Tag: Texas Collaborative Divorce

The Many Parts of a Texas Divorce

In a previous post, we discussed the procedural parts of a Texas Divorce. In this post, the goal is to identify the substantive parts of a Texas Divorce.

Divorces are interesting types of cases, because unlike most cases, they have discrete parts, each of which needs their own jurisdictional analysis. That is, a court may have the power to deal with one part of the case, but not with another.

Not all cases are the same, so some of these parts may not be present in your case, but since there is a great deal of misunderstanding about how divorces work, it is a good idea to at least be aware of them, to be sure that they don’t belong in your case.

1. The Status of the Marriage

The Status of the Marriage is both the most important and least important part of the case – it is the judicial determination of whether the parties are divorced. As long as one or both parties is a resident of Texas, the court generally has the power to make this determination. Since Texas is a “no-fault” State, the court can grant the divorce without reference to either party being at fault. But, either or both parties can allege that the divorce should be granted on “fault” grounds, such as adultery or cruelty.

2. Division of Property

This part of the case involves how the marital estate is divided. The court does not have the power to take either party’s separate property as a part of the division of property. The court does have the power to divide the community estate, as long as the court has personal jurisdiction over the parties. Understanding personal jurisdiction can be tricky, so if either party does not reside in Texas, it is important to get competent legal advice on this topic.

As a part of the division of property, the court may assign the payment of debts, but it is important to note that the court cannot adversely affect the rights of third-party creditors. That is, if the creditor could sue you before the divorce if the debt was not paid, then the creditor will be able to sue you after the marriage if the debt is not paid – there is nothing you can agree to or that the court can order that can change that.

3. Custody

Custody is a legal word with a fuzzy definition. Basically, if there has been a child born or adopted during the marriage that is still a minor or disabled, or both, the court will need to deal with issues of conservatorship, geographic restriction, rights, duties, and possession of the child.

There are a great many presumptions that aid in the predictability of this section, but unlike property division, a jury can be used to decide the ultimate issues of custody, i.e. Primary Conservatorship and Geographic Restriction.

The analysis of whether the Court has the power to issue a valid, binding custody order can be very confusing. The answers are found in a complicated piece of legislation known as the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

4. Child Support

Although often even courts treat Child Support as though it is a simple mathematical analysis, under the family code it is not. The statutory presumption is that guideline child support should be used, but there are a great many other factors that the court should consider.

See this previous post for a discussion of those other factors.

5. Spousal Maintenance

Texas has had contractual alimony available for a long time, if not forever. Contractual alimony, however, is only obtained when one party or the other agrees to provide cash flow to the other after divorce.

Spousal Maintenance is the term that is used for the type of post-divorce, non-child-support, non-property division payments that the court can order over the objection of the soon-to-be-paying party. In order to get Spousal Maintenance, the party seeking it must prove a great many things, but the starting point is that he or she must fit in one of three categories:

  1. Be disabled;
  2. Be the victim of domestic abuse; or
  3. Be married for over ten years and not be able to provide for his or her minimum reasonable needs.

6.Tort or Other Cause of Action Against Your Spouse

Although many people don’t realize it, you can sue your spouse, in addition to divorcing him or her. To do so successfully, there must be a valid cause of action. That is, the spouse must have done something that amounts to a Tort or other type of cause of action.

Viable causes of action include assault, battery, false imprisonment, breach of fiduciary duty, and intentional infliction of emotional distress (also known as intentional infliction of mental anguish).

Whether one spouse should sue the other is a very complicated question, and competent legal advice is critical in making a decision on how to proceed.

To discuss your case with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Divorce: Breaking it down to its parts

A divorce is a lawsuit. It is a strange kind of lawsuit, but it’s a lawsuit. Every divorce, whether labeled Uncontested, Contested, Amicable, Collaborative, Mediated or other must go through the court system.

Divorces can be broken up into a number of parts. There are procedural parts and substantive parts. This post is to discuss the procedural parts.

Every divorce must have at least three parts:

1. Petition

This is the beginning document that is filed with the court. It can be aggressive, nonaggressive, or somewhere in between. This is the document that begins the minimum 60 day waiting period for all cases other than those few that have an exception.

2. Decree

This is the ending document in every case. A few decades ago, Texas divorce decrees were relatively short. In many states they still are. In Texas, if the parties have children together and any significant property, the decree is likely to be 50-65 pages or more.

3. Proof of Notice to the Spouse

In theory, with rare exceptions, no one should be divorced without knowing about it. Typically, this notice takes place with either service of the petition on the spouse by a process server or with the spouse signing a Waiver of Service.

As long as the case has these three parts, it has everything that it is required to have. A “simple” divorce may have no more than these three parts. A complicated or contentious divorce is likely to have many more pieces.

A complicated or contentious divorce can have all of the parts that any other complicated or contentious civil lawsuit has, plus it can have a number of parts that few other cases have. So, in a very real sense, a complicated or contentious divorce may be one of the most procedurally complex types of civil litigation that our system has.

A complex divorce can have:

1. A Temporary Retraining Order

A Temporary Restraining Order (“TRO”) is not the same thing as a protective order. It does not criminalize conduct. In a divorce, it is much easier to get a TRO than in other civil cases, so they are much more common. A TRO is a court order that typically does not order anyone to do anything, but rather sets forth rules for what cannot be done. There are, however, TROs with “Extraordinary Relief” that do order parties to do things.

2. Temporary Orders

Temporary Orders are what a Temporary Injunction is called in Family Law. These orders are court orders that typically include all of the rules that were in the TRO, plus a number of rules requiring affirmative action, such as Temporary Child Support or Temporary Spousal Support. Additionally, the Temporary Orders are typically where one party or the other will be ordered to leave the home, if that happens.

3. Written Discovery

Written discovery typically includes Interrogatories, Requests for Disclosure, Requests for Admission, and Requests for Production. Think of it as a lot of homework that both parties can compel the other to complete.

4. Oral Depositions

A deposition is where a party is required to show up and answer questions under oath. The only right to remain silent is on questions involving criminal conduct. So, if asked a question about anything that does not arise to the level of a crime, for example adultery, the party must answer. Refusing to answer can lead to a jail sentence, and lying can lead to a charge of perjury — which can also lead to jail.

5. Multiple Motions for Additional Temporary Orders

Most civil cases do not have Temporary Injunctions (or Temporary Orders). In divorce, not only are Temporary Orders common, but Motions for Additional Temporary Orders happen routinely. That means that the fighting is not over just because a favorable result was obtained at the initial Temporary Orders hearing. Either side can ask the court again and again and again for new orders.

6. Multiple Other Motions

A divorce can have many other types of motions, in addition to the above. Some are typical of civil litigation — for example, Motions to Compel Discovery — and some are fairly unique to divorce — such as an order for Appointment of Receiver to Sell the Home.

Divorces can be complex. Attempting to handle a contested or complicated divorce alone may be a recipe for disaster.

To discuss any of this with the attorneys at the Beal Law Firm, please write us at lawyers@dfwdivorce.com or call 817.261.4333 or 214.414.0418. Our web address is www.dfwdivorce.com.

Collaborative Divorce: Fast Five Questions and Answers

There are lots of things about Collaborative Divorce that are misunderstood. These Five Questions and Answers should clear up some of the more common misconceptions:

1. Can my spouse and I do a Collaborative Divorce without lawyers?

No. The term Collaborative Divorce does not mean the same thing as Amicable Divorce, Agreed Divorce, or Uncontested Divorce. A Collaborative Divorce may in fact be amicable. If it ends with an Agreed Decree, then it is an agreed divorce. And a Collaborative Divorce may be more or less uncontested – for more on that see this earlier Blog post.

But, a Collaborative Divorce in Texas is by definition a case that is conducted pursuant to the Collaborative Family Law Act, which is Title 1A of the Texas Family Code. Section 15.052 of Title 1A states that a Collaborative Divorce is one “in which parties: (A) sign a collaborative family law participation agreement; and (B) are represented by collaborative family law lawyers.”

So, when a potential client comes to an attorney and says, “I have been doing a Collaborative Divorce with my husband/wife and his/her lawyer, but now I think I need to get a lawyer,” the potential client is at best mistaken as to what is going on, and at worst being defrauded.

2. Do we have to use Neutrals in our Collaborative law case?

The traditional Texas model for Collaborative Divorce is two lawyers, plus two neutrals – a Financial Professional and a Mental Health Professional.

The Financial Professional is tasked with gathering and assembling the financial information of the parties, helping the parties work on budgeting, and offering expertise on various financial matters.

The Mental Health Professional is not a part of the process to psychoanalyze the parties. His or her job is to help the parties develop a parenting plan, if there are children involved, conduct the meetings that are a part of the Collaborative Process, and offer suggestions for matters that will help meet the parties’ personal goals, e.g. closure with step-children.

But, there is no requirement that neutrals be used. Or that both neutrals be used. If the parties and the attorneys agree, a Collaborative Divorce can proceed without one or both of the traditional neutrals.

3. Do I have to use an attorney from the list that my spouse gave me?

No. Although many Collaborative Divorce attorneys are members of “Practice Groups,” not all are. Moreover, there is no requirement that a husband or wife choose a Collaborative attorney from the list provided by his or her spouse.

There is no requirement to choose an attorney from any Practice Group and the choice of an attorney is completely up to the party.

4. Will a Collaborative case be faster than a non-collaborative case?

There is no way of knowing. A collaborative divorce may be faster than a litigation case, but it may also take more time. A non-collaborative divorce must last for at least 60 days, unless a waiver is obtained based upon family violence. How much longer a case lasts depends upon whether the parties are able to settle and when. For more on the stages of a divorce, see this prior blog post.

It is unlikely that a Collaborative Divorce will take less than 60 days, but many Collaborative cases end far earlier than many hotly contested divorces.

5. Will a Collaborative Divorce be less expensive than a non-collaborative divorce?

Once again, there is no way of knowing. Collaborative Divorces involve a series of meetings with at least two attorneys, and probably two neutrals billing at hourly rates.

Prior to each meeting, there may be some telephone calls between the attorneys and their clients and between the Team of attorneys and neutrals – all billed at hourly rates. There may be pre-meetings of the Team before the Joint meetings of everyone, and there is typically a Team debriefing period after the meeting – all billed at hourly rates.

Given that it is unlikely that a Collaborative Divorce would be wrapped up without at least three or four lengthy meetings, it’s not hard to see that there may be considerable cost to a Collaborative Case.

But, given that a non-collaborative case can involve lengthy hearings with a considerable number of hours spent in preparation by both sides, and can sometimes involve both parties hiring financial and/or mental health experts, it’s easy to see that in some cases Collaborative Divorce is much less expensive than non-collaborative divorce.

Bonus Question:

6. Is Collaborative Divorce only appropriate if there is no conflict?

No. Collaborative cases can have much of the same angst that traditional cases have – sometimes more. A Collaborative Divorce has many benefits that traditional cases do not, and they can be successfully completed even where the parties have serious disagreements and issues.

To discuss your case and whether it would be a good candidate to handle in the Collaborative Model, call us at 817.261.4333 or 214.414.0418. You can also write us at lawyers@dfwdivorce.com or find us on our website www.dfwdivorce.com. We are Beal Law Firm, PLLC.

Is Collaborative Divorce the Same Thing as Uncontested Divorce?

Recently, we conducted a very unscientific poll on the @BealLawFirm twitter account. The question asked was, “Do you know the difference between a Collaborative Divorce and an Uncontested Divorce?” The choices were: “1) Yes, 2) No, and 3) Aren’t they the same?” Fewer than 6 in 10 people even claimed to understand the difference between the two – and a huge percentage of the account followers are lawyers, law firms, etc.

So, with more than 4 in 10 people possibly not understanding the difference between the two – or even if there is one, it seems that Collaborative Divorce bears some explaining.

Collaborative Divorce is an alternative to traditional divorce. Traditional divorce is conducted in the litigation model, whereas Collaborative Divorce is an entirely different model.

In the Litigation Model, divorces typically move through several stages until the case is either settled or makes it to trial. The stages are:

  1. Negotiation between the parties;
  2. Negotiation between the attorneys;
  3. Mediation;
  4. Post-mediation negotiation; and
  5. Trial.

Throughout all of these stages, the parties can engage in formal discovery – including written interrogatories, requests for production, requests for admission, requests for disclosure, written depositions, and oral depositions – and/or ask the court to grant various requests in countless motions and hearings.

In a Collaborative Divorce, the parties agree that they will suspend their rights to engage in anything other than formal meetings between themselves and the rest of the collaborative team, which typically includes their attorneys and two neutral professionals. One of the neutrals is known as the Financial Professional (FP) – usually a CPA, CFP, or CDFA – and the other is the Mental Health Professional (MHP). Although the MHP is likely to be a psychologist or licensed clinical social worker, the role of the MHP is not to counsel or analyze any of the participants. Rather, the MHP’s job is to run the meetings and help the parties arrive at an agreement on parenting issues. The FP’s job is to gather the parties’ financial information and help construct current and proposed budgets.

So, with all that being said, what is a Collaborative Divorce? It is a series of meetings in which the parties attempt to arrive at an agreement on all issues in their case. Because the meetings and everything discussed at the meetings are confidential, should the process break down, the parties are free to re-enter the Litigation Model, but both of the Collaborative Attorneys MUST withdraw from representation at that point.

What is an Uncontested Divorce? It is an ill-defined term that everyone uses to describe a case in which the parties to a divorce argue to a lesser degree than the arguing that takes place in a divorce that is referred to as a Contested Divorce.

The terms do not mean the same thing, because typically when an attorney speaks of an Uncontested Divorce, he or she is talking about a case in which the parties are in the Litigation Model, but able to arrive at an agreement fairly early in the process. The term Collaborative Divorce is reserved for divorces that are being conducted in the Collaborative Model and under the rules for Collaborative Divorce promulgated in the Texas Family Code.

If you would like to discuss your needs with respect to a Collaborative Divorce, Uncontested Divorce, or Contested Divorce, please contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com.