Contested Divorces
Most divorces involving sizable property and/or children end up being heavily contested by both sides despite the fact the community property can often see a dramatic reduction by its conclusion. Despite the paper work and the trips by an attorney to the courthouse these divorces entail, if they are handled properly and both spouses remain level headed, both parties can receive an equitable division of the community property and fair custody and visitation without waging world war three.
John H. Carney, with the assistance of our senior divorce and family law paralegal, Barbara Stewart, has prepared the following chronological sequence to help you better understand the contested divorce process.
Your specific case will necessarily differ from the one outlined below. If you have some specific questions, or you need advice on your specific situation, and would like to setup a free initial consultation, please click Contact Us or contact Barbara or John at (214) 368-8300.
Separation.
Texas is not a state that recognizes legal separation. However, your conduct in this period can have a significant impact on the terms of your divorce. Let's assume that you and your spouse have reached a tentative agreement on the division of property and custody. You decide to separate and work out the particulars later. Once you leave the house your spouses' desire to be separated may have been satisfied. This affords them the ability to make arbitrary settlement demands and delay the resolution of your divorce. Your staying could give you the leverage necessary to expedite the divorce. The more your spouse wants a divorce, the more concessions they are usually willing to make when it comes to community property and child(ren).
Caution: If you believe the possibility of physical violence exists, you shouldn't risk you health for a strategic settlement move, you should remove yourself from any situation you consider to be dangerous.
Your leaving your house during separation may also have an impact on the custody the Court awards. If you leave your spouse and child(ren), it may be viewed as abandonment your family, and the longer you stay gone the harder it will be to regain custody of your child(ren). Keep in mind that often the possession and access you and your spouse adopt during the separation is the possession the Court orders in the divorce decree. If you take weekend visitation, the Court will be likely to award weekend visitation. Similarly if you and your spouse chare custody during the separation, the Court will be likely to award Joint Managing Conservatorship.
Without having a good reason, the Court doesn't like to change the status quo. That is why its important if you want the marital residence and if you will want custody of your child(ren), that you try to adopt these things prior to asking the Court to order it.
Your financial stability during throughout the divorce process.
The easiest way to guarantee your financial stability, and to facilitate a reasonable settlement, is to take control of available community property and transfer it for your exclusive use. A joint savings or checking account is the most liquid asset for immediate financial needs. Let your spouse prove it was community property, it is much easier for you to give them half of what you transferred than to argue for the Court to award you your half. If your transfer of funds makes your spouse need a divorce in order to divide community property, they will usually be more reasonable towards settlement demands. Once again, the more your spouse wants a divorce, the more concessions they are usually willing to make when it comes to community property and custody.
Conversely, if most of the community assets are in your spouses name, it is critical to get into court as soon as possible and get Temporary Orders. Financial instability may prompt you to adopt a division which is less than fair, and the longer your spouse has sole access to community property, the easier it will be for them to create the appearance that those assets were their separate property. Without a good reason, the Court doesn't like to change the status quo, this even applies to bank accounts.
Dating during the separation.
Typically casual dating wont affect the Court's division of property or the custody awarded. If you begin to spend considerable amounts of time with a new person, or if it comes out you spent the night with this person in a hotel room, it may create an image of you as having questionable morals, especially if child custody is a contested issue. If your dating makes your spouse upset or jealous however, it may make them unreasonable. A vindictive spouse can quickly make a divorce an expensive and time consuming process. If it is possible to stay amicable and rational with your spouse throughout the process you will save yourself considerable headache and attorney's fees.
Starting the legal divorce process.
The filing of the petition for divorce legally begins the divorce. It is the document that asks the Court to legally dissolve your marriage. This document will be served on your spouse to tell them they are being divorced regardless of whether or not they want to be. If your divorce is uncontested, your spouse may be willing to waive service to save the cost, and embarrassment, of having a private process server go to their office or home and physically hand them a copy of the petition and citation. After being served, if your spouse doesn't file an answer to your petition within the allotted time, your spouse will have waived their right to be present at trial and to put on evidence, and after hearing only your side of the story, the Court will make its ruling.
You can file a petition for divorce on your own if you know the correct form and procedure for filing it. Typically however, the judges and clerks frown on people representing themselves because you are expected to know all the correct legal procedures without their assistance. If you and your spouse can agree on every issue, and have little or no property, and just need an attorney to draft and file the petition and decree of divorce, John H. Carney & Associates typically completes uncontested divorces like these from $1,000.00 to $1,500.00. Because of the volatile nature of a divorce we do not make flat fee guarantees; however, if you draft your papers and just need someone to review them and make sure there in order, we could bill you for as little as an hour.
Saving attorney's fees by having one lawyer represent you both.
Technically a lawyer would be conflicted if he represented both of you, since what's in your best interest may not be in theirs. However, this doesn't mean that if you hire a lawyer you are required to hire another. You and your spouse can hire a lawyer to draft the documents and you can both be present for all meetings with the lawyer, and you can even work out how you would like to divide the fees (a little humor).
Setting up a free initial consultation.
Click Contact Us, or call our certified legal assistant Barbara at (214)368-8300.
Initial Client Information for the Consultation.
Ideally at the consultation you should be prepared to describe the amount and value of your property, your monthly income and living expenses. If this information is not immediately available to you, it can be supplied later and your divorce does not need to be delayed.
However, a lawyer can only advise you based on the information you supply them. The more incorrect or incomplete information you give your attorney, the more vague the advice. Any information you supply a lawyer is confidential and protected under the attorney client privilege. Because of the confidential nature you supply your attorney during the initial interview, that lawyer will probably be disqualified from representing your spouse in the divorce.
What to expect of your lawyer.
Your lawyer is your advocate and their job is to pursue your best interest at all times. Your lawyer should always try to make the process as financially and emotionally easy as possible, and this usually involves avoiding litigation when possible. A good lawyer takes the path of least resistance -- that means your lawyer should pursue the easiest way to achieve your best interest. Your lawyer should also help you maintain perspective on what is a fair settlement.
However, if your spouse is being vindictive or unreasonable, and issues need to be brought before a judge, your lawyer should be prepared to argue those issues to the best of their ability, and willing to exhaust all of the legal remedies available to you. At trial a lawyer's job is to get you a fair judgment and get you divorced.
Settling even when you're not worried about attorney's fees.
A settlement will only be agreed to by you and your attorney if it meets your needs. Judges and juries have a hard job of balancing the best interests of both parties and being fair and just at the same time, and sometimes they make the wrong decisions. An agreed divorce assures you that your needs are being met without leaving your divorce to chance. Also, settlement affords the attorney or attorneys the ability to get creative in tailoring your documents to your needs. Often there are tax consequences that can work for or against you based on the way your divorce is structured.
After the lawyer has been hired, the petition filed, and your spouse has been served:
Discovery
If property division or child custody is a contested issue, discovery is a valuable tool. Discovery is basically the process by which an attorney asks questions your spouse is legally obligated to answer truthfully under penalty of the law. The lawyer can serve your spouse with interrogatories, requests for production, and admissions. Interrogatories can be questions like, On what dates, and with whom, have you been in a hotel room in the last five years. Requests for production can be requests like, Please give us a copy of your tax returns for the last ten years. Admissions can be imperative statements like, admit or deny you are the owner of a 1986 Porsche 911.
There are other types of discovery that can be utilized if appropriate in your situation. If you have questions regarding discovery contact our certified legal assistant Barbara.
Temporary Orders
Temporary orders usually act like a short term divorce decree. Temporary orders are legally binding guidelines for you and your spouse until the Court can make its ruling in the final decree. They can specify you gets to reside in the marital residence, who can write checks on specific bank accounts, who gets the kids, etc. Temporary orders can also prevent a spouse from contacting you, spending or transferring money, leaving with the child(ren), or almost any other action you can prove could be detrimental to you or your child(ren). In a divorce you are also entitled to have a temporary restraining order issued with out your spouse being present that is valid for 14 days.
If you an your spouse cannot agree on possession and access to your minor child(ren) during the divorce, you will need temporary orders. You have a right to be a parent to your child(ren). If your spouse is currently refusing to let you see or contact your child(ren) seek legal counsel. Do not attempt to force possession even if it is the fair thing to do. You can endanger yourself and your child(ren), as well as jeopardize custody in the future. If your spouse fails to abide by the temporary orders they are in contempt, and can be ordered to appear in Court. If they do not appear a bench warrant can be issued, and they will be taken into custody. At their contempt hearing they can be sentenced to jail or can have assets taken to satisfy the Court's orders.
Mediation
Usually by the time the petition and answer have been filed, temporary orders have been determined, and discovery has been conducted, enough time has passed that both parties can agree on what is fair and can settle their case before additional expenses associated with trial are incurred. Mediation can be a useful tool in fostering negotiations. Mediation is a half day or day long negotiation session that is heard by an impartial third party. Even though most mediators are lawyers, you should have a lawyer present because mediators are not permitted to give advice. After mediation if you and your spouse still cannot agree on a fair settlement, you will need to go to trial.
Trial
A trial is the forum for you to put on evidence that persuades the Court to make orders in your best interest, namely, giving you the amount of community property you are entitled to and the type of custody that is in the best interest of the child(ren). This evidence usually consists of witness testimony and physical evidence. You can choose whether your case is heard before a judge and jury, or whether you will waive a jury and allow the judge to make the rulings. At the conclusion of the trial, the Court will decide how your property is to be divided, award custody and visitation to the child(ren), and make a final ruling on any other issues. These ruling will be incorporated into a final decree of divorce which the judge will then sign, making it a legally binding document, which may be subject to modification or clarification.
Post trial
There may be a few formalities to dispense with after the final decree is entered, for instance, if the community estate includes of a retirement savings plan, like a 401(k), then a special qualified domestic relations order will have to be entered to divide up money that isn't liquid.
Appeal.
If a ruling in your divorce is not a fair one or new evidence has come to light you may file a motion for a new trial or an begin an appeal. If you have child(ren), the Court will have continuing jurisdiction over your child(ren) until they are eighteen or otherwise emancipated. You may go back and ask the Court to modify it's decree and change child custody or child support for a variety of reasons.
General Guidelines
Divorce is an emotionally charged process; the following guidelines will make things easier on you, despite what your initial reaction may be.
- If you no longer love your spouse, substitute courtesy.
- Always be skeptical.
- Information is power; don't tell your spouse more than you need to.
- Walk away from heated arguments or conflict.
- Expect your spouse to resent your lawyer and attempt to undermine his influence.
- Do not enter private negotiations without your lawyer's knowledge and advice. The lawyer has a unique ability to play good cop/bad cop on your behalf.
- Don't make agreements or sign anything without talking to your lawyer first.
- When in conflict, trust your lawyer, not your spouse.
- Use your lawyer as a buffer, learn to say "talk to your lawyer and have him talk to mine."
- Don't rub in your legal victories. Losers try to even up.
To receive more information concerning your uncontested property and no children divorce, click Contact Us or contact our certified legal assistant Barbara at (214) 368-8300 with any questions.
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