If you have reached the point where you know you need a divorce but have no idea how to go about making that happen, you’ve come to the right place.
While you undoubtedly recognize that divorce is a painful emotional journey, you should also know that working closely with an experienced Round Rock divorce attorney can make the legalities of your divorce far less challenging.
Divorce laws are complex, but with your practiced attorney’s skilled legal guidance backing you up, you can proceed with the peace of mind that comes from knowing you’re in good hands.
First Things First: Consult with a Dedicated Divorce Attorney
The most important first step you can take if you are seeking a divorce is to consult with a trusted divorce attorney. This sets the stage for an effective and efficient case in which your parental and financial rights will be well protected. Your attorney will help to ensure that all of the following happen:
That you know what to expect as your case moves forward
That you gather the financial documentation necessary to establish your marital assets and to help ensure their just and right division
That you bypass the problems that too many people going through divorce encounter
That you keep your case moving steadily forward
That you set well-considered divorce priorities, which can afford you greater leverage during negotiations
That you keep your divorce as amicable as possible, which can make the process less emotionally taxing for everyone involved, including your children
Your attorney will ensure that you know what to expect and that you are well prepared to proceed before addressing the filing requirements, which include filing the original petition for divorce and having your spouse served with the papers.
At the point of filing, you become the petitioner in the case, and your spouse becomes the respondent. If you and your divorcing spouse discuss the matter prior to filing and if you are both in agreement on the matter, they can sign a waiver of service form that allows you to bypass official service of the divorce papers.
The Residency Requirements for a Texas Divorce
The State of Texas has specific residency requirements before you can pursue a divorce in the state, including:
At least one of you must have lived in Texas for at least the six months prior to filing.
At least one of you must have lived in the Texas county in which you file for at least the 90 days prior to filing. If you each qualify in different counties, you – as the person who is filing – can choose the jurisdiction that is most convenient for you.
Finally, it’s important to point out that there is also a 60-day waiting period – or cooling off period – that applies to your divorce itself. You must wait at least 60 days after filing before your case can be finalized.
While a 61-day divorce is a possibility in Texas, it is the exception rather than the rule. Most couples need more time to negotiate mutually acceptable divorce terms, and there is also the matter of the court’s busy docket to consider.
Negotiating the Terms of Your Divorce
Before your divorce can be finalized, you’ll need to resolve each of the following divorce terms that apply to your case:
Your child custody arrangements, which include both legal custody – or decision-making authority – and parenting time
Child support
The division of your marital assets
Alimony, or spousal maintenance
Unless you’re pursuing a fault-based divorce, which is not common, the goal is to reach fair terms between yourselves in an uncontested divorce, which tends to make the process less costly, less time consuming, and less contentious. Your respective divorce attorneys will help you engage in productive negotiations, and there is also the option of going to mediation.
Fault-Based vs. No-Fault Divorce
Most divorces in Texas and throughout the nation are no fault, which means that they aren’t based on either spouse causing the dissolution of the marriage and that neither spouse has to prove the other’s wrongdoing.
In a fault-based divorce, the spouse who claims that the other is at fault is called upon to prove that the other’s actions, such as adultery or cruelty, were the direct cause of the divorce, which significantly increases the amount of effort involved.
Divorces that Are Based on Fault Are Contested
The vast majority of no-fault divorces in Texas are uncontested, which means they don’t require the court’s intervention, but fault-based divorces are contested, which means that at least one or more of the terms must be resolved by the court.
If you accuse your spouse of causing your marriage to fail and seek better terms through a fault-based divorce, you can expect them to fight back, which is why fault-based divorces are contested divorces.
If you choose to seek a fault-based divorce and can prove that your ex is to blame for the breakdown of your marriage, the court can award you a more favorable division of assets, and the fact of your ex’s fault can also increase your chances of receiving alimony.
The downside of a fault-based divorce is that it’s likely to take longer to resolve, is likely to cost more overall, and tends to make things more emotionally charged.
The Right Path Forward for You
Only you know the right path forward for you, but your focused divorce attorney will help you explore your best options. Most couples choose the no-fault divorce route as a means of turning down the heat on their cases, but there are situations in which going to court makes sense, including:
If your divorcing spouse simply refuses to engage in reasonable negotiations that allow you to protect your rights
If your spouse’s wrongdoing was directly responsible for the failure of your marriage, and you’ve come to the carefully considered decision that pursuing a fault-based divorce is worth the additional effort
Your Child Custody Arrangements
Once you’ve filed for divorce and have sorted out your priorities, you’ll be ready to engage in negotiations, and if you share children, your child custody arrangements are of primary concern. In Texas, child custody is addressed in terms of both legal and physical custody.
Legal custody determines how you and your ex will make parenting decisions moving forward, while physical custody addresses parenting time schedules.
The State of Texas is guided by the best interests of the involved children, and the guiding belief is that children are better off when both parents play active roles in their lives, which generally translates to parents making primary parenting decisions together and to each parent receiving ample parenting time.
Only if there is a considerable reason for ruling otherwise will a parent’s decision-making authority or parenting time be seriously curtailed.
Legal Custody
The kinds of important parenting decisions addressed by legal custody include all the following:
The medical care your children receive
The education your children receive
The extracurricular activities and travel your children participate in
Your children’s religious upbringing
Shared legal custody can take all the following forms:
You and your ex can continue to make these decisions together – the way you did while you were married.
You and your ex can make these decisions together, while one of you has the right to break a tie if there is no other way around it.
You and your ex can divide these decisions between you according to category.
If the situation calls for it, one of you may be awarded sole legal custody, which translates to that parent making each of these important decisions on their own.
Physical Custody
Physical custody establishes the parenting time schedule, and this can take two basic forms. You and your ex can divide parenting time between you more or less evenly, or one of you may take on the primary custodial role while the other has a generous parenting time schedule.
When a parent takes on the primary custodial role, they provide the children with their primary residence and have them for the majority of their overnights while the other parent has what amounts to visitation. When one parent does take on that primary custodial position, it is often based on factors like the following:
The primary custodial parent played a larger role in raising the children thus far.
The primary custodial parent has established a closer bond with the children than the other parent has.
The primary custodial parent filled this role prior to the divorce being finalized.
The children have fared well in terms of their home, education, and community under the parent’s primary care, which is referred to as the status quo.
The amount of time a parent is allowed to spend with their children will only be seriously limited, such as when supervision is required, if there is a serious reason for doing so – such as in response to child abuse or neglect.
Child Support
Child support is calculated according to Texas’s predetermined formula – unless there is a verifiable reason for ordering child support that deviates from these requirements. The basics when it comes to child support is that the parent who is the higher earner generally has the child support obligation – even when the parents split parenting time evenly or nearly evenly.
The standard calculation involves the higher earner paying a specific percentage of their net income based on the number of children covered by the order, which breaks down as follows:
● 20 percent for one child
● 25 percent for two children
● 30 percent for three children
● 35 percent for four children
● 40 percent for five children
● At least 40 percent for six children
The Division of Marital Assets
In Texas, everything that you and your spouse acquire when you’re married is considered part of your marital estate, and it doesn’t matter who made the purchase or whose name the lease is in. These assets must be divided between you fairly upon divorce, and while this can mean equally, it doesn’t always.
Texas courts take a wide range of circumstances like the following into consideration when determining property division:
The size of the marital estate and of each spouse’s separate estate, which refers to those assets each spouse owned prior to marriage and kept separate throughout
Each spouse’s age and overall mental and physical health
Each spouse’s income and earning power
The contributions each spouse made to the marriage, including in the form of homemaking and caring for the children
Any wrongdoing on the part of either spouse, which can make a difference, even in a no-fault divorce
The tax consequences of the proposed property division
While separate assets remain the property of the original owner, there are several points that should be kept in mind, including:
The commingling of separate and marital assets can weaken the dividing line between the two.
Texas courts begin with the presumption that all assets are marital, and proving the separate nature of a property falls to the spouse who claims it belongs to them alone.
The amount that a separate asset increases in value during the marriage is very likely to be treated as a marital asset.
Alimony
Alimony – or spousal maintenance – only applies in those divorces in which one spouse is left with too few assets and too little income to address their own reasonable needs while the other has the financial ability to afford assistance.
The goal of alimony is providing the recipient with the leg up they need to gain greater financial independence through the acquisition of further education, job training, or job skills.
An Experienced Round Rock Divorce Attorney Can Help
Brett Pritchard at The Law Office of Brett H. Pritchard is an accomplished Round Rock divorce attorney who dedicated his imposing practice to helping clients like you smoothly navigate the divorce process with their rights well protected. Learn more by contacting or calling us at 254-781-4222 to schedule a free consultation today.