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Stephen R. Marsh
Attorney at Law
Divorce is difficult even under the best of circumstances. However, divorce is not the end of the world. While difficult, because of your needs and emotions, it is important to try and maintain your composure and emotional balance in order to survive divorce.
Divorcing spouses most often differ on one or more of the following issues:
Almost anyone will tell you that divorcing parents and their children are better off to have an agreed divorce. An "agreed divorce" is one in which the parties resolve all their differences "out of court" and ask the court to approve the terms of their agreement. Agreed divorces reduce the bitterness that may exist between the parties and benefit everyone.
Of course the courts will hear any contested case and settle all disputed issues. However, each party to a lawsuit should carefully consider if a compromise is possible prior to asking for a trial.
This brochure explores generally the following topics: divorce proceedings, property division, and children's issues. For more specific information about these topics and your specific situation, consult an attorney or the rules of procedure in your jurisdiction.
The divorce is initiated by filing a petition. The petition is a formal legal document that contains specific background information (such as the date of the marriage, when the separation occurred, ages, names and social security numbers of children), states the reason a divorce is desired, and requests "legal relief" (which includes child custody, property division, granting a divorce and other matters).
The petition should be filed in the court in the county where one of the spouses has been a resident for 90 days. Also, at least one spouse should have lived in the State of Texas for at least six months.
A divorce may be granted upon any one of several grounds. The overwhelming majority of divorces are granted: "[W]ithout regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable hope of reconciliation."
A divorce may also be granted for adultery, abandonment, cruelty, imprisonment, conviction of a felony, living apart or confinement in a mental hospital.
After the petition is filed it must be served on the other spouse unless that spouse waives service in a written, signed document. When served, a person has the right to answer the Petition and to file a Counterclaim for divorce.
After a petition for divorce is filed, either party may request that the court make temporary orders that will control the family situation while the divorce is pending. The temporary orders might include such things as:
A divorce cannot be granted by the court until the petition has been on file with the court for at least 60 days.
In the divorce decree, the court must divide all the parties' community property. The court cannot give the separate property of one spouse to the other spouse, except with the owner's agreement. Therefore the court must decide whether each item owned is community or separate property.
Unless otherwise agreed to in a written contract properly executed by the parties, community property is all property acquired during the marriage, except gifts and inheritances. Property acquired during the separation but before the divorce is final is community property. Money received during the marriage for personal injuries wrongfully caused by another is not community property except to the extent it is to repay for earnings lost during the marriage or for medical expenses incurred during the marriage. Unless proven otherwise, the court will presume that all property owned by the parties is community property.
Debts created during the marriage by either party are usually community property that both parties are obligated to repay. No agreement by the parties and no court order in a divorce proceeding can affect the right of creditors to attempt collection from either party. However, a court can order one party to pay particular debts, including attorney's fees and costs of court in the divorce. The court does not have to award attorneys fees and often does not.
Custody, Visitation and Child Support
Divorce affects the lives of an alarming number of children. With very few exceptions, divorcing couples can and should agree on the issues of custody and visitation. The agreement should ensure that the child or children maintain close and continuing contact with both parties after the divorce is final. If an agreement is reached, the child or children will be spared the unnecessary and destructive discord between the parents.
When custody and visitation issues cannot be resolved by agreement, the court decides those issues. In deciding, the court looks at the "best interests" including:
Visitation is presumed to be appropriate as agreed between the parties, or, when they cannot agree, according to a standard possession order, the terms of which are set forth in the law.
Support is determined by a statutory formula applied to the financial resources available to the party paying support, but can be modified by the court with regards to special factors.
Family counseling and family mediation during a divorce can be extremely helpful to all concerned. Even in the best of divorces there is substantial grief and pain caused by the loss of the marriage.
You and your children need support and care. In addition to the help of professionals and following their advice, the following may help:
This essay, revised January 6, 1997, is closely modeled from a pamphlet revised by Ellen Elkins Grimes and edited by A. Darby Dickerson: Family Law: Divorce available from the Texas Bar Foundation by calling 1-800-204-2222 extention 2610.
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