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General Information

The following are basic rules regarding divorce.  Remember, however, that these are only some of the basic rules and are not substitutes for detailed discussions with your attorney and their staff.  If you have any questions, do not hesitate to ask.

Decision to Divorce
At the outset, you should be absolutely sure that your marriage is beyond saving.  If you are uncertain, you should encourage your spouse to join you in marriage counseling, and a counselor can help you with emotional problems much more effectively than your attorney.

If you find you are experiencing emotional problems, please employ a professional counselor for your personal benefit.  Your attorney is a knowledgeable in law, not psychology or marriage counseling, and a counselor can help you with emotional problems much more effectively than your attorney.

Also, a new field of development is "divorce counseling," which consists of individual sessions or group sessions designed to assist persons through emotional trauma of a divorce.  There are also such programs for children.  Although somewhat new on the horizon, these programs seem to be getting very high marks.  Many persons, approaching these programs with much skepticism, have reported them to be life savers and well worth the time and money.

Caution: Some people hope that filing divorce will shock their spouse into reality and therefore save the marriage.  While filing for a divorce sometimes saves the marriage, this is rarity.  Usually, it causes the other spouse to become more hostile.  Therefore, the filing of a divorce should be filed with the realization that if you are asking for a divorce that is what you will get.
 
Attorney & Client
The following section discusses the relationship and interworkings between you and the attorney and his or her staff.

Attorney & Staff
The attorney and staff work as a team, each doing these tasks which they can do most efficiently.  The legal assistant is billed out at a lower rate than the attorney; therefore, the legal assistant handles much of the time consuming tasks involved in gathering information and day-to-day contact with the client.  If you hire the firm, you will be dealing with both the attorney and the legal assistant, together and individually, throughout the relationship.

Your Role as Client
This is your case, not your attorney's.  There are a great number of things that you must do during your case.
 
Be Informed

You should be as informed and as involved as your case as possible.   You should read and understand any and all documents that are produced in your case.

Keep a  File
All correspondence and documents produced in your case should be forwarded to you.  Please establish one file in which to keep all your divorce-related documents.  Please remember to bring that file with you each time that you visit your attorney's office.

Tell Your Attorney the Truth About All Facts
You should be totally honest with your attorney on every aspect of your case and give all information about anything of importance to you case.  This includes not only information helpful to your case but, equally important, all facts which might be harmful to your case.  Chances are your spouse's attorney is going to find out about them anyway, so please do not let your attorney be the last to know.  These "bad facts" are usually not as harmful as you may think.

In this respect, you do need to be made aware that, at any time you are placed under oath at a deposition or a trial, you will be required to tell the truth, the whole truth, and nothing but the truth.  If you do not, you subject yourself to criminal perjury charges.  Likewise, Texas law requires your attorney to see to it that you tell the truth; therefore, when you are under oath, your attorney cannot and will not condone any testimony by you which is less than the whole truth.
          
Information Gathering
Facts are the heart of your lawsuit.  You will be given information sheets to fill out and requested to gather information and documents.  This will be time-consuming and tedious work, but it is extremely important.  It must be done.  You, the client, have a much greater knowledge of and access to this factual information than your attorney.  Further, as you research and piece together this information, you begin to develop the necessary understanding of your case.  Also, you can do this work at no charge to yourself, whereas the lawyer or staff, if required to do it, will be billing you for their time and labor.  For all of these reasons, you should do as much of the information gathering, under the direction of your attorney and staff, as possible.

Review Opposing Client's  Documents
Your attorney will provide you with copies of all documents supplied by you or by the opposing party.  It is very important that you review these documents immediately, familiarize yourself with them completely, and ask any questions or detect anything important or unusual in the documents (e.g., checks written for unusually high amounts or to unfamiliar persons or sources).
            
Decision Making
No final settlement of your case will be made without your approval and consent.  Other major decisions will also be made with your approval and consent (e.g., to demand a jury or not, to seek child custody or not, etc.).  However, you will need to allow your attorney the authority to make other decisions which bear on your case, but which involve professional judgment or courtesy.  For example, your attorney should decide how to phrase allegations contained in your pleadings and when to file the pleading.  On occasion, your spouse's attorney may ask for a continuance or postponement of a hearing on a motion, deposition, etc.  Resistance to a legitimate request of this nature is often not in your best interest.  For example, your attorney may know that your side will need to make a similar request in the future.  Your attorney should be the decision maker for these and similar matters.

Attorney-Client Relationship
You and your attorney and her staff are in an attorney-client relationship, which is recognized by the law to be a very special relationship.  Your attorney and staff owe one hundred percent of the allegiance to you and your case and owe no allegiance to your spouse whatsoever.  Your attorney is required to represent you zealously, but within the bounds of the law. 

Do not be mislead if you find your attorney dealing with your spouse's attorney on a friendly basis.  Professional and common courtesy dictate this.  Good lawyers are perfectly capable of zealously defending and promoting their clients' best interest, without becoming personal enemies.  Attorneys are in fact trained to be advocates for the children without becoming emotionally involved.  One of the very reasons you hire a lawyer is to have someone on your behalf who not only has legal expertise, but who will not become emotionally involved.  You want your lawyer to use her head, not her heart.  Indeed, you should expect your lawyer to be objective and to remain unemotional on your behalf, because it will often be hard for you to do so.
  
By virtue of the attorney-client relationship, there automatically arises what is known as the "attorney-client privilege."  The privilege prohibits from disclosure any information, whether communication orally or in writing, between the attorney and the client, so long as the communication was intended to be confidential.  Such communications also include all correspondence or documents from your attorney/staff to you, and vice versa (e.g., information sheets you prepare for us), as well as all telephone conversations and in-person conferences between you and your attorney and staff.

Caution: The attorney-client privilege exists only between you and your attorney and her immediate, in-house staff.  The attorney-client privilege can be waived if the otherwise confidential information is disclosed to persons other than your attorney and her immediate staff.  For example, if you tell your spouse something that your attorney has told you, then the information will lose its privilege from disclosure and will have to be disclosed by you in court.  Also, the privilege does not exist between you and other persons who may be involved in your case to assist you (e.g., CPAs, appraisers, etc.).  Therefore, be very careful what you say to these persons, even if they are "on your side," for anything you do or say may be required to be disclosed to your spouse's attorney.

Contract
You should read and understand your fee contract.  If you do not understand the financial obligations required of you under the contract, you should immediately discuss those questions with your attorney.  You should not sign the contract unless you understand it.

Other Professionals
Besides your attorney and her immediate, in-house staff, other outside professionals are sometimes hired to assist in the divorce case.  It may be necessary to engage an appraiser, a tax expert, CPA and other such professionals.  Your attorney will discuss the necessity of these experts with you and hire only those that are in your case and only with your consent.

Caution: Again, even though these persons are hired on your behalf, information provided to them is not protected from disclosure by the attorney-client privilege (as discussed above).

Issues in Divorce
This section covers the basic issues involved in a typical divorce case.  If you have no children, you can skip the sections below regarding children.  Otherwise, you should read each section very carefully and go to this section first throughout your case if you have any questions regarding these issues.

Grounds for Divorce
A divorce may be granted on one or more "fault" or "no fault" grounds expressly set out in the Texas Family Code.  Most divorces are founded on the no-fault ground of "in supportability" (i.e. incompatibility), which can be granted to either spouse if that spouse feels that the marriage has become insupportable because of discord or conflict in personalities which makes any reasonable expectation of reconciliation impossible.

"Fault" grounds for divorce include adultery or cruel treatment.  In that a court may consider "fault" in the breakup of a marriage as a factor in deciding how to divide the property and debts, a party may choose to plead a "fault" ground for divorce.

Domicile & Residence
At least one spouse must have been "domiciled" in Texas for six months and a "resident" of the county where the suit is filed for ninety days, before the petition may be filed.  The terms "domicile" and "residence" have different legal meanings, which can be explained to you if need be.
        
Property & Debts
This subsection is an elementary discussion of some basic rules underlying Texas marital property law.

Types of Property
In the context of divorce law in Texas, all property, both real and personal, is characterized as two different types of property; (1) "separate property" and (2) "community property".

Separate Property
"Separate property" is property either (1) owned or acquired by a spouse before marriage or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance.  It is the date of acquisition and the source of the property that control, not how it is eventually paid for.  For example, if one spouse owned a house or car before marriage, it will be characterized at the time of divorce as that spouse's separate property, even if it was paid off in whole or in part during marriage.
         
A gift includes, for example, any Christmas or birthday gifts from one spouse to another during marriage (even if purchased with community funds).  If a gift or inheritance goes to both spouses (e.g., wedding gifts), then each spouse has an undivided fifty percent interest in that one piece of separate property.

Separate property can change forms without changing its character as property (this is often referred to as a "mutation").  For example, if wife has $5,000 in cash which is her separate property and uses that $5,000 cash alone to purchase outright a $5,000 boat, then the boat would likewise be her separate property.

A court has no authority to take a spouse's separate property from him or her at the time of divorce.

Caution:   Any property owned by either spouse at the time of divorce is, by law, presumed to be "community property" unless otherwise proved to be separate property (see discussion of "community property presumption" below); therefore, a spouse must (1) specifically plead and (2) prove by clear and convincing evidence each item of real or personal property claimed to be his separate property.

Community Property      
"Community property" is any property acquired by either or both spouses during marriage by other than gift or inheritance.  This includes virtually everything purchased during marriage.  It is important to remember that a marriage legally endures even after your separation (whether before or after the divorce petition has been filed) will be characterized as community property.  This is true even if the property is not physically received until after marriage.  For example, if the day before the divorce is granted a wife contracts to purchase a new home (with closing set off for one month later), or husband enters into a partnership agreement, this will be characterized as community property.

All property which exists in whole or in part in the name of either spouses at the time of the divorce is presumed by law to be community property.  This is referred to as the "community property presumption".  Therefore, if you have any separate property or if you are in the possession of property which does not belong to either you or your spouse, you must point this out to your attorney.

In Texas, earnings from separate property are community property.  For example, if husband has $5,000 in the bank account at the date of marriage, the $5,000 remains his separate property, but all interest earned on the $5,000 becomes community property.
 
Unlike separate property, a court has the authority to divide community property in any manner that it deems to be "just the right" (as discussed in more detail below.)

Mixed Title to Property
Title to property can be both separate property and community property in character.  For example, suppose a car is bought during marriage for a total of $10,000 in cash; $6,000 of that was from husband's separate property account which he had prior to marriage, while $4,000 of it was from a bank account established during marriage and contained the community property earnings of the parties.  In such event, title to the automobile would be 60% husband's separate property and 40% community property.
        
Debts and Liabilities: Taxes
Debts and liabilities incurred before marriage, if still in existence at the time of divorce, shall remain in the debt of liability of the party who incurred it.  Debts incurred during marriage will be divided by the court between the parties at the time of divorce.  One spouse may be required to assume a debt incurred solely by another spouse during marriage.  Although not an absolute rule, the general rule of thumb is that, following the filing of the divorce petition, courts are usually going to award a debt to the spouse who incurred the debt during separation.  Decisions will also need to be made regarding contingent liabilities, such as past income tax liabilities which may arise in the future if the parties are audited, as well as tax liabilities for the year of divorce.

Caution: Although a court will order each spouse to be solely responsible for certain debts and to pay them immediately when due, this is binding only as between the parties.  This division, however, is not binding upon the third party creditors who are not parties to the lawsuit.  This is unavoidable unless every creditor (e.g., MasterCard™, Visa™, etc.) is actually made a party to your suit and even then, the court would probably make one party primarily liable and the other party secondarily liable.  The only protection is by way of indemnification, that is, if Spouse A is obligated to pay a bill, but does not do so and the creditor goes after Spouse B has the right to sue Spouse A to recoup those funds.  Sure this is not a very good solution, but it is the only practical one available.  While a lien can be placed against one spouse's property, to assure the payment by that spouse of court-ordered debts, most parties and judges will not agree, to so indefinitely tie up a person's property in this respect.

Reimbursement
Pursuant to the rules above, there may at the time of divorce, exist 3 different "estates"; (1) husband's separate property estate, (2) wife's separate property estate, and (3) the community estate.  Each of these estates may have a "claim for reimbursement" back against the other estate or estates.  For example, if husband owned a car, as well as a note on that car, before marriage, then at the time of the divorce the car will belong to husband's separate estate, but the community estate would have the right to ask a court to order the husband (i.e., his separate estate) to "reimburse" the community estate for community funds used to pay off his separate property car.  This is one very simple example of the doctrine of "reimbursement."  Again, reimbursement can be by, against, and between any of the 3 estates.

Since reimbursement is an 'equitable" doctrine, a court is not required to order reimbursement, but may choose to do so if the court considers it equitable under all of the circumstances of the case.  It should be noted: however, that to prove reimbursement, it often requires a great deal of time, accounting, "tracing" of funds (discussed below) and expense to prove the claim.  Whether reimbursement should be sought is a decision you and your attorney will make after weighing all of the factors.  Texas has a new doctrine called economic contribution.  Be sure to ask your attorney if this applies to your case.

Tracing 
To determine title to property as being separate property and/or community property, and to determine rights to reimbursement between the different marital estates, an accounting method referred to as "tracing" is often employed in divorce cases.  For examples, one bank account may contain funds which consist of both separate property and community property.  Or, community property funds may be used to pay off a balance of a separate property debt.  Tracing is employed to determine the title to property or the amount of reimbursement.

Doctrine of commingling:  If funds in an account contain both separate property funds and community property funds and these funds have been so commingled as to defy a clear divorce-time segregation by means of tracing, then the entire account will be characterized as community property (because of the clear "community property presumption" discussion above).  This is referred to as the doctrine of "commingling".

Division of Property & Debt
The parties, by settlement or a court after trial, will divide all existing property and debts.  While the parties may be in agreement to make any type of division that they want (e.g., give to husband certain of wife's separate property, agree to alimony, etc.), a court during litigation does not have such flexibility but is bound by the rules of law set out above with reference to property and debts.  Also, these rules serve as the primary basis to guide the parties and their attorneys in reaching a settlement (see discussion regarding settlements below).

Basically, a court may give each party his separate property and separate debts, and then may divide the community property and debts in a manner that the court deems to be "just and right."  This may be an approximate 50/50 division of the net community estate or a division which gives one of the spouses a disproportionately larger share of the community property (e.g., 60% to Spouse A, 40% to Spouse B).  Contrary to popular belief, the courts are not required to divide property 50/50.

The division of property refers to the net community estate (i.e., all community debts equal net community estate).  Obviously, this does not require an equal division in kind of all property and debts.  For example, suppose that the community estate consists of 1 home (with a mortgage), 3 cars (2 with mortgages), 2 retirement accounts, miscellaneous personal property (e.g., furniture), and 5 bank accounts.  All together, this amounts to $100,000 in assets and $75,000 in debts for a net community estate of $25,000.  The court may give husband 70% of all of the assets ($70,000) and 80% of all the debts (-$60,000) for a net award to husband of $10,000 (which amounts to only 40% of the total net community estate).  Simultaneously, the wife would receive only 30% of the assets ($30,000), but only 20% of the debts (-$15,000), for a net to wife of $15,000 (which equals 60% of the total net community estate).  Again, this is only a very simple example.  Courts may enter almost any kind of order to effectuate what the court finds to be a just and right division, such as requiring the parties to sell the marital home and divide the proceeds in a certain manner, award certain community property to be held by both parties (and let them decide later to sell it or not to sell it), etc.

As a general rule of thumb, in order to reach a "just and right" division of the community estate, the court generally begins by presuming that a 50/50 division would be equitable, then varies from there based upon a number of factors, especially the length of the marriage, a disparity in the earning capacity of the parties caused by the marriage (e.g., husband worked for 25 years while wife did not), whether there are minor or adult children being taken care of by a spouse, "fault" in the breakup of the marriage, etc.  As discussed in some detail below, the very nature of divorce cases makes it difficult to predict in advance with any degree or certainty exactly how a given court will divide this property in a given case on a given day.

Alimony
"Alimony" is spousal support, that is, funds paid by one spouse to and for the support of the other spouse.  Texas was the only state in the nation in which a court had no authority to order alimony to be paid after the final divorce.  However, in 1997, the Texas legislation made provisions for very limited "alimony" which requires extensive proof of inability to support oneself.  It is best to talk with your attorney about the availability of alimony in your case, as each case differs greatly.  Also, the parties may, by agreement (i.e., contract), provide for alimony to be paid after the final decree of divorce is entered.  The party paying alimony may deduct these payments from that party's income to gain a tax benefit, while the alimony recipient must declare these payments as income.

Children
If there are minor children of the parties, all divorce decrees and settlements will contain orders governing the custody, possession and support of the children after the divorce.  A "child" is any minor who was born or adopted by the parties.  Once a child turns eighteen, the court's jurisdiction over the adult child ends (with several exceptions regarding child support, which is discussed below).

Conservatorship
The Texas Family Code speaks in terms of post-divorce "conservatorship" of children, meaning the legal status between the children and their parents after the divorce as it relates to controlling the children's lives, having possession of and access to the children, and supporting the children.

The code expressly sets out a nonexclusive list of the rights, privileges, duties and powers of the parents.  In a nutshell, these rights and duties may be categorized into 3 areas; (1) the right to make major decisions regarding the children; (2) the right to have physical possession of the children; and (3) the duty to financially support the children.  Conservatorship orders divide these various rights and duties among the parents after divorce.

a. Conservators
The Code refers to 2 types of conservators: (1) the managing conservator(s) and (2) the possessory conservator.  These terms are confusing, because the "managing" conservator is, generally speaking, the primary custodian of the children, while the "possessory" conservator is not the primary custodian of the children (the "possessory conservator" merely has some "possessory" rights to the children, e.g., visitation).

1. Managing Conservator(s)
A "managing conservator" is generally given all the rights, privileges, duties, and powers of a parent, to the exclusion of all others, including the other parent, except as otherwise ordered by the court.  In short, the managing conservator is the primary custodian of the children, and (1) has the right to make all the most of the major decisions governing the children's lives, (2) has the primary physical possession of the children (custody) and (3) has the right to receive child support on behalf of the children.  As discussed below, there are now 2 types of managing conservators, "sole managing conservatorship" and "joint managing conservatorship."

2. Possessory Conservator
A "possessory conservator" is generally given (1) only a handful of rights and duties to make decisions for the children, which can be exercised only when the children are actually in the physical sessions of the possessory conservator, (2) the right to certain limited times of possession of the children (often referred to "visitation rights"), and (3) the duty to pay the managing conservator child support for the benefit of the children.

b. Types of Managing Conservatorship
A managing conservatorship can be either a 'sole managing conservator" or a "joint managing conservatorship" [unless very extreme circumstances exist, a parent will be appointed the managing conservator of the children.  A nonparental managing conservator (e.g., grandparent) can only be appointed if the appointment of a parent would create an extreme danger to the child or unless the parents agree.]

1. Sole Managing Conservatorship
A "sole managing conservatorship" exists when one parent alone is appointed the managing conservator of the child and given virtually all of the rights, privileges, duties and powers of a parent to the exclusion of the other parent.  In such event, the other parent will be the "possessory conservator."

2. Joint Managing Conservatorship
The law presumes that it is in the best interest of the child or children that both parties are to be "joint managing conservators" of the children.  This is true, whether or not the parties agree to the joint appointment.  Thus, both parents are, jointly, managing conservators, and neither is a possessory conservator.  Joint managing conservatorship is often agreed to by both parties.  While a court is not required to appoint joint managing conservatorship, even when the parties request it, the party who does not want a joint managing conservatorship must prove to the court that a joint managing conservatorship is not the best interest of the children.

It should be noted, however, that joint managing conservatorships vary.  A joint managing conservatorship order may be either a "pure" or "real" joint managing conservator, or a joint managing conservatorship in name only, or any combination thereof.  A "pure" (real) joint managing conservatorship authorizes both parents to equally exercise jointly all of the rights, privileges, duties and powers of a parent.  On the other hand, under joint managing conservatorship which exist in name only, while both parents are given the title of joint managing conservator, one parent is in reality, by the detailed terms of the joint managing conservator is in reality treated like a possessory conservator.  There are advantages and disadvantages to going either route, which will be discussed with you by your attorney.

c. Possession of and Access to Child (e.g., Visitation)
The managing conservator and the possessory conservator or the joint managing conservators will be given certain exact times of possession of and access to the children.  Usually, 1 parent is considered to be the "primary parent" or the parent with primary possession of the child and has the child at all times except for those times of possession given to the other parent, while the other parent (e.g., possessory conservator) is given certain court-ordered times of possession of and access to the children (sometimes referred to as "visitation rights").

The legislature has by statue adopted what is referred to as a "Standard Possession Order".  Basically, the Standard Possession Order gives the noncustodial parent the right to possession of the children on every other first, third, and fifth weekend (Friday through Sunday), every Thursday evening during the regular school term, and one-half of all holidays.  Excluding the time that the children are asleep or in school, the schedule gives the non-custodial parent about 47% of the quality time with the children.  For many reasons, judges rarely vary from this Standard Possession Order and only do so under unusual circumstances (e.g., child is under 3 years of age).

Child Support
The parent who does not have primary possession of the children or who has less physical possession of the children than the other parent, generally, is required to pay financial child support to the primary custodial parent for the benefit of the children.  Although this can take many forms, child support usually consists of periodic (e.g., monthly) payments to the custodial parent

The legislature by statue has adopted Child Support Guidelines.  Basically, the child support under the Guidelines will be based upon percentages (based on the number of children) of the support payer's "net resources" (as defined in the Guidelines).  For example, the guidelines require the payer to pay 20% of his "net resources" for one child, 25% for two children, etc.  Most courts generally follow the guidelines in the usual absent circumstances.

Also, the Family Code requires that, if the support payer is a salaried employee, the payer's child support (or a portion thereof) be withheld from his wages by his employer and paid directly to the custodial parent.  Although this can be waived, it rarely is.  At the present time, the fees from a wage withholding order are being first sent through the State Disbursement Unit in San Antonio and then forwarded to the payee (the person entitled to receive child support).

Child support is usually ordered to be paid through the county agency charged with recording child support payments, which agency then keeps a record of all payments received and forwards the payments to the child support recipient.  A major reason this is done is that, if the support obligor fails to pay support as ordered, the agency has attorneys who will usually represent the payee free of charge in a future contempt hearing.

Other, "child support" is also required in the form of health insurance for the children, orders requiring the payment of uncovered medical expenses, etc.

Child support is due until the child turns eighteen or thereafter, until the end of the school year in which the child graduates from high school. IMPORTANT: If a child is mentally or physically impaired to the extent of requiring continuous care, child support may be ordered to be paid indefinitely past the child's 18th birthday.  If this is the case with any of your children, be sure to inform your attorney.

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