TABLE OF CONTENTS
The following are basic rules regarding divorce. It is extremely important that you understand them completely, so please study them carefully. Keep this document to refer to throughout the course of your case. Keep this document in a place where only you have access.
Remember, however, that these are only some of the basic rules and are not substitutes for detailed discussions with me and my staff. If you have any questions, do not hesitate to ask.
Caution: As will be discussed in detail below, this information sheet should not be shown to anyone. Rarely would it be in your best interest to share this knowledge with your spouse.
At the outset, you should be absolutely certain that your marriage is beyond redemption. If you are uncertain, you should encourage your spouse to join you in marriage counseling with a qualified counselor acceptable to both of you.
If you find you are experiencing emotional problems, please employ a professional counselor for your personal benefit. I am a specialist in law, not psychology or marriage counseling, and a counselor can help you with emotional problems much more effectively than I.
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 have approached these programs with much skepticism and have reported them to be life savers and well worth the time and money.
Caution: Some people hope that filing for a divorce will shock their spouse into reality and, therefore, save the marriage. While filing for a divorce sometimes saves the marriage, this is a rarity. Usually, it causes the other spouse to become more hostile. Therefore, a divorce should be filed with the clear realization that if you are asking for a divorce, that is what you will get. Even the most "vanilla" pleading for divorce can be seen by the other party as a slap in the face and may further entrench that party.
The following section discusses the relationship and interworkings between you and me and my staff.
A. ATTORNEY AND STAFF
My staff and I work as a team, each doing those tasks which they can do most efficiently. You will be dealing primarily with me throughout the relationship.
B. YOUR ROLE AS CLIENT
THIS IS YOUR CASE, NOT MINE. There are a great number of things that you must first do during your case.
1. Be Informed
You should be as informed and as involved in your case as possible. It is important that you read this document and understand all of its provisions and ask any questions that you may have at any time. You should read and understand any and all documents that are produced in your case. If you are informed and your spouse is not, you have leverage, power, over that spouse that may help in negotiations on your case.
2. Keep a File
All correspondence and documents produced in your case will be forwarded to you. Please establish one file in which to keep all of your divorce-related documents. Please remember to bring that file with you each time that you visit my office.
3. Tell Me the Truth About All Facts
You should be totally honest with me 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, if not more important, all facts which might be harmful to your case. The last person on earth you want to be surprised is me. Surprise rarely helps your case. Chances are your spouse's attorney is going to find out about these bad facts anyway, so please don't let me be the last to know. These "bad facts" are usually not as harmful as you may think and time must be spent defusing or buffering them.
In this respect, you do need to be made aware that at any time that 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, so help you God. If you do not, you subject yourself to criminal perjury or aggravated perjury charges, which can result in a prison sentence. I will never advise you to perjure yourself, as that is suborning (assisting) perjury, also a felony. Since Texas law requires me to see to it that you tell the truth when you are under oath, I cannot and will not condone any testimony by you which is less than the whole truth.
4. 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 I. 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 personally do as much of the information gathering, under my direction.
5. Review Spouse's Documents
I will provide you with copies of all documents supplied by your spouse's attorney. 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).
6. 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 me the authority to make other decisions which bear on your case, but which involve professional judgment or courtesy. For example, I should decide how to phrase allegations contained in your pleadings (having answered any questions you may have) 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, I may know that your side will need to make a similar request in the future. The other attorney may have some medical malady and need to see a doctor, and I know that the Judge had a similar medical problem. Therefore, I should be the decision-maker for these and similar matters. You will be busy enough taking care of your part of your case.
C. ATTORNEY-CLIENT RELATIONSHIP
You and I and my staff are in an attorney-client relationship, which is recognized by law to be a very special relationship. My staff and I owe one hundred percent of their allegiance to you and your case and owe no allegiance to your spouse whatsoever. I am required to represent you zealously, but within the bounds of the law. I will advise you when you suggest that a certain course of action be taken that I believe is not in your best interests.
Do not be mislead if you find me dealing with your spouse's attorney on a friendly basis. Professional and common courtesy dictate this. Good lawyers are perfectly capable of zealously defending and promoting their client's best interest, without becoming personal enemies. Attorneys are, in fact, trained to be advocates 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 his head, not his 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. And, in dealing with attorney's and negotiating, the old adage, "you can get a lot more with sugar than with salt" applies.
D. ATTORNEY-CLIENT PRIVILEGE
By virtue of the attorney-client relationship, there automatically arises what is known as the "attorney-client privilege". This privilege prohibits from disclosure any information, whether communicated orally or in writing, between the attorney and the client, so long as the communication was intended to be confidential. For example, this very information sheet you are reading is protected from disclosure to your spouse's attorney under the attorney-client privilege. Such protected communications also include all correspondence or documents from me and my 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 me and my staff.
Caution: The attorney-client privilege exists only between you and me and between you and my immediate, in-house staff. The attorney-client privilege can be waived if the otherwise confidential information is disclosed to persons other than me and my immediate staff. For example, if you tell your spouse something that I have told you, then that information will lose its privilege from disclosure and will have to be disclosed by you in court, if you are asked a specific question about it. 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. I think it is a good idea to assume that every conversation you have with your spouse, especially those communications over the phone, are being taped. I tell you this not to make you paranoid, but to prepare you to be careful. When it comes to this case, you must understand that you have entered a new universe where new rules apply, rules that you may be unfamiliar with in relationship to your normal playing field.
You should read and make certain you understand the fee contract, agreement for legal services, and/or the engagement letter supplied to you by me. If you do not understand the financial obligations required of you under the contract, you should immediately discuss those questions with me. You should not sign the contract until you understand it. You should not sign anything until you understand it and agree with its terms.
F. OTHER PROFESSIONALS
Besides me and my immediate, in-house staff, other outside professional are sometimes hired to assist in divorce cases. It may be necessary to engage an appraiser, a tax expert, CPA and other such professionals. It is common in custody cases to employ a psychiatric or psychological expert. I will discuss the necessity of these experts with you and hire only those that are necessary in your case and only with your consent. YOU MUST BE ABLE TO PAY THE FEES OF THESE EXPERTS. Not paying an expert can be devastating to your case. If there are monies left in your retainer, I will pay these expenses, but they must be reimbursed to me according to the terms of the contract. Caution: 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).
This section covers the basic issues involved in a typical divorce case. Think of this as a primer, a cursory look at Family Law, which in and of itself is dangerous. Please don't take this offering as the gospel, because the Law is a fluid, ever-changing thing and an exception to the rule can be found at every turn. It does, however, help you understand the process and what is happening to become proficient, at least to this extent, in order to assist on your case. If you have no children, you can skip the sections below regarding children. Otherwise, you should read each of these sections very carefully and go to this section first throughout your case when and if you have any questions regarding these issues. There is no charge to review this document.
A. GROUNDS FOR DIVORCE
A divorce may be granted on one or more "fault" grounds and/or the "no-fault" ground expressly set out in the Texas Family Code. Most, if not all 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. The statute describes the malady as discord or conflict in personalities that render the marriage insupportable and makes any reasonable expectation of reconciliation impossible. Insupportability requires almost no proof, a mere statement that you don't get along will suffice, if you add that you won't go back to your spouse as "husband and wife", which is a legal way of saying marriage relationship and sex. Fault grounds require proof, which many times cannot be proven. If you haven't alleged Insupportability and you fail on your fault ground, you will be faced with the miserable result of not getting divorced. Needless to say, not alleging Insupportability borders on malpractice.
"Fault" grounds for divorce include adultery (your spouse must have admitted sexual intercourse with a non-spouse or you have to have specific, definitive evidence of the sexual intercourse to be successful-not an altogether easy trick)or cruel physical, emotional and/or mental treatment. The other, rare fault grounds include abandonment (has to be with the intent to abandon and has remained away for at least one year (365 days), living apart (living apart without having sexual intercourse or, as the statute states, "cohabiting" for 3 years), conviction of a felony (must be convicted, imprisoned in a state or federal penitentiary for at least 1 year, and has not been pardoned), and confinement in a mental hospital (there are other requirements, so see me if you need to file under this fault ground-must be institutionalized for at least 3 years without much chance of adjustment by the hospitalized spouse).
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 also choose to plead a "fault" ground for divorce. It would seem that fault grounds also tend to draw compassion and sympathy, and sometimes, rarely, it does. But, these judges hear front-page horror stories daily. Therefore, please don't be surprised if the court doesn't supply the noose for your Mr. or Mrs. Wonderful lynching. Even if the Judge is sympathetic, he/she will hardly ever show it in court (the "appearance of impartiality"). Of course, the entire idea is for the court to show that compassion in its judgment, if that's what you want. If you are on the other side of the compassion issue, the perceived "bad actor", evidence will need to be secured to defuse that evidence that might cause compassion to rear its ugly head.
B. DOMICILE AND RESIDENCE
At least one spouse must have been "domiciled" in Texas for six months, and been a "resident" of the county where the suit is filed for ninety 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. Let's just say that if you've lived for the immediately preceding 6 months in the county in which the divorce has been filed, you have met the jurisdiction requirement.
C. PROPERTY AND DEBTS
This subsection is an elementary discussion of some of the basic rules underlying Texas marital property law.
1. Types of Property
In the context of divorce law in Texas, all property, both real (land and the buildings thereon) and personal (everything else, also called "personalty"), is
(1) separate property, (2) community property, and (3) mixed 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) direct gift or (b) inheritance (by will or intestate succession), or (c) personal injury settlement for pain and suffering (the judgment or settlement must show that the amount of money you claim as separate was for pain and suffering damages). It is the date of acquisition and the source of the property acquired and method of acquiring the property that controls how the property is characterized.
a. Separate Property
For example, if one spouse owned a house or a 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. This confirmation of separate property is important because it is unconstitutional (the Texas Constitution) for the Court to divide separate property. It comes off the table and is not directly considered, though it may be considered in the "fair division" of community property at the end of the divorce. Also, the Court can order that you have an obligation that can only be satisfied by your selling separate property-but you won't be ordered to sell your separate property. But the Court has to be careful, so separate property is important. You may or may not have any separate property. You may or may not be able to prove you have separate property.
A gift is presumptively separate property and includes, for example, any Christmas or birthday gifts from one spouse to another during marriage (even if purchased with community funds) or a gift to one spouse from family or friends. If a gift or inheritance goes to both spouses (e.g., wedding gifts, then each- spouse has an undivided fifty percent interest in that one piece of separate property and ½ of the value goes into each spouse's separate estates.
Separate property can change forms without changing its character as separate property (this is often referred to as a "mutation"). For example, if wife has $5,000 in cash which is her separate property and she uses that $5000 cash to purchase outright a $5,000 boat, then the boat would likewise be her separate property. That characterization is instantaneous with acquiring an interest (i.e. a down payment) in the property. What if the $5,000 is put into a joint "community" bank account along with current earnings from both spouses. An account in your name only after marriage is presumed to hold community funds. Separate property must be proven. Earnings are community, if after marriage. You must "TRACE" that $5000 from its deposit through each mutation, to the present day with documentary and testimonial evidence. By "tracing", I mean the note from your Mom-"Dad and I want you to have this $5,000", to the deposit slip showing the $5,000 deposit into the account, to the check that withdrew the $5,000 to the purchase documents for the next, and all subsequent steps, in the $5,000's journey through each mutation. Tracing is very difficult, unless you are a very impressive and anal bookkeeper that squirrels away every scrap of paper from time immemorial. Understand that it really can be separate $->$ withdrawn->car bought->car sold->stock bought->stock sold->land bought->land sold->business bought=separate property business...IF YOU CAN TRACE IT THROUGH EVERY STEP.
As I said earlier, a court has no authority to take a spouse's separate property from him or her at the time of divorce. Caution: Any and all property owned by either spouse at the time of divorce is, by law, presumed to be "community property" unless otherwise proven by competent evidence to be separate property (see discussion of "community property presumption" below); therefore, a spouse must (1) specifically plead the ownership of separate property and (2) prove by clear and convincing evidence each item of real or personal property claimed to be his separate property. Clear and convincing evidence is proof that is greater than the burden of proof at most civil trials (by a preponderance of evidence-O.J.'s civil trial-50.1% wins the issue) and less than the burden of proof at all criminal trials (beyond a reasonable doubt-O.J.'s criminal trial-very difficult burden on the proponent. I promise to never refer to O. J. again in this document. What happens if you have separate property, let's say a home that you paid the down payment with separate funds, and you decide to put your spouse's name on the deed. Well, there is a wealth of case law that says that you just "gifted" a one-half interest in the property to your spouse. And now you are aware of the fact that a gift is separate property, so he/she has a half interest in that home in his/her separate property estate. At the time of divorce, the Court can't dispose of the home, remember it's unconstitutional to do so, and you will become joint tenants and might have to file a Declaratory Judgment action to extricate one or the other, or just buy him/her out.
b. Community Property
Community property is any and all property acquired by either or both spouses during marriage by other than gift or inheritance or personal injury, pain and suffering damages. This includes virtually everything purchased during marriage. It doesn't matter who "earned" the property. All pensions (that is wholly or partially earned during marriage) is community and divisible, if, as, and when the pensioner receives it. The other spouse's share goes directly to him/her by Qualified Domestic Order (QDRO, pronounced kwadro). The non-pensioner is bound by the terms of the Pension Plan. I wish I had a dollar for every time a client said, "She has no right to my pension. I did the work. Right?" WRONG. It is important to understand that there IS NO LEGAL SEPARATION IN TEXAS. Please remember that a marriage legally endures from the moment the official says "I now pronounce...", through separation to the moment the JUDGE (the Associate Judge can only initial the Decree for the Judge to sign) of the Court signs the Decree of Divorce. Therefore, anything earned, purchased, or even merely contracted for, during 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 contacts to purchase a new home (with closing set off for one month later), or husband enters into a partnership agreement-these newly acquired assets will be characterized as community property and are subject to division. Think of the trauma of marrying a new spouse (you must wait 30 days after divorce to remarry), showing the new spouse the new home you purchased at a time before the Court signed the Decree and having to explain that your ex-spouse (who may decide to move in to your love nest has an interest in you new love nest). It's all very confused as is romance in any event. Let's just paraphrase the immortal words of Ricky Ricardo-"...you got a lot of 'splainin' to do."
All property which exists in whole or in part in the name of either spouse at the time of 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 possession of property which does not belong to either you or your spouse, you must point these out to me.
In Texas, earnings from separate property are community property. For example, a husband has $5,000 in a 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 and right" (as discussed in more detail below). While you are married, you and your spouse own community property in "undivided one-half interests." Neither spouse has any greater right to the property than the other spouse because you are married. At the end of a marriage, the Court is not bound by that fiction. Barring fraud, community property that you once had, but don't have now, for whatever reason other than fraud, is merely lost and of no value.
C. Out-of-State Real Property
Real estate located outside of Texas, which was purchased while either or both spouses were domiciled outside of Texas, is treated somewhat differently than "community property" or "separate property". If such foreign realty exits, please let me know.
D. 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 which 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 containing the community property earnings of the parties. In such event, title to the automobile would be sixty percent husband's separate property and forty percent community property.
2. Debts and Liabilities; Taxes
Debts and liabilities incurred before marriage, if still in existence at the time of divorce, shall remain 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 be made regarding 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 on the third party creditors who are not parties to the lawsuit. This is unavoidable unless each 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, Souse B has the right to sue Souse A to recoup those funds. While this is not a very good solution, 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.
3. Reimbursement and Economic Contribution
Pursuant to the rules above, three different "estates" may exist at the time of divorce: (1) husband's separate property estate; (2) wife's separate property estate; and (3) the community estate. Each of these estates may have an equitable "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 a right to ask a court to order the husband (i.e., his separate estate) to "reimburse" the community estate for the community funds used to pay off his separate property car. This is one very simple example of the doctrine of "reimbursement". New (2001) statutes have caused great interest in this area. No one, at this stage, knows exactly how the statutes will interfere or enhance prior law. Because these new laws impact on most cases, I herein list them and will be glad to discuss them with you.
§ 3.401. Definitions. In this subchapter:
(1) "Claim for economic contribution" means a claim made under this subchapter.
(2) "Economic contribution" means the contribution to a marital estate described by Section 3.402.
(3) "Equity" means, with respect to specific property owned by one or more marital estates, the amount computed by subtracting from the fair market value of the property as of a specific date the amount of a lawful lien specific to the property‑on that same date.
(4) "Marital estate" means one of three estates:
(A) the community property owned by the spouses together and referred to as the community marital estate;
(B) the separate property owned individually by the husband and referred to as a separate marital estate; or
(C) the separate property owned individually by the wife, also referred to as a separate marital estate.
(5) "Spouse" means a husband, who is a man, or a wife, who is a woman. A member of a civil union or similar relationship entered into in another state between persons of the same sex is not a spouse.
3.402. Economic Contribution.
(a) For purposes of this subchapter, "economic contribution" is the dollar amount of
(1) the reduction of the principal amount of a debt secured by a lien on property owned before marriage, to the extent the debt existed at the time of marriage;
(2) the reduction of the principal amount of a debt secured by a lien on property received by a spouse by gift, devise, or descent during a marriage, to the extent the debt existed at the time the property was received;
(3) the reduction of the principal amount of that part of a debt, including a home equity loan:
(A) incurred during a marriage;
(B) secured by a lien on property; and
(C) incurred for the acquisition of, or for capital improvements to, property;
(4) the reduction of the principal amount of that part of a debt:
(A) incurred during a marriage;
(B) secured by a lien on property owned by a spouse;
(C) for which the creditor agreed to look for repayment solely to the separate marital estate of the spouse on whose property the lien attached; and
(D) incurred for the acquisition of, or for capital improvements to, property;
(5) the refinancing of the principal amount described by Subdivisions (1)‑(4), to the extent the refinancing reduces that principal amount in a manner described by the appropriate subdivision; and
(6) capital improvements to property other than by incurring debt.
(b) Economic contribution" does not include the dollar amount of:
(1) expenditures for ordinary maintenance and repair or for taxes, interest, or insurance; or
(2) the contribution by a spouse of time, toil, talent, or effort during the marriage.
§ 3.403. Claim Based on Economic Contribution.
(a) A marital estate that makes an economic contribution to property owned by another marital estate has a claim for economic contribution with respect to the benefited estate.
(b) The amount of the claim under this section is equal to the product of:
(1) the equity in the benefited property on the date of dissolution of the marriage, the death of a spouse, or disposition of the property; multiplied by
(2) a fraction of which:
(A) the numerator is the economic contribution to the property by the contributing estate; and
(B) the denominator is an amount equal to the sum of:
(i) the economic contribution to the property by the contributing estate;
(ii) the equity in the property as of the date of the marriage or, if later, the date of the first economic contribution by the contributing estate; and
(iii) the economic contribution to the property by the benefited estate during the marriage.
(c) The amount of a claim under this section may be less than the total of the economic contributions made by the contributing estate, but may not cause the contributing estate to owe funds to the benefited estate.
(d) The amount of a claim under this section may not exceed the equity in the property on the date of dissolution of the marriage, the death of a spouse, or disposition of the property.
(e) The use and enjoyment of property during a marriage for which, a claim for economic contribution to the property exists does not create a claim of an offsetting benefit against the claim.
§ 3.404. Application of Inception of Title Rule; Ownership Interest Not Created.
(a) This subchapter does not affect the rule of inception of title under which the character of property is determined at the time the right to own or claim the property arises.
(b) The claim for economic contribution created under this subchapter does not create an ownership interest in property, but does create a claim against the property of the benefited estate by the contributing estate. The claim matures on dissolution of the marriage or the death of either spouse.
§ 3.405. Management Rights.
This subchapter does not affect the right to manage, control, or dispose of marital property as provided by this chapter.
§ 3.406. Equitable Lien.
(a) On dissolution of a marriage, the court shall impose an equitable lien on property of a marital estate to secure a claim for economic contribution in that property by another marital estate.
(b) On the death of a spouse, a court shall, on application for a claim of economic contribution brought by the surviving spouse, the personal representative of the estate of the deceased spouse, or any other person interested in the estate, as defined by Section 3, Texas Probate Code, impose an equitable lien on the property of a benefited marital estate to secure a claim for economic contribution by a contributing marital estate.
(c) Subject to homestead restrictions, an equitable Hen under this section may be imposed on the entirety of a spouse's property in the marital estate and is not limited to the item of property that benefited from an economic contribution.
§ 3.407. Offsetting Claims.
The court shall offset a claim for one marital estate's economic contribution in a specific asset of a second marital estate against the second marital estate's claim for economic contribution in a specific asset of the first marital estate.
§ 3.408. Claim for Reimbursement.
(a) A claim for economic contribution does not abrogate another claim for reimbursement in a factual circumstance not covered by this subchapter. In the case of a conflict between a claim for economic contribution under this subchapter and a claim for reimbursement, the claim for economic contribution, if proven, prevails.
(b) A claim for reimbursement includes:
(1) payment by one marital estate of the unsecured liabilities of another marital estate; and
(2) inadequate compensation for the time, toil, talent, and effort of a spouse by a business entity under the control and direction of that spouse.
(c) The court shall a resolve a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset against each other if the court determines it to be appropriate.
(d) Benefits for the use and enjoyment of property may be offset against a claim for reimbursement for expenditures to benefit a marital estate on property that does not involve a claim for economic contribution to the property.
§ 3.409. Non reimbursable Claims.
The court may not recognize a marital estate's claim for reimbursement for:
(1) the payment of child support, alimony, or spousal maintenance;
(2) the living expenses of a spouse or is child of a spouse;
(3) contributions of property of a nominal value;
(4) the payment of a liability of a nominal amount; or
(5) a student loan owed by a spouse.
§ 3.410. Effect of Marital Property Agreements.
A premarital or marital property agreement, whether executed before, on, or after September 1, 1999, that satisfies the requirements of Chapter 4 is effective to waive, release, assign, or partition a claim for economic contribution under this subchapter to the same extent the agreement would have been effective to waive, release, assign, or partition a claim for reimbursement under the law as it existed immediately before September 1, 1999, unless the agreement provides otherwise.
Again, reimbursement can be by, against, and between any of the three estates. Keep in mind that when I mention "the husband", it applies equally to "the wife". Now, what if the husband has a stock portfolio prior to marriage that is worth $1,000 at the time of marriage? The stock portfolio is not a debt as described under economic contribution. At the time of divorce, the portfolio is worth $100,000. Are you (the community estate) entitled to reimbursement on the $99,000 increase? Maybe. It depends on whether the net amount of the enhancement in value is from another estate and if there is enhancement in value. Personally, I don't think this example falls under economic contribution, but resides in that area of reimbursement that still applies. Confusion reigns in this area of the law and we try to figure it all out and we will probably have to wait for case law from the appellate courts to get a semi-firm handle on the subject. But, what if the increase is not due to community funds or your separate funds being spent on the benefited estate? If the increase is due to market advances and not due to anything the husband did with respect to the portfolio, no, no reimbursement. But, what if the portfolio increased because of the husband's time, toil, and effort in buying and selling stocks and bonds, and said manipulations caused the increase. Well, there are cases that support the proposition that a spouse's time, toil, and effort during marriage is COMMUNITY time, toil, and effort. It is possible that some of the increase was due to market fluctuations, but reimbursement, to the extent proved, is probably due. Are you entitled to the $99,000? Probably not, since in community property issues, the husband has an increment himself which may be 50%. So, it's not a dollar-for-dollar repayment.
Since reimbursement is an "equitable" doctrine, a court is not required to order reimbursement, but may choose to do so, especially under the new statutes, if the court considers it equitable or fair 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 on your and your attorney's part (expenditure of time means your expenditure of money), accounting, "tracing" of funds (discussed above and below) and general expense to prove the claim. Whether reimbursement should be sought is a decision you and I will make after weighing all of the factors. Personally, I think it may be financially foolhardy to spend $10,000 to try and get $5,000. I will tell you so, if you forget I just told you so in this hand-out. Yet, reasons may exist that makes it make sense. As long as you understand the potential expense and the potential risk, and you insist on going forward and will have to timely pay for the fees and expenses of the effort, I'll take you there.
I must tell you that once the love is gone in a marriage that is usually putrefying by the time a client gets to me, all you have left is a defaulted, violated contract. AT ITS CORE, DIVORCE DECISIONS ARE BUSINESS DECISIONS. LOVE HAS BEEN ELIMINATED FROM THE PICTURE AND PROCESS. BUSINESS DECISIONS SHOULD BE MADE IN AS EMOTIONLESS AN ENVIRONMENT AS POSSIBLE.
4. Tracing and Inception of Title
To determine title to property as being separate property and/or community property, and to determine rights of reimbursement between the different marital estates, if any, an accounting method referred to as "tracing" if often employed in divorce cases. For example, one bank account may contain funds which consists of both separate property and community property. Or, community property funds may be used to pay off a balance on a separate property debt which leads to reimbursement under the new laws. Tracing is employed to determine the title to property or the amount of reimbursement. Title of property is determined instantly upon acquiring an interest in that property (Inception of Title Doctrine) and is based on the funds or assets used to acquire that property. Note that the new laws of reimbursement do not affect the Inception of Tile Rule, nor does it grant any ownership interest.
Doctrine of commingling: If funds in an account contain both separate property funds and community property funds and these funds have been so commingled (mixed) 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 "community property presumption" discussion above). This mixing of different character funds is referred to as the doctrine of "commingling". Also, Courts like community property to mess with.
5. Division of Property and Debts
The parties by settlement, or a court after trial, will divide all existing property and debts. While the parties may by agreement make any type of division that they want-give to husband some of wife's separate property, agree to contractual alimony, etc.-a court during litigation does not have such flexibility. The Court is bound by the rules of law set out in statutes and in case law with reference to property and debts. Also, these rules of reimbursement 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 /her separate property and separate debts, 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 which give one of the spouses a disproportionately large share of the community property (e.g., 70% to Spouse A, 30% to Spouse B, or whatever), known as a "disproportionate or disparate division." Contrary to popular belief, the courts are not required to divide property 50/50, as explained above.
The division of property refers to the NET community estate (i.e., all community property LESS all community debts equals net community estate). Obviously, this does not require an equal division "in kind" (of the same type: toaster-for-toaster) of all property and debts. For example, suppose that the community estate consists of one home (with a mortgage), three cars (two with debt), two retirement accounts, miscellaneous personal property (e.g., furniture), and five 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 of 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. But, the example is fairly accurate as to how unsatisfying court-ordered divisions can be. 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 (the homestead) and divide the proceeds in a certain manner (though, as to be discussed later, this is rare where there are minor children in that homestead), and 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 marriage, a disparity in the earning capacities of the parties, the ability to enter the work force, work-related sabbaticals caused by the marriage (e.g., husband worked for 25 years while wife did not work outside the home), 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 of certainty exactly how a given court will divide the property and debt in a given case on a given day. After all, judges are not gods, though some think they are. They have every and all human frailties. Family Court judges have the greatest power and authority of all the judges because it is so difficult to overturn their decisions. Only a "clear abuse of discretion" results in the judgment being overturned on appeal. A very difficult, near impossible burden. And, of course, the Family Court Judges know the almost-limitless extent of their judicial power and the immense cost to appeal.
This power emanates from the fact that the Family Courts are Law and Equity Courts, unlike all other courts.
"Alimony" is post-Decree spousal support, that is, funds paid by one spouse to and for the support of the other spouse from monies earned or acquired after the divorce. Texas is the only state in the nation in which a court has no authority to order alimony (as said earlier, it is unconstitutional) to be paid after the final divorce (Court-ordered post-divorce alimony", the stuff you read about from Hollywood where the bodyguard or aerobics instructor [I apologize to all the mechanics and aerobic instructors out there] who marries the star or starlet and gets $25,000 per month for life or until re-marriage, whichever comes earlier...you can see the recipient of the money running out and getting remarried). We in Texas don't have that kind of boondoggle...yet. However, Texas courts do have the authority to order temporary alimony during the pendency of the divorce (from the day of filing the petition until the day the divorce is granted, or until further order of the court). Also, the parties may, by separate written agreement (i.e., contract, Community Property Settlement Agreement or Agreement Incident to Divorce called an AID), provide for contractual alimony to be paid after the final decree of divorce is entered. The party paying alimony may deduct these payments from this income to gain a tax benefit, while the alimony recipient must declare these payments as income, which may be worthwhile, depending on the receiving spouse's tax bracket. Incidentally, AIDs can be used for any lawful purpose, including those areas of concern that cannot be Court-ordered, such as child support to be paid after graduation or after the age of 18, whichever is later (for college, for example). The Court cannot order this, only approve the AID.
MAINTENANCE is a statute that was intended to be an anti-welfare measure. If you have been married for 10 years or more, are disabled to the point of being unable to work, or if there has been a conviction or deferred adjudication for family violence within 2 years before the filing of the divorce or during the case, you can ask for Maintenance, which is post-divorce support just like alimony. Is it like California, New York or other state's alimony? NO. The maximum you can get is $2,500 per month for three years (unless you are physically or mentally disabled) and the amount you get is based on your ex-spouse's gross income. Once you get a job, the amount can be reduced. I am seeing more and more wives claiming disability than ever before. This has to be proven, of course.
If there are minor children of the parties, all divorce decrees and settlements will contain orders governing the custody, rights and powers and duties of parents, access and possession and support of the children after the divorce, including medical insurance for the children. A "child" in the context of a divorce is any minor who was born or adopted by the parties. Once a child turns eighteen or graduates from an accredited high school leading to a high school diploma, whichever is later, the court's jurisdiction over the then-adult child ends (with several exceptions regarding child support, which are discussed below).
Since all of Family Law is governed by Acronym, there is the biggest is the law of Parent-Child: SAPCR (pronounced sap'cer)=SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP.
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, or during the divorce under a Temporary Order, 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 non-exclusive list of the rights, privileges, duties and powers of parents. In a nutshell, these rights and duties may be categorized into three 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 during the divorce and after the divorce.
The Code refers to two types of conservators: (1) the sole managing conservator (SMC) and the possessory conservator (PC). These terms are confusing, because the "managing" conservator (or the MC) is, generally speaking, the primary custodian of the children, while the possessory" conservator (or the PC) is not the primary custodian of the children (the PC merely has some "possessory rights" to the children, e.g., visitation).
1. Managing Conservators
A "managing conservator" is generally given all of 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 of 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 two types of managing conservators, "sole managing conservatorship" (or SMC, which can mean sole managing conservator or sole managing conservatorship depending on the context of the phrase) and "joint managing conservatorship" (or JMC, which can mean joint managing conservator or joint managing conservatorship depending on the context of the phrase). It is the law that a JMC is presumptively in the best interests of the child/children.
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 possession of the PC, (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 Conservatorships
A managing conservatorship can be either a "sole managing conservator" or a joint managing conservatorship". (Unless very extreme circumstances exist, a parents will be appointed as Joint Managing Conservators of the children. As said earlier, JMCs are presumed to be in the best interests of the children and unless a party proves to the Court's satisfaction that a SMC is better or necessary, a JMC will prevail. Only one JMC will be designated as the one with the power to designate the domicile of the child or children (where the child shall live), and attorneys and judges have given that particular JMC an additional handle so that the JMCs can be differentiated. The name is the "Primary" JMC (or PJMC), leaving the other parent to be known as "the JMC". If you feel that you have entered a world of acronyms, you have. If you want to understand what is happening, you will need to get a handle on the short hand references for these very important matters. A non-parental 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
A court may order 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 the parties. While a court is not required to award a joint managing conservatorship, even when the parties request it, courts usually do so if both parties request it. Courts will ALWAYS that the path of least resistance. Since a JMC has a powerful presumption, it usually gets the call from the court. A JMC is PRESUMED to be in the BEST INTERESTS OF THE CHILD...the mantra of every Parent-Child case.
It should be noted, however, that joint managing conservatorships vary. A Joint Managing Conservatorship order may create 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 and jointly exercise all of the rights, privileges, duties and powers of a parent, other than designating the domicile of the children. On the other hand, under a joint managing conservatorship which exists in name only (a "cosmetic" JMC), both parents are given the title of joint managing conservator, but only one parent is the main custodian in reality. By the detailed terms of the joint managing conservatorship order, one parent is given all of the rights, powers and duties of a SMC, while the other JMC is in reality treated like a PC. So, in that instance, the appointment to a JMC is merely on paper as a title, but may be enough for a conservator to save face, if that is the issue. There are advantages and disadvantages to going either route. I will discuss these with you at the appropriate time.
a Possession of and Access to Child (e.g., Visitation)
The managing conservator and the possessory conservator will be given certain exact times of possession of and access to the children. Usually, one parent (e.g., the SMC or PJMC) is considered to be the primary custodian 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., PC or JMC) is given certain court-ordered times of possession of and access to the children (sometimes referred to as "visitation rights").
The legislature has by statute adopted what is referred to as the "STANDARD
POSSESSION ORDER" (OR, SPO). The SPO was created to be a guide, an outline, the minimum possession for a non-custodial parent. It is meant to be modified, but most courts will simply order, "Just do an SPO." (remember "the path of least resistance") Basically, the Standard Possession Order gives the non-custodial parent the right to possession of the children on every first, third and fifth weekend (Friday through Sunday from 6 to 6), every Wednesday evening from 6-8 p.m., and one-half of all holidays. Today, most possession and access can be extended overnight to have the child returned to school the following morning. Excluding the time that the children are asleep or in school, the schedule gives the noncustodial parent about 40% of the quality time with the children. If you have played a major part in the children's lives and were constantly parenting the children, you will notice the difference in time. However, there is no way to have that type of time again, if you are not the custodial parent, and that time is not as great. As the children get older, and they want less and less involvement with parents, the issue becomes "interfering with the child's daily routine." For many reasons, Judges rarely vary from the SPO and only do so under unusual circumstances (e.g., child is under three years of age or there is considerable evidence warranting the court to do something different). Because there was a time when mothers (usually) kept fathers (usually) away from their children (because of the "I carried that child in my womb!" argument (an argument that no man can ever personally understand or fully appreciate), the SPO was created. It accommodates circumstances when the parent lives within 100 miles and when that parent lives 100 miles or more from the child. Consequently, even if parents move, there are always orders in place to allow access and possession by the PC or the non-primary JMC. This and other matters that must be included in a Decree sends the page output on Decrees with children over 40 pages. Working out the terms of the SPO can generate significant fees. It is, of course, always better for you and your spouse to agree to terms, since the two of you will be living those terms for a long time. Believe me, it doesn't matter how old your child it, the child knows that there are problems in the marriage and they believe it is all their fault, which is rarely true.
2. Child Support
The non-custodial parent (e.g., possessory conservator/JMC), who has less physical possession of the children, is generally required to pay 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, bimonthly, biweekly, weekly) payments to the custodial parent, either through a child support collection agency or through a wage withholding order (WHICH IS NOW REQUIRED BY STATUTE).
The legislature by statute has adopted Child Support Guidelines. Basically, the amount of child support under the Guidelines will be based upon percentages (based on the number of children) of the support payor (the person paying child support). The important term is known as 'Net Resources" (as defined in the Guidelines and accompanying statutes-it is not NET INCOME). For example, the guidelines require the payor to pay 20% of his "net resources" for one child, 25% for two children, etc. Most courts generally follow the guidelines in the usual case, absent unusual circumstances, but, as always, there are factors to be considered, which I will discuss later. I will also discuss how the calculation is made.
Also, the Family Code requires that if the support payor is a salaried employee, the payor'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, and the Courts would rather have a wage withholding order, because a corporation or company is usually more responsible than the average Payor. HOWEVER, YOU AS A PAYOR MUST MAKE CERTAIN THAT THE COMPANY MAKES THE PAYMENTS, IN FULL, IN A TIMELY MANNER UNDER THE ORDER. THE PAYOR IS THE ONE THAT GOES TO JAIL, IF THE PAYMENTS ARE NOT PROPERLY MADE.
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 payment to the child support recipient. A major reason this is done is that if the support obligor (the person paying child support) fails to pay support as ordered (either non-payment, partial payment or late payment), the "print out" of payments or non-payments is all that the payee (the recipient of the child support) needs, evidentiary-wise, for a future contempt hearing. It is also the evidence to defeat an enforcement action maliciously filed by a child support obligee (the child support recipient). Yes, this happens more often than you would think. There a minimal fees that the obligor must pay to manage the account.
Other "child support" is also required in the form of health insurance for the children, orders requiring the payment of non-covered or otherwise non reimbursable medical expenses, etc...
Child support is due until the child turns eighteen or, thereafter, until the end of the school year in which the child graduates from an accredited 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 certain to inform me.
3. Tax Considerations
Generally, the custodial parent is entitled to the tax exemption for the child, unless otherwise agreed to by the parties. Also, certain child care deductions are available. Discuss these with me or your tax advisor.
F. OTHER ISSUES
There are also a number of other issues which may or 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 normal case, but they may be applicable to your case. So, you should fully discuss your case with me so that I can determine the necessity of discussing these ancillary issues. An example of this is changing your name (wife only) or unusual divisions of property and/or debt.
1. Causes of Action Against Spouse
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 include, for example, a civil cause of action for assault (e.g., one spouse has hit the other, false imprisonment (e.g., one spouse locks the other up in the basement), invasion of privacy (e.g., one spouse installs a telephone tap on the phone of the other spouse), one spouse intentionally defrauds the other out of their separate property, one spouse takes the others 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 seem to apply to your case, discuss it with me.
2. Causes of Action Against Third Persons
There are also certain causes of action which one spouse may have against third persons which 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 against a 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 me 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 Texas.
G. ATTORNEY'S FEES, COSTS & EXPENSES
Attorney's fees, 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 and expenses.
The client is always primarily responsible for my fees.
Caution: One of the reasons a judge might require a spouse to pay the fees of the other is that spouse has been uncooperative and has not followed the law or rules with reference to the divorce proceeding. If one client has all the money and the other has no money, the court would probably assist that spouse in some way.
While these proceedings may be confusing and strange to you, there are six typical phases which the average LITIGATED divorce case may go through:
1st - Initiating the divorce
2nd - Temporary orders-HEARINGS
3rd - Discovery of evidence-HEARINGS (on the compliance with discovery)
4th - Inventory
4th - Settlement negotiations-Mediation
5th - Trial (if no settlement)
6th - Appeal of the trial or settlement
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, which is jurisdictional. Most cases take much longer to complete.
B. INITIATING THE DIVORCE (NON-COLLABORATIVE LAW 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 in many cases, 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.
2. Petition for Divorce
The first legal step taken by the petitioner's attorney is the drafting of a Petition for Divorce. ft sets out the basic information required by the Texas Family Code, states the grounds for and requests a divorce, requests a division of community property and a recognition of the petitioner's separate property and debts, and requests orders concerning the children, which may be standard provisions of the Standard Possession Order (SPO). If an emergency exists, the petition may contain a request for a Temporary Restraining Order (discussed in detail below), and it may request the court to make temporary orders (discussed below).
A petition can be amended time and again when necessary, provided it is not later than seven days prior to trial or some other deadline imposed by the court. Often the original petition is very mild, without containing any inflammatory allegation, like adultery or cruelty. 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, we may not want to reveal any 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 District Clerk (for which a filing fee is charged), and the clerk will assign your case a cause number and a court. The clerk of the individual court assigned your case keeps the file and the docket sheet on your case.
3. Service of Petition
The respondent must receive a copy of the petition. This may be done in one of two ways. The petition my be formally served on the respondent by a Sheriff, Constable or private process server. If the respondent cannot be personally served with the petition and I can get an order for substituted service, the respondent may be informally served with the petition or mailed to the respondent or his attorney. Formal service is required if a Temporary Restraining Order is requested and 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 makes the case start off on a bad footing. While informal service may be less antagonistic, it has its drawbacks if respondent is required to file a formal "response" (discussed below) within a time certain, but only if formally served. I will discuses these options with you before the filing of the petition.
4. Response and Counter-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 an "answer" in which the respondent "denies all of the allegations in the original petition." This is a standard form which 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 by fax or certified mail, or both, without formal service on the petitioner.
C. TEMPORARY ORDERS
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 granting of the final divorce.
1. 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, which may mean incarceration in jail for up to 6 months and a fine of $500 for each offense. The TRO expires 14 days after it is issued, unless extended for an additional, one time, 14 days; therefore, a hearing on temporary orders must be held within the 14-day or 28 day period, so that temporary orders of a more indefinite duration can be entered.
2. Temporary Orders
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 granted.
The temporary order may provide for an injunction, usual a mutual 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 me with details of your monthly living expenses as well as payments on debts. This information is essential for determining the 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).
D. DISCOVERY OF EVIDENCE
The facts regarding the property, debts, the parties and the children form 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 do I. The more you can gather, the less time must be spent on this aspect of your case by me. The more your 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.
1. Information Sheets
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 possible.
2. Gathering Documents
You may be requested to gather and bring to my offices many different documents, such as real estate deeds, bank statement, insurance policies, etc. If you do not have these in your possession, try to get them from other sources (except from your spouse). If you cannot, notify me as soon as possible.
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 and personal property as well as liabilities of the parties. I 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 debt on that property. You are required to sign the inventory under oath.
The Inventory 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 you 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. I will advise you if this is necessary in your case.
5. Formal Discovery
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 the civil deposition of a party or witness, interrogatories (written questions which are answered in writing and under oath), requests for production of documents and requests for admissions. One or more of these may be used in your case. I will advise you with respect to these matters.
Caution. Most forms of formal discovery require strict compliance deadlines, usually 30 days from the day they are served on a party's attorney. There are harsh sanctions for failure to comply, including payment of fines and/or attorney's fees, striking of pleadings and denial of certain causes of actions, defenses or the ability to put on witnesses. 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 discovery is concluded, the parties will enter into settlement negotiations. Rest assured that no settlement offer will be made or accepted by me until you have fully understood and approved the proposal. Usually several offers and counteroffers are made back and forth between the parties before a settlement, if any, is hammered out.
Probably over 95% 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, I cannot ignore trial preparations if settlement negotiations are not successful and the trial date is approaching.
One reason parties settle is to avoid the expense of trial. Also, neither party nor their attorneys can predict in advance exactly how a particular judge or jury 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 the 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 a 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 a process known as mediation, which is a form of Alternative Dispute Resolution (ADR) technique. Arbitration is another ADR method that is rarely used. 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 equally by the parties. Both spouses and their attorneys appear before the mediator in efforts to settle the case. The expense of this may be hefty, but no where near the cost of preparation for trial and trial and, potentially, appeal.
The mediator is not an arbitrator, who acts as a Judge and makes a ruling. That is, the mediator 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, except in the most complicated property cases and some conservatorship cases. 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 the statements or views will be admissible at the time of trial. I 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 attorneys must finally turn their energies to preparing for trial.
Caution- In Texas, a rule referred to as the "settlement rule" generally keeps out of evidence any settlement negotiations going on between the parties; 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 to help him 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 in court, and it was quite harmful to husband's case.
F. TRIAL (IF NO SETTLEMENT)
If settlement negotiations fail, then the case must go to trial. Do not be unduly fearful of trial. Trials, Judges and juries 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 usually 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. In real life, no judge would allow such conduct. My staff and I will prepare you extensively for any and all settings you may 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 divorce 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, having a jury is appropriate. I will discuss these two options with you.
At the conclusion of trial, the judge will enter his rulings and orders, usually right there in the courtroom or, sometimes, days later by way of a letter to the attorneys.
G. AFTER SETTLEMENT/TRIAL
After a settlement has been reached or the trial is concluded, the trial court has entered its orders, there is still a great deal of work to be completed.
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 I 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 Document
Whether your case is settled or tried, there is a 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 one of the of attorneys "out drafting" them with respect to the decree and/or agreement. Therefore, a great deal of time and care must go into the tedious drafting of your unique decree and the documents related to your divorce. Unfortunately, a great deal of time and care must go into the tedious review of every draft and the final of the decree and the documents related to your divorce.
Rest assured that you will approve in advance any and all documents before they are finalized and signed by the partied and the court.
a. Divorce Decree (Agreement Incident to Divorce)
If your divorce case is settled and there are no children, it may result in two 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 is signed by the judge (this is a judgement 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 a 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 a court.
If your divorce is litigated, then only one judgment - a Final Decree of Divorce - will be signed by the judge. It is enforceable as any other civil judgment, but 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, assignments, powers of attorney, etc. Again, you and I will fully review these documents before they are signed.
Barring fraud, neither party can appeal a settled divorce, but either party can appeal the ruling of a court following a litigated divorce. Although appeals are extremely difficult to win and can be very costly, they are available. I 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.
A. DON'T DISCLOSE CONFIDENTIAL INFORMATION TO OTHERS
Remember, the attorney-client privilege only exists between you and me and my immediate, in-house staff. Therefore, in order to keep this type of confidential information privileged from disclosure, do not discuss is with or give it to anybody, including your spouse and including any professional hired to assist you in this case.
B. DON'T HIDE/DESTROY PROPERTY OR DOCUMENTS
Whether or not any temporary orders have been entered, never destroy, waste, hide, alter, collateralize or otherwise do anything to affect the title or the value of any property, or destroy or alter any documents. Be sure to consult with me regarding any question that you have with respect to dealing with present property and existing documents.
C. DON'T INCUR UNUSUAL DEBTS/LIABILITIES
Whether or not temporary orders have been entered, never incur unusual debts or liabilities (e.g., charge an unusually 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 be solely responsible for any such unusual liabilities.
D. DON'T DISCUSS THE SETTLEMENT WITH YOUR 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 me.
E. BEWARE OF TELEPHONE TAPE RECORDINGS
It is not unusual for one spouse to tape record the telephone conversations he/she 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. I don't want you to become paranoid. Only wary and smart.
F. DON'T BELITTLE YOUR SPOUSE TO OTHER PEOPLE, ESPECIALLY
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 that you said "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 court 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 custody case. It has literally cost many a parent custody of the children. Judges and juries are extremely critical of this behavior, as the children are sufficiently harmed just by filing and pursuing a custody case. 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-esteem and image. Also, child psychologists 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.
G. DON'T START A BUSINESS, OR CONTRACT FOR 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 partition 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 during the pendency of your divorce, consult me. Please note that many Decrees have paragraphs that state that undisclosed property belongs 100% to the party that does not possess it. Wouldn't that be something, if the property is your community homestead for you and your new spouse. Your worst nightmare will seem like heaven compared to your life if you remarry prior to the Decree being signed by the judge. How does bigamy sound to you? Chances are you are not a Mormon and I can assure you this is not Utah.
The following are questions frequently asked by persons at the beginning of divorce litigation. The answers provided are general. You should ask me to discuss the specifics of your case.
WHEN CAN I BEGIN TO DATE?
It depends on what you mean by "date". Generally, 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 (the Decree is signed by the Judge of your court). 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 may 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 or for gifts for your new, special pal.
HOW DO I GET A "LEGAL SEPARATION"?
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. AND, COMMUNITY PROPERTY AND DEBT CONTINUE TO BE AMASSED UNTIL YOU ARE DIVORCED.
CAN I OPEN MY SPOUSE'S MAIL?
No. If you receive any mail addressed solely to your spouse, it should be forwarded to him or to her by you or through me. But, make a copy of the envelope if it looks suspicious or seems to involve financial, romantic or other evidentiary matter. Make a note of the date you mailed it to your spouse.
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. However, as with every action you take, you should consider the possible consequences. Closing an account without notice to your spouse may cause unnecessary embarrassment or may also increase hostility and mistrust. Of course, if your spouse is already hostile and untrustworthy and those personality traits are provable by evidence, you may need to do it to validate his general, negative personality traits. Under certain circumstances, a court may wonder why you didn't close accounts, if your spouse is presented by you to the court as an amoral thief and sociopathic liar. It's similar to wanting sole managing conservatorship of your kids due to your spouses' violence toward you and the kids, yet you let your spouse freely have possession of the kids without a court order and return to him/her to live or wanting a disproportionate share of the community property due to your spouses' fraud and breach of his trust relationship ("fiduciary" is the term) to you, and you continue to show by your actions that you trust him/her.
If your spouse is likely to spend or hide money in an account or run up large balances on a credit cared, it may be a wise decision to close accounts. If you close bank accounts, you should not spend the funds as the court may take that into consideration in ways that you would not appreciate. 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 later. You can retain or pay me out of such an account, usually without court sanction (punishment) since attorney's fees, quite remarkably, are considered "necessaries", such as food and mortgage payment.
CAN I RECORD TELEPHONE CONVERSATIONS?
Wiretapping is a felony and can subject you to state and federal criminal prosecution. However, it is lawful to tape record a conversation as long as one party to the conversation consents to the recording OR IS PARTICIPATING IN THE CONVERSATION AND TAPING IT HIM/HERSELF. Therefore, you may record a conversation between yourself and another person. You may NOT secretly tape a conversation or 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 and the law is very clear. You should carefully discuss it with me before doing anything in this regard. YOU SHOULD ALWAYS ASSUME THAT YOU ARE BEING TAPE RECORDED IN EVERY CONVERSATION WITH YOUR SPOUSE OR HER FAMILY AND FRIENDS.
CAN A WITNESS TESTIFY BY AFFIDAVIT?
No, except in very limited circumstances relating to business records. Generally, testimony must be given in person at the time of trial, or by pre-trial deposition. This gives each side the opportunity to examine and cross-examine the witness. An affidavit cannot be cross-examined.
If your case involves domestic violence an/or child abuse, you should make these matters known to me immediately. A Protective Order may be necessary to protect you.
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. Violations 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 and or your children from harm. This also means that you should IMMEDIATELY cease any contact with your spouse. The Court would take a dim view of granting a protective order and hearing that you and your spouse continue to see each other.
B. CHILD ABUSE
If you have reason to believe that your child has been abused, you should immediately report it to the local police or Child Protective Services or some other child welfare authority, as well as to me. However, you should never make unfounded or capricious allegations of child abuse. That will adversely impact your position in a child custody dispute and may violate the law.
If the allegation is based upon sound evidence, I 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 abuse. I AM BOUND BY LAW TO REPORT ANY DISCLOSURES OF CHILD ABUSE TO THE PROPER AUTHORITIES, AND WILL DO SO.
Divorce cases are unlike virtually all other civil litigation. For one thing, they are extremely emotion-charged. Further, they require a working knowledge of 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 the law.
Another major distinction between divorce cases and most other areas 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 that each spouse has a completely different view of 'lair" and "proper." Because judges have such broad discretion in family law cases and because each judge brings his own set of values to the bench, the results in a divorce case are frequently unpredictable in virtually identical cases. That is why Mediation has become so popular.
Additionally, judges have a tendency to "Play Solomon" in divorce case, 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 may say that his business (which he will want to receive in the decree) is only worth $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, feel that they need to somehow be vindicated for all of the pain and hurt they have 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 in the COMMUNITY ESTATE, grant a divorce and resolve conservatorship issues.
Because of all of the above, it has become an unfortunate, but 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 decision.
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 thought they should lose and have 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 many reasons so many cases settle. Other reasons are that the SYSTEM is beyond frustrating, time-consuming, illogical, generally unsympathetic and extremely expensive.
Finally, it is very difficult for any party to come out of a divorce feeling as if he or she is the "winner", no matter what the result is. Many times a Pyrrhic victory is achieved (win the battle, but lose the war). Sometimes this is because of false expectations on the client's part or failure of the attorney to present the "downside". You will never have that problem with me. Knowing the downside is how you can appreciate the risks of litigation. Many times there is simply no way for either party to be easily identified as a "winner" or "loser" in the overall scheme of things.