Frequently Asked Questions about Divorce
1. What to Expect at the First Court Hearing
A common question that clients ask is, “What’s going to happen at the first hearing?” The following are some tips about what to expect.
People using the litigation system to resolve marital and family law disputes will generally face at least one or two days in court. The first setting is stressful and is often one of the most important events in a case. The results of the hearing or negotiations will establish the framework under which the case will proceed. While the orders can be modified later, it is often true that the parties must operate under the original temporary orders until the final orders are signed by the judge. Justifiably, parties want and need to know what to expect in court when their case gets started.
- Postponement: The case could be postponed on the first setting. If one party has just received notice and has not had time to hire an attorney, and asks for time to hire an attorney, the courts in Tarrant County will almost automatically grant a continuance and reset the case a week to two weeks later. If there is a temporary restraining order, it is normally continued in place until the reset date. Sometimes other orders are made temporarily, if necessary. Usually, the judge will not order one party or the other to vacate the residence without a hearing, so that issue is usually postponed as well.
- Negotiations: There are usually extensive negotiations. Experienced attorneys will normally immediately begin talking with the other side to try to reach agreements on as many issues as possible. That is the sign of a smart lawyer looking after the client’s best interests, rather than an indication that the lawyer is weak. The parties get better results if they participate in the decision-making, rather than leaving everything up to a judge. Negotiations are also necessary because there is not time for the judge to conduct hearings in every case set each day. Good attorneys are very familiar with what the judges usually do in similar cases, so they know what can realistically be achieved.
- Slow Process: Plan on being there all morning. Parties are instructed to show up at 8:30 or 9:00 a.m., and courts will start up some time after that – each court is a little different.
- A.J. Court: The initial hearings in most family law cases in Tarrant County are in the Associate Judge’s court. There is an Associate Judge for each District Judge. The District Judges hear most final hearings and leave the temporary hearings to the Associate Judges.
- Conference with the Judge: Attorneys usually meet with the judge to discuss issues in the case. Sometimes, attorneys can work out all the temporary issues and just present an agreement to the judge. More often, the attorneys resolve many issues, but must meet with the judge to get an advisory ruling or a suggestion on how to deal with something. Meeting with the judge will usually save time for everyone.
- Informal Hearings: Hearings are most often informal. To help save time and move cases through the system, temporary hearings (if held) are usually very informal. Each judge has his or her own style, but generally the judge will let the attorneys summarize the situation and then the parties will get to answer questions or make statements. Documents can be introduced into evidence if necessary.
- Formal hearings can be held, but if they are expected to take a considerable amount of time, they are generally specially set in the near future. Even then, most judges usually won’t allow enough time to put on really extensive evidence at a temporary hearing.
- How to Prepare: It’s really helpful for each party to have thought through what his/her underlying goals and needs are, and these should be discussed with the attorney. Many people aren’t thinking too far into the future, but it can really be helpful. Attorneys need to know what their clients want to accomplish so they can prepare for court and negotiations. The parties also need to provide basic information to the attorneys about financial issues, such as income and expenses, debts and any problems requiring immediate attention. The parties need to have parenting plans in mind covering how the children should be cared for and shared during the court process and after. Each party’s attorney can provide a list of information the court and attorneys will want to see. Gathering information will become a regular part of the litigation process, so everyone should expect it and get used to it.
- The above comments give some idea of what to expect at the first court hearing in family law cases in Tarrant County, Texas. Each party in a family law case should consult early and often with their attorney to prepare for court.
2. What if We Don’t Want to Get a Divorce? (But There are Problems if We Stay Together)
For a variety of reasons, some people want to stay married but “split the sheets” or take some other actions. Some want to stay officially married because of insurance, inheritance, religious reasons or children or for other purposes. Fortunately, there are several actions couples can take without getting divorced.
- Partition Agreement. Some couples find protection and assurance by creating and signing a partition or post-nuptial agreement. That agreement can divide assets and liabilities, provide for support and can insulate the assets of a party from the liabilities of the other party. It can also be a tool for estate planning and may help save taxes.
- Providing for the Children. If there are minor children, support and visitation issues can addressed in several ways. A partition agreement can provide for contractual child support. Either party can ask the Attorney General to help collect child support. The parties can sign a voluntary agreement for child support or visitation, or either party can file a petition seeking a court order for child support or visitation.
- Counseling. Couples can always work with a counselor to try to improve their relationship. Communication problems are common and can be overcome by hard work and commitment.
- Share a Residence. Couples can just continue to live together and informally start creating separate lives and interests. That is not unusual. It often leads to divorce, but some people are tolerant enough to live that way. If there are significant problems, they won’t just go away. They usually get worse over time.
- Annulment is a very limited option. It usually is not available because of the limited circumstances under which it is allowed by the Family Code.
3. How Can a Father Win Custody?
The short answer to how fathers can win custody is: the same way mothers do. There is often still a perception that women automatically always win custody. That is not true. Mothers still end up with custody more often than fathers, but in contested cases that is not necessarily true. While there are still a few judges who automatically favor mothers, there are many other judges who bend over backwards to be fair to both sides. Juries in Texas don’t shy away from awarding custody to the more deserving parent, male or female.
The easiest way for a father to get primary custody of a child is to do so through negotiations. Sometimes both parents will agree that the father is the more appropriate parent for primary custody because he is in better financial shape or has more time available or has a better relationship with the child, or for some other reason. Sometimes the parents work out creative arrangements that fit the schedules of both parents and the child. Collaborative Law is very helpful in setting up customized plans for sharing time with a child.
The question, though, really refers to those cases where the parties can’t reach an agreement. For those cases, I offer the following seven tips to win custody. The tips will work for fathers or mothers.
- Be the primary caregiver. The parent who has always, or recently, been the primary parent taking care of the child does have an advantage with judges and juries, unless the parenting has not benefited the child. When the child is thriving, the primary caregiver has an advantage.
- Be involved at school and home. This is more than just being present for a time period. Help with homework. Give encouragement to the child. Play with the child. Talk with your child. Read to or with your child. Have meals together. Volunteer and help at school. Keep up with your child’s grades and homework. Get to know the teachers and Principal. Know about and deal with any problems when they first show up. Get to know your child’s friends and their parents.
- Be good with kids. Don’t be afraid of kids. Loosen up and have fun with them. Be able to talk with other kids. Participate with kids whenever and wherever you can. It’s OK to act like a kid sometimes, but don’t go so far that you give up appropriate parental authority. Share interests and activities with your child.
- Be cooperative with the other parent. Be flexible in sharing time with the parent. Share information about activities and plans. Try to help each other where you child benefits. Some parents lose custody when they unreasonably refuse to cooperate to share time with the kids. Children normally benefit when the parents get along. Avoid negativity, blame and name-calling about the other parent, even when you may think it is justified. Take the adult role and set a good example for your child and the other parent. Remember, you may need a favor some day (or weekend).
- Speak positively of the other parent and be supportive of them. Making critical comments about the other parent when your child is around is inappropriate, even when you are convinced the remarks are “the truth”. Since your child is part you and part the other parent, attacking the other parent can feel like an attack on the child. It is much better to take the high road and refrain from negativity when the child is around. It’s the same advice you have probably given your child to help him or her deal with peers.
- Be knowledgeable about parenting. This takes some effort. We aren’t usually born with innate knowledge of how to be a good parent. Some learn this as they grow up. Others may not have spent much time (at least recently) around kids, so they need to learn what to do. They can read, take classes and get help from experienced parents. Good parents are constantly learning more about kids, especially as their kids mature and move into new stages of development.
- Follow the court orders. It’s a serious mistake to violate visitation orders, by either the primary or non-primary custodian. Improperly keeping the kids from the other parent never looks good to the court or a jury. Failure to exercise visitation or possession times allocated to you create doubts about how seriously you want to have primary custody. It’s also hard to ask the court to award custody to a parent who regularly does not properly pay child support. If the visitation order or child support amount needs to be changed, try to negotiate or file a motion to change it, but don’t just take matters into your own hands. Lack of obedience to an order usually has a negative impact on your child, can result in incarceration of the offender and creates a negative impression of you with the decision-maker in a custody case. It’s important to comply with court orders as long as they are in place.
These seven tips are all factors often relied on by judges or juries who are deciding custody questions. They all start and end with being a good parent.
4. How Can I Speed up my Divorce?
This is a frequent question, asked by about half of my clients, sometimes at the beginning of a case and sometimes after it has gone on for a while. Actually, most clients eventually get to this question if their divorce lingers long enough. There are a few things that can be done, but they ultimately depend on the goodwill or motivation of your spouse. You can always just wait for a trial, but it usually takes a long time to get into court (often a year or more in Tarrant County). The situation is similar in other (non-divorce) family law matters.
Here’s my list of 9 suggestions. You may be uncomfortable and may not enjoy some of them, but they are provided to help you speed up the process, not to make things more pleasant for you; if speed is not your highest priority, you may not want to do some of these. Please remember, they may not apply in every case – they are possibilities to consider.
- Don’t disagree. That may seem obvious, but the more you and your spouse disagree about things, the less likely an early settlement is. You have to make a value judgment about how important some principles and some issues are. The ultimate position is to “roll over” and let your spouse have everything he or she wants. That rarely seems like a good decision, but it probably comes down to evaluating the matter under discussion. Also, giving in completely sometimes doesn’t satisfy the other spouse. Sometimes it is helpful to argue a little about something and then later concede it so your spouse thinks he or she really won something.
- Be cooperative and nice. Being a bully rarely pays off in a quick settlement. Making demands and setting deadlines may provoke more resistance than agreement. On the other hand, being cooperative and respectful may pay dividends. Looking for common ground and showing effort in working toward that may get a friendlier, more cooperative response.
- Apologize. This one may be tough for a lot of people, but if your highest priority is to get the divorce over with, it can be helpful if an apology is done appropriately and sincerely. There are always things each spouse can legitimately apologize for. If you have a hard time coming up with something, talk to family and friends, particularly of the opposite sex, and ask their help in coming up with something. A good apology may open up communication and help your spouse feel better about the situation, which can lead to productive negotiations.
- Figure out your spouse’s underlying issues and resolve them. If you can’t figure out the underlying issues, get some help. Talk to family and friends, maybe a counselor and maybe your attorney. Once you identify the issues, do some brainstorming with your attorney and try to come up with some acceptable alternatives to present. If you can solve the biggest issues, you have a chance to work out a final settlement a little sooner.
- Use mediation. This is about the best way to resolve cases (other than Collaborative Law). With a good mediator, you have a high probability of settlement, although there’s no guarantee. If the other party demands 85% of the assets to settle, there’s little hope for mediation to bring sense to them. Most of the time though, mediation will result in a settlement.
- Get a mutually respected person to intercede for you. In many cases, there is someone who your spouse respects and/or will listen to who can be an informal mediator for both of you. This could be a friend, relative, minister or someone else who is respected and perceived as neutral by your spouse. You should still be prepared to make some concessions to get the deal done.
- Don’t send mixed signals. Make sure that your spouse understands that you fully intend to finish the divorce. Even as you try to compromise and be nice, be sure that your efforts are not misinterpreted as an effort at reconciliation and make sure that you that you are sincere.
- Provide all appropriate and needed information. If you drag your feet in providing information that has been requested, or argue over its relevance or value, you are wasting time. If you truly want the divorce over with, take on the burden and do more than your share of the work. If time is not important to you and if your value is on equally sharing the work load in the divorce, then don’t cooperate. Providing the needed information in an organized fashion, sometimes even before it is requested, will speed up the settlement process and help establish good will, especially if the information really benefits your spouse.??
- Bring in a neutral expert to help with difficult issues. Sometimes past efforts and common sense are not enough to generate appropriate solutions. It can be a real life saver to bring in a neutral expert to help create solutions about kids or about finances. Someone working for both of you is in a position to help both sides understand the possibilities and to reach an agreement. There is some expense, but it is cheaper than spending money on two attorneys in trial, and it is much quicker. This is something we do in Collaborative cases all the time and it works very well.
Hopefully, these nine suggestions can help you move your divorce (or other family law case) to a satisfactory conclusion within a reasonable time period. You might try just one or two of the techniques, or you might need several. Please discuss your strategies with your attorney before you start with them. Good luck!
5. How Long Does it Take to Get a Divorce?
This answer applies to a non-Collaborative divorce case. There is a minimum 60-day waiting period that is imposed by the Texas Family Code. The time begins when the divorce petition is filed. After the 60 days is up, the divorce can be granted at any time if there is a full agreement. To get to that point, the parties both need to have information about the important issues and facts of their situation. In addition, each needs to be able to trust that the other party will do what he or she says will be done. The attorneys must draft and get agreement on the language of the final decree of divorce, and that occasionally takes more time than expected, or at least hoped for.
Also, both parties need to emotionally be ready to be divorced. If either party wants to try to stay married and refuses to give up on the marriage, they can slow down the process by various means of foot dragging and the insistence on following standard procedures.
A divorce that can be completed right after the 60 days is up is very unusual. It can happen in some cases, such as:
- a short-term marriage,
- a very simple set of facts,
- minimal assets (although sometimes those people are the worst fighters) or
- where the parties have worked out a lot of the details before the divorce was filed.
Quick divorces may also take place where someone:
- feels guilty,
- is scared or
- is extremely anxious to move on with their life. (Translation — there’s a boyfriend/girlfriend waiting impatiently in the wings!)
Occasionally, one party has enough dirt on the other party that they can force capitulation.
Sometimes, the parties are just realistic, reasonable people who can sit down together and work things out – but that’s very rare.
A better answer would be to estimate that, in Tarrant County, it will take at least 3 to 6 months in the best of circumstances, if most (not all) things are agreed, and a year or more if one or both parties are not in agreement on the final terms.
6. Can I Get a “Legal Separation” in Texas?
No. Legal Separation is a distinct process in some states, but not in Texas.
In Texas, you can be married and living together or apart. Separation is a necessary step for a couple to get divorced here. Once someone files for divorce, a court may make, or the parties may agree on, temporary orders which can remain in effect until the divorce is final. The temporary orders generally govern custody, support and possession schedules for children, as well as various financial issues, a determination of who gets to stay in the house, who pays the bills and who uses and controls what property.
You technically remain married until the divorce is granted. If you want to start the divorce process in Texas, you need to file a petition for divorce.
7. Should I Move Out of the House?
The direct answer is usually, “It depends.” Moving out of the house in Texas does not mean that you are giving up your legal rights to the house or an interest in the house. It does not mean that you are at fault for anything. It also does not mean that you have given up any claims to anything at the house.
What does it mean? All it really means is that someone moved out of the house.There are many possible legitimate reasons for moving out. Among other reasons, it may mean that:
- You fear for your safety or the safety of other family members.
- You are better able than your spouse to obtain new housing.
- You and your spouse have reached a mature, mutually beneficial agreement to separate.
- You have no interest in living in that residence.
- The house belongs to your spouse or someone else and you knew you would be moving sometime soon anyway.
- Another residence may be more convenient for your work, family or other obligations.
- You can better afford another residence.
- You prefer to maintain a smaller residence.
- You want to live in a better neighborhood.
- You don’t care about keeping the furniture and furnishings.
- You just don’t want to stay in the same house with your spouse until the Court rules on it.
Why might you want to stay in the house? Again, there are many possible reasons, including, among others:
- You don’t want the work of packing and moving.
- You want to keep the kids in the same school.
- The house was yours prior to the marriage or you inherited the house.
- The house is in a great location for your job, family or other obligations.
- You can’t afford what it would cost to live comparably elsewhere.
- It wouldn’t cost less to live anywhere else.
- You need to stay in a residence of this size.
- Your spouse can better afford the move.
- The kids’ friends and activities are all nearby.
- Your want to keep the majority of the furniture and furnishings.
If you decide to move out, what should you do? Depending on the time available and the circumstances, you should consider the following:
- Pack carefully and get all of the belongings you will want and need. Don’t expect to be able to go back later and get things, no matter how well you and your spouse get along at the time of the move.
- Document the condition of the house and contents as you move out. Take pictures and/or videos. Have a witness, if possible.
- Make an inventory of what you remove. Make notes about what you are leaving.
- Have several helpers, if possible, so the move can be done quickly.
- Take a reasonable amount of dishes, pots, pans, flatware, towels, sheets, and other everyday items. It costs to replace them. The same is true for furniture.
- Treat your spouse (and yourself) reasonably as you divide things up for the move.
- If possible, make arrangements to copy and divide pictures and other family things.
- Don’t damage things as you move out.
Of course, if you are moving out quickly for safety reasons, do your best, but safety must be the most important consideration. You can call a police officer or Constable to supervise, if there is a threat of violence, but you should plan ahead to do that.
There are many possible reasons for moving out or wanting to stay in the house.Think carefully about your situation, both short-term and long-term. Try to be as cooperative as possible with your spouse, but most importantly, protect the safety of you and your family.