If you are facing a divorce (or are thinking about the prospect of a divorce), you naturally have plenty of questions. While your divorce will be specific to you and your exact situation, the basics do not change, and the answers to some of the most frequently asked questions about divorce can help you make the right choices for you.
How will I know if divorce is the answer?
This is a tough question that divorce attorneys hear more often than you might realize, and the answer may surprise you. If you are not sure whether or not you need a divorce, it is not the right time to pull the trigger. The first order of business is exploring your options in terms of working out your marital differences. If your marriage can be saved, that is the right place to start. If, on the other hand, you find that you are definitely leaning toward divorce, a dedicated divorce lawyer can help you better understand how the process works, what a divorce will probably look like in your situation, and what your first steps should be if divorce is the path you take.
What can I do if my spouse wants a divorce, but I do not?
If your spouse is determined to obtain a divorce, there is nothing you can do to stop him or her from doing so. The vast majority of divorces in the State of Texas are no-fault, which means that neither of you needs a specific reason for seeking a divorce other than that you have irreconcilable differences. You can, however, share your desire to work on your marriage with your spouse and attempt to help them better understand your perspective, which may be more effective than you realize.
What are the basic terms of divorce?
While every divorce is unique, the basic terms that make up each and every divorce do not vary and include:
The division of marital assets
Child custody arrangements
If you and your divorcing spouse are able to negotiate terms (in each of these categories) that you are both willing to accept, you can bypass the court’s intervention – thus keeping the decision-making power between yourselves – and will likely save time and money in the process.
RELATED READINGS: 5 Texas Divorce Basics
Is there any way to speed up the divorce process?
In Texas, there is a mandatory 60-day waiting period after filing for divorce, which means that there is no way to obtain a divorce in less than about 61 days. However, because the outcome of your divorce will directly affect both your financial and your parental rights, zipping through the process is unlikely to do you any favors. These 60 days allow you and your divorcing spouse the time necessary to negotiate the terms that apply to your divorce, and if you’re able to easily find a middle ground and hammer out mutually acceptable terms within this timeframe, your divorce may not take much longer than this brief waiting period. If, however, you and your soon-to-be-ex are farther apart on the issues, the divorce process can take much longer.
What is the divorce process in Texas?
The basic divorce process in the State of Texas includes the following steps:
Filing the divorce petition
Serving your spouse with the divorce papers
Obtaining any applicable temporary orders
Beginning the discovery process in which all relevant information and documentation is shared by both spouses
Engaging in settlement negotiations
Proceeding to trial if a settlement that resolves all the terms is not forthcoming
RELATED READINGS: The Divorce Basics
Is my divorce considered uncontested?
There is considerable confusion out there about whether or not a divorce is contested or not. You may think that an uncontested divorce means that you both sail through the divorce process with nary a hiccup between you, but that is not necessarily the case. An uncontested divorce does not mean that you and your divorcing spouse had no trouble signing off on the divorce terms, but it does mean that you were able to do so without needing the court to intervene. Getting there, however, can still be a considerable process, but towards this end, you have options at your disposal that include:
Negotiating between yourselves (with oversight from your respective divorce attorneys)
Allowing your respective divorce attorneys to negotiate on behalf of each of you
Attending mediation or another form of alternative dispute resolution (ADR)
What happens if my divorce is contested?
A contested divorce simply means that you and your divorcing spouse have at least one divorce term that remains unresolved after you’ve exhausted your options as they relate to negotiations. If this is the situation you find yourself in, you’ll need to turn to the court to resolve the remaining matters for you. Ultimately, the fewer divorce terms that require the court’s attention, the better.
RELATED READINGS: What's The Difference Between Contested and Uncontested Divorce in Texas
How does mediation work?
If you and your divorcing spouse are hitting roadblocks in relation to breaching the divide in your unresolved divorce terms, but both of you remain open to fair and honest negotiations, mediation may help. At mediation, you, your spouse, and your respective divorce attorneys will move forward with negotiations in a much more casual atmosphere than in court, and you will both be allowed to participate directly in the negotiations, which will be guided by the mediator who has considerable experience helping divorcing couples find the middle ground. Resolving your divorce terms at mediation has considerable advantages that include:
The mediation process is generally less time-consuming and less costly than going to trial.
The meditation process allows you and your divorcing spouse to retain decision-making power.
If your divorce goes to trial, it becomes a matter of public record, but if you wrap up the terms in mediation, it is a private matter, which many couples find beneficial.
Even if mediation does not resolve all of your remaining divorce terms, it can help reduce the number you need the court to address.
Those terms that you resolve at mediation and sign off on are legally binding.
RELATED READINGS: Texas Divorce: How Mediation Can Help
Does Texas allow divorces based on fault?
While most divorces in Texas are not fault-based, the State of Texas does allow divorces that are based on fault. Unless your spouse is willing to sign off on being at fault, however, it means that your divorce will be contested and that you will need the court to intervene. The fault grounds addressed in Texas include:
Living separate and apart for at least three years
Because the court can take fault into consideration when it makes decisions related to the division of marital property, pursuing a fault-based divorce can prove beneficial in some cases. Some people who obtain divorces that are based on fault derive peace of mind from the ruling, and if you have grounds for a fault divorce, it is a matter you should discuss with your experienced divorce attorney.
Can we obtain a legal separation instead of a divorce?
Texas does not recognize legal separations, and this means that you remain married until you are divorced, and any debts or assets that you and/or your spouse accrue during your separation will remain marital property that will need to be divided equitably between you in the event of divorce. If you and your spouse do live in separate residences for three years or more, however, it qualifies as grounds for a fault-based divorce in the state. Further, there are legal steps you can take to guide child custody arrangements, child support, and spousal maintenance (or alimony) during a separation from your spouse.
How are child custody arrangements determined in Texas?
In Texas, child custody is divided into both legal and physical custody. Legal custody focuses on who will be in charge of making important decisions on your children’s behalf, including decisions about the following:
Their health care
Their religious upbringing
You and your ex can share this responsibility, can split this responsibility, or can divide this responsibility according to the topic.
Physical custody focuses on how you and your children’s other parent will divide your time with them, and there are two basic options that include:
One of you becomes the primary custodial parent with whom your children have the most overnights.
You and your ex split your time with your kids exactly down the middle (or close to it).
Because the court always makes decisions that affect children with the best interests of those children in mind and because prevailing expertise finds that children are better off when they are allowed to spend time with both parents, the court will not cut a parent out of visitation with his or her kids altogether unless there is a compelling reason to do so.
Will my child’s preference affect our child custody arrangements?
In Texas, the court will generally take the preferences of a child who is at least 12 years old (and who is deemed mature enough to weigh in) into consideration, but your child’s preference is only one piece of the puzzle. Again, the court bases child custody decisions on the best interests of the child, and this requires the maturity and wisdom of adults, which means that your child’s preference will not be determinative (except, perhaps, in a tie-breaking capacity).
Will I receive alimony?
Alimony is by no means a given in Texas divorce. Alimony – or spousal maintenance – is designed to help even out any post-divorce financial discrepancies. This means that if you face a financial setback with divorce and your ex has the financial means to help, the judge may order alimony. The factors that go into the determination of whether or not you will receive alimony include:
The length of your marriage
The ability each of you has to provide for your own reasonable needs
The level of education and the job skills that each of you has, and the amount of time that it would take you (as the recipient) to become financially independent
Your age, job history, earning potential, and physical and emotional health (as compared to your spouse’s)
Whether either of you wasted marital assets (by hiding, destroying, or otherwise disposing of them)
Whether you contributed to your ex’s education and thereby bolstered his or her earning power
The separate property each of you owns
Any marital misconduct, such as cruelty or adultery on the part of your spouse
The court will take these wide-ranging factors into consideration in determining whether to order alimony and, if so, the amount and duration.
How is marital property divided?
In Texas, those assets that you come to own during the course of your marriage are considered marital property, and this is true regardless of who made the purchase or whose name is on the bill of sales. Any property that you bring into the marriage with you and that you keep separate (by ensuring that it does not become entangled with your marital property) will follow you as separate property into your post-divorce life. Maintaining the separate nature of a specific property throughout a marriage, however, can be a tall order, and the division of marital property has the potential to become the most hotly contested divorce term.
How is child custody calculated?
The State of Texas holds both parents financially responsible for supporting their children financially, and child custody payments are calculated using state guidelines that take a wide variety of factors into consideration. The primary focus, however, is each parent’s income and the number of overnights each parent has with the children. It’s important to note that, even if you and your children’s other parent divide your parenting time down to the minute, the higher earner will likely remain the parent with the child support obligation.