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Question & Answer Part II

Tax Considerations
Generally, the custodial parent is entitled to the tax exemption for the child, unless otherwise agreed to by the parties. Also, certain child care deductions are available. Discuss these with your attorney or tax advisor.

Other Issues
There are also a number of other issues which may not directly relate to the dissolution of your marriage, but which are available to you at the time of your divorce and which, as a general rule, must be raised at the time of divorce, or they will be waived. These issues do not arise in the typical case, but may be applicable to yours. If so, you should discuss them with your attorney.

Causes of Action Against Spouse
Besides the typical causes of action raised in a divorce, one spouse may have a cause of action back against the other spouse for acts or omissions which may directly relate to the dissolution of the marriage. These included, for example, a civil cause of action for assault (e.g., one spouse hits the other), false imprisonment (e.g., one spouse locks the other up), one intentionally defrauds the other of their separate property, one spouse takes the other's separate property and gives it to another person, etc. There also may be a cause of action for mental anguish against a spouse. If anything like these examples seems to apply to your case, discuss it with your attorney.

Causes of Action Against Third Persons
There are also certain causes of action which one spouse may have against third persons which may be joined with the divorce. These include, for example, a request that a third party transfer back to one spouse property that was wrongfully given to that third person by the other spouse in an attempt to defraud the spouse, a suit trustee of a trust being held for the benefit of a spouse, etc. If any of these or similar matters exist in your case, let your attorney know.

Note: The action known as "alienation of affection," which allowed a spouse to sue the lover of the other spouse has been abolished in Texas.

Attorney's Fees, Costs, & Expenses
Attorney's fee's, costs and expenses related to litigation are treated as any other debt or liability of the parties and will be divided by the court in a manner that the court deems "just and right." The court can sometimes order one spouse to pay the other spouse's fees, costs and expenses either in whole, or in part. An order to pay these fees and expenses is within the discretion of the judge. There is no automatic right to the award of these fees and expenses.

Caution: One of the reasons a judge might require a spouse to pay the fees of the other is if that spouse has been uncooperative and has not followed the law and the rules with reference to the divorce proceeding.

Steps in Divorce
Generally
While these proceedings may be confusing and strange to you, there are 6 typical phrases which average divorce case may go through:

 1st—Initiating the divorce
 2nd—Temporary orders
 3rd—Discovery of evidence
 4th—Settlement negotiations
 5th—Trial (if no settlement)
 6th—After trial/settlement

Although each divorce case takes on its own unique personality, these basic steps occur in one form or another in most divorce cases.

Note: The law prohibits a divorce decree from being entered until at least 60 days have elapsed from the date the divorce petition was filed. This "cooling off" period is, of course, just a minimum period of time. Most cases take much longer to complete.

Initiating the Divorce
A divorce is initiated by the filing of a divorce petition by one of the spouses (the petitioner"), the service of the petition on the other spouse (the "respondent" and the filing of a written response (and usually a counter-petition) by the respondent. The manner in which a divorce is initiated can set the tone for the rest of the divorce case; therefore, how it is initiated must be carefully considered.

Emergencies
Sometimes emergencies may exist, requiring immediate action. For example, one spouse may be destroying property, running up unusual debts, hiding or threatening to run off with the children, abusing or threatening the other spouse or the children, etc. In these cases, a Temporary Restraining Order (discussed in detail below) can be issued.

Petition for Divorce
The first legal step taken by the petitioner's attorney is the drafting of a Petition for Divorce. It sets out the basic information required by the Texas Family Code, states the ground for and requests a divorce, requests a division of community property and recognition of the petitioner's separate property, and requests orders concerning the children, etc. (discussed in detail below), and it may request the court to make temporary orders (discussed below).

A petition can be amended time again when necessary, provided it is not later than seven days prior to that trial or some other deadline imposed by the court. Often the original petition is very mild, without containing any inflammatory allegation, like adultery. There are several reasons for this. First, it helps start the process on a less combative basis, which may help to keep the costs of the litigation from escalating. Second, your attorney may not want to reveal all of your legal positions at the beginning, unless to do so might promote settlement or otherwise benefit you.

The petition will be filed with the court clerk (for which a filing fee is charges), and the clerk will assign your case a cause number. The clerk keeps a file and docket sheet on your case.

Service of Petition
The respondent must receive a copy of the petition. This may be done in one of two ways. The petition may be formally served on the respondent by a Sheriff, Constable or private process server. Or, the petition may be informally given or mailed to the respondent or his attorney. Formal service is required if a Temporary Restraining Order is requested, and it may be preferred in many situations; however, it also can be embarrassing to the respondent to be served at his place of business and this in turn starts the case off on a bad footing. While informal service may be less antagonistic, it has its drawbacks. A respondent is required to file a formal "response" (discussed below) within a certain time, but only if formally served. Your attorney will discuss these options with you before the filing of the petition.

Response & Counter-Petition
If formally served, the respondent must file a written response to the petition within a stated time from the date of service, usually 20 days. This response is usually called and "answer" in which the respondent "denies all of the allegations in the original petition." This is a standard form which serves to prevent the petitioner from taking a default judgment against the respondent. The respondent may file a counter-petition for divorce against the petitioner. It is usually delivered to the petitioner's attorney, without formal service on the petitioner.

Temporary Orders
Between the time of the filing of the petition and the granting of the divorce, the parties usually enter into temporary orders, either by agreement or by court order, to govern the parties, their property, debts and children pending the granting.

Temporary Restraining Order (TRO)
If emergencies exist, requiring immediate action to protect a spouse, a child, or any property, a Temporary Restraining Order (TRO) can be signed by the judge and served on the respondent along with the petition. It immediately restrains the respondent from the acts described in the order. If you are served with a TRO, you should be certain to obey all of its terms, failure to do so is punishable by contempt of court. The TRO expires 14 days after it is issued; therefore, a hearing on temporary orders must be held within the 14-day period, so that temporary orders of a more indefinite duration can be entered.

Temporary Orders
A temporary order may be entered by agreement of the parties or by the court after a temporary hearing. If by agreement, the parties save the expense of a pre-trial hearing. A temporary order may be entered whether or not a TRO has been issued. Temporary orders normally stay in effect until the final decree is granted.

The temporary order may provide for an injunction against the parties hiding, wasting or destroying property, prohibiting them from incurring any unusual debts, and contain orders for temporary custody and support of children. The court may also order one spouse to pay temporary alimony to the other spouse. You should be prepared to provide your attorney with details of your monthly living expenses as well as payments on debts. This information is essential for determining amount of temporary support to be paid or received. The temporary order usually requires the parties to produce documents and/or to file a formal inventory (discussed below).

Discovery of Evidence
The facts regarding the property, debts, the parties, and the children from the foundation of any divorce case. Therefore, information gathering is one of the most important and time consuming aspects of the divorce. You have more knowledge of or access to the necessary information and documents, than does your attorney. The more you can gather, the less time must be spent on this aspect of your case by the attorney. The more you are involved in this process, the more you learn about the facts necessary to make appropriate decisions regarding your own case. For all of these reasons, you need to be as personally involved as possible in gathering information.

Information Sheets
You will be given detailed information sheets to be completed. While tedious and time-consuming, it is extremely important for you to complete these with as much detail as possible.
 
Gathering Documents
You may be requested to gather and bring to your attorney many different documents, such as real estate deeds, bank statements, insurance policies, etc. If you do not have these in your possession, try to get them from other sources (except your spouse). If you cannot, notify your attorney as soon as possible.

Inventory
In most cases, the parties are required to prepare and file an "Inventory and Appraisement," which is a listing of all community and separate real property as well as liabilities of the parties. Your attorney will assist you with the form of the inventory. You will be asked to state the value of the property and the exact amount of any liability. You are required to sign the inventory, under oath.

This is a very important part of your case. You must be complete and truthful in your inventory. If your case is not settled and a trial becomes necessary, the judge uses the information contained in the inventory to assist in dividing the property. If you swear to one thing in your inventory and later, at the trial, attempt to take a different position, your testimony will be suspect.

Appraisers
Often it is necessary to hire appraisers to help establish the value of property, including real estate, retirement benefits, businesses, or other assets. Your attorney will advise you if this is necessary in your case.

Formal Discovery
Under Texas law, parties to any suit, including divorce, are allowed to discover a great deal of information from the other party by means of formal discovery devices. These include oral deposition of a party or witness, interrogatories (written questions which are answered under oath), requests for production of documents and requests for admissions. One or more of these may be used in your case. Your attorney will advise you with respect to these matters.

Caution: Most forms of formal discovery require strict compliance deadlines, usually 30 days from the day they are served on your attorney. There are harsh sanctions for failure to comply, including payment of fines and/or attorney's fees. Further failure to supplement your answers 30 days prior to trial may result in undesirable consequences. For example, failure to list a witness in answer to an interrogatory will mean that person is excluded from testifying at the time of trial.

Settlement
After all the discovery is concluded, the parties will enter into settlement negotiations. Rest assured that no settlement offer will be made or accepted by your attorney until you have fully understood and approved the proposal. Usually, several offers and counter-offers are made back and forth between the parties before a settlement is hammered out.

Probably over 90% of all cases are settled out of court, although this often happens just prior to trial (e.g., "on the courthouse steps") or, sometimes, in the middle of trial. Although settlements may appear to be possible, your attorney cannot ignore trial preparations if settlement negotiations are not successful and the trial date is approaching.

One reason parties settle is to avoid the expense of trial. Also, neither party nor their attorneys can predict in advance exactly how particular judge on a particular day is going to rule in any given case.

The key to any settlement is compromise. While no settlement can be forced on you or your spouse, both you and your spouse need to understand that compromise and a reasonable attitude of "give and take" is necessary if there is going to be any reasonable chance of a meaningful settlement. Neither party ever gets all that they want.

Important: To effectively negotiate a settlement, you must try to look at these settlement negotiations from your spouse's point of view; a good negotiator always attempts to put himself in the shoes of the opponent and try to determine what issues are most important to the opponent, where the opponent will draw the line on what issues, etc.

As can be expected, attorneys generally advise clients with regard to settlement based on the number of factors, but the major factor is a determination by the attorney of what a court would probably do if the case went to trial. Any settlement offers which are unreasonably out of line with what a court would probably do are rarely accepted except under the most extreme and unusual circumstances.

Settlement may be achieved by way of process known as mediation. The parties may agree to seek mediation or they may be ordered to mediation by the court. A neutral third party, usually an experienced lawyer or a retired judge, is selected to serve as the mediator. The fees for the mediator are usually shared by the parties. Both spouses and their attorneys appear before the mediator in efforts to settle the case.

The mediator is not an arbitrator. That is, he has no power to "force" a settlement or otherwise adjudicate the dispute. He does attempt to compromise the legal differences between the parties and encourage a resolution. Usually, a portion of the time spent with the mediator is devoted to the parties 'venting" their grievances against the other. Following that phase, the mediator will ask each side to express his or her suggestion for settlement. From there the mediator discusses, in private with each side, possible compromises to the differences. If successful, this process eventually results in a settlement. Most cases are mediated in one day's time. Normally, it does not occur over days or weeks. Statements made in mediation are confidential and are subject to the "settlement rule," discussed below. This allows the parties to freely exchange their views without fear that they will be admissible at the time of trial. Your attorney will advise you as to the suitability of mediation for your particular case.

Finally, there often comes a time when settlement negotiations reach the point of negative return, and the attorney's must finally turn their energies to preparing for trial.

Caution: In Texas, a rule referred to as the 'settlement rule" generally keeps out of evidence any settlement negotiations going on between attorney's; however, this only applies to formal settlement negotiations between or conducted by the attorneys. This rule does not apply to private settlement discussions between the individual spouses; therefore, anything that you say to your spouse can (and most likely will) be admissible into evidence if the case goes to trial. This can be devastating. For example, in one case, a husband told his wife in a phone conversation that he really didn't want the children, that he was only asking for custody of the children in order to try and help on the property settlement, and that if she would just not ask for so much property and child support, then he would gladly let her have custody of the children. As you can expect, all of this conversation was brought out to the court, and it was quite harmful to husband's case.

Trial (If No Settlement)
If settlement negotiations fail, then the case must go to trial. Do not be unduly fearful of trail. Trails in real life are not what they are on TV or in the movies. Rarely is there anybody present in the entire courtroom except the two parties and their attorneys and staff, the judge, a clerk and the court reporter. The atmosphere is unusually very formal and subdued. No one gets up in a witness's face and mercilessly grills the witness on cross-examination until they break down. No judge would allow such conduct in real life. Your attorney and the staff will prepare you extensively for any and all roles you will have at trial.

Sometimes only the parties testify, while in other trials a large number of expert and fact witnesses will be called to testify. The vast majority of divorces cases are tried before the judge, not a jury. For one reason, jury trials are much more expensive and time-consuming than trial to the court. In some cases, however, jury trials are appropriate. Your attorney will discuss these 2 options with you.

All the conclusion of trial, the judge will enter his or her rulings and orders, usually right in the courtroom or sometimes, days later by way of a letter to the attorneys.

After Settlement/Trial
After a settlement has been reached or the trail court has entered its orders, there is a great deal of work to be completed.

1. Post-Trial Motions
If the case has been tried, very often one or both parties may file various post-trial motions with the court, asking the court to reconsider its rulings, etc. There are certain deadlines for the filing of these motions (e.g., 30 days after the divorce decree is signed). You and your attorney can decide whether or not you need to file any post-trial motions, but you cannot control what your spouse and his/her attorney does. In any event, these post-trial matters can sometimes be quite time-consuming.

2. Drafting Documents
Whether your case is settled or tried, there is great deal of work to be done with respect to drafting of the divorce decree and other documents. Any agreed or litigated judgment for divorce is only as good as it is enforceable, and its enforceability depends in large part on how carefully it is drafted. Many lawyers have done well for their clients at trial or in settlement, only to end up losing much of what they had gained because of the of attorney "outdrafting' them with respect to the decree and/or agreement (lawyers sometimes refer to this as getting "pencil whipped"). Therefore, a great deal of time and care must go into the tedious drafting of your unique decree and the documents related to your divorce.

Rest assured that you will approve in advance any and all documents before they are finalized and signed by the parties and the court.

a. Divorce Decree (Agreement Incident to Divorce)
If your divorce case is settled, it may result in 2 documents—a lengthy Agreement Incident to Divorce, which is signed by the parties (this is a contract between the parties), and a short Agreed Final Decree of Divorce, which incorporates and approves the parties' agreement and signed by the judge (this is a judgment by the court). Or, your settled divorce may result in only one document entitled an Agreed Decree of divorce, which is signed by the parties and the judge and serves, simultaneously, as both a contract between the parties and judgment of the court. The consensual decree is enforceable not only as a private contract between the parties, but also as a decree which is enforceable as any other judgment entered by court.

If your divorce is litigated, then only 1 judgment—a Final Decree of Divorce—will be signed by the judge. It is enforceable as any other civil judgment, but it is not enforceable as a contract between the parties.

b. Other Documents
Besides the decree and the agreement discussed above, many other documents often need to be drafted to implement the terms of the divorce decree or agreement, such as real estate documents, etc. Again, your attorney and you will fully review these documents before they are signed.

3. Appeal
Although appeals are extremely difficult to win and can be very costly, they are available. Your attorney will discuss the option of an appeal with you should the need arise.

Things to Avoid
There are a number of very important things for you to carefully avoid throughout your entire divorce case. Despite what your spouse may do, it is important that you keep a "white hat" on throughout these proceedings. Violating any of the following rules can be very detrimental to your case. Although most of these rules have been discussed above, they bear repeating.

Don't Disclose Confidential Information to Others
Remember, the attorney-client privilege only exists between you and your attorney and her immediate, in-house staff. Therefore, in order to keep this type of confidential information privileged from disclosure, do not discuss it with or give it to anybody, including your spouse and including any professional hired to assist you in this case.

Don't Hide/Destroy Property or Documents
Whether or not any temporary orders have been entered, never destroy, waste, hide, alter, collateralize or otherwise do anything to affect the title or value of any property, or destroy or alter any documents. Be sure to consult with your attorney regarding any question that you have with respect to dealing with present property and existing documents.
 
Don't Incur Unusual Debts/Liabilities
Whether or not temporary orders have been entered, never incur unusual debts or liabilities (e.g., charge an unusual high amount of clothes, an expensive vacation, etc.). This will generally be considered against you by the judge and, more often than not, the judge will first make an overall "just and right" division of the property and debts and then, thereafter, order that you solely responsible for any such unusual liabilities.
 
Don't Discuss the Settlement with Spouse
As discussed, the rule precluding evidence at trial of settlement negotiations between attorneys does not apply to settlement negotiations between spouses. Therefore, do not discuss settlement with your spouse unless authorized in advance by your attorney.

Beware of Telephone Tape Recorders
It is not unusual for one spouse to tape record the telephone conversations he has with the other spouse. These recordings are admissible into evidence and have been the downfall of many irrational spouses. Any time you speak to your spouse on the phone, you should presume that it is being taped. Do not tape a call unless you discuss this issue with your attorney as there may be serious criminal liabilities that may apply.

Don't Belittle Your Spouse to Other People, Especially the Children
Judges and juries do not take kindly to one spouse belittling the other spouse to third persons, and especially the children. Everyone realizes that there are certain people with whom you will confide about your divorce and that some criticism of your spouse is natural; however, try as hard as you can to keep this to a minimum, for these people may have to testify under oath as to all of the negative remarks or hot-headed threats you may have made against your spouse in a moment of anger. It is not uncommon to take the deposition of the best friend of one of the spouses, who will admit that the spouse has stated that "I'm going to take that so-and-so to the cleaners, and I don't care what it costs, even if I have to lie to the courts to do it." These remarks will have extremely undesirable consequences.

Above all else, never criticize your spouse in front of or to the children. It cannot be overemphasized how detrimental this will be to your case. It has literally cost many a parent custody of the children. Judges and juries are extremely critical of this behavior. Most mental health professionals will tell you that the children get their own self-esteem from both parents; therefore, when one parent tells the child that the other parent is "no good,' this can leave long-lasting scars on the child's self-image. Also, child psychologist warn that eventually, this criticism of the other parent will backfire on the criticizing parent; the child, as he grows older, starts to know the other parent in a different and better light and feels that his earlier alienation from that parent was unjustified and caused by the other parent; they eventually resent the criticizing parent. In any event, you are strongly advised against making any criticism of the other parent or taking any action which could remotely tend to alienate the affections of the children for the other parent.

Don't Start a Business, Contract, or Purchase Property
Even if you are separated and the divorce petition has been filed, you are still legally married, and any property purchased, even if it is on the day before the divorce, will be considered community property. If that property is not divided at the time of the divorce, then it will be considered undivided community property to which both parties have and interest. Even years after the divorce, the court can require you to petition that property or order it sold, so that your spouse can own a share of the property. The same rule applies to the establishment of a business. Before you purchase any property or enter into any contracts while your divorce is pending, consult your attorney.

Common Questions
The following are questions frequently asked by persons at the beginning of divorce litigation. The answers provided are general. You should ask your attorney to discuss the specifics of your case.

When Can I Begin to Date?
Not until the divorce is final. Adultery is a ground for the granting of a divorce based upon fault. Your legal status as a married person does not change until a divorce is granted. Although some judges are lenient regarding dating while a divorce is pending, you should be cautious about taking this risk. The fact that your spouse may be dating should not be an excuse or justification for your conduct. You need to wear the "white hat." If you do decide to date, you should know that it may impact adversely on a child custody dispute. In no event should you introduce the children to your dates. No community funds should be spent for the entertainment of third parties.

How Do I Get a "Legal Separation?"
There is no such thing as a "legal separation" under Texas law. Even though temporary orders may be entered by the court, they are not to be construed as a legal separation.

Can I Open My Spouses Mail?
No, if you receive any mail addressed solely to your spouse, it should be forwarded to him or to her by you or through your attorney.

Should I Close Bank Accounts and/or Credit Accounts?
If you have been served with a Temporary Restraining Order, you will be prohibited from closing accounts. If you have not, you are free to close the accounts. You should consider the possible consequences. Closing an account without notice to your spouse may cause unnecessary embarrassment. It may also increase hostility and mistrust.

If your spouse is likely to spend or hide money in an account or run up large balances on credit cards, it may be a wise decision. If you close bank accounts, you should not spend the funds. The best plan is to deposit all the funds from the closed account into a new account, solely in your name, so that you can fully account for the transaction later.

Can I Record Telephone Conversations?
Wiretapping is a felony and can subject you to criminal prosecution. However, it is lawful to tape record a conversation as long as one party to the conversation consents to the recording. Therefore, you may record a conversation between yourself and another person. You may NOT secretly install a recording device so as to intercept conversations between others. To do so is a felony. The whole issue of recording telephone conversations is very sensitive. You should carefully discuss it with your attorney. You may record a conversation you have with any other person, so long as you are a party to the conversation. If a recording you have made is to be used at trial, it is required that the conversation be recorded from the first ring until the conversation is concluded, and you have hung up the phone. Partial recordings are not admissible.

Can a Witness Testify by Affidavit?
No, except in very limited circumstances relating to business records. Generally, testimony must be given in person at the time of trial, or by pretrial deposition. This gives each side the opportunity to examine and cross-examine the witness.

Special Issues
If your case involves domestic violence and/or child abuse, you should make these matters known to your attorney immediately.

Violence
If your spouse has a history of violence or threats of violence toward you or others, you should be aware of the availability of protective orders which can be issued by the court. These orders will prohibit your spouse from coming near you, your residence or place of business. Violation of the order can result in immediate arrest.

However, if a person is intent on causing harm to another, no court order will provide full protection from danger. You may need to consider taking refuge in a shelter or other secure location. These are serious matters and you should employ all means to protect yourself from harm. This also means that you should IMMEDIATELY cease any contract with your spouse.

Child Abuse
If you have reason to believe that your child has been abused, you should immediately report it to the local police or child welfare authority as well as your attorney. However, you should never make unfounded or capricious allegations of child abuse. That will adversely impact your position in a child custody dispute. Understand the discussions that you tell your attorney regarding child abuse that may involve you may not be covered by the attorney client privilege. A lawyer like many other professionals has a duty to report abuse of a child even involving their own client.

If the allegation is based upon sound evidence, your attorney will discuss the methods available to protect the child from further abuse. In most cases, the child should be seen by a physician and/or mental health professional as soon as you learn of the abuse.

The Nature of Divorce Cases
Divorce cases are unlike virtually all other civil litigation. For one thing, they are extremely emotional-charged. Further, they require a working knowledge of such a wide variety of different areas of the law. Also, judges have much broader discretion in family law cases than they do in most other areas of the law.

Another major distinction between divorce cases and most other area of litigation is that there is virtually never a clear-cut "winner" or "loser" in a divorce case. Both divorcing parties are usually asking for the same thing—a "fair" division of the assets and debts and a "proper" decision that is in the best interest of the children. The problem is, each has a completely different view of "fair" and "proper." Because judges have such broad discretion in family law cases and because each judge brings his or her own set of values to the bench, the results in a divorce case are frequently unpredictable in virtually identical cases.

Additionally, judges have a tendency to "play Solomon" in divorce cases. They try to be fair by splitting things down the middle i.e., to give both parties some, but not all, of what they want. For example, a husband will say that his business (which he will want to receive in the decree) is worth only $10,000. Wife's expert will swear it is worth $50,000, and the judge will determine it is worth $25,000, which pleases neither party. Unfortunately, this is often the rule rather than the exception in divorce cases.

Each spouse, convinced that his or her points of view are the only "fair" and "proper" views, feels that they need to somehow be vindicated for all of the pain and hurt gone through. They set up false expectations. They expect courts to "solve" their financial and other problems. In reality, courts cannot usually "solve" a party's problems; all a court can do is to divide up what presently exists and grant a divorce.

Because of all of the above, it has become an unfortunate but an often-stated saying among divorce attorneys that, if the court enters an order which is not satisfactory to either party, it is probably a fair decision.

Also, because of the above, it is very difficult for any attorney to predict with any degree of certainty exactly what a judge will do in a particular case. All attorneys have won some that they should lose and lost some that they thought they should have won, and while attorneys can generally give a broad ballpark idea of what a judge will probably do (if everything falls into place), there is no way for any lawyer to guarantee what a judge is going to do on a given case. This is one of the reasons so many cases settle.

Finally, it is very difficult for any party to come out of a divorce feeling as if he is the "winner," no matter what the result is. Sometimes this is because of false expectations, and often it is because there is no way for either party to be a "winner" or "loser" in the overall scheme of things.

Contact us in  Lewisville, Texas,  to talk to one of our divorce lawyers about
divorce and family law legal issues.