When to Consider Divorce (Part 3)

Jan 21, 2023 | Divorce, Family Law

 Previously, we have discussed the benefits of a happy marriage, as well as warning signs in this article; and, the types of marriages that might be saved, and are worth fighting for, in this post following-up the first one. Today, we will discuss different types of commitments to a marriage, and which is required for a marriage to be happy and thrive (and so, for divorce to not need to be considered).

In traditional, ceremonial, marriages, the individuals to be married make vows to one another. They, typically, will publicly attest to their mutual love, devotion, and expressed intention to work towards a lifelong, supportive relationship. That commitment is usually “for better, or for worse, for richer or poorer, in sickness and in health; to love and to cherish, till death do us part.”  And yet, despite those vows, many once-married people find themselves divorcing or divorced. Why is that?

Notice that the vows cited above do not express how the couple will stay together through troubling times. There is no mention of what actions they will take when warning signs (discussed in the articles linked above) present themselves. Divorce should not be considered, at least not initially, in a non-abusive relationship, where the partners are appropriately committed. So, that raises the issue: what type of commitment is “appropriate?”

According to Benjamin Karney, a professor of psychology and co-director of the Relationship Institute at UCLA, “’(w)hen people say, ‘I’m committed to my relationship,’ they can mean two things. One thing they can mean is, ‘I really like this relationship and want it to continue.’ However, true commitment to the marriage is more than just that.”[1]   In a new study, UCLA psychologists based their analysis of 172 married couples over the first 11 years of marriage. What they found was that couples who did more than just commit to wanting their relationship to continue; who were actually willing to examine how they might change themselves, compromise on their wishes and preferences, and prioritize the welfare of their marriage, over their individual desires, were significantly less likely to divorce, than were those couples who did not commit at that level.[2]

That makes sense when applied to other contexts. Let’s take parenting for an example. There are times when a parent prefers not to get-up with a sick child at night; prepare a healthy meal, wash clothes, arrange parties or outings for a child. They may even reside in a location where it is better for a child (such as in the attendance zone of a good school, or within an area designated by a court for the child to reside) rather than where they would ideally live (on a mountain, at a beach, in another state, or in a downtown condo, for examples) But, most parents will do those things anyway, because they prioritize the welfare and happiness of their child over their own individual wants, desires, and preferences.

It’s easy to want to have a good relationship, with a thriving, healthy child. It’s the parents’ commitment to sacrifice for the child’s welfare that is truly important to achieving those outcomes. Should spouses treat the welfare of their marriage with less commitment? If the answer to that question is “no,” then divorce should not be considered in that circumstance. If the answer is “yes,” then that spouse should consider whether s/he wishes to truly be married, or whether being single is the preference.

Healthy marriages bring much value to spouses, including a longer life expectancy, more general happiness, and life satisfaction. But like most things worthwhile, they take work, commitment, and sacrifice. But, the process of making them successful improves our own attitudes towards life, and ourselves as people and partners.

 

[1] https://newsroom.ucla.edu/releases/here-is-what-real-commitment-to-228064

[2] Ibid.

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Is There an Ideal Time to File for Divorce?

Oct 20, 2022 | Divorce

One of the more common questions that we receive concerns when to file for divorce (another one is “(d)oes it matter who files first). There are several factors that go into figuring the timing. For one thing, is divorce an appropriate response to your current situation? Some considerations to think about can be found here and here.

Assuming that you have fully considered your decision, as discussed in the links above, and you wish to proceed with divorce, the next consideration is whether you have taken the steps necessary to be prepared for divorce. A discussion of those steps can be found here.

Ok, now that you have given thought to whether divorce is right for you; and if you are ready for divorce; then the issue of ”when to file” arises. January is the most popular month for filing for divorce. In fact, it is commonly referred to in the industry as “Divorce Month.” February is, typically, the second most popular month for new divorce case filings.[1] But, does it truly matter in which month a new divorce case is started?

As far as the law governing the divorce case, and the manner in which the proceedings will go, the answer is “no.” Filing in either Spring, Summer, Fall, or Winter, will not change your case. So, the answer as to when to file is that you should file if and when you are ready to file.

Have you made the plans discussed in the links above for how things will go during your case? Also, will the two of you continue to reside together, or will one of you move out of the home? Have you considered finances and debt payments? Is now a particularly dicey time for one or more of your children? Is it a particularly stressful time at your work? Is there a preplanned family vacation on the horizon? All of these considerations, as well as the others discussed within those other blog posts, amount to determining whether you would be happier staying together, at least for now, or beginning the process of legally dissolving your marriage.

It is not an easy decision for many folks. As for others, they emotionally checked-out of the marriage in the past, and so, it is merely a business decision for them. Wherever you are in that process of emotionally coming to grips with the loss of your marriage, our advice is for you to not make a rash decision. Think about what you want to do. Discuss it with friends, or a mental health worker. And, if you decide that divorce is right for you; and that you are ready to proceed, then make that decision. Until then, wait until you are ready (or, ideally, work to improve your marriage, and never get divorced).

Until nest time, I am the Family Lawyer who says “Divorce is a big decision. Please don’t rush into it!”

 

[1] There are a few reasons for this phenomenon. Many people do not want to start the divisive process during the  holiday season. The stress of the holiday season pushes other to realize how unhappy they actually are. And, January is often viewed as a time for new resolutions, and major life changes.

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How to Expedite Your Divorce Case (Part 1)

May 21, 2022 | Divorce, Family Law

All marriages have their ups and downs. A “down” period, by itself, is usually not reason to abandon a healthy marriage. But, of course, not all marriages are “healthy.” If you are unhappy in a marriage, visiting with a good therapist may be the first step in trying to figure-out where you are, and where you wish to go. Here are some things to think about, and perhaps to discuss with your therapist: When to consider Divorce, Part 1; When to Consider Divorce, Part 2; and, When to Consider Divorce, Part 3.

Assuming that you have considered your options, and decided that divorce is right for you, then there are things that can be done to expedite your divorce. First, you should consider how you want issues resolved. If you have minor children of the marriage, then these are issues to be decided such as child custody, child support, child possession, and the authority to make important decisions for the children, such as where they will go to school, and which classes they will take, Also, who will choose which extracurricular activities they will participate in; how will those be paid for? Who will be responsible for transporting the children to and from practices and other events, such as games or recitals? Another important issue is who gets to make invasive medical decisions in a non-emergency[1]; and, where their primary residence will be located (either within a restricted geographic area or not). Each or all of those decisions might be set-up to require the joint agreement of both parent; or, one parent may get to make that decision unilaterally.

There is quite a bit to discuss in these areas. To what extent do you believe that you are your spouse will be able to discuss and resolve some or all of these issues? Your divorce case will go quicker, and be easier (financially and emotionally) to the extent that the two of you can make agreements without the need for litigation and judicial intervention.[2]

There are usually, also property issues to be determined by either the agreement of the parties, or by court decision. Which assets and liabilities exist? Which of those do you want for yourself, and which do you wish for your spouse to take? To what extent is there agreement or disagreement about those issues? Were some assets and/or debts acquired: prior to marriage? by inheritance? by gift? Those items are Separate Property, and will be treated differently than all other property, which is Community Property,.

Importantly, assets are viewed by courts in terms of their net value, as well as their affordability. Net worth is, of course, the value of the asset less anyt debt associated with it. In terms of affordability, awarding a spouse an asset which s/he cannot afford to maintain is not a benefit to that spouse, unless s/he intends to sell it right away. So, e.g., a court is unlikely to award  house, even with a high net equit6,y to a spouse who cannot afford the mortgage, insurance, taxes, and upkeep on it. In that case, the spouse in question would likely be better off by taking an award of cash (or another asset) for some or all of the net equity in the house, and allowing the other spouse to have the house and its payments.

I hope that this has given you some things to think about. There are plenty of other blog posts about divorce, child custody, and property, on this site. Please feel free to search for them.

 

[1] Usually, either parent can consent to invasive medical procedures in the case of an emergency.

[2] Discussion is not always recommended, such as when there is abuse (of any kind, including verbal). So, please, use your common sense, and trust your gut instinct, about whether to attempt to discuss divorce issues with your spouse,

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Can Divorce Mediation Save You Time & Money?

Feb 25, 2017 | Divorce

Divorce cases have traditionally involved the husband and the wife each getting their own lawyer, filing a lawsuit for divorce, and then, treating the case much like any other civil case: setting hearings on preliminary matters that should be resolved early in the case; sending and responding to written discovery requests; taking depositions of each other, along with any other witnesses who know things that are important to the case; attempting to negotiate a settlement of the issues of the case; and finally, if no agreement has been reached, setting the case for a contested trial.  Most Texas Courts also now require the parties and their lawyers in a divorce case to spend a full day in mediation prior to the trial date. These steps make up the Litigation Process. It is time-consuming and costly.

But, there is another way to resolve divorce cases, even when all of the issues are not agreed on by the husband and wife at the start of the case. This process is called Divorce Mediation. This process is usually substantially quicker and less expensive than the Litigation Process described in the paragraph above. Let’s see how the Divorce Mediation Process works.

When the husband and wife decide to use Divorce Mediation, they do not each hire a lawyer and begin fighting the case. Instead, they agree on one Divorce Mediation lawyer to assist them in working towards a resolution of the case. This Divorce Mediation lawyer first learns from them what the contested issues are, gathers information, then leads mediation to try to reach a settlement. If and when a settlement is reached (and, settlements are reached in most cases that use this process), the terms of the settlement are reduced to writing, and signed by the parties. With the difficult part of the case (resolving contested issues) behind them, the parties can, then, choose to finalize the case themselves, or to hire another lawyer to prepare the final divorce paperwork, and present it to the court, in a process known as a Divorce Prove-up.

The Divorce Mediation process will usually go more smoothly and quickly if both parties have full information about bank accounts, retirement accounts, the house payment or rent, the bills, and any other financial matter. And, if they have minor children, then each parent should inform himself or herself about each child’s current situation, such as the child’s medical condition, and any existing academic issues. When the parties have the same information about these matters, the Divorce Mediator can, then, lead a discussion of the issues, develop settlement proposals for the parties, and work towards attempting to have the parties reach agreement on the issues of the case. This process usually yields positive results, if both parties are ready for the divorce to happen, and are willing to work in good faith towards reaching agreements.

Divorce Mediation has advantages over the Litigation Process. When issues are resolved in Divorce Mediation, the process is private. Contrast that with contested cases, where court filings are made that can be seen by anyone in the public who wants to look at those filings. Also, the Divorce Mediation process provides a greater opportunity for the parties to be civil to each other, which is important when they have to co-parent one or more children together. And, it is usually less expensive and quicker.

Divorce Mediation is a relatively new process. The days when divorces had to involve people publicly fighting issues in a court are behind us. While not every case is suitable for Divorce Mediation, most are.

For information on how to get ready for a divorce, please see 8 Steps to Take to Prepare for Divorce.

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Divorce and Child Custody FAQ

Nov 23, 2014 | Child Custody, Divorce, Family Law

Frequently Asked Questions about Divorce and Child Custody

Q1:  For how long must a person live in Texas before he or she can obtain a divorce in Texas?

A: The wife, the husband, or both spouses must have lived in Texas for at least the most recent six months (this is referred to as “being domiciled in Texas”)
Had a home for at least the last ninety days, in the particular county in which the divorce case will be filed (this is what is meant by “being a resident” of that county).

Q2:  What do some terms commonly used in Texas divorce proceedings mean?

A: The spouse who initiates the case, by filing an Original Petition for Divorce, is known as the “Petitioner.” The other spouse is designated as the “Respondent.” When “Venue” is proper for the divorce case, that means that the divorce is filed in the right county. In Texas, proper venue for the divorce action is in the District Court within a county in which the residency requirements (discussed above) are met.

Q3:  How long does a divorce case have to be on file with the court before a divorce can be granted?

A: Once the divorce case is filed, there is a minimum sixty-day waiting period prior before the court has the power to grant the divorce, except in cases of Family Violence. But, most contested cases are on file longer than sixty days, because it usually takes more than sixty days, to learn what issues remain contested and what the evidence is for those issues. Also, if a trial will be necessary, the court often requires the parties to mediate the case prior to trial. Drafting and having final documents entered also will usually take awhile.

Q4:  I have heard people talk about “having grounds for divorce.” What does that mean?

A: “ground for divorce” means simply a basis on which the court may grant a divorce. In most cases, the grounds used are so-called “No Fault” grounds (discussed below).

Q5: What are the recognized grounds for divorce which are recognized in Texas?

A: No Fault—this means that the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimate ends of the marriage; and, there is no reasonable expectation that the spouses will reconcile with one another.

There are also fault grounds for divorce. These are grounds for which one of the parties is at fault for the failure of the marriage. Cruelty, adultery, confinement in a mental hospital, and concealed divorce are fault grounds recognized in Texas.

Q6:  What is “spousal support” under Texas law?

A: “Spousal support” (sometimes informally called “alimony”) is money paid by one spouse to the other to compensate a spouse for the loss of income which will be experienced by the spouse who will receive the spousal support.

Q7:  Is spousal support available while the divorce is pending in court, or only after the divorce has become finalized?

A: The court may order that one spouse pay spousal support to the other spouse while the divorce case is ongoing, as well as after the case ends. There are different standards which apply to each of those types of spousal support payment programs.

Q8:  What factors will the Texas court consider when determining how much spousal support to award to a party?

A: The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The court will also consider whether the person seeking spousal support is disabled, or is the full-time caregiver of a disabled child. And, the Texas Court will additionally consider the health and age of the party’s ability to work, responsibility for children, availability of funds, and the length of the marriage.

Q9:  On what basis does a Texas court decide how marital property is divided?

A: Texas is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.

Q10:  What is “Separate property.” 

A: The Texas Constitution defines “Separate Property” and “Community Property.”While the definitions are straight-forward, applying them to a particular marriage can be tricky and complicated, especially if the marriage is a long one; if gifts and inheritances have been received by the parties, if monies were not kept in separate accounts, and if separate property was productive (i.e. it earned interest or income). Additionally, there can be issues of “Equitable Reimbursement” which arise from certain uses of Community or Separate Property.

Q11:  What happens to that “Separate Property” during a divorce case?

A: This question concerns whether property owned by one of the parties should be included in the marital estate for purposes of the court’s property division. Generally, property is “separate” if it was acquired before the marriage, or by gift or inheritance at any time. Sometimes, one or more items of property “mutate” to another item or items of property. “Separate Property,” once proven to be such, is excluded from the marital estate unless it has been ‘co-mingled” with community property to the extent that it is no longer distinguishable from the community property.

There are a lot of tricky considerations concerning Texas Community Property Law, such as whether income from separate property is separate or community property, or whether the parties may agree between themselves to alter the character of certain items or classes of their property. An experienced Texas Family Lawyer can explain these issues to you.

Q12:  I have heard that the presumption in Texas is that the parents of a child should be appointed as “Joint Managing Conservators.” Does that mean that the parents split time with the children 50-50?

A: No. “Joint Managing Conservators” means that the parents share rights and duties to to their children. This means that both parents should be involved in the making of important decisions for their child, such as on school issues, and when a medical decision is needed. The “Standard Possession Order” awards possession and access to the children. And, it is presumed to be in the best interest of a child who is 3 years of age or older.

Q13: What is Managing Conservatorship (custody) and possession and access (visitation)?

A: In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children (see above). In Texas, “Conservatorship”is the equivalent of “custody” of the children. Those two terms are not identical in meaning. “Conservatorship” recognizes that parents have duties to care for their children, rather than merely the right to temporarily “own” them, such as with property.

The right to Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child’s domicile must be established in the final Court orders, so that each parent will be able to be involved in the children’s lives. “Possession and access” speaks to when each parent has the right to visit with, and spend time with children from the marriage.

Q14:  If the parents cannot agree on conservatorship and access issues, on what basis will the court decide those issues?

A: These matters, like all of those pertaining to children, are based upon a finding by the court of the children’s best interest. As discussed above, the Texas Family Code contains a “Standard Possession Order” which is presumably in the children’s best interest. So, while the court does not have to follow that Order, that is where the discussion starts, and often, where it ends.

Q15: What is “child support?”

A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the children.

Q16: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?

A: The Texas Family Code contains guidelines for the computation of child support. The guideline amount is presumably the minimum amount which should be awarded as support for the children. If any child has “Special Needs,” then additional child support may be awarded.

Q17: When does the duty to pay child support end?

A: Unless the child marries sooner than age 18, joins the military, or does something else to become “emancipated”prior to turning 18 years of age, child support orders continue until the child reaches age 18. But, if the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period. Texas law makes no provision for support during college, or the payment of college expenses. But, the parties may provide for the payment of those expenses by contract.

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