Tell a divorce lawyer about your situation. It's free.
Welcome! On this page is your complimentary Book, “Part As Friends | The Divorce Guide For Both Of You.”
Authored by Megan Cook
Managing Partner of Cook & Cook Law Firm, PLLC and Owner of Part As Friends™
We Recommend You To Use a Lawyer Because So Much Can Go Wrong, But IF You Are Doing It Yourself- Where Can You Get Uncontested Divorce Papers?
- As of June 2020, there are instant free (price is subject to change) uncontested divorce papers for texas that can be downloaded on our website Part As Friends here;
- Texaslegalhelp.org has free uncontested divorce papers;
- There are many online companies offering the papers for a fee from $149 and up.
- The $149 type do it yourself services usually take about 2 days to deliver after you answer a set of questions.
- All services will recommend that you hire a lawyer to review your papers before using them because of the importance of the documents.
- A review service from a reputable law firm will typically cost $600-$900 for 2 hours of review time.
Chapter 1-HOW TO INSPIRE YOUR SPOUSE TO PART AS FRIENDS (Or, Not Fight With You)
You may be thinking that while you are happy to part as friends from your spouse, your spouse may not be as agreeable to this approach. Since an uncontested divorce is a two-way street, you may feel this is out of your control. In some cases that is true, but in many cases, it’s not. Your approach to your divorce will impact how your spouse reacts. Quite normally, one spouse is more so the moving party with this divorce filing than the other spouse, and the spouse being left may be inspired to cause the divorce to be hard. Recognizing that this is the actual issue is important to knowing how to navigate through this, and which if any of these methods can help.
AND, persuading a person that you want to part ways with is difficult because the leverage that you had as husband or wife is lost during the divorce conversation, since your spouse will be losing any benefits they derived from having you as a husband or a wife during this very process. This makes persuasion during the divorce process, whether it’s an uncontested divorce, or not, more difficult than persuasion is in other contexts.
Yet, still there are some approaches that we have seen are effective.
Method 1 (To Persuade Your Spouse That You Should Have an Uncontested Divorce): Do Not Surprise Your Spouse With The Uncontested Divorce
Nothing will inspire your spouse to hire a lawyer for thousands of dollars faster than if you serve him/her with papers by a process server, making this the first time your spouse is aware a divorce is happening. Having spoken with perhaps 100 people that have endured this surprise service, I know that it scares people, and will not help them trust you through an agreed divorce. Instead, talk over the plans for the uncontested divorce with your spouse.
Before doing so though, talk to a lawyer about your situation so that they can assess whether any strategy should go into collecting evidence in your case, before your spouse knows about the filing. While I hope this is not your situation, it may be, which again is why I am recommending that you first talk to a lawyer.
Method 2 (To Have an Uncontested Divorce): Approach Your Spouse When They Are Not Tired or Hungry
We would not approach a child at the end of a long day to make life altering choices or to do any hard work whatsoever. While our society recognizes that children get cranky when tired or hungry, we often fail to realize that adults get tired and cranky too. Be thoughtful of your spouse’s schedule and life, and approach them at a time that it is truly appropriate. How you start this agreed divorce process, will be a large indicator of how it will end.
Method 3: Employ a Lawyer or Counselor for Relationship Closure
The litigation process is sometimes used as a way for a spouse to seek revenge or gain a dramatic closure to the relationship. Spouses sometimes need their story of the marriage to be heard by someone. If you suspect that either of you would benefit from this, you can employ a professional to listen to you both and offer guidance. Both spouses simply being heard is sometimes all the relief that is needed to settle a divorce out smoothly.
Method 4: Consider What Your Spouse Will Most Need in This No-Fault Divorce, and Assure Them
It may be equal time with the children, or the house, or spousal support payments. It may be the family dog. Your spouse has primary concerns in this uncontested divorce, which will be their focus once they know a divorce is going to occur. The best way to assure that the divorce can be a friendly one, is to address those points with your spouse as soon as possible. Let your spouse tell you their biggest concerns and needs, and see if those can be provided to him or her as a part of this divorce settlement. Remember, there are thousands of dollars and months or years of time to save, if you can agree. It’s worth compromising.
Method 5: Let Your Spouse Consult Some Lawyers, and Get Some Prices
Once your spouse has found out the ballpark range of prices, if money is at all an issue, this can help your spouse realize that the family is going to waste a lot of money fighting in the divorce. Be warned, this method can harm your goal for an uncontested divorce though, in that some lawyers promise the moon and stars without giving real advice until the money’s in the bank. Hopefully your spouse will consult at least one honest lawyer that will give him/her a realistic picture of what divorce litigation is really like.
Method 6: Let Your Spouse Read This Book
I cannot tell you how many divorced people have said to me that they wish someone had just informed them of the divorce options before they jumped into contested divorce proceedings. Because you are divorcing your spouse, they are not going to be the first person to listen to your divorce advice, but this book was not written by you, and can therefore help educate your spouse. The book can function to communicate with your spouse about this most important choice on divorce (uncontested or contested), without invading their need for independence from you, during this changing period of your relationship.
To The Reader
Before jumping further in, my plan with this page is to transform you from someone who may be on the brink of divorce, into someone who understands what the divorce options are in this day and age, and to transform you into someone who can take the right next steps, without just “Googling and guessing” (a tactic I will talk about in a later section).
After reading the book, you should hand it to your spouse, and help them likewise. This is not just a book, it’s a communication tool to help you both.
If you were here, I would look you right in the eyes and say very sincerely that I’m sorry that your marriage has not worked out. I know that getting divorced is difficult.
I am going to talk to you about a few divorce cases that have just been settled. These are not cases that I personally handled, unless I indicate otherwise. These are cases that, in my opinion, should be used to gather wisdom from, so that you do not have to learn this the hard way in your own divorce.
I’m Megan Cook, and I am a divorce lawyer. I’m 37 years old at the time I am writing this book. I have helped over 1000 people through their divorce.
Before writing this page, I bought all of the top-rated Amazon books on divorce in order to see what you have available to you already. The truly current divorce information is not out there. Also, I do not want to hide or misinform you about the limitations of my law license. I am only licensed to practice law in Texas. This is written from the perspective of one Texas lawyer.
I think some lawyers write these books hoping they will look brighter, smarter, and more appealing to you as a potential customer. I wrote this book because you don’t care about whether I am appealing or smart. You care about your life and what is going to happen with it if you get divorced.
Most likely, if you are getting divorced or are even just thinking about it, you care about the impact it will have on your children, if you have them, and you care about preserving your money and credit as you move forward into your new, single life.
This process may feel confusing; maybe you are overwhelmed with everything that’s happened and you don’t know what to do. Perhaps this is just the next inevitable step in your life, and the burden of your marriage is being lifted from your shoulders. I cannot know. Every divorce is unique in its circumstances.
Moving ahead, you need to know what resources and options for divorce are available today, and what stupid mistakes people are making that you can and should avoid.
Most divorce books try to be timeless in their advice in order to sell as many books as possible and touch as broad an audience as possible. I, conversely, simply want this page to be timely.
Chapter 2-THE THINGS YOU MAY MOST WORRY ABOUT
Seeing Your Kids
You may be very worried that your spouse is going to take your children in your contested divorce or in your uncontested divorce for that matter. As parents, you both have substantial rights to being a part of your children’s lives. Serious substance abuse and ongoing criminal history can put that right at risk. Putting your kids in danger can also put your parental rights at risk. But, short of those things, the courts in Texas are highly unlikely to take your children away and “give” them entirely to your ex-spouse. Most often, the judge will order a standard custody schedule that amounts to one parent having the children 52% of the year (often called primary, though this is not a proper legal term in Texas), and the other parent having the children 48% of the year, and will order that both parents retain decision-making rights regarding the children. Again, it is highly unlikely that you will lose your ongoing access to your children or the right to make decisions on your children’s behalf.
Big Worry: Losing Your Money
Paying a lawyer
There are two categories of money losses in a divorce. The first is paying the legal fees, and the second is giving money to your former spouse. Attorney’s fees can run from $1,000 for the least expensive uncontested divorce type service to hundreds of thousands of dollars for the wealthy estate division or the dreaded custody battle.
The price depends on whom you hire and what you need done in your case. Who you hire will cause a variation in price, as every person or firm will charge a different hourly rate, ranging from $200-$800 an hour. The more details that you and your spouse cannot agree on, and the more assets that need to be divided, will determine the amount of time that the lawyer will spend from filing to finalizing your case. The more time you take from the lawyer, the more you will pay.
Unlike with hospitals and their doctors, lawyers are accustomed to talking to potential and current clients about legal fees. So to choose your lawyer, as we discuss more in this book later, you have to be willing to talk transparently to him or her about payments, your budget, and your expectations. Having these conversations early will help you get the right attorney for your particular scope of work.
Paying your spouse
Preserving your money is a huge part of your divorce case. Whatever money you saved during the years you were married belongs as much to your spouse as it does to you, according to Texas law. So, often in Texas, parties will give about ½ the money and assets to one spouse and ½ to the other spouse. While there is not a firm rule that states the money will be split down the middle, this is often what the court deems fair. So yes, plan on the reality that your spouse will likely receive about ½ of the net value of the marital estate. There are ways to approach deviating from the standard 50/50 divide, so this is just a rough estimate way of helping you know what to expect. Your individual lawyer will advise you on whether or not a 50/50 divide is the right way to think about the realities within your own divorce. Keep reading…
Messing Up Your Kids Because of the Divorce
Many people say children are “resilient”. I am not in the position to assure you of that. Your job as a parent is to create a strong psycho-socially and physically healthy, productive human being. The way you approach and manage your family life and your divorce will impact your children.
I cannot stress enough that you need to approach things as peacefully as you can. Children are often quite aware of the process of divorce and the emotions that you are feeling. How you act as a parent, the emotions you express to them, whether consciously or not, impacts how they manage this transition in their lives. This is a major motivating factor for me in writing this book, “Part as Friends,” because I believe that peaceful, uncontested divorces are faster and will enable both you and your ex to continue your lives as co-parents in a new dynamic. It is my hope for you that your co-parenting dynamic will not be wrecked by the divorce process itself.
While it is extremely likely that you will have the right and ability to have regular time with your kids, it is just as likely that you will lose some control over what goes on with them when they are with your ex-spouse. Your ex will have the right to autonomy after the divorce is over, and this will inevitably create a certain number of blind spots as to what exactly your kids are doing during the other parent’s time.
The more constructive your relationship is with your ex-spouse, the less blind spots you will have because you will be able to talk with each other about your kids.
I am not here to inspire you to stay married or to encourage you to get divorced. I am here to give you information so that you can make informed choices.
Learning to co-parent after a divorce that has moved from an uncontested to a contested divorce is even more challenging. Your child’s own opinions of life (and of you) will be impacted by how you deal with your partner during and after the divorce.
How To File an Uncontested Divorce
- In light of Covid-19, by far the best way to file a divorce is by doing it electronically.
- You will have to register on an electronic filing manager.
- Our lawyers use https://www.efiletexas.gov/
- You will follow the steps carefully on your filing manager to upload the Petition for Divorce.
- You will pay the necessary filing fee.
- If you successfully complete these two steps, you will be given a cause number.
- If you receive a cause number, you have successfully filed for divorce online.
- If you want to file a divorce in person, all counties have their own location for doing so.
- I published this guide on how to file a divorce in Bexar County.
- I published this guide on how to file a divorce in Harris County, both to give you an idea of the steps involved.
Chapter 3-THE PROCESS OF BEING DIVORCED
The most difficult part about doing something new to you is that you cannot picture it in steps. Whether it is driving to a new location, or making a recipe, once you’ve done it a few times, the steps are easy because you can picture them.
So, I want you to be able to picture your divorce in steps, to make it a little easier on you.
Picturing the uncontested divorce, the “Part As Friends” divorce
What you should be picturing depends on the type of divorce you have.
An uncontested divorce is the type where both spouses are in agreement on how to divide everything and both are willing to sign the final papers reflecting the agreed terms.
A contested divorce is the type where either one or the other spouse does not agree to what should be divided and how it should be divided, and either one or both parties are not willing to sign the final papers.
Don’t skip over the idea of an uncontested divorce simply because you think that it may not apply to you. Much of this book will explain why it does apply to you, even if you don’t know it yet.
How Long Does an Uncontested Divorce Take?
- The absolute fastest legal time to get an uncontested divorce in Texas is 60 days.
- The family law of Texas requires that you wait 60 days from the day you file the case before you are legally allowed to ask for the case to be finalized, and have the divorce granted.
- The average time an uncontested divorce actually takes with most law firms is 4-6 months.
- If you are doing an uncontested divorce without a lawyer, it will take about 6 months, however this average was gauged prior to Covid-19 court coordinating complications. Call your district clerk to ask the average time.
- Firms that are focused on offering this particular type of service efficiently, can finish the divorce in 61 days.
- The average time it takes a person to get an uncontested divorce from Part As Friends.com is 60-70 days.
Step 1: The lawyer files the case
Step one is when you will provide basic information to your lawyer so your case can be filed. You will receive an email from your lawyer requesting the following information for your uncontested divorce petition:
- Your full legal name
- Your date of birth
- Your mailing address
- The last 4 digits of your social security number
- The last 3 digits of your driver’s license number
- Your spouse’s full legal name
- Your spouse’s date of birth
- Your spouse’s mailing address
- Your spouse’s email address (if you have it)
- The date of marriage
- The date of separation (if you have not separated, it will be the date your case is filed)
- Does your spouse wish to change his or her last name back to the given last name? What is the given last name?
- The names, genders and birthdays of all minor children born of the marriage (if applicable)
- Is the wife of the marriage pregnant?
- Has the wife of the marriage had children with anyone other than the husband of the marriage DURING the marriage?
- Is either spouse currently going through a bankruptcy?
- What county have you and your spouse lived in for the last 6 months (it is okay if you lived in difference counties, but please tell us where each one has lived)
- Do you presently have any court orders with your current spouse, such as child support orders? (if so, please explain)
- Have we in the past, or do we currently represent your spouse or any of your family members? (please explain)
The email will have a link for you to hire (pay) the lawyer. You will pay them through the link.
Now, you have started your divorce. Your lawyer will file the case with the district clerk, pay your governmental filing fees, and will get a cause number corresponding with your case.
The initial case filing in an uncontested divorce is very basic. It states the names of the parties, provides a statement to the court that we are filing the case in the correct court, provides the court with the date of marriage and separation, provides basic information about the children of the marriage (if applicable), and states that an agreement is expected. The original case filing will not outline the agreed terms for children or the division of the estate; it is a very basic 2-3 double-spaced page document only notifying the court that the parties wish to divorce and providing basic information about the parties and children.
Step 2: You email answers to questions about your kids, assets, & debts
Step two will consist of you answering questions about your kids and the assets and debts to be divided. You will receive an email with a link to the applicable questionnaires (kids, assets, debts). You will click on each of the links and answer all questions within the link that are applicable to you. You can do this with your ex-spouse, or you can do it alone. Remember, your spouse needs to sign the final divorce papers in an uncontested divorce, so both spouses should be taken into account when answering the questions.
These questions are not difficult. Some questions are: which bank accounts will your spouse keep after the divorce, and which credit cards will he or she keep.
If you have children, there will be questions about who has what managing rights of the children. Who has the children at what times, what holidays are involved, and how, if any, travel arrangements can be done.
You will answer the applicable questions and click “submit”. Step two is done.
As a parent, this step can be difficult and emotionally challenging – but it doesn’t have to be. Perhaps both you and your spouse will be able to agree to a specific custody arrangement. In a later section, I will be talking about parental rights and what is likely to happen during cases that involve children.
Do not worry about how you will word your requests and plans, as putting this into a legal language is your lawyer’s responsibility.
Step 3: The lawyer drafts the divorce papers
The lawyer will draft the legal documents (i.e., your final decree) and email them to you. You will go over them on the telephone with your lawyer to make sure that everything is as you want it to be. Ask for changes, as needed for your papers.
Step 4: Everyone signs the papers
Once the decree is to your liking and no changes are requested, and you have conveyed your approval to your lawyer, your lawyer will send you a final draft of the decree for signing and an email outlining the signing instructions and how to return the signed decree to your lawyer’s office.
Step 5: Meet in court
Only one spouse has to go to court for an uncontested divorce. During Covid-19, no spouses attend court, and instead the lawyer handles the hearing electronically for the spouse/client. Remember, an uncontested divorce is simply the type of divorce where both parties sign the papers and agree on how to be divorced. The lawyer will lead you through the process at court and get the divorce granted by the judge.
That is the uncontested divorce process, which is the process we follow in the “Part as Friends” divorce.
The ugly things like the hearings, the “you’ve been served,” the hundreds of thousands of dollars spent and the years of lost time are the things that happen when the parties don’t agree on who gets what accounts, who gets the kids and when, who gets the house and furniture … you get the point. The period in-between filing the case and the final signing of the papers is where the elongated struggle of divorce can occur, depending on what type of divorce you have. This is avoided with an uncontested process. However, still I want you to be prepared that divorce is always difficult.
Now, Picturing the CONTESTED Divorce
We just went through picturing the Part As Friends Uncontested divorce. Now, let’s discuss the other type of divorce.
Step 1: Unlike in an Uncontested Divorce, You Should Strategize with your lawyer
Often you will set up a few in-person meetings with various lawyers. Although you can hire a lawyer without meeting them face-to-face, for the contested divorce it may be better to meet in person. Your investment in this lawyer may be substantial. Whether the meeting is in person or on the telephone, you will discuss what is going on in your life, what your divorce outcome goals may be, and how those goals can be accomplished.
Step 2: File the case
Your lawyer will file the case and have your spouse served. Unlike an uncontested divorce where your spouse does not need to be served, in a contested divorce, your lawyer will hire a process server to bring the documents to your spouse. The process server will hand the papers to your spouse, wherever they are located, and state to them “you’ve been served.”
In a contested divorce, the filing of the case often includes a temporary restraining order and a request for temporary orders. This might sound more confusing that it is; a temporary restraining order is not a protective order. Rather, a restraining order (which is usually joint and mutual) is an order to keep the status quo. In other words, neither party should harass or harm the other party or the children, sell property, remove all funds from accounts, make large transfers of funds, etc. This is simply a very short-termed (14-day) order to keep the parties from purposefully mishandling community assets. Additionally, your lawyer is requesting the court to schedule a hearing within about two weeks of the case filing to make orders regarding who will live where during the divorce, how the bills will be paid, who will pay child support, and what the visitation schedule for the children and the parents will be while your divorce case is pending.
From the time that your spouse is served, he or she will have approximately 20 days to file what is called an “answer.” An “answer” is a document that provides the court with a response to the divorce petition. The response does not need to be detailed and is generally 1-2 pages, double-spaced. Its main function is to ensure that the court cannot do anything in the case without notifying the party who was served.
Step 3: Unlike in an Uncontested Divorce, You May Get temporary orders, the rules for you and your spouse during the pending divorce
About two weeks after your divorce is filed, you will attend a hearing, as referenced above in Step 2, where the judge will order how the parties should maintain their living arrangements, bill paying, and time with the child during the pending divorce. Not all cases require this hearing, but many contested divorces do.
There is a lot of preparation and strategy that your lawyer will put into this temporary orders hearing. The temporary orders hearing sets up your position for the rest of the case. This part of the divorce can cost thousands of dollars.
One way to save money in a divorce is to see if you and your spouse can avoid the need for temporary orders. The best way to avoid this is for both of you to try to assess what the arrangements were during the marriage, and have an agreement to maintain those arrangements for the next few months while you are getting divorced. If the husband paid the bills during the marriage, he should continue to do so during the pending divorce rather than paying lawyers to have a judge order him to do it.
Step 4: “Discovery”
Discovery is a legal term that means getting all necessary information and documents from both sides, or “discovering” the facts. In this part of the case, the lawyers gather all the details about the parties. They will send subpoenas to relevant witnesses, if needed. They will send question lists and requests for documents to the other party (through the other party’s lawyer), and the other party is legally obligated to respond. Discovery can be enormously time consuming for law firms because of the many procedural requirements involved with responding to the questions and requests for documents. This part of the divorce can cost thousands of dollars. Note: I am not putting a specific estimate here because there are so many different types of divorces. Some divorce cases have large estates and will involve much more “discovery” than cases that have fewer assets.
Step 5: Trying to settle
Once all the facts of the divorce are out, the lawyers will try to negotiate the case and reach a settlement agreement, using the information gained during discovery. Most often, the case will settle. But, unlike the friendly divorce, the parties have now paid lawyers for strategy time, filing a temporary restraining order, preparing for and attending the temporary orders hearing, and conducting discovery. In some cases, this will add up to tens of thousands of dollars. By this point in the case, a person will be fortunate if the legal fees are under $10K per party.
If at any time, during any of these steps, you do not pay your lawyer, they will withdrawal from the case. You will have to hire a new lawyer or represent yourself.
I am not telling you this to stress you out. I am telling you this so you can see the enormous benefits to settling your divorce case early on, even if it takes compromise to do so.
Step 6: Unlike in an Uncontested Divorce, You Need To Attend a Formal Trial
If your case does not settle prior to the final hearing, you will present your case (facts and evidence) and your requests (proposed property division and proposed terms for child-related issued) to the judge. After hearing all facts, evidence, and requests from both parties, the judge will make a final decision about all the issues in the case.
Your lawyer will prepare you for the final hearing. The day of the final hearing, you will meet your attorney in court. You will wait to see a judge. You will go to the courtroom and both lawyers will sit at their respective tables. The lawyers will present facts through witnesses and will show the court the evidence in the case. How the hearing goes will depend on the judge, and whether this is a “jury” trial or trial before the judge alone (“bench” trial). This process will often be very rushed. The judge or jury will hear the evidence for and against you and will decide on the terms of your final divorce.
It will not be left in your control. To me, this is one of the most pertinent reasons to avoid a contested divorce whenever possible. A judge and/or jury cannot know what your situation is. Listening to your evidence one afternoon, or for a week, does not put them in your shoes. Because no one knows your life like you do, you should maintain control over these significant decisions as much as possible. You can do that by not allowing your case to go to a final hearing — instead, you can make compromises with your spouse to reach a settlement. The sooner you both can settle, the less legal fees you will have to pay and the more input each of you will have in the final outcome of the case.
Step 7: The issues after the final hearing
In movies about divorce, when the divorce is over, the story ends. But in reality, the story has just begun for the parties and children involved. You may walk out of the courtroom with the outcome you hoped for, thinking it’s finally over. Then, your spouse could decide not to follow through with what was ordered. For example, the day of your hearing, the judge ordered your spouse to drop off your kids at 2:00 p.m. at your home and to transfer $15K into your checking account. Your spouse did neither. You call your lawyer to report what your spouse didn’t do. Your lawyer says that you will have to pay them to file an enforcement hearing. So, now you are paying your lawyer again, for something you already won. This is extremely common in family law situations and is understandably very frustrating for a divorcing spouse to deal with.
By agreeing with your spouse from the beginning, you completely bypass steps one through seven of the contested divorce, and you can peacefully navigate through the preferred steps one through five under “parting as friends.”
Chapter 4-AVOIDING MISTAKES THESE PEOPLE MADE DURING THEIR DIVORCE
In order to offer more than summary guess work, I read numerous cases that dealt with situations where people made certain choices, and I read what the courts did in these instances so I could give you a better understanding of what actions caused what consequences in recent divorces. These are all 2017 divorce cases, so this is not far removed history that does not apply anymore. This is today’s law in Texas. Because family law is enormously complex, there are endless mistakes and traps that happen in a case, so this is not a representative sampling by any means.
What Happens If You Don’t List Property In Your Decree?
Wife’s lawyer and husband’s lawyer went to court and told the Judge that they would be dividing a 100+ acre ranch, in the following way, in their divorce:
- Husband would receive 100% of the ranch until death, and then the property would go to the parties’ son.
- Wife would waive any and all interest in the property.
So the lawyers put this agreement on the record. Both parties signed the final divorce papers; however, the divorce papers did not mention anything pertaining to the 100+ acre ranch.
After the divorce, wife attempted to enter a corrected divorce decree, to include the agreement pertaining to the property. The Court of Appeals in San Antonio decided that because the ranch property was not in the final decree, it did not matter that a property agreement was verbally told to the court. They reasoned that while the attorneys both agreed on the property division and told the court about the agreement on the record, the judge did not then say that he/she was rendering a judgment pertaining to the property, at that time. The only order of the court that was recognized as valid was the final decree, which left out this property.
Take Away: What Happens if You Don’t List Your Property Agreements in Your Decree? You do not have any property agreements and you could lose a 100+ acre ranch that you believed you had, as the husband did in this case. Further, this requires that the “undivided assets” – the ranch in this case – still have to be divided, which could cost both parties additional legal fees to go back to court and address the undivided property.
What happens if you don’t follow what the decree says?
Brad and Tamra went through a divorce in Texarkana in 2017. In the divorce Decree, Tamra was awarded 100% of Brad’s 401K, which came from Brad’s job with AT&T and was held with Fidelity. The account was worth about $100,000 at the time the divorce was concluded. At some point, Brad removed about $96,000 from the account.
What do you do when this happens? Exactly what Tamra did. She filed a Motion to Enforce, and she told the Court what Brad had done, and then the Court was supposed to order Brad to give the money to Tamra. However, in Tamra and Brad’s situation, the trial court additionally ordered that Brad spend 180 days in jail.
In contested divorce hearings, people are put on the stand and can be confronted by lawyers, similar to what have all seen on television. In the end, Brad was ordered to go to jail.
When Brad was ordered to go to jail for six months, he hired a lawyer to appeal the decision about jail; eventually the higher court agreed that Brad would not have to go to jail, but he would have to give Tamra her money. He would also have to pay Tamra’s lawyer $4,500 in legal fees. By taking that money from Tamra, Brad cost himself a substantial portion of additional money, a lot of time and tons of stress.
Moral of the story: Don’t Take Money That Your Spouse Won in the Divorce
What happens if you file the divorce before you meet the residency requirement for filing the divorce (living in Texas for 6 months and in your specific county for 90 days)?
I was really surprised when I read the divorce case between Troy and Destiny. Destiny was divorcing Troy, claiming that they had a common law marriage.
When Destiny filed the divorce in Waco, Texas, she had not yet lived in Waco for 90 days. The law dictates that you must live in Texas for 6 months and in your city for 90 days before you can file for a divorce.
Destiny filed the case before she met the 90 day residency requirement. During the case, Destiny won $425,000 in attorney’s fees.
The case was appealed. The appeals court reviewed the case, and ordered that it lacked jurisdiction to hear her divorce case because she filed the case before her residency was met. i.e. she had not filed a new divorce petition once she lived in Waco for 90 days.
Moral of the story: Divorces can be very expensive, but we seldom hear of divorces being that expensive. No matter how much you have paid your lawyer, or how expensive they might be, know that they can make mistakes and that you will need to be aware of what’s happening with your case.
Another Moral of the story: Make sure that you have either lived in Texas for 6 months and in your county for 90 days when you file the case, OR make sure that once you have lived there long enough, that you file an amended petition explaining that now you have lived there long enough.
If you don’t, they might not let you get divorced!
What happens if you try to sue your spouse for more money after the divorce is over?
In Sunesara v. Prappas, a Texas Appeals Case that took place in the Court of Appeals of Beaumont, a woman claimed that her spouse had forged her name on a waiver document and got divorced from her without giving her notice. Her “husband” passed away. The wife then sued, seeking to win damages for various reasons including that she was not, in fact, divorced. Husband’s side of the case won.
Moral of the story: Your divorce documents can be used after you pass away to determine which part of your estate goes to whom. It is important that your agreements are clear so that assets like your house, for example, do not go to your ex-spouse but rather to the heirs you want them to go to.
What happens if you do not follow the exact laws about how to serve your spouse with contested divorce papers?
The 2017 divorce case of Chukkapalli v. Mandava is a recent reminder that highlights how important proper service of citation is in divorce. The Court of Appeals in the 5th District of Texas overturned a divorce judgment based entirely on improper service.
Service: the legal procedure that is used to notify the other person that you are divorcing them.
In this case, the wife married the husband in India, and after only a month, they separated but did not get divorced. The wife moved to Texas and once she had lived there for the length of the residency requirement (6 months), she filed for divorce. No children were born of this marriage, and there was no property to divide. The wife hired a process server in India to serve her husband at his known address in India. The husband refused to be served. The wife moved to serve the husband by publishing the notice of the divorce.
Publishing Notice: a legal measure that can sometimes be taken if a person is refusing service.
The wife also sent a letter to the Indian district court, giving them notice of the divorce. Eventually the Texas court granted the divorce by default in favor of the wife; however, the husband appealed. The Texas Court of Appeals found in favor of the husband, as they did not have the right to grant the divorce.
Moral of the story: You can make all kinds of attempts to get service on your spouse. You can hire a process server, publish notice in the paper, and send letters to district courts across the world. Despite your efforts, the courts in Texas can still deny your divorce unless you can show you’ve followed the rules of the Texas Family Code for service, and any other applicable rules, such as international laws. Proper service can cost thousands of dollars to accomplish in some cases.
What happens if you write your own divorce papers for an uncontested divorce and they are messed up?
In the Interest of G.G, a 2017 uncontested divorce in Texas divorce, a father wrote his own decree of divorce. In a blank section on his decree, the father wrote on his divorce papers, the date that his child support payments were to begin; however, the start date of the child support payments were to begin BEFORE the date of the final decree. This was a mistake – a typo. Years later, child support payments were being enforced on him for dates that he should not have had to make any payments for. It was simply a result of the typo on the decree. The court ruled against the father, stating that by writing his own decree, he had placed himself at this risk and would have to pay for the mistake.
Moral of the story: You cannot change your decree after the uncontested divorce, just because you did it yourself and made a mistake. The Court of Appeals in Texas does not care; if you decided to undertake that risk, it could be your problem – indefinitely.
What happens if your decree does not provide specific dates?
In the Texas uncontested divorce case of Gills v. Harris, the parties agreed that the husband would keep the house and make his best efforts to refinance it, in his name alone. Five years passed, and he never refinanced the house. The wife filed a lawsuit asking the court to clarify how much time the husband should have to refinance the house. The court ordered that the husband had to refinance the house within 90 days. The husband appealed, and lost.
Moral of the story: Everyone paid a lot of legal fees that could have been avoided if the decree had stated the date by which the house had to be refinanced. The terms of your final decree can impact you into the future. You need to read your decree carefully.
What happens if you sign a divorce decree about dividing property, and later you want to change your mind?
In the originally uncontested divorce case Gross v. Dannatt, the husband appealed his divorce judgment, stating that the division of property was not fair. Yet, the husband had said during the case that he agreed to the division of property. As the husband had entered an agreement, he was not permitted to later change his mind. He lost the case.
Moral of the story: Once you sign the dotted line, it is done. Make sure you like what is written before you sign the dotted line in a divorce.
What happens if you have children in a same-sex marriage and you get a divorce?
In the interest of A.E., a same sex couple who were married, Wife I conceived a child through assisted reproduction from a sperm donor. Wife I and Wife II separated before the child was born. Wife II filed a divorce and suit to gain parental rights with Wife I for the unborn child. In 2017, the court ruled against Wife II because it did not find that Wife II should have any parental rights.
Moral of the story: While same-sex marriage is legal in Texas, the Texas Family Code has not yet appeared to have always given same-sex couples the same level of parental rights as heterosexual couples. Please note that I expect the outcomes of these cases will change overtime as the law becomes more established in this area.
What happens if you do not list all of the property on the decree, and now your spouse wants to sue you for property that was not listed?
After the 2017 Texas divorce case of King v. King, the wife sued the husband. She claimed that their divorce decree did not divide all of their property, and they now needed to divide an item that was left out (commonly termed “undivided property”). Namely, the wife claimed that a portion of the husband’s retirement was not divided in the decree. The court ultimately found that, contrary to wife’s claims, that the retirement was divided in the decree and did not rule in favor of the wife.
Moral of the story: If you do not list all of your assets in your decree, they could get divided later on. Although the wife lost in the example above, the outcome varies depending on the facts. Ensure your lawyer lists all assets in your decree.
What happens if you don’t buy a house for your ex-wife when the decree orders that you will buy a house for your ex-wife?
In the recent Texas divorce case of Loeppky, the husband was ordered to purchase a $175,000 house for his ex-wife. He failed to do so. The wife sued him, and the trial court ordered the husband to go to jail for 18 months or until he could post a bond of $175,000.
Moral of the story: If you don’t follow a decree, in some cases you could be found in contempt and actually sent to jail!
What happens if you appeal the division of property, and the decree is not clear on the value of the property divided?
In the Texas divorce case of JMM, the wife was dissatisfied with the property division and appealed the case. The property division gave the wife one vehicle with a blown engine and gave the husband six cars and a motorcycle. The wife did not win the appeal. The court noted that there was little evidence about the value of the property given to both parties, and that the wife had been given a marital residence and a grand piano. Because the court cited lack of evidence, this outcome might have been different if the value of the property given to the husband and wife had been listed in the decree itself. Details as to value of property can be listed on decrees, but they are normally omitted for privacy or other reasons of the parties.
Moral of the story: It is very difficult to overturn the initial determination/judgment of how property will be divided. If you think you might have to overturn a property division, adding the value of the property into the decree can help the higher court rule in your favor.
What happens if there is history of family violence in the case? What happens financially if the wife (or husband) has enjoyed a high standard of living during the marriage?
In the 2017 Texas divorce case of Alfayoumi and Alzoubi, the court ordered that the husband would have to pay the wife $5K per month in spousal maintenance. The court gave the husband sole managing rights over the two children. Both parties appealed. Both parties lost the appeal, therefore, the husband continued to be the sole managing conservator and the wife continued to get $5K per month in support.
The facts were such that the wife did not have the ability to make enough money because she was engaged in homemaking activities rather than pursing a possible medical career. The wife was also awarded $250,000 in gold as a part of the divorce asset division. However, the husband gained the sole managing conservatorship over the children because of the wife’s history of family violence against him and the children, despite the wife’s claims that he had also committed violence against her.
Moral of the story: Family law court is not predictable. Wives do not always win custody of the children. Husbands cannot always avoid spousal maintenance by giving their wives a lot of property, or gold. The unpredictability of family trial is a huge reason we advocate that you part as friends. That way, you and your spouse know your settlement before you go to court. Remember, in an agreed or friendly divorce, you avoid the court deciding on the terms of your divorce.
What happens if the wife has her drug-abusing boyfriend sleep over in violation of the divorce decree?
In the 2017 divorce case of ELW, the wife was originally given the exclusive right to decide on the primary residence of her two children. The husband was ordered to pay child support, and it was ordered that he would see the children per a standard possession order (as described earlier in this book). The decree ordered that no person of the opposite sex would sleep over at either spouse’s home while the children were there. The wife allowed a drug-abusing boyfriend to sleep over at her house in violation of the court order. The husband told the court about this and asked the court to change the custody orders. The court agreed to give the husband the right to determine the children’s primary residence (often referred to as “primary custodian”) and gave the wife the right to visitation with the child per a standard possession order. The court also terminated husband’s obligation to pay child support, and ordered the wife to pay child support to the husband. The wife appealed and lost; so the husband remained the primary custodian.
Moral of the story: The orders in your decree have to be followed. If you don’t follow them, you could the lose rights to your children that you had been given before.
Chapter 5- THE 3 TYPES OF DIVORE SERVICES WHEN YOU GOOGLE
What is a “Part as Friends” Divorce?
If you have done any research on it, you have likely heard many of these phrases thrown around about divorce: simple divorce, uncontested divorce, amicable divorce, contested divorce, friendly divorce, divorce mediation, and divorce collaboration.
It all comes down to this:
Can you and your spouse agree on how you will divide assets and debts and share in raising children (if applicable) in your divorce? Once both of you understand your options, will you both sign the divorce papers cooperatively?
This is the million-dollar question that, if not handled correctly, could cost you more than you are prepared to spend. Spouses who can work together to reach an agreement on that division and sign off on it, can save up to years of time and thousands of dollars in lawyer fees.
If you and your spouse can work together to sign your divorce documents on mutually agreeable terms, then you have what is called an uncontested divorce. Neither one of you will have to “contest” anything before a judge, and will be able to bypass the expense of negotiating with a mediator. When we talk about parting as friends, we are referring to an uncontested divorce.
Don’t think that just because you have a large complex estate and many added terms to your divorce, that it cannot still be a friendly and uncontested. If you agree to all of the terms, and you and your spouse will both sign the decree reflecting the agreements, it is an uncontested divorce! On the other hand, if you need a judge or other party to dictate to you and your spouse how to divide any asset, liability, or term about your children, then you have a contested divorce.
Are we friends when we part as friends?
After doing several hundred divorces, I started to realize that some couples were telling me the same renowned message amidst their uncontested divorce, that they were friends. They were separated, and yes, getting divorced. But they were friends and were co-parenting their children. They were making the good-bye, just as friends. I was so moved by this after a while that I created the entire website at partasfriends.com, hoping that I would have more clients like them. I am genuinely impressed by these couples that have taken the route to part as friends.
This brings us to your divorce choices
It is easy for me to zip in a couple of keywords into Google, such as “divorce in San Antonio,” see all of the options on the first page of Google and know immediately what options are available. It is easy for me because the divorce industry is my area of expertise. I spend all my working time serving divorce clients and understanding and bettering my divorce practice, which means I really know my industry. You, on the other hand, may not. This book is written for you because you need safeguarding from the numerous wrong divorce choices that you could become victim to.
There are three categories of divorce choices you will find online today. I will help you to identify and understand what you are looking at on Google.
- Divorce services that do not involve lawyers
- Divorce lawyer referral websites
- Divorce lawyer websites
1. Divorce services without lawyers
The first category, to me, is the most despicable. I do not think that a business that helps people get through something as significant as a divorce should be legal unless it is run by a lawyer. I believe that in time, when enough people have complained about what happened to them when they hired a non-lawyer for a divorce, these companies will be made illegal by our Texas State Bar. In my opinion, some interpretations of the rules surrounding the unauthorized practice of law have already made these companies illegal.
Am I upset because they are competing with me as a lawyer and only charging $149 for a divorce? No, not really. I am upset because they are misleading people who are already under the severe stress of going through a possible divorce, and providing divorce advice and documents that may significantly harm their “client” in the long run.
I am not sure that I can convince a person of how many things can go wrong with this method of getting divorced. despite that the matter is uncontested. However, I will put it this way: Imagine my brother came to me and said he needed a divorce and could not get a lawyer due to his lack of funds. Before I would advise him to use a form company or get divorced without a lawyer, I would advise him to take out a personal loan for a lawyer. I would advise him to wait on the divorce until he has saved enough to do it the right way.
Your divorce documents are final, permanent, and part of the public record. After you enter those documents with the court, whether you had a lawyer or hired a fly-by-night form business, the documents are final. The numerous Courts of Appeals of Texas are consistently showing that if you take the risk of not having a lawyer, they are not going to let you change your documents later when you decide you did the forms incorrectly.
2. Lawyer referral websites
This second type is a website where a lawyer can pay to be listed. It is essentially an advertisement for your services and law firm. The website listing company (not the attorneys themselves) will write content about specific areas of law. The content will rank highly on Google as a result of search engine optimization (SEO) done by the website listing company. When you research a question, you land on the referral site that has the answer, and on the side is a form you can fill out that says: “Do you need a lawyer?” Submit your name and other information.
There is nothing wrong with reaching out to a few lawyers this way; however, understand that there is no connection, in most cases, to the content you read on the referral site and the lawyer you get when you submit the form. Rather, you are simply being connected with a random lawyer who paid to receive the contact forms being submitted within his/her city. This is generally how it works, but all referral websites have their own variation on the process.
When you are looking to hire a lawyer, picking random attorneys who paid for advertisements could land you a good lawyer, but there is no guarantee that it will. I do not think this is a winning strategy. Rather, I recommend that you find a lawyer by following the steps and asking the questions of Chapter 3.
3. Law firm or lawyer websites
The third type of website you will find when searching for divorce options for contested or uncontested divorce is a law firm or lawyer website. I personally think this is the best way to go about finding lawyer options in 2021. You will know this is a lawyer’s website because the name of the firm must be provided as well as the principal office location. There will not be multiple law firms on the website, but rather just one firm or one lawyer communicating their business practice to you.
There is a wide range of information you can gather from a lawyer’s website, and you should not overlook it. Lawyer websites are generally the only results that show up on Google Maps (top results under paid Google Ads) at the time of writing this book.
Click on the website and learn about the lawyer.
Questions you should be asking a potential uncontested divorce or contested divorce lawyer:
What does this lawyer look like? I start with this because there is no excuse for a lawyer not to have his/her picture on their website. Your lawyer needs to look professional. Appearances do matter. Pick a lawyer who looks professional.
What does this lawyer’s website look like? If your lawyer has not invested in having a decent looking website, you just got a glimpse into how much they may care or not care about their practice. Hire a lawyer that who taken pride in his/her profession. The website is published to the entire world. It should represent the lawyer well. What is, or is not, on the lawyer’s website says a lot about him/her. (I am sure some lawyers may be displeased by this, but it is just one opinion.)
Does anyone on the internet have anything to say about this lawyer? It goes without saying that a lawyer who has reviews, even some negative reviews, is at least practicing law. There is nothing that stops a lawyer from advertising work, who doesn’t have any work. The last thing you need is a lawyer that has never practiced in your area of law. Sure, negative reviews will occasionally happen if you run a big practice because divorces are painful, and the people going through them are sometimes going to take that out on the lawyer, even if she/he did a good job. More positive reviews are obviously good for you to know other people’s opinions about the lawyer. Read the reviews, though, and see if they seem fake or paid for.
What does this website say about your particular legal concerns? You might be worried about who gets the dog in this divorce. You might be reading this book for your daughter who is getting divorced. Whatever the case is, if your lawyer’s website has something of particular interest to you, it is added assurance that you lawyer’s area of practice covers what you need handled.
Chapter 6-CHOOSING YOUR LAWYER
Do You Need a Lawyer For an Uncontested Divorce—For What?
I am an advocate of using the technology we have today, to save money and bypass unnecessary costs. But, to be smart in your divorce, you must recognize the limitations of the technology, too. The Internet is great at helping you to answer isolated questions such as: “What papers do I need to fill out to file a divorce?” To avoid hiring a lawyer, you can do the research yourself and with each isolated question that comes up about the legal process, you can Google it, or use other guides you might purchase to help you. People do start their divorce this way often. Many get into the process and decide to hire a lawyer midway through. In any event, if you instead hired a lawyer your divorce outcome will be better. This is simply because during every step of the case, a good divorce lawyer has all of the information in this book in her head at the same time. If you ask a question to your lawyer, she is considering several factors at once:
- What are the laws pertaining to this question?
- What answer is in the best interest of my client (you)?;
- How do local court rules impact this question?
- What other factors, or disclosures, or counseling should be given in light of this question?
- Is the question asked here, really asking something else, as my client may not know the legal terminology to ask it?
All of these questions should be consistently considered by your lawyer for each question and step of your case. Of course, some of your questions require less analysis than others. Still, the point is, Google cannot give you an answer that considers your case with the eye of an experienced professional attorney. So how do you get the right lawyer for the job?
Googling and guessing
Unless a family or friend gives you a recommendation (often not the right way to go), you will likely choose your lawyer by doing some Googling and possibly some guesswork.
You Google lawyers and click around. Some look good. A lot look bad. A few have five stars, which is the most appealing indication to you that you might want to call them. You call, you leave a message or maybe you get a phone consultation, and maybe you make an appointment.
At some point, if you get to talk to the lawyer, you gather some basic facts, but the two most important facts to you, whether you realize it or not, are what the lawyer’s fees are — to be specific, you need to know what the lawyer’s down payment (also called a “retainer”) is, and whether you overall have a “good feeling” about the lawyer.
In other words, you are likely to choose an attorney based on a few factors: seeing a couple of reviews, feeling out the lawyer’s demeanor on the phone or in person, and his or her price.
You will assess this information for maybe three different lawyers, and then choose which lawyer you will hire based on which lawyer seems right for you considering those (and maybe a few other) factors.
The prospect of choosing a lawyer may feel overwhelming. Everything may feel like it is going too fast, and you may feel so unfamiliar that it is difficult to know which lawyer is “right” and which one is “wrong.” Choosing a lawyer is hard work. Take a day off from work to focus on figuring this out. Set aside some time to confront the challenge of finding the right lawyer, head-on. This is an important decision that can impact your stress level during your divorce, the outcome of your divorce, and the current and future financial burden the divorce has on your life.
The lawyer you select and hire whether for an uncontested divorce, or a contested divorce will be in charge of a lot of things for you, including what amount of time you get to spend with your children as you move into your new life and the amount of money you will have at the end of the marriage.
This lawyer will be in charge of changing your legal status from married to single and will be broadly in charge of how long your status is in pending divorce, which could vary from sixty days to years.
The Googling, guessing, and feeling-it-out method with three law offices is not good enough, because you could easily end up with the wrong legal service – and not know it until it is way too late.
So, instead of blindly Googling information, I strongly suggest that you be more methodical in your search. The next section discusses how you can do that, thus enabling you to make a good decision.
There are so many bad “divorce lawyers”
Lawyers are not like doctors. Once licensed, we can advertise our services in many different areas of law. So long as we can competently represent you, we can advertise to you, even if you are our first client. Wow. That should be a huge surprise. Here I am, a lawyer, telling you that there is very little protection between you and a lawyer who may have never handled a case like yours before. Maybe you feel that this is no big deal – after all, it is a lawyer who is representing you, and that person must be smart because he/she is a lawyer. Not true! What this means is that you need to hire your lawyer carefully. You need to consider the lawyer’s background. Check his/her state bar page to get more information. Check his/her website, too. Ask the lawyer direct questions about his/her experience with similar cases.
You should be aware that a person can become a licensed attorney, advertise divorce services, and not be very good at their job. Being a good divorce lawyer requires that the person can speak eloquently to a judge, understands the family code, can write well, can use technology efficiently, and is willing to take a moment to care about you and your life. If the lawyer is bad at any one of these things, you may not be happy with your divorce service. The best-case scenario, if this happens, is that you can hire a second lawyer to take the place of (“substitute in for”) your original attorney, but you are not likely to get the money back from the first one. In the worst case, you could end up losing thousands of dollars that you were entitled to, or even worse, losing rights to be with your children.
So to avoid getting a bad lawyer, when you interview your lawyer, assess these qualities:
How are the lawyer’s speaking skills?
When talking to the lawyer, do they speak professionally and persuasively, in a way that you find impressive? This is the same lawyer who will be speaking to a judge on your behalf, so how are their speaking skills? Can you hear them? Do you like them? Are they clear? Do they speak proper English? Are they overly emotional or too aggressive? Think of it as though you are interviewing your very own employee. What do you think of this person?
How knowledgeable is this lawyer at law?
The most convenient way to check this is to ask the lawyer the most complicated questions you have, and see if they know the answers. Write down their answers, and then Google them to see if the lawyer knew what they were talking about. Beware that everything on Google is not accurate, but I do not have to tell you that. You can also crosscheck the information by interviewing more than one lawyer. Do not assume the lawyer is right. Many lawyers do not actually know the law as well as they should.
How are the lawyer’s technology skills?
I personally think this is really important. If a lawyer can’t use technology very well, they will spend more (possibly unnecessary) time on your case, which will cost you more money. There are tools that lawyers should be able to use that can give you an advantage, such as the creation of visual aid evidence. Ask the lawyer about what software or technology they prefer to use in their practice. If they say that they don’t even use email, this is not the right lawyer.
Did this lawyer hear you?
While interviewing the lawyer, you should tell them something that is important to you about your case, and see if you feel that the lawyer actually heard you on that. Or were they too busy selling you on their services and yapping at you that they never actually heard you? This is your life; hire someone who will listen. You should not need to give the lawyer a lot of chances to hear you. If they don’t listen to you in the beginning, then move on. There are thousands of family lawyers, so you can be picky.
What is this lawyer’s plan for your case?
After you tell the lawyer about your case, ask them what the case plan would be if you hired them. The lawyer should lay out a plan that sounds good to you. If you aren’t on the same page in the beginning, you likely never will be.
The above few questions are basic conversational strategies that can help you avoid choosing the wrong lawyer.
Realize that a lawyer who has really good feedback on the web may still be the wrong lawyer for you. Family law is profoundly personal. Don’t depend on the recommendations of others. You are the best resource to find the right lawyer for you.
What is this lawyer’s philosophy on Uncontested and Collaborative Law Cases?
Many lawyers will tell you that there is no such thing as an uncontested divorce. Yet, our small Law Firm has settled hundreds of them. Many lawyers will tell you that collaborative law is a waste of money, yet it saves money when done properly. You don’t want a lawyer that doesn’t try to get your case to close amicably. Their work philosophy is going to be a direct reflection of you, and also, you’re stuck paying their bill when they are picking unnecessary fights. Their answer to this question about their opinion on uncontested and collaborative divorce will reveal some of their work philosophy so listen to their answer on this carefully.
Chapter 7-TOPICS TO BE AWARE OF BEFORE GETTING DIVORCED
Retainers refer to the down payments given to a lawyer to start the case, and they can vary from $2,500 to $10,000 in divorce cases. A lawyer uses the retainer like a bank account. You deposit $10K into your “retainer.” The lawyer works for one hour and deducts one hour’s worth of pay from the retainer. If the retainer gets below a certain point, or runs out, because of the number of hours the lawyer works, you will be asked to replenish the retainer with more funds.
Lawyers have rules to follow regarding how your retainer funds are handled once paid to the firm. The fund must be deposited into a trust account, and the lawyer must keep track of his or her hours on your case, and produce an accounting of use and withdrawal of the funds for you on request or a regular basis, usually meaning once a month. The software available to lawyers to keep track of billing hours can be very expensive, running in the ballpark of $70 per user in the firm, per month. Some law firms do not use special software to track time used on your case.
I suggest that you ask for your billing statements regularly, so that you can verify that you agree with the use of time in your case, and keep an open discussion about what they lawyer is doing and whether there is anything you can be doing to save on legal fees.
If you and your spouse have an uncontested, “part as friends”-type divorce, and an estate with not more than 1 piece of real estate or retirement fund to divide, then you can skip the retainer and just get a flat/fixed fee from your lawyer. This is great because you avoid the unpredictable bill that is associated with the traditional retainer model.
Asking lawyers for free time from them, and how much we hate that
A man called me (he wasn’t my client) and wanted me to analyze his divorce papers. I gave him my analysis (for free). He said, “Thank you so much. I called my lawyer to ask this very same question and she wanted to charge me money for it.” Until that moment, I did not know he had a lawyer. I was just doing a free telephone consultation.
What he was telling me was how upset he was at his lawyer. I said to him, “You know, I have to tell you, sir, lawyers, just like all people, have families and expenses, and we are all just trying to get by and make a little more than our bills at the end of the month, so I don’t fault your lawyer for that and, in fact, I do the same thing to my clients if they are paying by the hour.” He seemed to genuinely agree after that, but who knows?
The point is, you do not go to CVS and pick up a less expensive item and turn to the clerk to say, “Can’t I have this one for free? After all, I bought all this other stuff from you. Isn’t this one a freebie on you?” Doing that would be so outrageous. Time is your lawyer’s “merchandise”; and if your lawyer is successful, every moment of the day is time that can be invested in paying clients.
If I spend an hour on a freebie, I have lost $300. I just paid you $300 to answer your question! Furthermore, I paid my receptionist to take the call and indicate the message to me. I obtained a law license, an education which cost me about $150,000 (that I am likely still paying for). I paid my legal subscriptions to be able to become knowledgeable about the areas of law, and to be able to look up answers I do not know, and I paid you to answer you. This is not a fair deal. When you perform work for your own employer, you expect to be compensated; and you would certainly not appreciate the hostile work environment that would result if your employer walked around the office complaining about having to pay you when delivering your paycheck to you. Do not think your divorce lawyer and you are going to be close enough that they will not mind you doing that. She/he does mind, so please, do not expect freebies, and appreciate them when they are given.
Maybe you think it is a snarky way to approach things. Trust me when I tell you that you want to be the client that pays the bill, in full, on time. You want to be the client whose call is answered when an emergency arises for you, because your lawyer knows that you understand her advice is worth the money.
The internet allows us to instantly get a so-called “polling” of the world’s perspective on a topic. While the advice found on the internet can be lacking in accuracy or veracity, it isn’t hard to find opinions and get a sense of some sentiment on any given topic. To me, it seems that the sentiment shared by divorced people is that some of them do really regret getting divorced. Google it – “regret divorce.”
Before filing for divorce, my advice is to do your best to save your marriage. Give him/her everything you can. Go get help. Invest time. Invest effort. We all think it should be effortless. Nothing good is effortless; try your hardest and do your best as a spouse. Don’t worry about what your spouse is doing to save the marriage. This step is for you. It’s you, trying your hardest, so that if and when it’s time to go forward with divorce, you will not endure the same measure of regret or the same measure of unknowns. The “trying” is an investment in your peace of mind for your future.
Divorcing with kids & the new girlfriend/boyfriend
When you have kids, one of the hardest and most difficult things about getting divorced is that you will lose some control of your kids when you are not with them. Lawyers and judges have a very limited ability to stop a girlfriend/boyfriend of your ex-spouse from being around your child. Realize that when you get divorced, you will lose some control over how your child is raised and who your child spends time with. Here are the two most practical solutions to this difficult issue for divorcing parents:
- Part ways as friends, and as people who are actually talking to each other constructively. Realize that an open conversation will give you more knowledge about the times when you are away from your child, as well as more influence on your ex-spouse and an ability to establish shared parenting styles. Your ex-spouse is more likely to listen to you if you are a friend, rather than an enemy. In this way, divorcing as “friends” is an added protection for your child.
- If you can’t tolerate the idea of losing some control over parenting your child, then wait to get divorced.
I do not advise this for couples who are in abusive relationships, or in impossible situations that marriages sometimes can be. I am advising this to the person who is “on the fence.” This advice is for the person who is getting together with friends and asking them whether he/she should leave or not. This is for the person who isn’t totally sure and needs social support to be sure.
My answer, albeit controversial, is don’t leave yet. Leave when your children are older, and losing some control over parenting will be more livable for you. I say this because the hard truth is — no lawyer or judge can make your ex-spouse disappear. There are situations where sole custody is awarded, but they are exceedingly rare; they apply to severe circumstances where the parent who is not getting any time is legitimately dangerous to the child.
Family member advice … do not ask for it and do not accept it
The truth is, you do not tell your family and friends the other side. You do not tell them about the times that you started the fight, or when you were verbally abusive. And if you do include those facts, you provide excuses and reasons to justify your behavior, always making sure to keep your friends and family on “your side.”
Those friends and family are the people that you eventually go to for divorce advice –legal advice, and they are not a good source of advice because they don’t see the case they way the judge will see it. They see it the way you see it.
For this reason, legal advice needs to come from a legal professional because, among all the other obvious reasons, your family members do not know the likely outcome of your case. They do not have the legal knowledge to provide you with the standards in Texas, and have not seen hundreds of divorce cases that provide insight into what the judge may or may not order. And they likely do not know all the facts, and are now aware of the facts that will be presented from the other party – your spouse – at the time of the hearing or trial. The point is, the steps you take with your marriage dissolution are absolutely vital to you. This is not getting movie advice, or even relationship advice. It is getting life-altering, splitting, and changing of legal status advice. Take it seriously, and take advice only from people who are qualified.
Rule: Seriously, do not ask for or take advice from family or friends about how to proceed with a divorce.
The cheating spouse and divorce
It may be something you knew about for a while or even suspected. It may be something that you were shocked to find out. In either event, when a spouse commits adultery, the victim spouse often expects the cheating to become a ‘trump card.’ The spouse that cheated should get nothing in this divorce, right? The truth is that judges hear about affairs every day, and they have grown somewhat numb to the news. The division of marital assets may favor the non-cheating spouse by 5-10%, in a best-case scenario, but nothing beyond that should be expected in today’s divorce. In some courts, the judges give no value whatsoever to evidence of adultery, and the non-cheating spouse receives no greater division of assets for the cheating spouse’s adultery. A cheating spouse is also not likely to lose rights to raise his/her children due to the affair.
Now, a spouse who was supporting his/her paramour financially for years, a spouse who is now abandoning his/her family to be with another person, or a spouse who leaves his/her spouse in a particularly difficult position… this is, or may be, different. In this scenario, a spouse that was cheated on should seek some temporary support payments to get back on his/her feet, and has the opportunity to make claims for “waste” or “reimbursement” for the funds spent on the cheating spouse’s paramour.
In an uncontested divorce, the cheating is often not listed or mentioned on any divorce papers at all, since they are public record.
You can spend a lot of money ($10K, $30K, and beyond) on your lawyer, and so can your spouse. Every moment you are talking to this lawyer is billed. The less you fight over during your case, the less money you pay your lawyer. Don’t spend too much time fighting to avoid giving your spouse a part of your retirement account. If you have saved towards retirement during the marriage, the portion of money saved during that time will most likely be divided by the court. Unless your spouse has an equal retirement account in his/her name, it is a losing battle to try to keep your own retirement and leave your (soon to be ex) spouse without one.
In an uncontested divorce, people either divide their accounts or keep their own money, and the other spouse can agree to this.
The contested divorce culture that pushes us away from uncontested divorces
It is not very interesting when a couple simply decides that their marriage isn’t the right thing for them and they choose to part ways. There is no gossip to tell about it. There is no drama in it, no “you’ve been served” moment. It is just a couple that came together for one phase of life and is making the choice to not be together in the same way for the next phase of life. In many ways, it is just a natural development.
The juicier the information is about the end of your marriage, the better people will receive it. They expect you to be able to tell them why you are getting divorced. All of it might make you feel like you should have a pithy one-liner to explain why your spouse is really to blame, or something you can say to the people waiting to hear the gossip on you and your life.
It is tempting, because you might want to vent about your divorce. It is a welcome time for you to explain to people what happened. You don’t owe them that, and they usually are not asking due to any genuine interest in your well-being.
This is your life, and your choice. You decide if you can part as friends, and if you do, to embrace the fact that there is no drama to tell. You do not want to be in the marriage, and that is all you need to say. Part of being “friends” with your ex-spouse is perhaps respecting that gossiping about your own family never helps.
I am prompting you to rebel against traditional divorce culture by parting as friends from your spouse. You do not need to find an excuse for others, and you do not need to feel that your spouse is your enemy in order to part ways. In the long run, remaining friendly with your ex-spouse benefits you because he or she was a partner in your life for a time, and it is better to leave any cherished memories behind on a more respectful note.
The internet tells me the things that will haunt you after your divorce are your wedding dress or your old photos. But if you part ways and you aren’t enemies, maybe the memories can feel just like other memories – something that happened in life, but now you are in a new part of life.
People will always fall in love and fall out of love. As this will always be a part of life, we should recognize that the superior way to exit relationships is as friends. You share some history with your spouse, and you will carry that with you.
The famous Buddhist, Ajahn Brahm of Western Australia, has told this story in his talks. A person has chickens and keeps the chickens in the chicken coup outside. The person goes outside regularly and collects the chicken’s eggs, and brings them inside and enjoys the fresh eggs for breakfast regularly. Another person keeps chickens, but rather than collecting the eggs, he collects the chicken shi* and brings that inside. Don’t be the second type. Collect the eggs from life, not the shi*. As you move forward, give yourself permission to keep the good memories you had with your spouse, and leave the rest behind.
Some ways are better than others, and that is the case with an agreed divorce—it is just plain better. Allow me to explain.
Chapter 8- IF YOU HAVE TO FIGHT, FIGHT TO ACTUALLY WIN
I’ve given you a lot of reasons why you should part as friends. In fact, when originally writing this book, I planned to write the first book and call it “Part as Friends”; the second book would have been “If You Can’t Part as Friends, Fight to Win.” That is my advice for almost everyone. You need to try to negotiate and settle your divorce case. You need to do that as efficiently as possible. You need to be willing to budge on things. It is worth it. Find some way to come up with a solution with your ex-spouse. People do it every day.
However, this part of the book is for the spouse who is dealing with an ex-spouse who cannot be reasoned with, or an ex-spouse who is trying to harm you or your children. They want more than you can reasonably give up. They may be seeking damage, and revenge. This part of the book is the real guide to winning in that scenario.
In the face of a divorce where you and your spouse do not agree on terms regarding the children, or how to divide the assets or the debts, you will have a choice. You can decide to litigate your divorce in court. This is the most common, well-known method of proceeding. This is the method that we see in pop culture where a judge has a gavel and decides on where your kids will sleep. The other, less known, wiser option to do a “collaborative” divorce.
In the beginning of the book I walked you through picturing the uncontested and contested divorce processes. I did not walk you through the collaborative or mediation type process because I wanted you to really understand the difference easily between a friendly, uncontested divorce and a contested one. The collaborative divorce is in between.
In the collaborative divorce, you and your spouse both have lawyers, but you sign an agreement that you will not litigate the divorce in court. By doing so, you avoid expending the highest dollars on divorce that come up when lawyers are forced to play games with each other to win, and forced to spend hours, thus thousands of dollars on overcoming evidentiary formalities required of lawyers in litigation. In a collaborative divorce, a neutral mental health professional can be employed to assist all parties in understanding the goals and issues. Similarly, a forensic accountant can transparently work to understand the finances of the parties and assist everyone in reaching a fair and just, yet peaceful divorce.
The reason that this collaborative law section is in the Fight to Win Chapter is intentional. What are you trying to win? If you reflect on it carefully, the only things you should be trying to win in a divorce are your rights to be a respected, unmarried human being, and your rights to keep a fair portion of your estate, and your rights to be a good parent to your kids, if applicable. So, if you really want to “fight to win”, the fight is often as internal as external. Meaning, working with your spouse through a divorce settlement is often extremely difficult because that person may have failed you profoundly or broken your trust. Your inclination is to get them back (get revenge) in court. Air their dirty laundry, get a judge to tell them how bad of a spouse they were. I urge you to know that fighting to win a divorce, includes fighting this natural inclination of your own and seeing clearly your long-term goals of a peaceful, happy life.
Collaborative law is a forum where you can advocate for yourself without entering a system that racks up unreasonably high legal fees and clogs your life with lawyer games.
Yet, collaborative law requires both people to agree to the collaborative law process. If both spouses won’t agree to enter the collaborative law process, then the only choice left is to go to court, in a contested divorce. This does not mean that, from the beginning, both spouses have to agree to the terms of the division of the estate, or the terms regarding the children… only that they agree to us the collaborative law process to work through the divorce issues.
To win your divorce in this collaborative law setting, you need to hire a good lawyer; then you need to provide the lawyer with evidence that he/she can use to help you win (more advice on this below).
The next few sections of this book deal with contested divorce issues and how to assist your attorney to help you win, but if this is the route you must take, it is unlikely anyone will really feel like they “won” in the end.
This Section of the book doesn’t matter if you and your spouse are parting as friends. This section of the book is written to help you understand why you don’t want to have a contested divorce, if it can be avoided, and to aid as a resource for those who are unable to “part as friends.”
Chapter 9- THE NASTY THINGS PEOPLE CAN DO IN UGLY DIVORCES
Part of winning in an ugly divorce is being forewarned of the things that can happen so that you can prepare for them.
Making Public Record of Private Things
There is no question that your spouse has learned private details about you that should not be made public. But, because divorce filings are public record that a person can dig up from the district clerk’s library, unfortunately some spouses use divorce pleadings as a time to air your dirty laundry. One reason that you should both be motivated to have a friendly divorce is that much of your private business can be left out of divorce papers, such as the reason for dissolving the marriage. Because divorce papers could be looked at in the future by employers or even your own family members, your spouse may attempt to use your divorce as a means of damaging your reputation or invading your privacy.
Spying On You
The legality or illegality for that matter of video recording or tape recording your spouse is outside the scope of this book. However, most certainly you should be aware that cellular devices and small cameras are used with increasing abundance in divorce situations, and in some cases the evidence obtained can be used against you, and may have been taped long before you were aware that your spouse was going to file for a divorce. Also, private investigators are hired in divorce situations regularly to follow you and to testify in court about things that may be relevant such as an affair, abuse of your spouse, abuse of your children, waste of marital funds, or other relevant facts.
Keeping You In Litigation For Years
Among the more common of issues, we see spouses that do not wish to be divorced, and that have money to waste, extend a case long after it should have been closed. While friendly, agreed divorces can be over in as soon as 60 days, unfriendly divorces can last 1-2 years, vastly increasing the legal fees involved for both parties.
Harming Your Property
In some divorce situations, one spouse will wait for the other spouse to go to work, or temporarily leave the home, and will then bring a truck and friends along to take the contents and property from inside the home. In other situations, a disgruntled spouse will damage the marital home or turn off the utilities. The standing orders, available in some Texas counties, order the parties not to engage in this behavior, but the only impact of those orders is that if enforced, the spouse can be punished by the court with fines, or in some cases jail time.
Harming Your Kids
Albeit completely tragic, parents sometimes manipulate children during a divorce such that the child’s relationship with the other parent or perception of the other parent can change for the worse. This is the single most important reason why couples divorcing whom have children must use wisdom in proceeding with the divorce. The best, least expensive method for approaching this issue, is if you can somehow manage to foster a respectful relationship with your ex, regardless of how they failed you in the marriage. This is, in-part, simply so that they will not be motivated to harm your relationship with your child. If a respectful approach with your ex does not or cannot work, you should employ mental health professionals to intervene and help you to heal the wounds of the relationship with your child as quickly as possible.
Creating a Criminal Record Against You
Because family violence, substance abuse, and other criminal record history can harm your position in a divorce, your spouse may accuse you of crimes around the time of your divorce, to present as evidence against you, and to help them “win.”
Getting You Fired
We sometimes see disgruntled spouses (or ex-spouses) disclose information to an employer that is egregious enough to have his/her spouse fired from a job. This could range from events where you lied to your employer, and your spouse knew about it, to use of employment time for other activities or an affair that occurred with a co-worker that your spouse (or ex-spouse) became aware of. Because your spouse (or ex-spouse) knows about your private life, when treading the waters of an ugly divorce, it is wise to thoughtfully consider everything that they may reveal about you and the damage that such revelations may cause.
Papers from your ex’s lawyer may be incredibly rude and scary to receive
Today, while writing this book, I received a letter from someone who had been served with divorce papers. The emailed letter was filled with fear. The writer was telling how his spouse’s lawyer was trying to destroy him with the divorce, claiming lies like adultery and cruelty and asking for legal fees for her, from him. Receiving such aggressive paperwork from someone who you were once in love with and who you once vowed to take care of will put many people into an absolute panic. These are the moments that cause you to immediately seek legal counsel and begin interviewing attorneys. You will pay large retainers to protect yourself. You want to feel safe again.
I want you to know that the paperwork that you got served with was most likely a template saved on a lawyer’s computer; the lawyer files that same paperwork, possibly several times a week, on other divorce cases. It has less force when you think about it that way – it’s just a person who sleeps in pajamas, watches TV at night, and mailed you a template off their computer after changing the names of the parties. Don’t panic.
Instead, realize that your single next move is to research and hire the right lawyer, using the suggestions in this book.
Chapter 10- ADVICE ON HEARINGS
Every year, lawyers and judges get together for advanced family law continuing legal education seminars, where lawyers talk about how to win at hearings. At one such event, they featured lawyers and judges reenacting a hearing. The big advice that kept coming up on how to win was this:
- Plan to win with only minutes at hand.
- Plan to win with summaries of the case and quick visual aids, like proposed outcome statements, for the court to review.
- Warn your client that the time will be extremely
This is the reality of court hearings. You picture yourself testifying. You might even practice telling the court what your spouse did to you, or why they should lose. But that moment when you are explaining it, when everyone really understands your grievances and agrees, is a moment that will elude you. Seldom do divorce hearings happen like this. The judges don’t have time. Forty percent of marriages are dissolving, and thousands of people every year will need that judge’s ear. The judge is often simply too busy for the testimony you pictured giving for your contested divorce. You need to make sure your lawyer has evidence that will help you win, and your lawyer needs to have organized it such that he/she can present it to the court very efficiently.
Giving Your Lawyer Evidence For The Divorce
Judges have to decide on who “wins” in a family law case by their review of the evidence. The center of your case is your evidence. It does not matter to the court if your spouse abused you, unless you can prove it.
One of the most advanced things that a lawyer does in a family law case is to analyze how to use evidence in a way that the court will allow. There are tons of rules about evidence. Can I use this photo from Facebook? If so, what do I have to show the court about the photo before they will let me use it in the case?
I want you to understand that if this analysis is not done properly, all your hard work in procuring evidence to your lawyer may be a complete waste. It is just as important to analyze how you can use the evidence in alignment with the legal rules, as it is to find the evidence.
It is like driving. You want to drive to the grocery store. You want to get there as fast as you can. You come to a traffic light. The traffic light is red. You stop and wait until it turns green before driving through it. If you did not do so, you would be breaking the law, and there are consequences for doing so.
Just as there are traffic laws, there are also laws about showing a judge your evidence.
Unfortunately, your lawyer may not understand these advanced evidence rules well enough to help you during your divorce case, and the consequence is you not being able to use what may be very valuable evidence. This is your life, and your divorce. You must take control and empower yourself to help them, help you.
This is how you get the evidence in
Most clients just start emailing their lawyer with pictures or text messages that they think their lawyer should have and use in the hearing or at trial. The client expects that somehow the evidence will magically or automatically be known to the judge.
For a lawyer to show and present this evidence to the judge, there has to be a hearing. You and your spouse will be there. The lawyer will walk up to you and say, “I am showing you what has been marked as exhibit A; do you recognize this? How do you recognize this?”
Once you’ve answered and told the court what the evidence is, the lawyer will “offer” the evidence to the court. The court will then make a choice as to whether it will accept this evidence and review it, or whether it will reject your evidence.
If your lawyer has not analyzed the evidence properly, and you have not provided your lawyer with sufficient information to present the evidence in court, the judge may reject the evidence. It is important to note that sometimes even properly presented evidence is rejected by the court. Judge decisions are not always perfect.
So instead of emailing your lawyer a bunch of random stuff during your case that you hope he/she will use, you need to set up your own trial file.
You need to have a hardcopy produced and printed for each piece of evidence. Corresponding with every single piece of evidence, your lawyer needs to have analyzed:
- How is this evidence relevant to the case?
- How can we show that the evidence is not a fake piece of evidence, but that it is real and authentic?
- Can you provide – and prove – the date, or approximate date – of the evidence (i.e., text messages and emails need date and time stamps)?
- How can we show that this evidence is not hearsay, or evidence that is introduced to show a person’s character is bad (which is not allowed)?
If your lawyer cannot show all these things to the court, then your evidence may be useless because the judge will reject it.
I cannot stress to you enough that it does not matter how great your case is when you do not have the evidence to prove it in court.
Social Media & Your Computer During Your Divorce
Part of winning a divorce case in the smartest way possible is to realize that computer and technology evidence is not a side note in getting ready for a divorce. This day in age, social media and other computer/ technological evidence are often at the center of the divorce. Before and during your divorce, think about your electronic evidence very carefully.
Facebook is used in all kinds of creative ways in divorce cases. In one case, the wife wanted alimony. The husband claimed he was laid off and couldn’t afford it. The wife’s lawyer found tweets by the husband proclaiming his excitement about a new job offer.
In another case, the wife claimed the husband was an alcoholic and therefore she should have custody of the child. The husband told the judge that he had found religion and was now sober. Facebook pictures with a beer in his hand revealed otherwise.
Things to keep in mind:
- Look at your social media accounts because they can be used against you in this divorce. Do not discuss your divorce on social media. Do not do anything that would call your parenting style into question.
- Remove old pictures that show you partying, using drugs, and issues relating to you over-spending or not being responsible,
- Be sure to analyze your time on social media when you may have vented about your parenting in a way that a court would deem offensive.
- You can have the hard drive on your computer mirror-imaged, which lets you see if your spouse has installed spyware on your computer.
- You should create a new email address, with a new password, to ensure you are communicating with privacy.
- Your children’s social media trail may be just as harmful as your own. Analyze your children’s social media account(s) carefully.
- When thinking of your social media account(s) and your spouse’s, remember to consider the social media accounts of their friends, and family, as well as your friends and family. What you may be blocking, others may be showing off.
- When doing this analysis for yourself, remember to check into all possible of apps:
- Google Plus
You can use a program called X1 to search for the social profiles of your spouse; if you find information, scrape the profiles before information from them gets deleted.
If you are not sure what social media profiles your spouse has been using, you can use websites such as spokeo.com or pipl.com to find out.
If your spouse once had a website that had information on it that you wanted to use, but then he/she took it down, you could try using Web.Archive.Org to show what the website looked like on a particular day!
You should put time and effort into this kind of detective work, or hire a private investigator to do it. If you are going to get divorced in a year, start cleaning your Facebook pages now and start tracking your spouse’s Facebook, his/her friends and family, and your kids.
The amazing fact here is this: If you part as friends and have the uncontested divorce I have described in this book, none of this Fight to Win section matters. Who cares what your or your spouse’s social media looks like? Who cares if you prove yourself in court with your evidence? When you are agreeing on your divorce terms, none of this needs to play a role in your divorce.
This advice is to help you realize what you are getting into when you face a contested divorce. This advice is to help you prepare yourself wisely if you are not sure about what type of divorce you are facing.
Text messages do get deleted, so preserve them
It is surprising to me, as it may be to you, that even with a subpoena, the contents of your spouse’s text messages may be forever inaccessible. Many cellular phone companies purge text messages regularly.
To avoid the text messages from being deleted by your spouse, your lawyer can send a “litigation hold” letter to your spouse’s lawyer, ordering that no evidence be destroyed by your spouse during the divorce case.
Also, you should preserve your relevant text message history by saving it, printing it, and keeping it in a secure file.
How to look perfectly professional in court
- Dress in business-formal attire. Slacks and a nice dress shirt for men; slacks or a skirt with a dress top, or a dress, for women. Sandals, shorts, and tank tops are not permitted in most courts, and are not considered business-formal.
- Arrive early to each court setting.
- Sit up straight.
- If you have visible tattoos, use something to cover them.
- Act and look like a businessperson.
- If you are a woman, do not wear anything that shows cleavage. Do not wear short or tight clothing. Looking sexy does not buy you creditability in the court.
Pay for strategy consultations
People always want free consultations. If you want me to learn the deep facts of your case and offer you my best legal strategy for winning, then I need to put forth some serious time and energy into that. We all know the saying, “You get what you pay for.” I am telling you this so that you will know how to get winning legal advice. After all, your spouse might be getting it. If you want to win your case, then I suggest you hire three law offices and have each one give you a one-hour strategy session. If you already have a lawyer, you can ask him/her to employ other colleagues. Get more than one legal mind on the issue.
If you’re determined to win the house, then we should select smart lawyers and/or other professionals who can create collaborative strategies for you to win that house. Make no mistake – all lawyers think about these things differently, and your strategy can dictate whether you win or lose. Pay for the best strategy. Don’t try to get it for free, and then expect to win.
It is a lot. Taking in the idea of paying people to strategize against a person you once married, thinking about your own privacy, thinking about the money involved with this fight, should make you aware that it will take a lot out of you. Ugly divorces can run tens of thousands of dollars in legal fee bills and involve the nasty things we listed above. Think about what you are fighting over with your spouse. Divorce is only this way because this is the choice you are making with your spouse. Instead, take a better route. Can you agree to the list in the next chapter? If not, can you both agree to hire lawyers in a collaborative setting to help you agree?
Chapter 11- TO SETTLE THE CASE, WHAT ALL DO WE HAVE TO AGREE ON?
Even if you have an uncontested or a “part as friends” divorce, you and your spouse will still need to “sign the papers.” What papers are we talking about? Here are most of the topics on which you and your spouse will have to agree in an uncontested divorce. If you don’t have kids, you can ignore the section that addresses kid-related topics.
So if you are asking, “what is an uncontested divorce”
The most important document in a divorce is the “Final Decree.” This is the document that is signed by the judge and that serves as your proof of being divorced. The decree has all the “terms” of your divorce. In other words, this document dictates who gets what assets, rights and liabilities. The decree will outline all the terms of your agreements.
What are the terms in a divorce? What agreements do you really have to have? Keep in mind that having an agreed divorce may mean compromise on your side, too. Keep in mind the months of time and the tens of thousands of dollars you and your spouse can save if you can agree on the list below. Remember, it is your lawyer’s job to write the documents in a way that makes your agreements contractually enforceable. Your job is to get both of you to agree, and the lawyer will take it from there.
If you are drafting your own decree of divorce, here is my opinion and my advice: there is too much to learn about contracts and family law in order to properly draft a decree without hiring an attorney. This is the part of the agreed divorce that most requires the knowledge of a lawyer.
Agreement 1: Where will the divorce be?
This will be the same location as where the divorce is filed. The court cannot grant your divorce unless you have filed it in a location where either you or your spouse is considered “domiciled.” Your domicile is the place where your mail is sent and the place you consider home. To be a resident long enough to file divorce in Texas, you have must have lived anywhere in the State of Texas for at least 6 months, and you have to have lived in your particular county for 90 days.
When determining where the divorce should be, if you have children, the divorce should be filed where the children reside. If there need to be changes in the future about custody or child support, the original court is the place where those changes will be decided (unless later transferred, which is another topic, for another day).
Agreement 2: The divorce will be a no-fault divorce
Maybe one party is to blame for the divorce. Nonetheless, in an agreed divorce, the basis (or “grounds”) for divorce is normally “insupportability.” The idea behind not listing specific grounds for divorce (i.e., adultery) is that because the parties are signing a publicly discoverable document, airing dirty laundry about why the divorce is happening is unnecessary. There are times when listing the other party’s faults is important, possibly to show the court why one party is getting a larger portion of the community estate than the other, and to help ensure this will be more enforceable for the parties in the future. But because both parties are signing this document, it is unlikely that one person is going to accept all blame for the divorce. It is most practical that both parties would sign off on this matter being “no fault” (i.e., on the basis of “insupportability”).
Agreement 3: The rules while the case is pending
Perhaps one of the most challenging things about the typical uncontested divorce is that temporary orders do not happen. This means that the parties do not go to a hearing to decide on child support payments, who gets the kids, and/or who gets to live in the house while the divorce is pending. Instead, in an agreed divorce, it is expected that for the short period while the divorce is pending (usually about two months), the parties can and will work out these details amongst themselves, without attorney or court intervention.
–Agreements as to children–
Agreement 4: Joint or sole?
Will both parents manage the child(ren), and share in the rights associated with raising a child? In Texas, this is called “joint managing conservatorship,” and it is very confusing for people because they often see the word “joint,” and they think it means 50/50 (or equally shared) time. Being joint managing conservators simply means you both have managing rights and duties over your kids, such as:
- Right to consent to non-emergency medical, dental, and surgical treatment involving invasive procedures.
- Right to consent to non-emergency psychological and psychiatric treatment of the child.
- Right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child.
- Right to make decisions regarding the child’s education.
- Right to consent to marriage and to enlistment in the armed forces of the United States (before the child turns 18 or emancipates).
- Right to the services and earnings of the child.
- Right to act as an agent of the child.
- Duty to manage the estate of the child.
The above rights 1-8 can be any of the following:
- The independent right of each party, meaning no conference with the other party is required prior to making said decisions.
- The right, subject to consultation with the other party, meaning each party can make the decision, but has to first consult with the other party. This does not mean either party has to agree with, or take into account, the other party’s preference or desires… it only requires the parties to discuss the issues prior to making a decision.
- The right, subject to the agreement of the other party. This requires that the parties reach an agreement prior to a decision being made about the child. It is common for “tie-breaker” provisions to be included when an agreement is required, which requires the parties to refer to the recommendation of the child’s treating physician, dentist, or school counselor, if the parties are unable to reach an agreement. The “tie-breaker” provision helps ensure the child’s best interest is considered and that the parties do not sit “in limbo” on decisions that need to be made due to the parties’ inability to agree.
Rights that correspond with what is often referred to as the “primary” parent are:
- Right to determine the primary residence of the child (this usually also determines which school the child will attend). This right can be limited to a specific geographic area to ensure the child is close to the “non-primary” parent and is able to maintain a close and meaningful relationship with the “non-primary” parent. Examples of geographic restrictions, from the least restrictive to the most restrictive are as follows:
- The right to determine the primary residence of the child without regard to geographic restriction.
- The right to determine the primary residence of the child within the continental United States.
- The right to determine the primary residence of the child within the State of Texas.
- The right to determine the primary residence of the child within Bexar County, Texas, or a county contiguous to Bexar County, Texas.
- The right to determine the primary residence of the child within Bexar County, Texas.
- The right to determine the primary residence of the child within San Antonio Independent School District, Texas.
- Right to receive child support.
If both parents are not granted these managing rights, and only one parent is granted the items listed in 1-8 above, and in 1-2 in the immediately preceding paragraph, this parent should be designated as the sole managing conservator. This outcome is not what the Texas judges want to see. They favor seeing both parents as joint managing conservators, as the presumption in the Texas Family Code (which is closely followed by Texas courts) is that is it in the best interest of the child that the parents be appointed joint managing conservators. You cannot be sole managing conservator unless you can explain, in your papers, why this is in the best interest of the kids, and the judge must agree with you and sign off on it. Even if the other parent doesn’t mind you being “sole,” the judge can still say that this is not the right outcome and can ask both of you to change your decree to reflect joint managing conservatorship.
An example of how strongly Texas courts prefer the appointment of the parties as joint managing conservators is evident in a recent 2017 “part as friends” divorce case in Harris County. Mother and father agreed that, due to father’s recent neglect of the children, his psychological issues for which he was currently seeking treatment, and his recent suicide threats and attempts (with the children present on at least one occasion), mother should be appointed sole managing conservator and father should be given supervised interaction with the children (ages 1 and 3). Father and mother both signed a decree detailing the concerns and outlining the proposed and agreed rights and duties, and visitation schedule. Despite the agreement, the Judge rejected the agreement and advised that unless father appeared and gave more detailed testimony, the Court would not approve the agreement.
In addition to the rights outlined earlier in this section, the rights below are given to both parties regardless of whether the parties are joint managing conservators, or whether one party is appointed sole managing conservator. Both parties have the following rights and duties outlines below:
- At all times (rights to information and to consult)
- Right to receive information from the other parent concerning the health, education, and welfare of the child.
- Right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child.
- Right of access to medical, dental, psychological, and educational records of the child.
- Right to consult with a physician, dentist, or psychologist of the child.
- Right to consult with school officials concerning the child’s welfare and educational status, including school activities.
- Right to attend school activities.
- Right to be designated on the child’s records as a person to be notified in case of an emergency
- Right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.
- Right to manage the estate of the child to the extent the estate has been created by that parent or that parent’s family.
- During the parent’s periods of possession
- The duty of care, control, protection, and reasonable discipline of the child.
- The duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.
- The right to consent for the child to medical and dental care not involving an invasive procedure.
- The right to direct the moral and religious training of the child.
The rights and duties referenced in this section are more detailed in the following paragraphs.
Agreement 5: Who gets to choose the primary residence?
Will one parent get to decide where the child lives? This right to decide where the child lives is called the “exclusive right to decide on the primary residence.” The parent with this right could potentially move out of your city and state, and the child would move with that parent. As outlined in the previous section, the area in which the child’s primary residence should be can be limited by way of a “geographic restriction.”
If neither person is going to have the right to determine the primary residence of the child, then there will have to be an agreed-upon geographic location that both parents agree the child will be raised in so that neither parent can move away with the child. Again, having a specific location for purposes of raising the child is called a “geographic restriction.”
You will have to make these in decisions your divorce: is the child permitted to move with one parent? Must the child stay in a certain geographic place that both people can agree on? This can be one of the most difficult agreements for parents in an agreed divorce.
Agreement 6: In which county will the kids live?
If the kids end up having a geographic restriction, you will have to decide how wide that area will be. Can it be the entire state of Texas? Keep in mind that the parents will have to figure out the details concerning drop-offs, pick–ups, and travel expenses.
Agreement 7: Invasive medical procedures
If your child needs an invasive medical procedure, can Spouse 1 decide on this alone? Can Spouse 2 decide on this alone? Do the spouses need to jointly agree before consenting to this?
Agreement 8: Psychiatric and psychological treatment
If your child needs psychological treatment, can Spouse 1 decide on this alone? Can Spouse 2 decide on this alone? Do the spouses need to jointly agree before consenting to this?
Agreement 9: Legal decisions for child
If your child needs legal representation, can Spouse 1 decide on this alone? Can Spouse 2 decide on this alone? Do the spouses need to jointly agree before consenting to this?
Agreement 10: Marriage of child
If your child wants to be married as a minor, can Spouse 1 decide on this alone? Can Spouse 2 decide on this alone? Do the spouses need to jointly agree before consenting to this?
Agreement 11: Military enlistment of child
If your child decides to enlist in the military prior to turning 18 and graduating from high school, can Spouse 1 decide on this alone? Can Spouse 2 decide on this alone? Do the spouses need to jointly agree before consenting to this?
Agreement 12: Child’s education
As to educational decisions, can Spouse 1 decide on this alone? Can Spouse 2 decide on this alone? Do the spouses need to jointly agree before consenting to this?
Will there need to be specific agreements regarding the school(s) at which the child will attend? In instances where one parent has the right to determine the primary residence of the child, that parent’s address controls for the purpose of deciding which school(s) the child will attend. If the parties have agree to other arrangements, such as having the child in private school or having the child attend school(s) in the district/ zoning for the non-primary parent’s home, this can be outlined under the education section.
Agreement 13: Child’s acquired money
As to money the child may earn or money the child has gained from your marital estate, can Spouse 1 manage this money alone? Can Spouse 2 manage the money alone? Do the spouses need to jointly agree before consenting to this?
Agreement 14: Claiming child as dependent
At the time of writing this book, if a decree does not provide specific terms regarding claiming the child as a dependent on a party’s Federal income tax return, then the parent who has the child for more than 50% of the nights of the year is the person who can claim the child as the dependent.
Other options for the child exemption on Federal income tax returns include allowing each party to claim the child every other year. However, these terms must be properly drafted in the decree and the parties must fill out and submit the relevant IRS forms every year.
Agreement 15: Custody schedule
One of the most important agreements is the custody schedule. What days and times does Spouse 1 spend with the child, and what days and times does Spouse 2 spend with the child? The most important thing for friendly divorce custody situation schedules is this – if you and your spouse can agree on a week-to-week schedule, then all each of you has to work together to keep exchanging the kids as per your agreements. The custody schedule in your decree only matters when you and your ex don’t agree. In that case, the schedule in your decree is the binding order of the judge.
Custody schedules can be 50/50, such as alternating weeks, or 2 days with mom followed by 3 days with dad and then 3 days with mom followed by 2 days with dad. So long as your attorney can draft the schedule, it can be ordered by the court.
Keep in mind that this schedule will need to work for the family for a long time.
Sometimes, people have schedules that change depending on the age of the child. For example, a schedule for children under 3 can change when the child is over 3, as the needs of the child will change as he/she gets older (e.g. breastfeeding and sleeping in a crib).
The standard schedule in Texas, called a “standard possession order”, is where one parent has the child at all times except for the first, third, and fifth weekends of each month, Thursday nights during the school year, every other holiday, and for an extended period of weeks in the summer.
Sometimes, parents have unpredictable work schedules, and in these cases, they can have custody orders that have one parent give the other parent a visitation schedule, one month in advance, that aligns with that parent’s working days off.
Sometimes, parents have personal problems and so will not regularly be in the child’s life. In these cases, it is best to have more than one phase in the schedule. For example, Spouse 2 can see the child for 2 hours on Sunday, for 10 Sundays in a row. If and when the 10 consecutive Sundays have resulted in visitation exercised by Spouse 2, phase 2 can begin, where Spouse 2 can see the child on Wednesday for 2 hours and Sunday for 4 hours, for 10 weeks in a row. After that, phase 3 with more time begins. This is a way to slowly introduce a parent to spending time with the child.
In substance abuse situations, the phased-in schedule can be used so that the parent takes a drug test and is allowed to exercise visitation only when “clean.” If the parent’s drug test is “positive” (or “dirty”), the phases start over from the first step. This is done in an effort for the parents to practically confront the challenges they are facing as a divorced couple in a way that can protect the child.
Agreement 16: Holidays
In addition to agreeing on the basic schedule, the parents also have to agree on how to share holiday time with the kids. The standard is that the parties alternate holidays with the child, though the parties can reach an agreement that differs from this standard schedule.
Agreement 17: Child support
Either parent can be ordered to pay child support. Usually the parent who has less time with the child in the custody schedule is the parent who is ordered to pay child support. If the parties agree that child support is not in the best interest of the child, some Texas courts will allow the parties to not have child support. This should be approached meticulously from a drafting perspective to help ensure that the court will follow the agreement at the end.
In most cases, child support is ordered, and is paid by the parent who has the child a lesser percentage of the time, to the parent who has the child a greater percentage of the time.
People often think that if they have a simple 50/50 custody schedule, they can avoid child support. This is a misconception. Say you make $2K per month and your spouse makes $8K per month. Though this scenario is not specifically addressed in the Texas Family Code, the “unwritten” rule is that child support will be calculated for each party, and then the party who would pay more based on that calculation will pay the “offset” amount.
Using the example above, if Parent A makes $2K net income per month, Parent A’s obligation for one child would be $500. If Parent B makes $8K per month, Parent B’s obligation for one child would be $2K per month. The offset would result in Parent B paying Parent A child support in the amount of $1,500 per month ($2,000 – $500).
For a Texas Divorce, the law provides a child support chart that states the percentage amount that is supposed to be paid as follows:
- 20% of the net monthly income of the person that is paying is the amount for 1 child.
- 25% of the net monthly income of the person that is paying child support for 2 children.
- 30% of the net monthly income of the person that is paying child support for 3 kids, and so on.
If there is not a clear set monthly income, you will average the income over 12 months and figure out a general monthly income; then multiply that by the percentage applicable depending on the number of children.
Agreement 18: Long distance travel
If the parents are not living in close proximity, how will long distance travel be handled? Can the children travel alone? Who will pay for the travel? Can either parent apply for a passport for the child?
Agreement 19: Electronic communication
Do the parents want to have the right to communicate with their child via FaceTime or telephone when the child is with the other parent?
Agreement 20: Educational expense
Beyond child support, do the parties have an agreement to share in paying for private school, day care, or college for the child?
Agreement 21: Right of first refusal
This significant right is worth a good discussion with your spouse. During your time with the kids, if you have to be away for 8 or 12 hours, should your spouse have the right to babysit? If you are going to be away for 3 hours, should your spouse have the right to babysit? This is the right for your spouse to take care of the kids when you are not going to be there for a certain amount of time during your period of possession.
Agreement 22: Pick-ups and drop-offs
Where are you going to exchange the child? Who drives? While it may seem like a minor detail, this can result in a lot of time for both parents. If the pick-ups are at your house, are you comfortable with your spouse being at your house to pick up the child? Would you and would spouse prefer to meet at a mutual, mid-way location?
Agreement 23: Healthcare for child
Who is going to keep the child on their health insurance? Will you split the child’s health costs that are not covered by health insurance (i.e., co-pays for doctor visits, prescriptions, deductibles)?
–Agreements as to assets & liabilities–
You and your spouse will have to agree on how to divide all the following, if applicable:
1 – Real property
2 – Cash on hand and accounts with financial institutions
3 – Motor vehicles, boats, airplanes, cycles, etc.
4 – Retirement benefits
5 – Other deferred compensation benefits
6 – Insurance
7 – Annuities
8 – Brokerage and mutual fund accounts
9 – Publicly traded stocks, bonds, and other securities
10 – Closely-held business interests
11 – Money owed to either party
12 – Household furniture, furnishings, and fixtures
13 – Electronics and computers
14 – Antiques, artwork, and collections
15 – Miscellaneous sporting goods and firearms
16 – Jewelry & other personal items
17 – Livestock
18 – Club memberships
19 – Travel award benefits
20 – Miscellaneous assets
21 – Digital assets
22 – Virtual assets
23 – Contingent assets
24 – Mineral interests
25 – Stock options
26 – Bonuses
27 – Health savings accounts
28 – Medical savings accounts
29 – Safe-deposit boxes
30 – Storage facilities
31 – Reimbursement claims of community estate
32 – Union benefits
We have found that Texas judges will generally support your agreement, even if it is not a 50/50 divide. You might have reasons why one spouse is going to keep the property and the other spouse is not going to get anything comparable. It has to be a fair division of assets, but fair is not always the same as perfectly equal.
Property and debt agreements are more straightforward than agreements concerning children. Basically, you must agree on who is getting what account, who is getting what tangible item, etc.
Agreements as to real estate
The following have to be agreed upon for each piece of real estate:
- What is happening with the title of this property?
- In a divorce, will the parties agree to sell the property, continue owning it together, or give it to one of the spouses?
If you elect to sell the property, you will need to agree on the following:
- When will the property be listed for sale?
- Will you use a real estate agent?
- Who decides on the sale price?
- Who pays maintenance and utilities between divorce and the time of sale?
- Who pays the mortgage between divorce and the time of sale?
- Does the property have to be refinanced into one person’s name? If so, by when?
- How will sale proceeds be divided between the parties?
- Who can live in the property between divorce and the time of sale?
- What happens if the mortgage is not paid as agreed upon by the parties?
If you elect to keep the property together, you will need to agree on the following:
- When will the property be listed for sale? (You should have a date by which the property will be sold to ensure that you can have an exit strategy if you no long wish to jointly own the property).
- When the property is listed for sale, what are the agreements as per 1-8 above?
- During the time when you own the property jointly, who gets to live in the property?
- Who will pay the mortgage?
- Does the property have to be refinanced into one person’s name? If so, by when?
- If there are renters, this is essentially a business that the spouses will own together. The terms of how that business should be run can be designated by having an operating trust agreement attached to the decree.
- What happens if the mortgage is not paid as agreed on?
Note: We do not advise jointly owning property after the divorce.
If one party is going to get the property, you have to agree on the following:
- Who gets the title?
- By what date will this person get the title?
- By what legal instrument will the title be transferred?
- Will the mortgage need to be modified or will the house be refinanced? (It is highly advisable not to remain on a mortgage for a property that you are not being awarded in the divorce).
- Will the person not receiving title get a lien on the property to secure a part of the equity?
Agreements as to retirement accounts
For each retirement account, you must agree on whether the current holder of the account is keeping it, or whether a portion of the account will be transferred to the other spouse as a part of the divorce.
Texas will allow you to divide the retirement accounts in the way you both deem fair. This could mean that one spouse ends up with more money in retirement than the other. Before giving the other spouse their own retirement accounts because it is “easier,” remember that any money earned in that account during marriage, by law, belongs just as much to the spouse that did not “earn” it as to the spouse who did.
If I saved $100K in a 401K with USAA during our 10-year marriage, Texas does not care that this account arose out of my hard work with USAA. The money belongs just as much to my spouse as it does to me.
Agreements as to accounts
If you have joint accounts, you will want to divide the money and close the joint accounts as a part of the divorce.
Agreements as to cars
You will have to decide who is going to get to keep each car. You will have to agree on how that car’s debt will be paid off. If there is a joint title or joint loan, it is highly advisable to pay off the joint loan as soon as possible on agreed terms with your spouse, or refinance it to the person who is keeping the car. Vehicle liability will continue for the person who shares a title or loan on the car, even after a divorce. The only way to ensure no liability is shared is to separate the title and lien.
Agreements as to digital items
If either party owns a website or any digital item, it needs to be listed on the decree as being awarded to one or the other spouse. This category also includes dividing items such as trademarks or sky miles.
Agreements for health insurance into the future
Before getting divorced, you should research the health insurance available through both spouse’s employers and plan for how your health insurance will be covered. Today, with the state of healthcare in the United States, lack of access to affordable insurance can be very difficult for newly single parties.
Agreements on possessions such as jewelry, art, furniture, etc.
You do not have to list every tangible item that you are keeping in your divorce. If there is any risk that you and your spouse will not agree on who gets the toaster, etc., then all items that could cause a fight should be specifically assigned in your decree.
If you are getting awarded the living room set, and the living room set is in the house of your spouse, the decree should also state specific logistics as to when and how you are going to get to pick up your furniture.
Some spouses elect to jointly sell these items to be able to get some extra cash to pay off other joint debts
If you and your spouse have already physically separated, and you are keeping everything in your possession and your spouse is keeping everything in his/her possession, “blanket” statements can be included (rather than specific listing of items) stating that each party is awarded all furniture, furnishings, electronics, etc., in his or her possession.
Agreements on cash awards
Sometimes a spouse is going to receive cash from the other spouse to equalize a term of the divorce. If a cash award is part of this divorce settlement, you need to agree on it. Further, you need to agree on the date by when the payment must be paid and agree to specifics on how the funds are to be paid. Are they going to be transferred electronically from Spouse A to Spouse B? If so, you need to provide the account information for where Spouse A is to deposit the funds. If via hand-delivery or mail, you need to provide the address where Spouse A is to deliver the funds.
Agreements on dividing the business
If you own a business alone, it is not very complicated to be awarded 100% of this business in the divorce, but if you and your spouse are getting divorced while owning a joint company, then some very close consideration should go into drafting how to divide the business assets and liabilities. The business may need to be restructured entirely to ensure that both spouses have proper portions of the company in the future, in a way that did not matter much when you were married.
Agreements on spousal maintenance
Spousal maintenance is a monthly payment one spouse gives to the other. There are strict eligibility requirements for spousal maintenance to be awarded, including that the marriage lasted 10 years or more, or that there was family violence, or that a spouse is disabled or, for some other reason, is unable to provide for his/her minimum reasonable needs. Spousal maintenance payments are only supposed to last for the minimum amount of time necessary to get the other spouse back on his or her feet so they can support themselves.
On the other hand, regardless of how long the marriage lasted, spouses are allowed to agree on contractual alimony payments, where one spouse pays the other alimony for an agreed number of years. This can be a useful tool in coming to an agreed divorce.
Agreements as to joint credit cards
Joint credit cards should be paid off with other assets, so that both of you are protected from the other’s failure to pay. If a joint credit card cannot be paid off, then the decree needs to specifically state who will pay the minimum amount, on what date that amount will be paid, and precisely where that amount is to be paid. Credit card debt can be rolled over to one party, which will ensure that it is paid by the party whose credit it was rolled to.
Agreements as to individual credit cards
While you can have the decree order Spouse 1 to pay Spouse 2’s credit card, the credit card company will still only consider the person who is on the credit card as the liable party. The agreement to pay the other’s credit card in a decree is only enforceable as a contract in family/ divorce court. Family courts cannot alter the agreement that you or your spouse have with the credit card company as to liability. It is best to try to come up with an agreement, if possible, that leaves the individual original cardholder as the responsible party for his/her own credit card.
Agreements as to tax liability
There are two basic approaches to handle tax liability that either both spouses or just one spouse incurred during the marriage. Either the parties can split the tax debt and have agreements for the timeline for paying it off together, or the parties can assign one spouse to be liable to pay this debt off. There will be a provision in the decree that orders that tax liability, through the December preceding the year of divorce, will be split by the parties. Or, the spouses can agree to have tax partition language such that all income and tax liability of one party goes to Spouse 1 individually, and all of the income and tax liability of Spouse 2 goes to Spouse 2 individually.
For the year of divorce, the standard – and best language – is that each party files a separate income tax return and claims 100% of his/her own income.
All other debts
Attorney’s fees, medical bills, student loans, or any of those straggling unpaid utility bills – all of the bills need to be considered and agreed upon. There will need to be provisions that order the paying party to pay the amounts due on their due dates.
All of these details help ensure that both parties are getting what they bargained for in this agreed divorce.
If you need to ensure that a certain behavior stops after this divorce, such as harassment by one spouse to the other, you both could agree to sign an injunction. This is less common in agreed divorce cases than in contested divorce cases.
Confirmations of separate property
If you receive an inheritance, the assets of your inheritance should be listed as your own confirmed separate property as a part of the divorce. If you owned property before the marriage, or received gifted funds or property during the marriage, likewise it should be assigned to you as separate property. It is important that these items are properly listed and confirmed as separate property in the decree to ensure there is no “reclassification” of separate property inheritance, gifts, or pre-marital property to community property.
Why bother with all of these details?
In a fighting “contested” divorce, it is easy to understand why all the details must be listed on the decree. You don’t trust your spouse and you need the safety of a contract. In an agreed divorce, the reason for writing out the details sometimes is not as clear. Friendly divorce or ugly divorce, the decree of divorce is still a contract. Without the details, you do not have the assurance that your contract can be used or relied on. You need to be able to pay your mortgage every month, knowing that your home is yours and not your ex-spouse’s. You need to put savings in your account, knowing your account is yours and no one else has a right to it. Further, while you and your spouse may be getting along now, you cannot predict the future. If issues arise that result in a more conflicted relationship with your (soon to be ex) spouse in the future, it is extremely important that your decree is enforceable and will protect you.
If your decree is not drafted properly with the details, then what you own in your estate is not clear, and could be changed. Approach your divorce wisely, as a businessperson would do to set up their future estate. Be respectful and be kind, but don’t be so relaxed about things that you end up signing poorly drafted documents.
The summary settlement you should be aiming for
A lot of people just want what they are entitled to in a divorce. Maybe you want as much as you can pay a lawyer to get for you. You can sit down with a lawyer and convince him/her that you absolutely must keep 100% of your retirement account for X, Y, and Z reasons. The lawyer, especially during the first consultation, is going to tread very lightly on telling you an outright “no, you can’t have that.” No one likes to be told “no” to something they really believe they should have. Lawyers know this because they do a lot of consultations.
To approach the issue, many lawyers will ease you into learning, over time, what I am going to tell you straight forward. You might not like it, and you might think I’m wrong. But if you read this now, before your divorce, and then later when the divorce is final, in retrospect, you will find I was right.
You should know that as I write this book, most of my divorce experience has come from San Antonio, Texas. But I am also leading divorces in Comal, Guadalupe, Atascosa, Travis, Harris and Denton Counties.
To figure out how to settle your case with your ex-spouse without court intervention, you need to figure out the value of your and your spouse’s debts. You need to have a spreadsheet that lists all your assets and all of your debts, and the values of each, in order to figure out how to divide those items. Assign each item to a spouse so that at the end, both spouses get about 50% of the net worth from the estate, including assets and debts. While your property agreement does not have to be 50/50 for the court to sign off on it, this is a good idea for you to be able to part as friends.
As for the children, both spouses should try to live as close to one another as possible. You should explore different schedule options for the children. Know that if you and your spouse agree, you can vary the schedule and base it from day to day, however you want to work it out with your ex-spouse, in a way that best serves the children. If you disagree, realize that the schedule that is written in your decree is the rule.
Really consider your children on this. How old are they? Where do they thrive? Where do they want to sleep? What makes them feel safe? What schedule will they do well with? Your agreements should be centered on what is going to be in their best interest. I can’t tell you this about your kids. But I can tell you that when you work together with the other parent, it will be a lot easier than if you work against each other.
Final word of advice
If you can’t stay married anymore, then the assumption should be that you and your spouse will part ways as friends. Don’t assume your spouse has to be your enemy just because he or she can’t be your spouse. Part as friends.
8000 I-H 10 West, Suite 1510, San Antonio, Texas 78230. [email protected]
Copyright © Megan Cook, 2020
All rights reserved
Printed in the United States of America
Original hardcover design by Megan Cook
Without limiting the rights under copyright reserved above, no part of this publication may be reproduced, stored in or introduced into a retrieval system, or transmitted, in any form, or by any means (electronic, mechanical, photocopying, recording, or otherwise), without prior written permission of the copyright owner of this book.