As you can probably imagine, people that contact our office come to us at various stages of their marriages. Prenuptials, happily married, married 30+ years but grew apart, years of infidelity, break down in communications, advice on having more children, considering divorce, and so much more. In every situation, anything that involves a person’s children, their spouse/partner, or their property are difficult and sensitive discussions. We are sensitive to these issues and attempt to guide our clients through their most difficult times.
The big question however, is when is the right time for a divorce, and what should you consider in making that extremely personal decision? We can’t tell you when the right time for you is because the decision is so personal and turns on a number of factors, but we do have some things that we advise our clients to consider before they file for a divorce that they might not have thought of.
A divorce can be a relatively smooth process, especially when the parties agree on terms. In fact, many of our clients come to us with the earnest intent to have an amicable divorce. Practically speaking however, more time than not a divorce devolves to a less than civil affair. This does not necessarily mean the other party is the enemy, but when property is being divided, personal accusations are being made, there are children involved, and essentially your life’s assets on the line, emotions can run high. To that end, the more the parties can agree on the better. In Texas just about everything can be agreed on and divided by the parties before the divorce is final and submitted to a Judge for review. In fact, Judges will often require that parties attend a mediation session to see if they can come to any agreements in lieu of the Court getting involved. We often advise our clients to attempt (if possible) to come to agreements with the other party on items they can agree on, and whatever they can’t agree on they at least made a good faith effort to be collaborative.
What do you own?
Texas is a community property State. Generally, that means that property that was obtained during a marriage is community property and subject to a just and right division by a Court. This can include income, portions of a retirement account, the family home, stocks, cars, etc. Separate property, on the other hand, is not subject to this division, as separate property is generally property that was acquired before the marriage, or during the marriage by gift or devise. This is an oversimplification, and what is separate/community property is extremely fact specific and depends on the specific facts of each case. However, we often tell people who contact us to try to get a general inventory of what they own, the location of bank accounts and their value, paperwork/account info for their major assets (mortgage, deed, car loans, retirement accounts), and a general summary of their monthly bills and expenses. This inventory helps the parties get an overview of their assets, debts, and which property/assets they believe is separate property.
Is there a chance at reconciliation?
Divorce, or the thought of divorce is always a deeply personal and difficult decision. Often, reconciliation can be even harder for people. Sometimes divorce can happen for a perceived transgression, a financial mishap, a breakdown in communication, or any number of issues. Whatever the reason, we take our client’s desires, and their reason for a divorce as a serious decision. One of the main questions we ask our clients is: has the relationship become truly unsalvageable, and are you prepared to walk away? We do not judge our clients for the decisions they make. However, we do ask them if they have at least tried to reconcile.
Your spouse will always be your spouse whether you divorce or not. In every divorce case, there are levels to how the parties treat each other. Sometimes it can be a drag out fight. Other times parties want to be as amicable as possible. Other times one party wants the divorce and the other doesn’t. However, our client’s come to us, we use our experience to understand their position. In doing so, we try to remind them to consider that this person at one time was probably very important to them, possibly they have children together, or property with a substantial dollar value. In all these situations, we remind our clients that the other party will likely be around FAR after the divorce is completed, and there can often be very little gained with a scorched earth approach. As the saying goes ”you can catch more flies with honey than vinegar”.
Best interests of the Child
One of the principal concerns in every parent’s mind is often their children. How will a divorce affect them? Where will they live? What about child support? The concerns are all valid, and the legal system as it pertains to family law often pertains to “what is in the best interests of the children”. This is as much a legal standard, as it is something we advise our clients to consider in their planning and negotiations with the other partner/spouse. Some of the most frequent issues our clients have is:
- Where will the children reside?
- What school will they attend?
- Who will provide child support and how much?
- If the parents aren’t exactly friendly, how will pick-up and drop-off of the child happen?
- If the child has special needs, how will decisions be made?
- Who will provide insurance for the child?
- Should I concede some of my comfort, and my interests, that may strengthen the position of your ex-partner, if it’s the best for your child?
- Are you just trying to “win” or are you truly thinking what’s best for your child?
Disclaimer: The legal information presented herein should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. General advice should always be tested by the particular facts and circumstances of each case. Legal advice is almost always case specific. Statues, ordinances, legal procedures, case law and rules of evidence are often revised.