Although it is highly unlikely anyone enters into a marriage with the thought that divorce will be the inevitable end to the union, the unfortunate reality is that many people will have to endure the pain of divorce. Statistics tell us that about half of all first marriages will end in divorce. However, in the Dallas area alone, the divorce rate is closer to 60 percent for first marriages and climbs to 75 percent for second marriages!
For those that have reached the point where divorce is the last remaining option, questions are likely more prevalent than answers. Below are answers to some of the most common questions in the divorce process.
What is a divorce?
A divorce is a lawsuit to dissolve the marriage relationship. A divorce encompasses many different issues including the division of property and debts, and what rights each parent will have to the children.
I am common law married. Do I need a divorce?
A common law marriage is when a man and woman agree to be married and live together in Texas as husband and wife while representing to others that they are married. It must be noted that, contrary to popular belief, there are no time requirements for establishing a common law marriage.
There are two ways to dissolve a common law marriage. The first is through traditional legal divorce procedures. The second option is to separate and wait. According to Texas Family Code, it no lawsuit to determine marital status is tiled within two years after the separation of common law spouses, the law presumes there was no agreement to be married.
Practically speaking, if there are children resulting from a common law marriage, it is better to pursue a traditional divorce.
What is an annulment?
An annulment is a proceeding to declare a marriage never legally existed. For adults, an annulment may be granted on any of several grounds:
First, if at the time of the marriage at least one spouse was under the influence of drugs or alcohol and did not have the capacity to consent to the marriage, and the spouses have not voluntarily cohabited after the effects of the alcohol or drugs ended, an annulment may be granted.
The second ground for an annulment applies where either party, for physical or mental reasons, was permanently impotent at the time of the marriage. This is assuming the impotency was not known at the time of the marriage and there has been no voluntary cohabitation since learning of the impotency.
Third, a court may grant an annulment if one spouse did not have the mental capacity to consent to or to understand the marriage ceremony, the other spouse did not know or should not have known about the mental disease or defect, and no voluntary cohabitation has occurred after the mental disease or defect was discovered.
Fourth, where the marriage occurs within 30 days of the dissolution of a previous marriage, the spouse did not know about the other’s divorce, and no voluntary cohabitation occurred after learning of the concealed divorce, an annulment may be granted.
Finally, a court may grant an annulment if the marriage took place during the mandated 72-hour waiting period after the issuance of the marriage license.
What are the grounds for divorce in Texas?
Texas is a “no-fault” divorce state. This means in order to get divorced it is not necessary to prove either spouse caused the breakdown of the marriage. The marriage must only be “insupportable” (that discord or conflict of personalities has destroyed the marriage relationship) in the opinion of at least one spouse. Simply put, you guys just don’t get along anymore!
The vast majority of divorces are granted on this basis.
In some situations it is preferable to seek a divorce based on fault. The grounds for fault in Texas include:
cruelty, adultery, a felony conviction and imprisonment, abandonment for at least a year, separation for three years, and confinement in a mental hospital for three years with the condition likely to continue or recur in the future.
What is the procedure?
The first step toward the dissolution of the marriage is to file a divorce petition with the court. This is the legal document that tells the court of your intention to seek a divorce. At this point, it is possible one party or the other will request certain restraining orders and ask that a temporary hearing be set to resolve issues while the divorce is pending.
A restraining order in Texas divorce law is a standard, normal part of the process. The purpose is to make sure that both parties “do the right thing” regarding dealing with each other, children, mail, bank accounts, credit cards, personal property, etc.
A restraining order should not be confused with a protective order that addresses family violence and is enforceable by the police.
The next step is to notify the other party that you have filed for divorce. This is usually done through formal service of process by a constable or process server.
If a temporary hearing is requested, it is typically held within two to four weeks of the filing. At the temporary hearing, a judge will address such issues as possession of the children, child support, use of property and payment of debts during the course of the divorce proceedings.
The time between the temporary hearing and the final hearing is the “discovery” phase. Discovery is the process through which each side learns information from the other.
For example, during discovery each side may learn the others position concerning division of property, the existence and value of the marital estate, custody/possession of the children or income, for the purpose of establishing child support. Discovery includes written discovery, such as interrogatories or requests for production, oral depositions, and the Inventory and Appraisement, which contains each parties’ position on the character and value of the marital estate.
Once discovery is completed, the case will be set for final trial. Typically trials are held in front of a judge, who decides the contested issues. However, in Texas, a trial before a jury is allowed in certain circumstances involving child custody and characterization and valuation of property.
Most judges prefer that the parties attend mediation in an attempt to settle their issues without the necessity of a trial. Mediation is a process where a neutral third party, usually a very experienced family lawyer or former judge, facilitates negotiations between the parties to bring a resolution to the contested issues. Mediation is a very successful process, and most cases settle without the necessity of having a trial.
The overall divorce process averages approximately a year in length, although it could be as short as 60 days or as long as 10 years!
What is the difference between a contested divorce and an uncontested divorce?
The difference between a “contested” and “uncontested” divorce is generally a matter of how much time your attorney will have to spend analyzing the issues and contemplating the fairness of the settlement.
In an “uncontested” divorce, usually the parties have gathered information, negotiated and reached a settlement agreement on all issues prior to filing the divorce. The attorney’s job in that situation is to draft the paperwork according to the agreements the parties have reached.
It is very important to note that in an “uncontested” divorce, the attorney will likely not have enough information to advise the client on whether the settlement is fair or whether the client is making a wise decision.
If there are any issues that are not agreed to in advance by the spouses, then the divorce is considered “contested.” It a temporary hearing is necessary, then the divorce is “contested.” If there is a need for a temporary restraining order, then the divorce is “contested.”
What are the issues that will be addressed?
If there were children born during the course of the marriage, all issues pertaining to the children must be addressed during divorce proceedings.
The first “kid issue” is the title of the parties. in Texas, parents normally will be named joint managing conservators. (Note that we are only discussing the title here, and not any other issue.) The alternative is that one parent will be named as sole managing conservator with the other named possessory conservator. This usually occurs only in circumstances where there is a concern about one party’s parenting abilities or when the parents have such a severely dysfunctional relationship that they cannot make joint decisions which are in the best interest of the children.
The second “kid issue” to be resolved involves the rights and duties each parent will have regarding the children. Examples include educational and medical decision-making, consenting to the marriage or enlistment in the military of the child. In a joint conservatorship situation, typically both parents share all rights and duties, except that one parent will usually be given the exclusive right to determine the primary residence of the children. That parent will usually have the exclusive right to receive child support as well. Contrasting, in a sole/possessory conservatorship arrangement, the sole conservator will have the exclusive right to make most of the decisions regarding the children.
Third, each parent’s possession times with the children must be established. Usually one parent will receive the Texas Standard Possession Order, which gives that parent possession generally on the first, third and fifth weekends of a month, one weeknight during the school year, 30 days during the summer, and one-half of the holiday times. However, there has been a recent trend toward negotiating for more time on behalf of the non-primary parent.
The last “kid issue” addresses child support. Child support in Texas is a mathematical formula based on the first $6,000 net income of the parent obligated to pay support. In order to vary from these guidelines, special circumstance must be shown. The parent paying support will also usually be obligated to provide health insurance, but both parents will share equally in the uninsured medical expenses.
Another issue that must be addressed, whether or not children are involved, is property division. Regarding property, there are generally four broad issues to address.
First, all of the property owned by either spouse must be identified. Many times one spouse will know less about what property is owned by the spouses, so identification of the property is very important. Once all of the property is identified, the characterization of that property must be established. Texas is considered a “community property” state, meaning there are two types of property — community and separate — that make up the marital estate.
Generally speaking, “separate property” is what was owned prior to the marriage or obtained during the marriage through gift or inheritance.
“Community property” is all property acquired jointly. The legal presumption is all property that exists at the dissolution of a marriage is community property. If one party claims an item as separate property, the burden rests on that individual to prove that claim.
The third property issue is to place values on the community property. This can be done either through a party’s opinion or through expert valuation. Values are important in evaluating whether the overall property division is fair.
Lastly, a determination must be made on how to divide the community property. Please note that the judge has no authority to divide separate property upon divorce. Community property is the judge’s only concern.
Typically, the community property is divided equally. One spouse may request an unequal division if there are certain issues of fairness that require it. Examples might include a disparity of earning capacity after the divorce, fault in the break-up of the marriage or contribution of a spouse to the creation of the community property. Regardless, the judge must ultimately find that the division of the community property is “just and right.”