Preparing for Divorce
If you believe that your marriage may not last, you may want to lay the groundwork that will be required in case you decide to end your legal relationship; doing so can save you an enormous amount of time and effort (and attorney's fees) if you come to conclude your marriage is no longer viable. This includes gathering, among other things, all information and documents regarding both spouses' income, assets (including real property), liabilities, employment, criminal records, drug use, and domestic violence. Contact us for a free, comprehensive checklist.
Uncontested vs. Contested Divorce
An unconstested divorce is one where both parties agree on the division of community property, child custody and other important considerations. While quick, easy and cheap, it is not always possible to achieve (if you could agree on issues so important, you probably wouldn't be getting a divorce...). That said, the more you can agree on before it gets to the lawyers, the better. Contested divorces will render outcomes on issues that aren't just about property; emotional, personal decisions will be made by a judge or jury and can affect you and your children for the rest of your life. This makes selecting the right attorney of paramount importance.
To initiate a divorce proceeding in Texas, at least one of the spouses must have lived in Texas for the last 6 months and in the county where filed for 90 days. One spouse files a petition for divorce and the other spouse must file an answer. A hearing is usually conducted soon after these filings to establish a temporary order for child custody and visitation, and preservation of property. Discovery then takes place in the time between the initial filings and the trial. Discovery is the process by which both parties request from the other information and documents about important issues, such as income and assets. Like other adversarial proceedings, most divorce cases will settle before they go to trial. If not, a trial will commence to determine the contested issues before a judge (and usually a jury). By settlement or trial, the divorce concludes with the judge signing a divorce decree that answers the who, what, when and where of the division of property, spousal maintenance, paternity, child custody, visititation and support.
Division of Assets
The general rule is that the court must order a division that is "just and right," having due regard for the rights of each party and of any children of the marriage. Property will be characterized between separate property (mostly that which a spouse possessed at the beginning of the marriage) and community property (all property possessed by both spouses at the dissolution of marriage, minus each party's separate property). Separate property always remains the property of that party; community property will be divided by a "just and right" division. "Just and right" does not always mean an equal division; factors most commonly used to support an unequal division of the community property include fault by one of the spouses, and disparities between the spouses in income and education.
Texas law encourages parents to reach an agreement on child custody outside of court, sometimes imposing a court-appointed mediator to assist the parents in reaching an acceptable "parenting plan." Whether in an agreed parenting plan, standard possession order or any other court order regarding custody, the court's primary consideration is the best interest of the child.
After determining custody (called "conservatorship" in Texas), the court will order child support to be paid by one or both parties, depending on the circumstances. Texas law contains a formula that is presumptively in the best interest of the child (this presumption is rebuttable on a showing of injustice or inappropriateness, or on agreement by both parents).
Alimony (called "maintenance" in Texas) can be awarded to one of the spouses as part of a divorce decree. Maintenance can only be awarded if the spouse's separate property is
insufficient to support their "minimum reasonable needs" upon dissolution of the marriage, and either 1) the obligor-spouse had been convicted of family violence
within the last 2 years, or 2) the spouse seeking maintenance has a mental or physical disability, has been married for more than 10 years and cannot earn sufficient income, or is the custodian of a
child of the marriage that requires substantial care and supervision because of a physical or mental disability.
Temporary Order vs. Protective Order
A temporary order is issued in a divorce proceeding to establish preliminary conservatorship and support and to protect the property while the divorce case is still pending. A protective order, on the other hand, can be issued inside or outside of a divorce proceeding to protect any party from domestic violence.
Principal office located in Euless, Texas
If you have questions or want to schedule a consultation, please fill out the contact form. Your email will be sent directly to an attorney and responded to within one business day.