If you are facing a divorce, you’re facing a challenging legal process that also has a hefty emotional component. While no two divorces are ever exactly the same, they all follow similar paths. Ultimately, you are not required to work with a divorce attorney, but doing so helps to ensure that both your parental and financial rights are well protected throughout the legal process. If you are thinking of representing yourself, better understanding the divorce process is a must, but consulting with an experienced Killeen divorce attorney is always in your best interest.
Your Divorce Will Likely Settle out of Court
The fact is that the vast majority of Texas divorces – and divorces across the country – settle out of court. If you and your divorcing spouse are able to negotiate each divorce term between yourselves, the judge handling your case is very likely to include them in your final divorce decree, which means you will not need the court’s intervention. If you are, however, unable to do so, your divorce will proceed to court. Even if your case ends up in court, you’re not required to have legal representation – but you will be expected to carefully follow the rules of the court and the exacting filing requirements (while skillfully protecting your rights).
Factors that Increase the Likelihood that Your Case Will Go to Court
There are certain complicating factors that significantly increase the likelihood that your divorce case will go to court:
If your divorce is very contentious in nature
If you own a business together, including either a farm or ranch
If you own a professional practice in which one of you is the practitioner,
If yours is a high-asset divorce
If your divorce involves complicated assets of any kind
If your divorce falls into any of these categories, working with a dedicated divorce attorney from the outset is well advised. It would be exceptionally difficult for you – as a layman – to effectively navigate the court system while protecting your rights and successfully handling the emotional rollercoaster that tends to accompany divorce.
The Terms of Your Divorce
The basic terms of divorce do not vary, but any one of them can trip a couple up and complicate their divorce considerably. If you and your divorcing spouse can find your way to negotiate a mutually acceptable resolution for each divorce term, you are more likely to settle out of court, which makes handling your own case less arduous (and potentially less risky). These Terms include:
The division of your marital property
Your child custody negotiations
Alimony
Child support
The Division of Your Marital Property
One of the terms that is most likely to complicate a divorce considerably is the division of marital assets (as offset by marital debt). All the assets you acquire and the debt you take on while you are married is considered marital property, and upon divorce, it must be distributed between both of you equitably (or fairly under the circumstances at hand). It does not matter who bought the asset in question or who signed off on the debt – if you acquired it while you were married, it’s very likely marital property. The exceptions include both gifts and inheritances that either of you received in your name only.
The Relevant Factors
Protecting your financial rights as they relate to the division of marital assets can be exceptionally challenging, and there is a wide range of factors to take into consideration. When the court makes these determinations, all the following considerations can play a role:
You and your spouse’s ages and overall health (both physical and mental)
The length of your marriage (generally, the longer your marriage, the more complicated the division of your marital assets)
You and your spouse’s separate levels of education and overall employability
The number of minor children you share and the cost associated with caring for them
Whether fault played a role in the dissolution of your marriage
Whether either of you attempted to spend down, give away, waste, or otherwise engage in fraud on the community financials
The amount of separate property owned by each of you
Separate Property
Those assets that you and your spouse owned separately prior to your marriage will remain your separate property upon divorce – if you keep the assets separate throughout. This can prove exceptionally tricky. For example, if one of you owns your own business, any of the following can affect its separate nature:
If household funds were used to grow or maintain the business
If you invested marital assets in the business
If both of you worked for the business
If the business owner ran the business but failed to pay himself or herself a fair wage (thus diminishing marital assets)
If the business owner wasn’t careful with the business’s finances and allowed them to commingle with marital assets
Finally, even if the separate owner of the business manages to keep it separate throughout the marriage, any increase in its value is considered marital property, which must be split between you equitably. The same is true of all separate assets, including retirement accounts. If the value of the asset in question increases, the additional value is deemed marital.
A Note about Fault
While Texas does allow fault-based divorces, the vast majority are no-fault. If you do pursue a fault-based divorce, it will almost certainly be decided by the court because your divorcing spouse is unlikely to admit fault in the matter. In other words, fault-based divorces are even more complicated. However, fault can play a role in both the division of your marital property and alimony – even if your divorce is no fault.
Your Child Custody Arrangements
The State of Texas addresses both legal custody and physical custody when it comes to your child custody arrangements. Because child custody directly affects your parental rights, it is another divorce term that can quickly become contentious.
Legal Custody
Legal custody refers to the parental responsibility of making important decisions regarding your children’s upbringing. The kinds of decisions involved include:
Decisions related to your children’s education
Decisions related to your children’s religious upbringing
Decisions related to your children’s healthcare needs
Decisions related to your children’s extracurricular activities and travel
The everyday decisions that arise during the course of a regular day, however, remain the responsibility of the parent who has the children at the time. Additionally, in emergency situations, whatever parent is available is called upon to make critical decisions.
Legal custody can play out in all the following ways:
One of you takes on the responsibility on your own.
You and your ex make all the big-picture decisions together.
You and your ex make all the big-picture decisions together, but one of you has the authority to break a tie if you are unable to reach a consensus (after putting in the necessary effort).
You and your ex divide this decision-making responsibility according to the kind of decision that is being made.
Physical Custody
Physical custody has to do with how your children will split their time between you and their other parent. One of you may become the primary custodial parent with whom the children live the majority of the time (while the other has a visitation schedule). The other primary option, however, is splitting your parenting time more evenly between both of you. Because child custody determinations are always based on the best interests of the children, the factors that the court takes into consideration include:
Each parent’s level of involvement with the children to date
Each parent’s ability and willingness to support the other’s close and ongoing relationship with the children
Each parent’s ability and willingness to foster open communication and cooperation in relating to co-parenting
How well each child has acclimated to his or her current home, school, and community
How continuity (or maintaining the status quo) can be maximized
Whether abuse or neglect is involved
Whether domestic violence is a factor
Each parent’s preference in the matter
Each child’s reasonable preference in the matter (if the child in question is considered mature enough to participate in this capacity)
Any additional factors that the court deems important
Without professional legal counsel on your side, effectively protecting your parental rights can be exceptionally challenging, and the matter is too important to leave to chance.
Alimony
Alimony can play an important role in divorce, but it is just as likely – if not more likely – not to. Alimony is intended to address any financial discrepancies caused by the divorce. For example, if divorce will leave you without the financial means to support yourself and your ex has the means to help, alimony may be ordered. Alimony is generally ordered for a duration that allows the recipient to gain greater financial independence through education and/or job training. Securing alimony that fairly addresses your post-divorce financial situation will be far more difficult without legal counsel in your corner. The factors involved in the determination of alimony include:
The length of your marriage
You and your ex’s ages, overall health (both physical and mental), and employment histories
Your level of education and experience as contrasted by your divorcing spouse’s
The separate property owned by each of you and how your marital property is divided
You and your ex’s separate earning potential
You and your ex’s financial ability to provide for your reasonable needs
The amount of time necessary for the recipient to become more financially independent
How child support factors in
Whether either of you wasted, spent down, gave away, or otherwise depleted your community assets
Whether either of you contributed to the other’s education, earning power, and/or professional growth
The contributions either of you made as a homemaker and/or in terms of raising the children
Any marital misconduct that contributed to the breakdown of the marriage
Any other factor the court considers relevant to the case at hand
If you think you may be eligible for alimony, reaching out to a seasoned divorce attorney is the surest path forward.
Child Support
The State of Texas has well-defined guidelines when it comes to the calculation of child support. Because both parents are obligated to continue supporting their children financially, one generally pays child support to the other upon divorce. While many factors can play a role in this calculation, the two primary factors include how many overnights the children have with each parent and each parent’s income. Even if you and your ex divide your parenting time equally, however, the parent with the higher income is very likely to have a child support obligation.
How Hiring an Attorney Can Help
Divorce is not only a challenging legal matter but is also highly unpredictable. What may begin very amicably can become hotly contested in the blink of an eye. Having a trusted divorce attorney on your side can help in all the following ways:
Ensuring that you have the documentation necessary to ably defend both your parental and financial rights
Ensuring that you follow the court’s careful filing and procedural requirements
Ensuring that you understand your best options and make the right decisions for you throughout the process
Carefully assessing the financial implications of your divorce terms and ensuring that they uphold your rights
An Experienced Killeen Divorce Attorney Can Help
If you are going through a divorce, it is in your best interest to work with an experienced attorney. Texas divorce laws are complicated, and trying to represent yourself could result in a poor outcome to your case.
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is an accomplished divorce attorney who dedicates his impressive practice to skillfully guiding cases like yours toward beneficial resolutions. To learn more, please do not wait to contact or call us at 254-501-4040 today.