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.