SHOULD I SEEK A DIVORCE?
The decision to seek a divorce can be extremely difficult. The decision should not be taken lightly, and should only be made after significant effort to reconcile the marriage relationship. Because of the dramatic personal and legal consequences of divorce, spouses considering a divorce should seek the advice of trusted family members, friends, religious leaders, a marriage counselor, financial advisor and an attorney before making this decision.
WHAT IS THE DIVORCE PROCESS?
In Texas, a divorce proceeding begins with the filing of a divorce petition. Once the petition has been filed, the parties and their attorneys often negotiate in an attempt to resolve any disputed issues. Disputed issues in a divorce often include the character of property (separate v. community), appropriate division of the community property, conservatorship and visitation of the children and child support.
If the parties are able to reach an agreement on all of the issues, a Final Decree of Divorce is prepared and submitted to the Judge at a very brief and simple court hearing. If an agreement is not reached, the case is set for final trial. At trial, each party is given the opportunity to present evidence and arguments. The Judge then renders judgment and signs a decree that reflects the Court’s ruling.
WHAT IS DISCOVERY?
Discovery is the process of obtaining information from another person or organization. Typically, discovery can include written questions which must be answered under oath, requests for production of documents and other items, and oral depositions. The cost of completing discovery can be significant, but can also be a valuable tool in properly evaluating the case and preparing for trial.
WHAT IS MEDIATION?
Mediation is an informal settlement negotiation process in which the parties, their attorneys, and a mediator meet to discuss the case. The mediator is a neutral person experienced in the law, who has no stake in the outcome and does not advocate for either party. The mediator facilitates the negotiations and assists the parties in reaching an agreement. The mediator does not have authority to make a decision and cannot force the parties to resolve the dispute. Communications with the mediator are confidential, so the mediator cannot testify in Court.
WHAT IS COMMUNITY PROPERTY?
Texas is a community property state. Generally, all property owned or claimed by either spouse at the time of divorce is presumed to be community property. The Court is required to divide all of the community property (and debts) in a just and right manner. Property that was owned by one of the spouses before marriage, gifts received during the marriage, and property acquired during the marriage by bequest or inheritance constitute that spouse’s separate property. Separate property is not subject to division by the Court.
HOW ARE RETIREMENT BENEFITS AWARDED?
The Court may sign a Qualified Domestic Relations Order (“QDRO”), which is a court order directing the plan to divide a retirement account between the spouses. The QDRO is necessary to divide a retirement account due to restrictions imposed by the Internal Revenue Code and the Employee Retirement Income Security Act. Dividing a retirement plan via a QDRO ensures that the former spouse receives the benefits as an alternate payee and is utilized to avoid tax consequences.
WHAT IS ALIMONY AND HOW IS IT DETERMINED?
Alimony, known in Texas as “spousal maintenance” refers to the continuing support payments for a spouse after divorce. While some exceptions exist, Texas law generally limits the availability of spousal maintenance to situations involving (a) a history of family violence; or (b) marriages of longer than 10 years in which the spouse seeking maintenance is disabled or is otherwise unable to meet his or her minimum reasonable needs. Texas law generally limits the amount and duration of a spousal maintenance obligation. Many factors can be considered in deciding whether to award spousal maintenance and the amount and duration of the obligation.
WHO GETS CUSTODY OF THE CHILDREN?
In most cases, custody and visitation issues are resolved by the parents without the need for the Court to make a decision. If an agreement cannot be reached, the Court will consider all of the relevant evidence and then make a decision based on what the Court believes is in the best interest of the children. Factors the Court will likely consider include the availability of the parents, parental skills, past behavior, any history of criminal behavior, drug or alcohol abuse, the health of the parents, age and gender of the children, bonding and relationship issues, and the desires of the children.
WHAT HAPPENS IF THE ORDER IS VIOLATED?
If a person violates a clear requirement in a Court order, the other party may file a Motion for Enforcement. The Court then conducts a hearing to determine whether the person violated the order. If the Court determines that the Order was violated, the person can be held in contempt of court, sentenced to the county jail, and ordered to reimburse attorney’s fees and expenses incurred. The power of contempt is a powerful tool that can be used to obtain compliance with the order. If the violation involves the non-payment of child support, additional remedies are available, such as wage withholding and foreclosure and sale of property.
CAN THE COURT ORDER BE CHANGED?
In some circumstances, Texas law allows a party to a prior order to seek modification of the order. For example, if the best interest of the children suggests that the current non-custodial parent now have primary custody, the parent can seek to have the Judge consider the changed circumstances that would warrant a change in custody. Another example would be the change in income (increase or decrease) of the person paying child support. Various rules limit the availability of a modification, based on the circumstances and the timing of the request. Typically, the more time that has passed since the order, the easier it will be to obtain a modification.