Decision to
Divorce
At the outset, you should be absolutely sure that your marriage is
beyond saving. If you are uncertain, you should encourage your
spouse to join you in marriage counseling, and a counselor can help
you with emotional problems much more effectively than your
attorney.
If you find you are experiencing
emotional problems, please employ a professional counselor for your
personal benefit. Your attorney is a knowledgeable in law, not
psychology or marriage counseling, and a counselor can help you
with emotional problems much more effectively than your
attorney.
Also, a new field of development is
"divorce counseling," which consists of individual sessions or
group sessions designed to assist persons through emotional trauma
of a divorce. There are also such programs for children. Although
somewhat new on the horizon, these programs seem to be getting very
high marks. Many persons, approaching these programs with much
skepticism, have reported them to be lifesavers and well worth the
time and money.
Caution: Some people hope that
filing divorce will shock their spouse into reality and therefore
save the marriage. While filing for a divorce sometimes saves the
marriage, this is rarity. Usually, it causes the other spouse to
become more hostile. Therefore, the filing of a divorce should be
filed with the realization that if you are asking for a divorce
that is what you will get.
Attorney & Client
The following section discusses the relationship and
interworkings between you and the attorney and his or her
staff.
Attorney & Staff
The attorney and staff work as a team, each doing these
tasks, which they can do most efficiently. The legal assistant is
billed out at a lower rate than the attorney; therefore, the legal
assistant handles much of the time consuming tasks involved in
gathering information and day-to-day contact with the client. If
you hire the firm, you will be dealing with both the attorney and
the legal assistant, together and individually, throughout the
relationship.
Your Role as Client
This is your case, not your attorney's. There are a great number of
things that you must do during your case.
Be Informed
You should be as informed and
as involved as your case as possible. You should read and
understand any and all documents that are produced in your
case.
Keep a File
All correspondence and documents produced in your case should be
forwarded to you. Please establish one file in which to keep all
your divorce-related documents. Please remember to bring that file
with you each time that you visit your attorney's office.
Tell Your Attorney the
Truth About All Facts
You should be totally honest with your attorney on every aspect of
your case and give all information about anything of importance to
your case. This includes not only information helpful to your case
but, equally important, all facts which might be harmful to your
case. Chances are your spouse's attorney is going to find out about
them anyway, so please do not let your attorney be the last to
know. These "bad facts" are usually not as harmful as you may
think.
In this respect, you do need to be
made aware that, at any time you are placed under oath at a
deposition or a trial, you will be required to tell the truth, the
whole truth, and nothing but the truth. If you do not, you
subject yourself to criminal perjury charges. Likewise, Texas law
requires your attorney to see to it that you tell the truth;
therefore, when you are under oath, your attorney cannot and will
not condone any testimony by you, which is less than the whole
truth.
Information Gathering
Facts are the heart of your lawsuit. You will be given
information sheets to fill out and requested to gather information
and documents. This will be time-consuming and tedious work, but it
is extremely important. It must be done. You, the client, have a
much greater knowledge of and access to this factual information
than your attorney. Further, as you research and piece together
this information, you begin to develop the necessary understanding
of your case. Also, you can do this work at no charge to yourself,
whereas the lawyer or staff, if required to do it, will be billing
you for their time and labor. For all of these reasons, you should
do as much of the information gathering, under the direction of
your attorney and staff, as possible.
Review Opposing Client's
Documents
Your attorney will provide you with copies of all
documents supplied by you or by the opposing party. It is very
important that you review these documents immediately, familiarize
yourself with them completely, and ask any questions or detect
anything important or unusual in the documents (e.g., checks
written for unusually high amounts or to unfamiliar persons or
sources).
Decision Making
No final settlement of your case will be made without your approval
and consent. Other major decisions will also be made with your
approval and consent (e.g., to demand a jury or not, to seek child
custody or not, etc.). However, you will need to allow your
attorney the authority to make other decisions which bear on your
case, but which involve professional judgment or courtesy. For
example, your attorney should decide how to phrase allegations
contained in your pleadings and when to file the pleading. On
occasion, your spouse's attorney may ask for a continuance or
postponement of a hearing on a motion, deposition, etc. Resistance
to a legitimate request of this nature is often not in your best
interest. For example, your attorney may know that your side will
need to make a similar request in the future. Your attorney should
be the decision maker for these and similar matters.
Attorney-Client
Relationship
You and your attorney and her staff are in an attorney-client
relationship, which is recognized by the law to be a very special
relationship. Your attorney and staff owe 100 percent of the
allegiance to you and your case and owe no allegiance to your
spouse whatsoever. Your attorney is required to represent you
zealously, but within the bounds of the law.
Do not be misled if you find your
attorney dealing with your spouse's attorney on a friendly basis.
Professional and common courtesy dictates this. Good lawyers are
perfectly capable of zealously defending and promoting their
clients' best interest, without becoming personal enemies.
Attorneys are in fact trained to be advocates for the children
without becoming emotionally involved. One of the very reasons you
hire a lawyer is to have someone on your behalf who not only has
legal expertise, but who will not become emotionally involved. You
want your lawyer to use her head, not her heart. Indeed, you should
expect your lawyer to be objective and to remain unemotional on
your behalf, because it will often be hard for you to do so.
By virtue of the attorney-client relationship, there automatically
arises what is known as the "attorney-client privilege." The
privilege prohibits from disclosure any information, whether
communication orally or in writing, between the attorney and the
client, so long as the communication was intended to be
confidential. Such communications also include all correspondence
or documents from your attorney/staff to you, and vice versa (e.g.,
information sheets you prepare for us), as well as all telephone
conversations and in-person conferences between you and your
attorney and staff.
Caution: The attorney-client
privilege exists only between you and your attorney and her
immediate, in-house staff. The attorney-client privilege can be
waived if the otherwise confidential information is disclosed to
persons other than your attorney and her immediate staff. For
example, if you tell your spouse something that your attorney has
told you, then the information will lose its privilege from
disclosure and will have to be disclosed by you in court. Also, the
privilege does not exist between you and other persons who may be
involved in your case to assist you (e.g., CPAs, appraisers, etc.).
Therefore, be very careful what you say to these persons, even if
they are "on your side," for anything you do or say may be required
to be disclosed to your spouse's attorney.
Contract
You should read and understand your fee contract. If you
do not understand the financial obligations required of you under
the contract, you should immediately discuss those questions with
your attorney. You should not sign the contract unless you
understand it.
Other Professionals
Besides your attorney and her immediate, in-house staff,
other outside professionals are sometimes hired to assist in the
divorce case. It may be necessary to engage an appraiser, a tax
expert, CPA and other such professionals. Your attorney will
discuss the necessity of these experts with you and hire only those
that are in your case and only with your consent.
Caution: Again, even though these
persons are hired on your behalf, information provided to them is
not protected from disclosure by the attorney-client privilege (as
discussed above).
Issues in Divorce
This section covers the basic issues involved in a
typical divorce case. If you have no children, you can skip the
sections below regarding children. Otherwise, you should read each
section very carefully and go to this section first throughout your
case if you have any questions regarding these issues.
Grounds for Divorce
A divorce may be granted on one or more "fault" or "no
fault" grounds expressly set out in the Texas Family Code. Most
divorces are founded on the no-fault ground of "in supportability"
(i.e. incompatibility), which can be granted to either spouse if
that spouse feels that the marriage has become insupportable
because of discord or conflict in personalities which makes any
reasonable expectation of reconciliation impossible.
"Fault" grounds for divorce include
adultery or cruel treatment. In that a court may consider "fault"
in the breakup of a marriage as a factor in deciding how to divide
the property and debts, a party may choose to plead a "fault"
ground for divorce.
Domicile &
Residence
At least one spouse must have been "domiciled" in Texas for six
months and a "resident" of the county where the suit is filed for
90 days, before the petition may be filed. The terms "domicile" and
"residence" have different legal meanings, which can be explained
to you if need be.
Property & Debts
This subsection is an elementary discussion of some basic
rules underlying Texas marital property law.
Types of Property
In the context of divorce law in Texas, all property, both
real and personal, is characterized as two different types of
property; (1) "separate property" and (2) "community
property."
Separate
Property
"Separate property" is property either (1) owned or acquired by a
spouse before marriage or (2) acquired by a spouse during marriage
by either (a) gift or (b) inheritance. It is the date of
acquisition and the source of the property that control, not how it
is eventually paid for. For example, if one spouse owned a house or
car before marriage, it will be characterized at the time of
divorce as that spouse's separate property, even if it was paid off
in whole or in part during marriage.
A gift includes, for example, any Christmas or birthday gifts from
one spouse to another during marriage (even if purchased with
community funds). If a gift or inheritance goes to both spouses
(e.g., wedding gifts), then each spouse has an undivided 50 percent
interest in that one piece of separate property.
Separate property can change forms
without changing its character as property (this is often referred
to as a "mutation"). For example, if wife has $5,000 in cash, which
is her separate property and uses that $5,000 cash alone to
purchase outright a $5,000 boat, then the boat would likewise be
her separate property.
A court has no authority to take a
spouse's separate property from him or her at the time of
divorce.
Caution: Any property owned by
either spouse at the time of divorce is, by law, presumed to be
"community property" unless otherwise proved to be separate
property (see discussion of "community property presumption"
below); therefore, a spouse must (1) specifically plead and (2)
prove by clear and convincing evidence each item of real or
personal property claimed to be his separate property.
Community
Property
"Community property" is any property acquired by either or both
spouses during marriage by other than gift or inheritance. This
includes virtually everything purchased during marriage. It is
important to remember that a marriage legally endures even after
your separation (whether before or after the divorce petition has
been filed) will be characterized as community property. This is
true even if the property is not physically received until after
marriage. For example, if the day before the divorce is granted a
wife contracts to purchase a new home (with closing set off for one
month later), or husband enters into a partnership agreement, this
will be characterized as community property.
All property which exists in whole
or in part in the name of either spouse at the time of the divorce
is presumed by law to be community property. This is referred to as
the "community property presumption." Therefore, if you have any
separate property or if you are in the possession of property which
does not belong to either you or your spouse, you must point this
out to your attorney.
In Texas, earnings from separate
property are community property. For example, if husband has $5,000
in the bank account at the date of marriage, the $5,000 remains his
separate property, but all interest earned on the $5,000 becomes
community property.
Unlike separate property, a court has the authority to divide
community property in any manner that it deems to be "just the
right" (as discussed in more detail below.)
Mixed Title to Property
Title to property can be both separate property and
community property in character. For example, suppose a car is
bought during marriage for a total of $10,000 in cash; $6,000 of
that was from husband's separate property account which he had
prior to marriage, while $4,000 of it was from a bank account
established during marriage and contained the community property
earnings of the parties. In such event, title to the automobile
would be 60% husband's separate property and 40% community
property.
Debts and Liabilities: Taxes
Debts and liabilities incurred before marriage, if still
in existence at the time of divorce, shall remain in the debt of
liability of the party who incurred it. Debts incurred during
marriage will be divided by the court between the parties at the
time of divorce. One spouse may be required to assume a debt
incurred solely by another spouse during marriage. Although not an
absolute rule, the general rule of thumb is that, following the
filing of the divorce petition, courts are usually going to award a
debt to the spouse who incurred the debt during separation.
Decisions will also need to be made regarding contingent
liabilities, such as past income tax liabilities which may arise in
the future if the parties are audited, as well as tax liabilities
for the year of divorce.
Caution: Although a court will
order each spouse to be solely responsible for certain debts and to
pay them immediately when due, this is binding only as between the
parties. This division, however, is not binding upon the third
party creditors who are not parties to the lawsuit. This is
unavoidable unless every creditor (e.g., MasterCard™, Visa™, etc.)
is actually made a party to your suit and even then, the court
would probably make one party primarily liable and the other party
secondarily liable. The only protection is by way of
indemnification, that is, if Spouse A is obligated to pay a bill,
but does not do so and the creditor goes after Spouse B has the
right to sue Spouse A to recoup those funds. Sure this is not a
very good solution, but it is the only practical one available.
While a lien can be placed against one spouse's property, to assure
the payment by that spouse of court-ordered debts, most parties and
judges will not agree, to so indefinitely tie up a person's
property in this respect.
Reimbursement
Pursuant to the rules above, there may at the time of
divorce, exist 3 different "estates"; (1) husband's separate
property estate, (2) wife's separate property estate, and (3) the
community estate. Each of these estates may have a "claim for
reimbursement" back against the other estate or estates. For
example, if husband owned a car, as well as a note on that car,
before marriage, then at the time of the divorce the car will
belong to husband's separate estate, but the community estate would
have the right to ask a court to order the husband (i.e., his
separate estate) to "reimburse" the community estate for community
funds used to pay off his separate property car. This is one very
simple example of the doctrine of "reimbursement." Again,
reimbursement can be by, against, and between any of the 3
estates.
Since reimbursement is an
'equitable" doctrine, a court is not required to order
reimbursement, but may choose to do so if the court considers it
equitable under all of the circumstances of the case. It should be
noted: however, that to prove reimbursement, it often requires a
great deal of time, accounting, "tracing" of funds (discussed
below) and expense to prove the claim. Whether reimbursement should
be sought is a decision you and your attorney will make after
weighing all of the factors. Texas has a new doctrine called
economic contribution. Be sure to ask your attorney if this applies
to your case.
Tracing
To determine title to property as being separate property and/or
community property, and to determine rights to reimbursement
between the different marital estates, an accounting method
referred to as "tracing" is often employed in divorce cases. For
examples, one bank account may contain funds which consist of both
separate property and community property. Or, community property
funds may be used to pay off a balance of a separate property debt.
Tracing is employed to determine the title to property or the
amount of reimbursement.
Doctrine of commingling: If funds
in an account contain both separate property funds and community
property funds and these funds have been so commingled as to defy a
clear divorce-time segregation by means of tracing, then the entire
account will be characterized as community property (because of the
clear "community property presumption" discussion above). This is
referred to as the doctrine of "commingling".
Division of Property &
Debt
The parties, by settlement or a court after trial, will divide all
existing property and debts. While the parties may be in agreement
to make any type of division that they want (e.g., give to husband
certain of wife's separate property, agree to alimony, etc.), a
court during litigation does not have such flexibility but is bound
by the rules of law set out above with reference to property and
debts. Also, these rules serve as the primary basis to guide the
parties and their attorneys in reaching a settlement (see
discussion regarding settlements below).
Basically, a court may give each
party his separate property and separate debts, and then may divide
the community property and debts in a manner that the court deems
to be "just and right." This may be an approximate 50/50 division
of the net community estate or a division that gives one of the
spouses a disproportionately larger share of the community property
(e.g., 60% to Spouse A, 40% to Spouse B). Contrary to popular
belief, the courts are not required to divide property
50/50.
The division of property refers to
the net community estate (i.e., all community debts equal net
community estate). Obviously, this does not require an equal
division in kind of all property and debts. For example, suppose
that the community estate consists of 1 home (with a mortgage), 3
cars (2 with mortgages), 2 retirement accounts, miscellaneous
personal property (e.g., furniture), and 5 bank accounts. All
together, this amounts to $100,000 in assets and $75,000 in debts
for a net community estate of $25,000. The court may give husband
70% of all of the assets ($70,000) and 80% of all the debts
(-$60,000) for a net award to husband of $10,000 (which amounts to
only 40% of the total net community estate). Simultaneously, the
wife would receive only 30% of the assets ($30,000), but only 20%
of the debts (-$15,000), for a net to wife of $15,000 (which equals
60% of the total net community estate). Again, this is only a
very simple example. Courts may enter almost any kind of order to
effectuate what the court finds to be a just and right division,
such as requiring the parties to sell the marital home and divide
the proceeds in a certain manner, award certain community property
to be held by both parties (and let them decide later to sell it or
not to sell it), etc.
As a general rule of thumb, in
order to reach a "just and right" division of the community estate,
the court generally begins by presuming that a 50/50 division would
be equitable, then varies from there based upon a number of
factors, especially the length of the marriage, a disparity in the
earning capacity of the parties caused by the marriage (e.g.,
husband worked for 25 years while wife did not), whether there are
minor or adult children being taken care of by a spouse, "fault" in
the breakup of the marriage, etc. As discussed in some detail
below, the very nature of divorce cases makes it difficult to
predict in advance with any degree or certainty exactly how a given
court will divide this property in a given case on a given
day.
Alimony
"Alimony" is spousal support, that is, funds paid by one
spouse to and for the support of the other spouse. Texas was the
only state in the nation in which a court had no authority to order
alimony to be paid after the final divorce. However, in 1997, the
Texas legislation made provisions for very limited "alimony" which
requires extensive proof of inability to support oneself. It is
best to talk with your attorney about the availability of alimony
in your case, as each case differs greatly. Also, the parties may,
by agreement (i.e., contract), provide for alimony to be paid after
the final decree of divorce is entered. The party paying alimony
may deduct these payments from that party's income to gain a tax
benefit, while the alimony recipient must declare these payments as
income.
Children
If there are minor children of the parties, all
divorce decrees and settlements will contain orders governing the
custody, possession and support of the children after the divorce.
A "child" is any minor who was born or adopted by the parties. Once
a child turns 18, the court's jurisdiction over the adult child
ends (with several exceptions regarding child support, which is
discussed below).
Conservatorship
The Texas Family Code speaks in terms of post-divorce
"conservatorship" of children, meaning the legal status between the
children and their parents after the divorce as it relates to
controlling the children's lives, having possession of and access
to the children, and supporting the children.
The code expressly sets out a
nonexclusive list of the rights, privileges, duties and powers of
the parents. In a nutshell, these rights and duties may be
categorized into 3 areas; (1) the right to make major decisions
regarding the children; (2) the right to have physical possession
of the children; and (3) the duty to financially support the
children. Conservatorship orders divide these various rights and
duties among the parents after divorce.
a. Conservators
The Code refers to 2 types of conservators: (1) the managing
conservator(s) and (2) the possessory conservator. These terms are
confusing, because the "managing" conservator is, generally
speaking, the primary custodian of the children, while the
"possessory" conservator is not the primary custodian of the
children (the "possessory conservator" merely has some "possessory"
rights to the children, e.g., visitation).
1. Managing Conservator(s)
A "managing conservator" is generally given all the rights,
privileges, duties, and powers of a parent, to the exclusion of all
others, including the other parent, except as otherwise ordered by
the court. In short, the managing conservator is the primary
custodian of the children, and (1) has the right to make all the
most of the major decisions governing the children's lives, (2) has
the primary physical possession of the children (custody) and (3)
has the right to receive child support on behalf of the children.
As discussed below, there are now 2 types of managing conservators,
"sole managing conservatorship" and "joint managing
conservatorship."
2. Possessory Conservator
A "possessory conservator" is generally given (1) only a handful of
rights and duties to make decisions for the children, which can be
exercised only when the children are actually in the physical
sessions of the possessory conservator, (2) the right to certain
limited times of possession of the children (often referred to
"visitation rights"), and (3) the duty to pay the managing
conservator child support for the benefit of the children.
b. Types of Managing
Conservatorship
A managing conservatorship can be either a 'sole managing
conservator" or a "joint managing conservatorship" [unless very
extreme circumstances exist, a parent will be appointed the
managing conservator of the children. A nonparental managing
conservator (e.g., grandparent) can only be appointed if the
appointment of a parent would create an extreme danger to the child
or unless the parents agree.]
1. Sole Managing
Conservatorship
A "sole managing conservatorship" exists when one parent alone is
appointed the managing conservator of the child and given virtually
all of the rights, privileges, duties and powers of a parent to the
exclusion of the other parent. In such event, the other parent will
be the "possessory conservator."
2. Joint Managing
Conservatorship
The law presumes that it is in the best interest of the child or
children that both parties are to be "joint managing conservators"
of the children. This is true, whether or not the parties agree to
the joint appointment. Thus, both parents are, jointly, managing
conservators, and neither is a possessory conservator. Joint
managing conservatorship is often agreed to by both parties. While
a court is not required to appoint joint managing conservatorship,
even when the parties request it, the party who does not want a
joint managing conservatorship must prove to the court that a joint
managing conservatorship is not the best interest of the
children.
It should be noted, however, that
joint managing conservatorships vary. A joint managing
conservatorship order may be either a "pure" or "real" joint
managing conservator, or a joint managing conservatorship in name
only, or any combination thereof. A "pure" (real) joint managing
conservatorship authorizes both parents to equally exercise jointly
all of the rights, privileges, duties and powers of a parent. On
the other hand, under joint managing conservatorship which exist in
name only, while both parents are given the title of joint managing
conservator, one parent is in reality, by the detailed terms of the
joint managing conservator is in reality treated like a possessory
conservator. There are advantages and disadvantages to going either
route, which will be discussed with you by your attorney.
c. Possession of and Access to
Child (e.g., Visitation)
The managing conservator and the possessory conservator or the
joint managing conservators will be given certain exact times of
possession of and access to the children. Usually, one parent is
considered to be the "primary parent" or the parent with primary
possession of the child and has the child at all times except for
those times of possession given to the other parent, while the
other parent (e.g., possessory conservator) is given certain
court-ordered times of possession of and access to the children
(sometimes referred to as "visitation rights").
The legislature has by statue
adopted what is referred to as a "Standard Possession Order."
Basically, the Standard Possession Order gives the noncustodial
parent the right to possession of the children on every other
first, third, and fifth weekend (Friday through Sunday), every
Thursday evening during the regular school term, and one-half of
all holidays. Excluding the time that the children are asleep or in
school, the schedule gives the non-custodial parent about 47% of
the quality time with the children. For many reasons, judges rarely
vary from this Standard Possession Order and only do so under
unusual circumstances (e.g., child is under 3 years of age).
Child Support
The parent who does not have primary possession of the children or
who has less physical possession of the children than the other
parent, generally, is required to pay financial child support to
the primary custodial parent for the benefit of the children.
Although this can take many forms, child support usually consists
of periodic (e.g., monthly) payments to the custodial parent
The legislature by statue has
adopted Child Support Guidelines. Basically, the child support
under the Guidelines will be based upon percentages (based on the
number of children) of the support payer's "net resources" (as
defined in the Guidelines). For example, the guidelines require the
payer to pay 20% of his "net resources" for one child, 25% for two
children, etc. Most courts generally follow the guidelines in the
usual absent circumstances.
Also, the Family Code requires
that, if the support payer is a salaried employee, the payer's
child support (or a portion thereof) be withheld from his wages by
his employer and paid directly to the custodial parent. Although
this can be waived, it rarely is. At the present time, the fees
from a wage withholding order are being first sent through the
State Disbursement Unit in San Antonio and then forwarded to the
payee (the person entitled to receive child support).
Child support is usually ordered to
be paid through the county agency charged with recording child
support payments, which agency then keeps a record of all payments
received and forwards the payments to the child support recipient.
A major reason this is done is that, if the support obligor fails
to pay support as ordered, the agency has attorneys who will
usually represent the payee free of charge in a future contempt
hearing.
Other, "child support" is also
required in the form of health insurance for the children, orders
requiring the payment of uncovered medical expenses, etc.
Child support is due until the
child turns 18 or thereafter, until the end of the school year in
which the child graduates from high school. IMPORTANT: If a child
is mentally or physically impaired to the extent of requiring
continuous care, child support may be ordered to be paid
indefinitely past the child's 18th birthday. If this is the
case with any of your children, be sure to inform your
attorney.
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