One of the toughest decisions to make is that of moving forward with divorce once you have come to the realization that your marriage is officially over. The stress and anxiety by such a significant life event are only compounded by the never-ending questions people are faced with as they try to figure out how to begin the process. Based on the questions I receive most often from people, I have provided a brief overview of the divorce process below.
How long does the process take?
The length of the process is a function of the number of issues to be resolved. If the parties are in complete agreement on every single item and there is nothing left to fight over, the earliest a divorce could occur pursuant to the Texas Family Code would be 61 days after filing.
If the parties don’t have children, the typical and likely scenario would mean a divorce that could take anywhere from 3-6 months from beginning to end.
If the parties have children or a multitude of assets, or both, the divorce process could extend for several months and potentially years.
Keep in mind that the parties have to account for the particular county they are filing in, as the volume of cases and the size of their respective trial docket will also impact the expediency with which husband and wife can adjudicate their case. That is assuming they cannot resolve it prior to trial.
What are the different issues I will potentially have to fight over with my spouse?
Children and Property (and potentially spousal maintenance)
Conservatorship: If you have a child (or children), the most hotly-contested issue is that of conservatorship, which in Texas is the legal word for “custody.”
Child Support
The custodial parent with the exclusive right to designate the primary residence of the child(ren) has the exclusive right to receive child support from the non-custodial parent.
If the non-custodial parent is employed, the way to ensure payment each month of the support obligation is through the Income Withholding Order (IWO) monitored by the Attorney General’s Office (AGO).
Standard Guidelines are used to calculate as a percentage of net income to determine monthly support obligation.
Possession and Access
1. Possession Order controls the times and locations that the parents are allowed to exercise their visitation. This includes holidays, and summer possession, exchanges, etc. The Texas Family Code provides a default Standard Possession and Access schedule in the event the parents cannot agree on one that is in the best interest of the children.
2. Medical Support & Reimbursement
Medical support-cost (or portion thereof) or premiums are borne by the non-custodial parent as additional support obligation)
The insured parent carrying the children on the policy is likely entitled to reimbursement (regardless of status as custodial/non-custodial) from the other parent of ½ of all out of pocket medical expenses not covered by insurance.
3. Property Division
a. Assets
There is a rebuttable presumption in Texas that all property owned at the time of divorce is community property and that husband and wife have equal ownership in said property. The court makes a “just and right” division based on the particulars of the case, which could result in an award other than 50/50.
Generally speaking, all property that is the separate property of either party is not subject to division of the court at the time of divorce. This typically includes gifts, inheritance, personal injury recovery, and property owned prior to marriage.
b. Liabilities
Much the same way assets are divided upon divorce, the debts will be divided between the parties.
c. Spousal Maintenance
Can be court-ordered provided the spouse receiving financial support is eligible under the Texas Family Code criteria. In the event the party ordered to pay spousal maintenance fails to pay pursuant to the Court order, the receiving spouse can file an action seeking to enforce the order by contempt (jail time or fine).
d. Contractual Alimony
Cannot be ordered by the Court and can only be accomplished by agreement of the parties wherein they agree that one spouse will receive financial support from the other. Contractual alimony cannot be enforced by contempt and has different tax implications than payments ordered and classified as spousal maintenance.
Will there be a potential for resolving this case prior to trial?
a. Informal Settlement- At any point along the way, the parties are free to negotiate a resolution to their case in advance of a final trial. In fact, a settlement is always encouraged and will drastically reduce costs if done early enough on in the case.
b. Court-Ordered- Mediation is the new trend in virtually all lawsuits, especially given its success and the efficiency with which it clears out the trial docket backlogs. Almost all judges require mediation prior to trial and the overwhelming majority settle in mediation. While it is certainly no guarantee, the odds favor your case settling prior to trial.
c. Collaborative Law-A confidential and cost-effective process designed to allow parties to resolve their differences through negotiating and working toward a resolution using the principles of mutual purpose and respect. Unlike mediation, the Parties cannot be compelled to participate in a collaborative divorce, however, this provides soon-to-be ex-spouses much more control over the outcome, the timeline and the financial. Moreover, agreements reached in collaborative divorces are enforceable in the same manner as any other written contract.
Will I have to appear in Court?
If there are any immediate issues that a judge needs to decide, such as who gets primary custody of the child(ren) and who gets exclusive use of the marital residence, there will need to
If the case is ultimately resolved prior to any hearings being held or final trial, either by mediation or informal settlement, one of the parties will be required to prove-up the final decree in open court before the judge. There are some courts in the era of COVID that will grant an agreed divorce by submission of an agreed decree. Alternatively, with the emergence of Zoom videoconferencing, many prove-up hearings can be conducted remotely, allowing the parties to present their case from the privacy of their own home.
In the event, the case is contested and a trial (or other hearings) is held, you will need to be in court to present your side of the case on whichever issues are still in dispute. i.e. child custody, division of property, etc. Your attorney should take the time to prepare you in advance of any court appearances you may have along the way.
What will this cost me?
Unless it is an uncontested divorce, any attorney that can tell you the cost of your divorce with precision is likely lying to you. The only thing any of us can do is forecast based on historical averages for cases similar to yours. However, no two cases are exactly the same. The cost of the divorce is going to be driven by the overall complexity of the case, the number of issues in dispute, and unfortunately, and maybe more importantly, the level of animus the parties have for each other and the amount of money and desire each party has to continue to fight.
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