DIVORCE can be an overwhelming experience for everyone involved.
Selecting the right attorney is a critical part of achieving the desired outcome. KoonsFuller divorce attorneys have years of experience negotiating and finalizing divorces and complex divorce cases while focusing on the best interests of the client and their children. Our goal is to always help our clients emerge from the process as financially and emotionally intact as possible. We are also committed to keeping our clients’ private lives private.
Divorce is one of the most difficult experiences a person can go through. Parting spouses must resolve personal, financial and legal issues that could have far-reaching consequences, not only for themselves but also for their children. The divorce process can be long and tedious, depending on whether the spouses can reach an agreement. If spouses cannot reach an agreement, then the only alternative is for the. Court to decide. An experienced divorce attorney can make the process more efficient and manageable.
At KoonsFuller, our team of divorce and family lawyers work diligently to help clients through the divorce process in a way that is sensitive and tailored to each individual family’s needs.
Anatomy of a Divorce Case
To be granted a divorce, parting spouses will be required to iron out several pertinent issues such as:
According to the Texas Family Code, property owned by spouses falls into two categories: community property and separate property. Texas is a community property state, meaning that most property acquired and accumulated during the marriage belongs to both spouses and must be divided at divorce. However, there is no rule that a court has to grant an equal percentage to each party. Community property assets can include, but are not necessarily limited to:
- Real property
- Checking and savings accounts
- Financial investments
- Retirement accounts
- Personal property (ex: jewelry, furnishings, vehicles, household items, etc.)
- Other real estate holdings
- Income taxes
Separate property includes any property owned by a spouse before the marriage or received as a gift or inheritance during the marriage. In a divorce, the court is prohibited by law from divesting a spouse of title to his or her separate property by awarding it to the other spouse. Meaning, each spouse keeps his or her separate property and a judge decides how to divide the community property if the spouses are unable to reach an agreement.
When a marriage is being dissolved in Texas, the characterization of marital property is critical because the spouses’ community property must be divided, and each spouse’s separate property must be confirmed. If the spouses do not agree on a property division, a judge must divide community property in a way that he or she deems just and right, meaning the property is divided fairly. Judges look to a number of factors in making a just and right division of property, including:
- Difference in spouses’ earning capacity
- Difference in spouses’ age and health
- Difference in spouses’ educational backgrounds
- Which spouse is the primary caregiver to any children
- The needs of each spouse and children
Just as marital assets will be divided, so will marital liabilities. Again, if the spouses do not agree on a division of their community debt, a judge will apportion their debts in a just and right manner.
When some spouses divorce, one might either voluntarily or by court order be required to pay spousal maintenance to their former partner. The purpose of spousal maintenance—sometimes referred to as court-ordered alimony—is to provide temporary and rehabilitative support for a spouse after divorce. To be eligible for court-ordered spousal maintenance, the spouse must prove that he or she (1) is a spouse, (2) lacks sufficient property to provide for his or her minimum reasonable needs, and (3) has met one of the four statutory bases for spousal maintenance (i.e., ten-year marriage, family violence, disabled spouse, or disabled child). In most instances, the court will examine the financial health of both spouses and, should significant financial inequity exist once the divorce is complete, the spouse with the greater financial capabilities may be required to remit maintenance payments to the other spouse on a long or short-term basis.
According to Texas law, the best interest of the child is above all other considerations in a child custody dispute. Texas courts have several options when issuing a custody order. Sole custody can be awarded to one parent, meaning the child resides primarily with that parent and that parent has the exclusive right to make decisions about the child’s upbringing. However, in Texas, like many other states, the courts assume that it’s in the best interest of the child to award custody to both parents. This arrangement is known as a joint managing conservatorship. Joint custody means that the child will still primarily reside with one parent and the other parent enjoys visitation; however, the parents share decision-making in raising the child.
In Texas, the final custody agreement is called a parenting plan. The parenting plan will address issues, including:
- The rights and duties of each parent
- The primary residence of the child
- Designated times for each parent to have possession of and access to the child, including weekends, holidays, and summer vacation.
- Health care for the child, including invasive medical decisions, mental health decisions, and medical support
- The child’s extracurricular activity costs
- How all other pertinent decisions regarding the child’s well-being will be resolved
- Child support payments
In Texas, child support is based on the paying parent’s net income and other resources based on statutory guidelines, as follows:
- 20% of net resources for one child
- 25% of net resources for two children
- 30% of net resources for three children
- 35% of net resources for four children
- 40% of net resources for five children
Ultimately, a judge will render decisions deemed in the best interest of the child.
Most couples agree they would prefer to work through the issues of their divorce outside the courtroom. Collaborative Divorce is one method for spouses to work together to reach a settlement. It is structured so that divorcing couples work with specially trained professionals to resolve financial, parenting, and other pertinent issues to find a mutually advantageous solution, rather than exclusively looking out for their own interests.
The distinctive feature of collaborative law, as compared to other forms of alternative dispute resolution, is that the parties to the collaborative process agree in advance that their lawyers will be disqualified from representing them in court if the matter they have submitted to the process is not completely resolved by agreement. Consequently, collaborative lawyers are hired for the limited purpose of acting as advocates and counselors during the negotiation process and do not represent their clients in court. Spouses in Texas who think collaborative divorce may be the optimal approach should consider discussing this option further with an attorney. An attorney may be able to help a person assess whether collaboration or another method is the most fitting choice given the situation.
Mediation is an important part of the divorce process in Texas as it is one of the most frequently used methods of negotiating a property or custody agreement in divorce cases. It has a high success rate in resolving issues as it puts the divorcing couple in control and gives them the flexibility to resolve their issues. Additionally, an attempt at mediation is required, or strongly recommended, in many Texas counties.
Mediation is a private and confidential process that involves a neutral third party (the Mediator) facilitates communication between the spouses to promote settlement of their dispute. The issues addressed in mediation can be any outstanding issues between the parties such as child support, custody and visitation, and/or property division. Typically, each spouse is in a separate room during mediation, and the mediator facilitates the negotiation through private sessions with each spouse to help foster an amicable resolution. The mediator does not render any final decisions but aids the disputing individuals in conflict resolution.
Once an agreement is reached between the spouses, the mediator will reduce the agreement to writing in the form of a “mediated settlement agreement”. Once each spouse signs the agreement, it is a binding and irrevocable agreement and will be filed with the court.
To initiate a divorce proceeding, a spouse must file an Original Petition for Divorce with the court that has jurisdiction. The filing spouse must then notify the other spouse of the petition filing, usually through a process server. Texas requires a minimum 60-day waiting period before any divorce can be finalized. The 60-day period begins to run from the time the Original Petition for Divorce is filed with the court. During this time, spouses should negotiate a final agreement on issues. Should negotiation and mediation fail, divorce proceedings will need to be resolved during a court appearance. Such action involves courtroom testimony, presentation of evidence and, in some cases, witness testimony. Both sides will be given a chance to present its case and a judge will render an ultimate decision regarding all important issues.
The spouses’ agreements or the court’s ultimate decision will be incorporated into a Final Decree of Divorce which will be filed with the court.
When a couple separates and begins divorce proceedings, it is often a time of high emotion. An experienced attorney or mediator can help you through the process in a way that ensures that strong feelings don’t get in the way of working out a divorce settlement that is fair for both partners, as well as any children that may be involved.
If you think a divorce might be in your near future, please contact us today for a consultation.