Generally, the custodial parent is entitled to the tax
exemption for the child, unless otherwise agreed to by the parties.
Also, certain childcare deductions are available. Discuss these
with your attorney or tax advisor.
There are also a number of other issues which may not
directly relate to the dissolution of your marriage, but which are
available to you at the time of your divorce and which, as a
general rule, must be raised at the time of divorce, or they will
be waived. These issues do not arise in the typical case, but may
be applicable to yours. If so, you should discuss them with your
Causes of Action Against
Besides the typical causes of action raised in a divorce,
one spouse may have a cause of action back against the other spouse
for acts or omissions, which may directly relate to the dissolution
of the marriage. These included, for example, a civil cause of
action for assault (e.g., one spouse hits the other), false
imprisonment (e.g., one spouse locks the other up), one
intentionally defrauds the other of their separate property, one
spouse takes the other's separate property and gives it to another
person, etc. There also may be a cause of action for mental anguish
against a spouse. If anything like these examples seems to apply to
your case, discuss it with your attorney.
Causes of Action Against
There are also certain causes of action which one spouse
may have against third persons that may be joined with the divorce.
These include, for example, a request that a third party transfer
back to one spouse property that was wrongfully given to that third
person by the other spouse in an attempt to defraud the spouse, a
suit trustee of a trust being held for the benefit of a spouse,
etc. If any of these or similar matters exist in your case, let
your attorney know.
Note: The action known as "alienation of affection," which allowed
a spouse to sue the lover of the other spouse has been abolished in
Attorney's Fees, Costs,
Attorney's fee's, costs and expenses related to litigation
are treated as any other debt or liability of the parties and will
be divided by the court in a manner that the court deems "just and
right." The court can sometimes order one spouse to pay the other
spouse's fees, costs and expenses either in whole, or in part. An
order to pay these fees and expenses is within the discretion of
the judge. There is no automatic right to the award of these fees
Caution: One of the reasons a judge
might require a spouse to pay the fees of the other is if that
spouse has been uncooperative and has not followed the law and the
rules with reference to the divorce proceeding.
While these proceedings may be confusing and strange to you; there
are 6 typical phrases that average divorce case may go through:
5th-Trial (if no
Although each divorce case takes on
its own unique personality, these basic steps occur in one form or
another in most divorce cases.
Note: The law prohibits a divorce decree from being entered until
at least 60 days have elapsed from the date the divorce petition
was filed. This "cooling off" period is, of course, just a minimum
period of time. Most cases take much longer to complete.
Initiating the Divorce
A divorce is initiated by the filing of a divorce petition
by one of the spouses (the petitioner"), the service of the
petition on the other spouse (the "respondent" and the filing of a
written response (and usually a counter-petition) by the
respondent. The manner in which a divorce is initiated can set the
tone for the rest of the divorce case; therefore, how it is
initiated must be carefully considered.
Sometimes emergencies may exist, requiring immediate
action. For example, one spouse may be destroying property, running
up unusual debts, hiding or threatening to run off with the
children, abusing or threatening the other spouse or the children,
etc. In these cases, a Temporary Restraining Order (discussed in
detail below) can be issued.
Petition for Divorce
The first legal step taken by the petitioner's attorney is
the drafting of a Petition for Divorce. It sets out the basic
information required by the Texas Family Code, states the ground
for and requests a divorce, requests a division of community
property and recognition of the petitioner's separate property, and
requests orders concerning the children, etc. (discussed in detail
below), and it may request the court to make temporary orders
A petition can be amended time
again when necessary, provided it is not later than seven days
prior to that trial or some other deadline imposed by the court.
Often the original petition is very mild, without containing any
inflammatory allegation, like adultery. There are several reasons
for this. First, it helps start the process on a less combative
basis, which may help to keep the costs of the litigation from
escalating. Second, your attorney may not want to reveal all of
your legal positions at the beginning, unless to do so might
promote settlement or otherwise benefit you.
The petition will be filed with the court clerk (for which a filing
fee is charges), and the clerk will assign your case a cause
number. The clerk keeps a file and docket sheet on your
Service of Petition
The respondent must receive a copy of the petition. This
may be done in one of two ways. The petition may be formally served
on the respondent by a Sheriff, Constable or private process
server. Or, the petition may be informally given or mailed to the
respondent or his attorney. Formal service is required if a
Temporary Restraining Order is requested, and it may be preferred
in many situations; however, it also can be embarrassing to the
respondent to be served at his place of business and this in turn
starts the case off on a bad footing. While informal service may be
less antagonistic, it has its drawbacks. A respondent is required
to file a formal "response" (discussed below) within a certain
time, but only if formally served. Your attorney will discuss these
options with you before the filing of the petition.
If formally served, the respondent must file a written
response to the petition within a stated time from the date of
service, usually 20 days. This response is usually called and
"answer" in which the respondent "denies all of the allegations in
the original petition." This is a standard form that serves to
prevent the petitioner from taking a default judgment against the
respondent. The respondent may file a counter-petition for divorce
against the petitioner. It is usually delivered to the petitioner's
attorney, without formal service on the petitioner.
Between the time of the filing of the petition and the
granting of the divorce, the parties usually enter into temporary
orders, either by agreement or by court order, to govern the
parties, their property, debts and children pending the
Temporary Restraining Order
If emergencies exist, requiring immediate action to
protect a spouse, a child, or any property, a Temporary Restraining
Order (TRO) can be signed by the judge and served on the respondent
along with the petition. It immediately restrains the respondent
from the acts described in the order. If you are served with a TRO,
you should be certain to obey all of its terms, failure to do so is
punishable by contempt of court. The TRO expires 14 days after it
is issued; therefore, a hearing on temporary orders must be held
within the 14-day period, so that temporary orders of a more
indefinite duration can be entered.
A temporary order may be entered by agreement of the
parties or by the court after a temporary hearing. If by agreement,
the parties save the expense of a pre-trial hearing. A temporary
order may be entered whether or not a TRO has been issued.
Temporary orders normally stay in effect until the final decree is
The temporary order may provide for
an injunction against the parties hiding, wasting or destroying
property, prohibiting them from incurring any unusual debts, and
contain orders for temporary custody and support of children. The
court may also order one spouse to pay temporary alimony to the
other spouse. You should be prepared to provide your attorney with
details of your monthly living expenses as well as payments on
debts. This information is essential for determining amount of
temporary support to be paid or received. The temporary order
usually requires the parties to produce documents and/or to file a
formal inventory (discussed below).
Discovery of Evidence
The facts regarding the property, debts, the parties, and
the children from the foundation of any divorce case. Therefore,
information gathering is one of the most important and
time-consuming aspects of the divorce. You have more knowledge of
or access to the necessary information and documents, than does
your attorney. The more you can gather, the less time must be spent
on this aspect of your case by the attorney. The more you are
involved in this process, the more you learn about the facts
necessary to make appropriate decisions regarding your own case.
For all of these reasons, you need to be as personally involved as
possible in gathering information.
You will be given detailed information sheets to be
completed. While tedious and time-consuming, it is extremely
important for you to complete these with as much detail as
You may be requested to gather and bring to your attorney
many different documents, such as real estate deeds, bank
statements, insurance policies, etc. If you do not have these in
your possession, try to get them from other sources (except your
spouse). If you cannot, notify your attorney as soon as
In most cases, the parties are required to prepare and
file an "Inventory and Appraisement," which is a listing of all
community and separate real property as well as liabilities of the
parties. Your attorney will assist you with the form of the
inventory. You will be asked to state the value of the property and
the exact amount of any liability. You are required to sign the
inventory, under oath.
This is a very important part of
your case. You must be complete and truthful in your inventory. If
your case is not settled and a trial becomes necessary, the judge
uses the information contained in the inventory to assist in
dividing the property. If you swear to one thing in your inventory
and later, at the trial, attempt to take a different position, your
testimony will be suspect.
Often it is necessary to hire appraisers to help establish
the value of property, including real estate, retirement benefits,
businesses, or other assets. Your attorney will advise you if this
is necessary in your case.
Under Texas law, parties to any suit, including divorce,
are allowed to discover a great deal of information from the other
party by means of formal discovery devices. These include oral
deposition of a party or witness, interrogatories (written
questions which are answered under oath), requests for production
of documents and requests for admissions. One or more of these may
be used in your case. Your attorney will advise you with respect to
Caution: Most forms of formal
discovery require strict compliance deadlines, usually 30 days from
the day they are served on your attorney. There are harsh sanctions
for failure to comply, including payment of fines and/or attorney's
fees. Further failure to supplement your answers 30 days prior to
trial may result in undesirable consequences. For example, failure
to list a witness in answer to an interrogatory will mean that
person is excluded from testifying at the time of trial.
After all the discovery is concluded, the parties will
enter into settlement negotiations. Rest assured that no settlement
offer will be made or accepted by your attorney until you have
fully understood and approved the proposal. Usually, several offers
and counter-offers are made back and forth between the parties
before a settlement is hammered out.
Probably over 90% of all cases are
settled out of court, although this often happens just prior to
trial (e.g., "on the courthouse steps") or, sometimes, in the
middle of trial. Although settlements may appear to be possible,
your attorney cannot ignore trial preparations if settlement
negotiations are not successful and the trial date is
One reason parties settle is to
avoid the expense of trial. Also, neither party nor their attorneys
can predict in advance exactly how particular judge on a particular
day is going to rule in any given case.
The key to any settlement is
compromise. While no settlement can be forced on you or your
spouse, both you and your spouse need to understand that compromise
and a reasonable attitude of "give and take" is necessary if there
is going to be any reasonable chance of a meaningful settlement.
Neither party ever gets all that they want.
Important: To effectively negotiate
a settlement, you must try to look at these settlement negotiations
from your spouse's point of view; a good negotiator always attempts
to put himself in the shoes of the opponent and try to determine
what issues are most important to the opponent, where the opponent
will draw the line on what issues, etc.
As can be expected, attorneys
generally advise clients with regard to settlement based on the
number of factors, but the major factor is a determination by the
attorney of what a court would probably do if the case went to
trial. Any settlement offers which are unreasonably out of line
with what a court would probably do are rarely accepted except
under the most extreme and unusual circumstances.
Settlement may be achieved by way
of process known as mediation. The parties may agree to seek
mediation or they may be ordered to mediation by the court. A
neutral third party, usually an experienced lawyer or a retired
judge, is selected to serve as the mediator. The fees for the
mediator are usually shared by the parties. Both spouses and their
attorneys appear before the mediator in efforts to settle the
The mediator is not an arbitrator.
That is, he has no power to "force" a settlement or otherwise
adjudicate the dispute. He does attempt to compromise the legal
differences between the parties and encourage a resolution.
Usually, a portion of the time spent with the mediator is devoted
to the parties 'venting" their grievances against the other.
Following that phase, the mediator will ask each side to express
his or her suggestion for settlement. From there the mediator
discusses, in private with each side, possible compromises to the
differences. If successful, this process eventually results in a
settlement. Most cases are mediated in one day's time. Normally, it
does not occur over days or weeks. Statements made in mediation are
confidential and are subject to the "settlement rule," discussed
below. This allows the parties to freely exchange their views
without fear that they will be admissible at the time of trial.
Your attorney will advise you as to the suitability of mediation
for your particular case.
Finally, there often comes a time
when settlement negotiations reach the point of negative return,
and the attorney's must finally turn their energies to preparing
Caution: In Texas, a rule referred
to as the 'settlement rule" generally keeps out of evidence any
settlement negotiations going on between attorney's; however, this
only applies to formal settlement negotiations between or conducted
by the attorneys. This rule does not apply to private settlement
discussions between the individual spouses; therefore, anything
that you say to your spouse can (and most likely will) be
admissible into evidence if the case goes to trial. This can be
devastating. For example, in one case, a husband told his wife in a
phone conversation that he really didn't want the children, that he
was only asking for custody of the children in order to try and
help on the property settlement, and that if she would just not ask
for so much property and child support, then he would gladly let
her have custody of the children. As you can expect, all of this
conversation was brought out to the court, and it was quite harmful
to husband's case.
Trial (If No
If settlement negotiations fail, then the case must go to
trial. Do not be unduly fearful of trail. Trials in real life are
not what they are on TV or in the movies. Rarely is there anybody
present in the entire courtroom except the two parties and their
attorneys and staff, the judge, a clerk and the court reporter. The
atmosphere is unusually very formal and subdued. No one gets up in
a witness's face and mercilessly grills the witness on
cross-examination until they break down. No judge would allow such
conduct in real life. Your attorney and the staff will prepare you
extensively for any and all roles you will have at trial.
Sometimes only the parties testify,
while in other trials a large number of expert and fact witnesses
will be called to testify. The vast majority of divorces cases are
tried before the judge, not a jury. For one reason, jury trials are
much more expensive and time-consuming than trial to the court. In
some cases, however, jury trials are appropriate. Your attorney
will discuss these 2 options with you.
All the conclusion of trial, the
judge will enter his or her rulings and orders, usually right in
the courtroom or sometimes, days later by way of a letter to the
After a settlement has been reached or the trail court has
entered its orders, there is a great deal of work to be
1. Post-Trial Motions
If the case has been tried, very often one or both parties may file
various post-trial motions with the court, asking the court to
reconsider its rulings, etc. There are certain deadlines for the
filing of these motions (e.g., 30 days after the divorce decree is
signed). You and your attorney can decide whether or not you need
to file any post-trial motions, but you cannot control what your
spouse and his/her attorney does. In any event, these post-trial
matters can sometimes be quite time-consuming.
2. Drafting Documents
Whether your case is settled or tried, there is great deal of work
to be done with respect to drafting of the divorce decree and other
documents. Any agreed or litigated judgment for divorce is only as
good as it is enforceable, and its enforceability depends in large
part on how carefully it is drafted. Many lawyers have done well
for their clients at trial or in settlement, only to end up losing
much of what they had gained because of the of attorney
"outdrafting' them with respect to the decree and/or agreement
(lawyers sometimes refer to this as getting "pencil whipped").
Therefore, a great deal of time and care must go into the tedious
drafting of your unique decree and the documents related to your
Rest assured that you will approve
in advance any and all documents before they are finalized and
signed by the parties and the court.
a. Divorce Decree (Agreement
Incident to Divorce)
If your divorce case is settled, it may result in 2 documents-a
lengthy Agreement Incident to Divorce, which is signed by the
parties (this is a contract between the parties), and a short
Agreed Final Decree of Divorce, which incorporates and approves the
parties' agreement and signed by the judge (this is a judgment by
the court). Or, your settled divorce may result in only one
document entitled an Agreed Decree of divorce, which is signed by
the parties and the judge and serves, simultaneously, as both a
contract between the parties and judgment of the court. The
consensual decree is enforceable not only as a private contract
between the parties, but also as a decree which is enforceable as
any other judgment entered by court.
If your divorce is litigated, then
only 1 judgment-a Final Decree of Divorce-will be signed by the
judge. It is enforceable as any other civil judgment, but it is not
enforceable as a contract between the parties.
b. Other Documents
Besides the decree and the agreement discussed above, many other
documents often need to be drafted to implement the terms of the
divorce decree or agreement, such as real estate documents, etc.
Again, your attorney and you will fully review these documents
before they are signed.
Although appeals are extremely difficult to win and can be very
costly, they are available. Your attorney will discuss the option
of an appeal with you should the need arise.
There are a number of very important things for you to
carefully avoid throughout your entire divorce case. Despite what
your spouse may do, it is important that you keep a "white hat" on
throughout these proceedings. Violating any of the following rules
can be very detrimental to your case. Although most of these rules
have been discussed above, they bear repeating.
Don't Disclose Confidential
Information to Others
Remember, the attorney-client privilege only exists
between you and your attorney and her immediate, in-house staff.
Therefore, in order to keep this type of confidential information
privileged from disclosure, do not discuss it with or give it to
anybody, including your spouse and including any professional hired
to assist you in this case.
Don't Hide/Destroy Property
Whether or not any temporary orders have been entered,
never destroy, waste, hide, alter, collateralize or otherwise do
anything to affect the title or value of any property, or destroy
or alter any documents. Be sure to consult with your attorney
regarding any question that you have with respect to dealing with
present property and existing documents.
Don't Incur Unusual Debts/Liabilities
Whether or not temporary orders have been entered, never
incur unusual debts or liabilities (e.g., charge an unusual high
amount of clothes, an expensive vacation, etc.). This will
generally be considered against you by the judge and, more often
than not, the judge will first make an overall "just and right"
division of the property and debts and then, thereafter, order that
you solely responsible for any such unusual liabilities.
Don't Discuss the Settlement with Spouse
As discussed, the rule precluding evidence at trial of
settlement negotiations between attorneys does not apply to
settlement negotiations between spouses. Therefore, do not discuss
settlement with your spouse unless authorized in advance by your
Beware of Telephone Tape
It is not unusual for one spouse to tape record the
telephone conversations he has with the other spouse. These
recordings are admissible into evidence and have been the downfall
of many irrational spouses. Any time you speak to your spouse on
the phone, you should presume that it is being taped. Do not tape a
call unless you discuss this issue with your attorney, as there may
be serious criminal liabilities that may apply.
Don't Belittle Your Spouse
to Other People, Especially the Children
Judges and juries do not take kindly to one spouse
belittling the other spouse to third persons, and especially the
children. Everyone realizes that there are certain people with whom
you will confide about your divorce and that some criticism of your
spouse is natural; however, try as hard as you can to keep this to
a minimum, for these people may have to testify under oath as to
all of the negative remarks or hot-headed threats you may have made
against your spouse in a moment of anger. It is not uncommon to
take the deposition of the best friend of one of the spouses, who
will admit that the spouse has stated, "I'm going to take that
so-and-so to the cleaners, and I don't care what it costs, even if
I have to lie to the courts to do it." These remarks will have
extremely undesirable consequences.
Above all else, never criticize
your spouse in front of or to the children. It cannot be
overemphasized how detrimental this will be to your case. It has
literally cost many a parent custody of the children. Judges and
juries are extremely critical of this behavior. Most mental health
professionals will tell you that the children get their own
self-esteem from both parents; therefore, when one parent tells the
child that the other parent is "no good,' this can leave
long-lasting scars on the child's self-image. Also, child
psychologist warn that eventually, this criticism of the other
parent will backfire on the criticizing parent; the child, as he
grows older, starts to know the other parent in a different and
better light and feels that his earlier alienation from that parent
was unjustified and caused by the other parent; they eventually
resent the criticizing parent. In any event, you are strongly
advised against making any criticism of the other parent or taking
any action, which could remotely tend to alienate the affections of
the children for the other parent.
Don't Start a Business,
Contract, or Purchase Property
Even if you are separated and the divorce petition has
been filed, you are still legally married, and any property
purchased, even if it is on the day before the divorce, will be
considered community property. If that property is not divided at
the time of the divorce, then it will be considered undivided
community property to which both parties have and interest. Even
years after the divorce, the court can require you to petition that
property or order it sold, so that your spouse can own a share of
the property. The same rule applies to the establishment of a
business. Before you purchase any property or enter into any
contracts while your divorce is pending, consult your
The following are questions frequently asked by
persons at the beginning of divorce litigation. The answers
provided are general. You should ask your attorney to discuss the
specifics of your case.
When Can I Begin to
Not until the divorce is final. Adultery is a ground for
the granting of a divorce based upon fault. Your legal status as a
married person does not change until a divorce is granted. Although
some judges are lenient regarding dating while a divorce is
pending, you should be cautious about taking this risk. The fact
that your spouse may be dating should not be an excuse or
justification for your conduct. You need to wear the "white hat."
If you do decide to date, you should know that it might impact
adversely on a child custody dispute. In no event should you
introduce the children to your dates. No community funds should be
spent for the entertainment of third parties.
How Do I Get a "Legal
There is no such thing as a "legal separation" under Texas
law. Even though temporary orders may be entered by the court, they
are not to be construed as a legal separation.
Can I Open My Spouses
No, if you receive any mail addressed solely to your
spouse, it should be forwarded to him or to her by you or through
Should I Close Bank
Accounts and/or Credit Accounts?
If you have been served with a Temporary Restraining
Order, you will be prohibited from closing accounts. If you have
not, you are free to close the accounts. You should consider the
possible consequences. Closing an account without notice to your
spouse may cause unnecessary embarrassment. It may also increase
hostility and mistrust.
If your spouse is likely to spend
or hide money in an account or run up large balances on credit
cards, it may be a wise decision. If you close bank accounts, you
should not spend the funds. The best plan is to deposit all the
funds from the closed account into a new account, solely in your
name, so that you can fully account for the transaction
Can I Record Telephone
Wiretapping is a felony and can subject you to criminal
prosecution. However, it is lawful to tape record a conversation as
long as one party to the conversation consents to the recording.
Therefore, you may record a conversation between yourself and
another person. You may NOT secretly install a recording device so
as to intercept conversations between others. To do so is a felony.
The whole issue of recording telephone conversations is very
sensitive. You should carefully discuss it with your attorney. You
may record a conversation you have with any other person, so long
as you are a party to the conversation. If a recording you have
made is to be used at trial, it is required that the conversation
be recorded from the first ring until the conversation is
concluded, and you have hung up the phone. Partial recordings are
Can a Witness Testify by
No, except in very limited circumstances relating to
business records. Generally, testimony must be given in person at
the time of trial, or by pretrial deposition. This gives each side
the opportunity to examine and cross-examine the witness.
If your case involves domestic violence and/or
child abuse, you should make these matters known to your attorney
If your spouse has a history of violence or threats of
violence toward you or others, you should be aware of the
availability of protective orders, which can be issued by the
court. These orders will prohibit your spouse from coming near you,
your residence or place of business. Violation of the order can
result in immediate arrest.
However, if a person is intent on
causing harm to another, no court order will provide full
protection from danger. You may need to consider taking refuge in a
shelter or other secure location. These are serious matters and you
should employ all means to protect yourself from harm. This also
means that you should IMMEDIATELY cease any contract with your
If you have reason to believe that your child has been
abused, you should immediately report it to the local police or
child welfare authority as well as your attorney. However, you
should never make unfounded or capricious allegations of child
abuse. That will adversely impact your position in a child custody
dispute. Understand the discussions that you tell your attorney
regarding child abuse that may involve you may not be covered by
the attorney client privilege. A lawyer like many other
professionals has a duty to report abuse of a child even involving
their own client.
If the allegation is based upon sound evidence, your attorney will
discuss the methods available to protect the child from further
abuse. In most cases, the child should be seen by a physician
and/or mental health professional as soon as you learn of the
The Nature of Divorce
Divorce cases are unlike virtually all other civil
litigation. For one thing, they are extremely emotional-charged.
Further, they require a working knowledge of such a wide variety of
different areas of the law. Also, judges have much broader
discretion in family law cases than they do in most other areas of
Another major distinction between
divorce cases and most other area of litigation is that there is
virtually never a clear-cut "winner" or "loser" in a divorce case.
Both divorcing parties are usually asking for the same thing-a
"fair" division of the assets and debts and a "proper" decision
that is in the best interest of the children. The problem is, each
has a completely different view of "fair" and "proper." Because
judges have such broad discretion in family law cases and because
each judge brings his or her own set of values to the bench, the
results in a divorce case are frequently unpredictable in virtually
Additionally, judges have a
tendency to "play Solomon" in divorce cases. They try to be fair by
splitting things down the middle i.e., to give both parties some,
but not all, of what they want. For example, a husband will say
that his business (which he will want to receive in the decree) is
worth only $10,000. Wife's expert will swear it is worth $50,000,
and the judge will determine it is worth $25,000, which pleases
neither party. Unfortunately, this is often the rule rather than
the exception in divorce cases.
Each spouse, convinced that his or
her points of view are the only "fair" and "proper" views, feels
that they need to somehow be vindicated for all of the pain and
hurt gone through. They set up false expectations. They expect
courts to "solve" their financial and other problems. In reality,
courts cannot usually "solve" a party's problems; all a court can
do is to divide up what presently exists and grant a
Because of all of the above, it has
become an unfortunate but an often-stated saying among divorce
attorneys that, if the court enters an order, which is not
satisfactory to either party, it is probably a fair
Also, because of the above, it is
very difficult for any attorney to predict with any degree of
certainty exactly what a judge will do in a particular case. All
attorneys have won some that they should lose and lost some that
they thought they should have won, and while attorneys can
generally give a broad ballpark idea of what a judge will probably
do (if everything falls into place), there is no way for any lawyer
to guarantee what a judge is going to do on a given case. This is
one of the reasons so many cases settle.
Finally, it is very difficult for
any party to come out of a divorce feeling as if he is the
"winner," no matter what the result is. Sometimes this is because
of false expectations, and often it is because there is no way for
either party to be a "winner" or "loser" in the overall scheme of
Contact us today in Lewisville, Texas, for all your family law needs
including divorce, child custody, adoption, paternity, and child