The May Firm

Q What is a divorce?

A A divorce is a lawsuit to dissolve the marriage relationship. A divorce encompasses many different issues including the division of property and debts, and what rights each parent will have to the children.

Q I am common law married. Do I need a divorce?

A A common law marriage is when a man and woman agree to be married and live together in Texas as husband and wife while representing to others that they are married. It must be noted that, contrary to popular belief, there are no time requirements for establishing a common law marriage. There are two ways to dissolve a common law marriage. The first is through traditional legal divorce procedures. The second option is to separate and wait. According to Texas Family Code, if no lawsuit to determine marital status is filed within two years after the separation of common law spouses, the law presumes there was no agreement to be married.

Practically speaking, if there are children resulting from a common law marriage, it is better to pursue a traditional divorce.

Q What is an annulment?

A An annulment is a proceeding to declare a marriage never legally existed. For adults, an annulment may be granted on any of several grounds: First, if at the time of the marriage at least one spouse was under the influence of drugs or alcohol and did not have the capacity to consent to the marriage, and the spouses have not voluntarily cohabited after the effects of the alcohol or drugs ended, an annulment may be granted.

The second ground for an annulment applies where either party, for physical or mental reasons, was permanently impotent at the time of the marriage. This is assuming the impotency was not known at the time of the marriage and there has been no voluntary cohabitation since learning of the impotency.

Third, a court may grant an annulment if one spouse did not have the mental capacity to consent to or to understand the marriage ceremony, the other spouse did not know or should not have known about the mental disease or defect, and no voluntary cohabitation has occurred after the mental disease or defect was discovered.

Fourth, where the marriage occurs within 30 days of the dissolution of a previous marriage, the spouse did not know about the other’s divorce, and no voluntary cohabitation occurred after learning of the concealed divorce, an annulment may be granted.

Finally, a court may grant an annulment if the marriage took place during the mandated 72-hour waiting period after the issuance of the marriage license.

Q What are the grounds for divorce in Texas?

A Texas is a “no-fault” divorce state. This means in order to get divorced it is not necessary to prove either spouse caused the breakdown of the marriage. The marriage must only be “insupportable” (that discord or conflict of personalities has destroyed the marriage relationship) in the opinion of at least one spouse. Simply put, you guys just don’t get along anymore! The vast majority of divorces are granted on this basis.

In some situations it is preferable to seek a divorce based on fault. The grounds for fault in Texas include: cruelty, adultery, a felony conviction and imprisonment, abandonment for at least a year, separation for three years, and confinement in a mental hospital for three years with the condition likely to continue or recur in the future.

Q What is the procedure for a divorce?

A The first step toward the dissolution of the marriage is to file a divorce petition with the court. This is the legal document that tells the court of your intention to seek a divorce. At this point, it is possible one party or the other will request certain restraining orders and ask that a temporary hearing be set to resolve issues while the divorce is pending. A restraining order in Texas divorce law is a standard, normal part of the process. The purpose is to make sure that both parties “do the right thing” regarding dealing with each other, children, mail, bank accounts, credit cards, personal property, etc.

A restraining order should not be confused with a protective order that addresses family violence and is enforceable by the police.

The next step is to notify the other party that you have filed for divorce. This is usually done through formal service of process by a constable or process server.

If a temporary hearing is requested, it is typically held within two to four weeks of the filing. At the temporary hearing, a judge will address such issues as possession of the children, child support, use of property and payment of debts during the course of the divorce proceedings.

The time between the temporary hearing and the final hearing is the “discovery” phase. Discovery is the process through which each side learns information from the other.

For example, during discovery each side may learn the other’s position concerning division of property, the existence and value of the marital estate, custody/possession of the children or income, for the purpose of establishing child support. Discovery includes written discovery, such as interrogatories or requests for production, oral depositions, and the Inventory and Appraisement, which contains each parties’ position on the character and value of the marital estate.

Once discovery is completed, the case will be set for final trial. Typically trials are held in front of a judge, who decides the contested issues. However, in Texas, a trial before a jury is allowed in certain circumstances involving child custody and characterization and valuation of property.

Most judges prefer that the parties attend mediation in an attempt to settle their issues without the necessity of a trial. Mediation is a process where a neutral third party, usually a very experienced family lawyer or former judge, facilitates negotiations between the parties to bring a resolution to the contested issues. Mediation is a very successful process, and most cases settle without the necessity of having a trial.

The overall divorce process averages approximately a year in length, although it could be as short as 60 days or as long as 10 years!

Q What is the difference between a contested divorce and an uncontested divorce?

A The difference between a “contested” and “uncontested” divorce is generally a matter of how much time your attorney will have to spend analyzing the issues and contemplating the fairness of the settlement. In an “uncontested” divorce, usually the parties have gathered information, negotiated and reached a settlement agreement on all issues prior to filing the divorce. The attorney’s job in that situation is to draft the paperwork according to the agreements the parties have reached.

It is very important to note that in an “uncontested” divorce, the attorney will likely not have enough information to advise the client on whether the settlement is fair or whether the client is making a wise decision.

If there are any issues that are not agreed to in advance by the spouses, then the divorce is considered “contested.” If a temporary hearing is necessary, then the divorce is “contested.” If there is a need for a temporary restraining order, then the divorce is “contested.”

Q I am thinking about filing for divorce. How can I find a good divorce attorney?

A It is important to find and hire a person who is right for you and your case. Look at factors such as credentials, cost, and location. Other factors such as gender, age, or personal compatibility may also be important to you. You should seek a family law specialist whose qualifications are most appropriate to your case. Professionals, such as accountants, counselors, or other lawyers are great sources of referrals, as they may know or have professional dealings with a family lawyer. Friends or family members, who have recently been through a divorce, may also recommend someone to you. The Texas Academy of Family Law Specialists maintains a directory of lawyers who are board certified by the Texas Board of Legal Specialization in family law on their website at www.tafls.org.

Q In your divorce litigation, can you change the judge’s decision?

A The first option to consider in challenging a trial judge’s ruling is whether to file a motion seeking to have the judge reconsider the ruling and grant a new trial. Reasons that a judge might throw out his or her decision include:* lack of evidence to support the decision;* misapplication of the law to the facts of the case; or* vitally important new evidence has arisen that could not have been discovered before the trial. Another option to challenge an undesirable result in a trial court is to appeal the decision to a court of appeals. Changing a trial judge’s ruling on appeal can be difficult, because trial judges are afforded “judicial discretion,” which means that the appellate court refuses to reverse a trial judge’s decision unless it can be shown that the judge abused his or her discretion. With either of these options, time is of the essence. Usually, the decision to challenge a trial judge’s decision must be made within 30 days of date the judge signs the order containing his/her decision. A party can also seek to change a court order or settlement agreement dividing property based on fraud or duress. Sometimes, the time period for seeking to change the property division based on fraud or duress is longer than the time period for seeking a new trial or appeal. Some issues in a divorce remain subject to modification even after the judge’s decision has become final. Issues such as conservatorship, possession of or access to children, child support, or maintenance can be modified if it is shown that there has been a change of circumstances since the last order was entered and the modification is in the best interest of the child. To modify a conservatorship order within one year of the previous order, a party must show some danger to the child’s physical health or emotional development.

Q How do I break the news to my family and friends that I am getting a divorce?

A This will be a difficult time for you, a time when you will need the support of your family and friends more than ever. There are no hard-and-fast rules, just basic guidelines. Modify them to fit your needs.

1. Start with the people that you think will be the most supportive and decide what you will tell ahead of time.
2. Don’t give out too much information. Keep the details of who-did-what-to-whom private.
3. Don’t demand that the person choose sides or sever ties with your ex-spouse.
4. Allow for positive relationships with your spouse’s family, especially if there are children involved.
5. Not everyone at work needs to know the details of your personal life. Choose carefully the people that you tell at the office.

Q What will happen to my retirement plan if I get a divorce? Since I earned it, isn’t it all mine?

A Texas is a community property state, which means that all assets and debts acquired during the marriage are owned jointly by both spouses. With retirement plans, the portion earned during the marriage would be considered a divisible asset, while the portions earned before the marriage would not be divided by the divorce court. Specific formulas have been developed by the Texas courts to guide in dividing retirement plans, with different formulas depending on the characteristics of the plan. A Qualified Domestic Relations Order (QDRO) is used to divide certain types of plans and give instructions to the plan administrator on how to apportion the funds.

Q I am contemplating filing for divorce. Is there any advantage to filing first?

A There are both advantages and disadvantages to being the first to file for divorce. The person that files the divorce first, called the petitioner, has the opportunity to set the initial tone of the litigation; in other words, he or she can make the first volley be either contentious or conciliatory by choosing what documents are first filed and what allegations are first raised. In addition, the petitioner can take measures to preserve the couple’s assets and prevent any dramatic increase in the couple’s debt while the divorce is pending. However, there are some psychological disadvantages to filing the divorce first.Many times the other spouse, the couple’s children, or extended family will cast blame on the person who files the divorce first for causing the final blow to the marriage relationship.

Q Can I be forced to pay my spouse support after our divorce?

A Texas law provides a limited right for the payment of support after a divorce to a spouse, called maintenance. Maintenance can be awarded where the spouse lacks sufficient resources to support herself, and:

• a spouse has been convicted of domestic violence, regardless of the length of the marriage; or,
• if the marriage has been at least 10 years or longer; and, either the spouse suffers from an incapacitating disability; a child suffers from an incapacitating disability that prevents the spouse from being gainfully employed; or, the spouse lacks job skills to gain employment to meet the spouse’s minimum reasonable needs.

Parties can also agree to an alimony obligation for the payment of support to a spouse after divorce which does not contemplate the restrictions in Texas law for maintenance. In some divorce cases, there are significant tax advantages to this type of agreement.

Q How can my ex and I better parent together?

A Effective parenting after divorce requires effective communication between the co-parents. There are some “Dos and Don’ts” regarding communicating with your co-parent:Dos:

• Have clear, consistent schedules and rules.
• Keep each other abreast of any parenting-related developments or important issues.
• Schedule appointments to speak with your ex about any problems, then be polite but firm while trying to solve them.
• Develop a trust level between each other — this means being 100% trustworthy yourself.
• Be civil and reasonable at all times.

Don’ts:

• Let any conflict with your ex overtake your parenting responsibilities.
• Assume your ex will go along with everything you plan or suggest.
• Jump to conclusions or overreact if you think there’s a problem.
• Begin sentences with phrases such as “You always…” or “You never…”

Q Should I ask for a divorce based on fault or no-fault grounds?

A Most divorces in Texas allege and are granted on the basis of insupportability, the no-fault ground. Insupportability simply means that there is a conflict of personalities that precludes reconciliation. Fault grounds include adultery, cruelty, conviction of a felony, or abandonment and may include fraud in some circumstances. In some cases, it may be advantageous to allege fault in the breakup of the marriage. The most commonly used situation where fault grounds are alleged involves a request for a disproportionate (greater than 50/50) division of property. A fault finding in the breakup of the marriage may be used to justify a division of property that exceeds 50%. Or if custody is an issue, it may be beneficial to allege fault grounds, where the factual basis of the fault grounds might also be used as evidence to support the request for custody.

Q What happens if I disagree with the outcome of my case? What are my options?

A There are several options for a party to consider if he or she disagrees with the outcome of the case. First, there may be some motions that can be filed after the trial is over, or after the court’s order is entered, asking the judge to reconsider the rulings in the case. Reasons that a judge might throw out the decision and order a new trial might include: lack of evidence to support the verdict; misapplication of the law to the facts of the case; or vitally important new evidence that has arisen that could not have been discovered before the trial. If these motions are unsuccessful in getting the trial judge to reverse the decision, then a party should consider appealing the decision to an appellate court. An appeal is very different from the trial of the case. At the trial level, the main focus is on the facts of the case and the presentation of those facts in open court through witnesses and evidence. On appeal, the facts have already been determined. A record exists of what facts were presented at the trial level and no new facts may be introduced at the appellate level. The focus on appeal is the application of the law to the facts and circumstances of the particular case. Arguments on appeal are made in writing, called “briefs.” Sometimes, a short presentation may be made in court, which is called an “oral argument.” An appeals judge will read the written transcript of the trial and review the written briefs to evaluate whether the trial judge or jury erred in their decision. An appeal is decided in the solitude of the appellate court’s chambers.

The skills required of an attorney in an appeal are very different from those required of an attorney at trial. An appellate attorney must be a persuasive writer, persistent researcher, and logical thinker.

Time is of the essence if you wish to challenge the decision of a trial judge or jury. There is only a limited time period within which to challenge a trial judge or jury’s decisions (usually 30 days).

Q I want to change the division of my property in my divorce. What are my options?

A There is usually a short amount of time, usually 30 days, after a court enters its order dividing the property of the parties in which a party can ask the court to reconsider its decision. The party asking the court to reconsider its ruling may argue that the court made a mistake in understanding or in applying the law to the facts, or that some new evidence (that could not have been discovered beforehand) arose after the court reached its decision that makes the court’s decision unfair. A party can also seek to change a court order or settlement agreement dividing property based on fraud or duress. For example, if one party lied about the amount of his or her assets and the other party later found out that the former hid a substantial amount of assets, the court could vacate the property division. Duress occurs when one party is forced into an agreement by extreme, unfair pressure from the other party; such actions could cause a court to vacate its property division. Duress exceeds the common stressors of a divorce and must be a very high amount of pressure from the other party. Sometimes the period of time for seeking to change the property division based on fraud or duress is longer than the time period for seeking reconsideration.

Another option is to appeal the trial judge’s decision to an appellate court. The decision to appeal must be made promptly — usually within 30 days — after the trial judge’s decision.

Q If I move out of the family home, do I lose my rights to it?

A The question raises two different issues regarding the effect of vacating the marital residence before a divorce. The first aspect involves the parties’ ownership interest in the residence as an asset of the community estate. Vacating the residence does not change the ownership interest in the asset (or the obligation on the debt). If the residence was purchased during the marriage using community property funds, it will remain a community property asset, subject to the division by the judge. The second issue raised is who has the right to possess the residence while the divorce is pending. As a general rule, a party may not be forcibly excluded from the residence without the opportunity to have a hearing. The exception to this rule is when there has been domestic violence and the court grants an emergency order regarding possession of the residence.

Voluntarily leaving the residence may affect the party’s credibility in requesting later possession of the residence. Many factors are weighed by a court in determining who should possess a residence while a divorce is pending. These factors include: each party¹s financial ability to maintain the residence, the best interest of the children in remaining in the residence, the party most likely to receive the residence in the final division of property, or any separate property interest in the residence by either party.

Q How does a joint custody agreement usually work?

A Joint custody is a broad layman’s term that includes several aspects regarding each parent¹s rights, duties and obligations to a child. New Texas law now calls this a “parenting plan”. The first part of a parenting plan is the parent’s legal title. Texas law presumes that parents are each going to be called “joint managing conservator”. In situations where the parents have a great deal of conflict regarding the children’s issues, or where one parent has other issues of bad conduct affecting the children, like drug abuse, alcohol abuse, or domestic violence, one parent will be named the sole managing conservator and the other parent will be named the possessory conservator. The second issue affecting the children involves what rights and duties each parent will have to make decisions about the children. One parent will be given the exclusive right to determine the children¹s primary residence, usually within a defined geographical area, and the right to receive child support. Other rights such as the right to make educational or medical decisions or the right to consent to marriage or enlistment in the armed forces will be shared by the parents.

Each parent will be given time to spend with the child. Most commonly, the judge will implement the Texas Standard Possession Order, which gives one parent possession on the 1st, 3rd, and 5th weekends of a month, Thursdays overnight, half of the holidays, and 30 days in the summer. The other parent will usually have possession of the children at all other times. A judge has the discretion to enter any possession order that the judge believes is in the best interest of the child based on that child’s situation.

The fourth part of a parenting plan in Texas sets the amount of child support to be paid. Child support is calculated based on a percentage of the parent¹s adjusted net income, taking into consideration income taxes paid for a single person claiming one dependent. Additionally, credit is given for children outside the marriage for whom the parent owes an obligation to support and any health insurance paid for the child the subject of the suit.

Q What are the main issues addressed in a divorce case?

A If there were children born during the course of the marriage, all issues pertaining to the children must be addressed during divorce proceedings. The first “kid issue” is the title of the parties. In Texas, parents normally will be named joint managing conservators. (Note that we are only discussing the title here, and not any other issue.) The alternative is that one parent will be named as sole managing conservator with the other named possessory conservator. This usually occurs only in circumstances where there is a concern about one party’s parenting abilities or when the parents have such a severely dysfunctional relationship that they cannot make joint decisions which are in the best interest of the children.

The second “kid issue” to be resolved involves the rights and duties each parent will have regarding the children. Examples include educational and medical decision-making, or consenting to the marriage or enlistment in the military of the child. In a joint conservatorship situation, both parents typically share all rights and duties, except that one parent will usually be given the exclusive right to determine the primary residence of the children. That parent will usually have the exclusive right to receive child support as well. Contrasting, in a sole/possessory conservatorship arrangement, the sole conservator will have the exclusive right to make most of the decisions regarding the children.

Third, each parent’s possession times with the children must be established. Usually one parent will receive the Texas Standard Possession Order, which gives that parent possession generally on the first, third, and fifth weekends of a month, one weeknight during the school year, 30 days during the summer, and one-half of the holiday times. However, there has been a recent trend toward negotiating for more time on behalf of the non-primary parent.

The last “kid issue” addresses child support. Child support in Texas is a mathematical formula based on the first $6,000 net income of the parent obligated to pay support. In order to vary from these guidelines, special circumstances must be shown. The parent paying support will also usually be obligated to provide health insurance, but both parents will share equally in the uninsured medical expenses.

Another issue that must be addressed, whether or not children are involved, is property division. Regarding property, there are generally four broad issues to address.

First, all of the property owned by either spouse must be identified. Many times one spouse will know less about what property is owned by the spouses, so identification of the property is very important.

Once all of the property is identified, the characterization of that property must be established. Texas is considered a “community property” state, meaning there are two types of property — community and separate — that make up the marital estate.

Generally speaking, “separate property” is what was owned prior to the marriage or obtained during the marriage through gift or inheritance. “Community property” is all property acquired jointly. The legal presumption is all property that exists at the dissolution of a marriage is community property. If one party claims an item as separate property, the burden rests on that individual to prove that claim.

The third property issue is to place values on the community property. This can be done either through a party’s opinion or through expert valuation. Values are important in evaluating whether the overall property division is fair.

Lastly, a determination must be made on how to divide the community property. Please note that the judge has no authority to divide separate property upon divorce. Community property is the judge’s only concern.

Typically, the community property is divided equally. One spouse may request an unequal division if there are certain issues of fairness that require it. Examples might include a disparity of earning capacity after the divorce, fault in the break-up of the marriage, or contribution of a spouse to the creation of the community property. Regardless, the judge must ultimately find that the division of the community property is “just and right.”