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HOW DO I KNOW WHEN IT’S TIME TO GET A DIVORCE?
At the outset, you should be absolutely sure that your marriage is beyond saving. If you are uncertain or there is any chance you and your spouse may get back together, go see a marriage counselor – not a lawyer. A counselor can actually help you and your spouse work through your emotional and relationship problems. That is not the job of your divorce lawyer. I have heard it said that when your marriage is truly over, you’ll know. Then and only then, call a divorce lawyer.
WHAT ARE THE ROLES OF MY ATTORNEY AND THE LEGAL STAFF?
The attorney and staff work as a team, each doing the tasks which they can do most efficiently. You are charged less per hour for the legal assistant’s work than for the attorney’s; therefore, the legal assistant handles many of the more time consuming tasks, like gathering information and day-to-day contact with the client. You will be dealing with both the attorney and the legal assistant, throughout your case.
WHAT IS MY ROLE AS THE CLIENT?
You should be as informed and as involved as your case as possible. Educate yourself about the process of divorce. Read any and all letters or paperwork your attorney sends you. If you don’t understand something, ask a question. Better yet, make a list of questions for your attorney, and ask them all in one phone call or email (we do charge by the hour, you know).
Divorce can be a difficult process for anyone, requiring complex decisions concerning property division, child visitation agreements, child and spousal support arrangements, and more. If you are considering filing for a divorce, the outcome may continue to affect you for years to come. You need to know that your needs and your concerns are being tirelessly represented by an experienced divorce attorney who will be with you every step of the way.
So you think it may be time for a divorce. What do you do next? What are your options? We can help answer these questions and many more.
CAN MY ATTORNEY REPRESENT BOTH ME AND MY SPOUSE?
No. The attorney client relationship is special. You need your attorney and staff to be You, your attorney, and their staff be one hundred percent loyal to you and your case and owe loyalty whatsoever to your spouse. They should get their own lawyer.
WHAT IS “CONFIDENTIALITY”?
The privilege of confidentiality (also called “attorney-client privilege”) prohibits disclosure of any information, whether spoken or written, between the attorney and the client, so long as the information was meant to be confidential. For example, if you tell your divorce lawyer that you are having an affair with an intern, your lawyer cannot tell your spouse or spouse’s lawyer. Just don’t tell your lawyer one thing then testify to something completely different in court. Privileged communications also include all correspondence or documents from your attorney/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 your attorney and staff.
WHAT IS A “NO FAULT” DIVORCE? WHAT ARE THE GROUNDS FOR DIVORCE IN TEXAS?
A divorce may be granted on one or more “fault” grounds or the “no fault” ground expressly set out in the Texas Family Code. Most divorces are granted on the no-fault ground of “insupportability.” This is the ground to use if either spouse feels that the marriage has become insupportable because of a conflict in personalities which makes any reasonable expectation of reconciliation impossible. In English, that essentially means you just don’t like each other anymore, and cannot stand to live together as husband and wife.
“Fault” grounds for divorce include: adultery, cruel treatment, conviction of a felony, abandonment, living separate and apart for three years, or confinement in a mental hospital. A court may (but does not have to) consider “fault” in the breakup of a marriage as a factor in deciding how to divide the property and debts. For this reason, a spouse may choose to plead a “fault” ground for divorce.
WHAT DOES IT MEAN THAT TEXAS IS A “COMMUNITY PROPERTY STATE”?
Loosely speaking, it means that most of the property, both real estate and personal property, that you acquire during your marriage will belong to both of you equally. No matter who paid for it. The basic concept is “Your, Mine and Ours.” The “yours” and “mine” are what is called Separate Property under the law. The “ours” is what is called Community 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) gift or (b) inheritance. It is the date you got the property and the source of the property that controls, not how it is eventually paid for. For example, if one spouse owned a house or car before marriage, at the time of divorce it will be that spouse’s separate property, even if it was paid off in whole or in part during marriage. A court has no authority to take a spouse’s separate property from him or her at the time of divorce.
“Community property” is any property acquired by either or both spouses during marriage by other than gift or inheritance. This includes virtually everything purchased during marriage. It is important to remember that a marriage legally still exists even after you are separated (whether before or after the divorce petition has been filed) so any property obtained after separation will be still be community property. This is true even if the property is not physically received until after the final decree of divorce. For example, if the day before the divorce is granted a wife contracts to purchase a new home (with closing set off for one month later), or husband enters into a partnership agreement, this will be characterized as community property. Moral: be careful and be patient.
DOES TEXAS HAVE ALIMONY?
“Alimony” does not exist in Texas; rather, Texas has spousal support; that is, funds paid by one spouse for the support of the other spouse. Texas was the only state in the nation in which a court had no authority to order alimony to be paid after the final divorce. However, in 1997, the Texas legislation made provisions for very limited “alimony” which requires extensive proof of an inability to support oneself. It is best to talk with your attorney about the availability of spousal support in your case, as each case differs greatly. Also, the parties may, by agreement (i.e., contract), provide for alimony to be paid after the final decree of divorce is entered. The party paying alimony may deduct these payments from that party’s income to gain a tax benefit, while the alimony recipient must declare these payments as income.
WHAT ARE THE STEPS IN THE PROCESS OF A DIVORCE?
While these proceedings may be confusing and strange to you, there are six typical phases which average divorce cases may go through:
- Initiating the divorce (filing the Petition of Divorce)
- Temporary orders (if necessary)
- Discovery of evidence
- Settlement negotiations
- Trial (if no settlement)
- After trial / settlement
Although each divorce case takes on its own unique personality, these basic steps occur in one form or another in most divorce cases. You should discuss each step with your attorney. He or she can give you more personalized feedback on how your particular case is likely to progress.
Note: The law prohibits a divorce decree from being entered until at least 60 days have elapsed from the date the divorce petition was filed. This “cooling off” period is, of course, just a minimum period of time. Most cases take much longer to complete.