.
Attorneys should follow their
clients wishes. It is the attorney’s
job to advise the client. The attorney
should not make decisions for the client except for tactics and logistics after
consultation with the client. It is the
client’s job to decide what property, if any, the client desires after the
divorce is over. It is the attorney’s
job to advise the client on the legalities, cost, expense and practicalities
involved in furtherance of the clients desires.
A jury trial can be had in a
divorce. The reasons for seeking a jury
trial as well as the reasons for not seeking one are many. Additional attorney’s fees are necessarily
incurred due to the additional work required if a jury trial is pursued. Most divorces, in my experience, are either
settled by agreement of the parties or tried to the court without a jury.
Attorney fees are based on time
spent in the furtherance of the client’s objectives. The more time that is spent by the attorney, the more it
costs. My guess is that the average fee
for most divorces is about $3,000.00.
This does not include expenses and costs. This “guess” is based on my years of practicing family law. It is in no way an estimate as to what your
particular case will cost you. I always
use written employment contracts. You
may take this contract home with you, filled out by me, and review it prior to
signing it. You will not incur any debt
with me for legal services until the contract is signed by you and by me. Nor will I represent you until the contract
is signed by both of us.
I use a detailed questionnaire which
you are required to fill out. The
questionnaire is long, but not that long.
After I have been hired I will give the questionnaire to you. I will explain some of the matters addressed
in the questionnaire. Take it home and
fill it out. Call me as questions come
up and I will assist you in filling it out.
Once you are satisfied with your completion of the questionnaire, or if
you are really stuck, make an appointment so that we can go over the
questionnaire and ensure its completion.
In short, if something is not on the questionnaire when it was called
for, then I can’t address that issue since I will not know about it. By the way, don’t try and type it unless you
have a need to do so; your handwriting is sufficient. What follows are some basic principals which you and I will
discuss in more detail that will help you fill out the questionnaire.
Property (as well as
choses-in-action such as insurance policies) whether real or personal is
divided into two basic categories, to wit:
separate or community. All
property the title to which one obtains rights in during the marriage (such as
the signing of an earnest money contract) and property which is acquired during
marriage is presumed to be community property unless during the marriage the
property was inherited or it was a gift or it is the product of a personal
injury award. (Keep in mind I am
telling you basic principals here--don’t start quoting the law to your spouse
or friends). This presumption of
community property can be rebutted by evidence which shows that the property is
in fact separate property. Separate
property is that property that was acquired before marriage, or property to
which you acquired rights in prior to marriage (such as the signing of an
earnest money contract), or property acquired during marriage by inheritance,
gift (such as an anniversary gift to you after marriage) or personal injury
award. I won’t cover it here, but
suffice it to say that separate property can turn into or generate community
property. For example, separate cash
which is commingle with community cash (such as a monthly paycheck deposited
into an account having inheritance money in it) and cannot be traced adequately
might be found to be community property.
Income from separate property is usually held to be community property
unless the separate property was acquired by gift. The final concept I want to introduce you to is that of labor by
one spouse during marriage on a business entity which was acquired or
established before marriage. The
labor of a spouse during marriage is a community asset. It can be valued. Many different formulas are used depending on the facts.
One of the main purposes of
determining the status of property, whether community or separate, is that
separate property cannot be taken away from a spouse. However, the law allows the judge or jury to consider the value
and extent of the separate estate in deciding how to divide the community
estate. The community estate does not
have to be divided 50/50 in every instance.
This is true even if the divorce is a no fault divorce.
On the subject of no fault divorces,
it is easiest to explain this by stating that if you seek a fault divorce then
you allege grounds showing fault, such as infidelity, in order to seek an
unequal division of property. I am
often asked whether a client should seek a fault divorce in order to ensure
that the client gets custody of the children.
I believe that custody is a separate issue that is not affected by
whether the divorce is on fault grounds such as that mentioned above. We will discuss this issue in more detail
when we meet, if required by the facts.
In any event, I usually recommend that the divorce is started on no
fault grounds and later it can be amended to include fault grounds. The reason I do this is that most clients do
not want to begin “throwing rocks.”
Some do, and for those clients I will, where appropriate.
Divorces cannot be heard by the
court until 60 days have elapsed after the day of filing of the petition for
divorce. This is a cooling off period
mandated by the legislature. It also
prevents “quicky” divorces. This does
not mean that your divorce will in fact be heard once the 60 days have
elapsed. The court will have to
schedule your hearing date. However,
many times the divorces are heard, if they are agreed to and resolve by the
parties prior to going to court, on the 61st day. The average time prior to hearing of most divorces is about 4 to
6 months after they are filed if a jury trial is not requested. It takes longer for a case if it is tried to
a jury. The longest divorce case I have
handled lasted for nearly two years. I
believe in getting divorces tried quickly.
But, sometimes it is just not possible nor is it totally within my
control--there is another party to contend with not to mention the judge.
To finish, I will list some commonly
given answers. Remember, your case may be different or the
law may have changed immediately prior to my handing this to you or after I
hand it to you. Therefore, the matters
mentioned above and below are subject to change as well as clarification upon our
personal meeting and discussions. If
your facts may be close to any of those mentioned hereinabove or below, bring
it up with me. This document is
provided so that you are better able to ask questions. It is not intended to answer questions about
your specific case.
1. Military retirement is divisible. Several formulas are used. You had to be married to a service member
while he was on active duty to qualify in most instances. If any portion is disability retirement, it is probably not divisible.
2. Other forms of retirement are also
divisible, such as teacher’s retirement, and even railroad retirement. However, railroad retirement is very peculiar.
3. Divisible does not always mean 50/50.
4. The amount of child support is not often
litigated these days as the legislature has set forth a formula controlling how
much should be paid. In most cases,
children will receive child support until they reach 18 years of age or finish
high school, which ever is later. Child
support usually stops when the child’s disabilities of minority are removed by
court action or marriage. Disabled
children (special needs children) can get support payments for a longer period
of time.
5. In most cases, a discreet extramarital
affair probably will not affect who gets custody of the children. This issue probably has more bearing on the
division of property than on custody of children. This is a touchy subject with some judges, though. Discuss this with me if it occurred by you
or your spouse. We must go over it in
appropriate detail.
6. Just because the title to property is in
your name does not mean it is always yours, and does not mean you own it to the
exclusion of your spouse and does not mean you will always get to keep it when
the divorce is over.
7. Temporary orders do everything a divorce
does except divorce you and it does one thing more which is it can award temporary alimony to a spouse. Temporary orders can only be entered after a hearing with a judge. (Court ordered permanent alimony, i.e., post divorce court ordered spousal
support, does exist in Texas in limited circumstances. The parties my also agree and contract to provide post divorce
spousal support, i.e., alimony).
Temporary orders last until the divorce is over. If a party appeals the divorce to a higher
court, temporary orders can last until all appeals are exhausted. Court costs, expenses and attorney’s fees
escalate quickly when temporary orders are sought, especially if child custody
is in dispute.
8. Temporary restraining orders can be entered without a hearing. The usually last only 14 days. The objective is to keep the peace and
maintain the status quo. A temporary
order hearing will be had prior to or at the time of the expiration of
temporary restraining orders. A
temporary restraining order cannot evict someone from a residence. However, it can prevent a former resident
from returning, i.e., maintain the status quo.
You can usually get a temporary restraining order immediately for
protection of your self, your property, your children etc.. Court costs are somewhat expensive for this
process. More than for temporary
orders. However, attorney’s fees are
usually considerably less than that incurred in a temporary order hearing. Most clients do not pursue temporary
restraining orders unless there is a good chance that a temporary order hearing
will be required.
9. A violation of a court order, whether temporary
restraining order or temporary order or other court order can result in jail
time, fines and other harsh sanctions.
They must be obeyed.
10. If you have a need or desire to seek the
company of the opposite sex in what might be construed as a romantic situation,
then talk with me first. In short, I do
not believe in telling clients how they should live their lives. I do advise my clients on the possible or
probable effects of their actions. The
need to seek companionship is normal.
The need to find reassurance is likewise normal. It may also affect your divorce and you need
to be informed how it may affect your divorce.
11. If you talk to people about your divorce, be
assured that it will get back to your spouse.
The rumor mill is fueled enough by others, let’s not help it along.
12. If you want to talk to a counselor, don’t
feel alone. Seek a counselor, but let
me know first. Counselors won’t try to get you both back
together unless that is what you both want.
They will help you get through a broken marriage and the natural
emotional distress that all normal people suffer.
13. Annulments can be obtained if very specific
conditions are met. Generally, if you
married a close relative, or you married during the existence of a prior marriage,
your marriage may be void. If you were
underage without parental consent at the time of the marriage, or a party to
the marriage was intoxicated or mentally incompetent during the marriage
ceremony, or a party was impotent at the time of the marriage ceremony, or if
the other party to the marriage used fraud, duress or force to induce the
marriage, or the other party concealed a prior divorce, or if a person marries
before the expiration of 72 hours after the granting of the license to marry,
then an annulment may be possible. Of
importance here is that once one of the defects or problems occurs or is
learned of, the party seeking the annulment usually must not cohabitate with
the other party. There are other
requirements, so talk with me if your facts are close to any of these.
14. You cannot remarry for at least thirty days
following the date that the divorce was rendered unless the judge who grants
the divorce waives this requirement upon a showing of good cause at the time
that the divorce is heard.
15. The parent who gets the children for most of
the time is called the “Managing Conservator.”
The visiting parent is called the “Possessory Conservator.” The legislature has provided a schedule of
visitation which is liberal. It must be
followed unless the Court finds good cause to decrease or increase the
visitation time. Travel is usually
split equally between the parties to the divorce which usually means that they
take turns paying and/or driving.
16. The Court can and usually will require the
parties to visit a marriage counselor if
one party requests it.
17. A “no-fault” divorce means that the marriage
is insupportable because of discord or conflict of personalities with no hope
of remaining married.
18. A “fault “ divorce can be based on cruel
treatment, adultery, conviction of a felony (and imprisonment for at least a
year), abandonment for at least a year, living apart for at least three years,
or confinement in a mental hospital for at least three years without much hope of
total recovery.
19. An “Order for the Protection of the Family”
can be obtained in lieu of or in addition to a divorce. This Order will do everything a divorce does
except divorce you. It only lasts one
year and usually can be renewed for another year. In order to obtain this type of Order, there must be a threat of
violence or actual violence or some other sort of danger within the family
directed by one person against another person or against a child. This is usually not part of a divorce, but
the law allows it to be included in a divorce or sought independent of a
divorce. This action is used to address
hostile situations or to alleviate fear of hostile situations. More often than not, temporary restraining
orders and temporary orders can meet the needs of a client who might fit in
this situation. However, there may be
reasons to pursue this type of Order considering the somewhat considerable
additional expense.
20. On the average, my clients spend about 20
hours of their time performing tasks that relate to their divorce. This does not include any time spent in the
courtroom.