The process of obtaining a divorce under Texas state law is relatively easy and begins when an individual or their attorney files an original petition for divorce. This petition is a two or three page document in which the desire to obtain a divorce is expressed. If spouses cannot work out the details of child support, visitation, property division, and alimony between themselves, then they will have the court do it for them. If spouses are in agreement and there is no conflict, then they can obtain a divorce 60 days after filing the petition; this will require either spouse to go to the courthouse. Once divorced, an individual cannot get remarried until 30 days have passed.
Collaborative divorce is a sophisticated method of getting a divorce that involves parties who both want to divorce but who cannot come to an agreement without the assistance of divorce attorneys. Each spouse will obtain their own attorney—preferably one who has previously handled collaborative divorce cases. Each party must sign an agreement stating that they will not ask the court to intervene in the making of their decisions.
It is unusual for parties to be unable to agree in the collaborative process, but if that is the case, they will have to start all over again, get a different judge, obtain different attorneys, and ask the court for assistance. Since parties who have agreed to the collaborative process intend to reach a settlement and avoid trial, it is rare that the process fails.
Prior to filing for divorce in Texas, spouses must have lived in the county of residence for 60 days and in the state of Texas for 90 days.
The earliest that parties can get divorced is on the 61st day after filing the original petition for divorce. Mediation involves the parties meeting with one another, each in the presence of their own attorney. An interested mediator will hear all of the evidence, rationales, and bickering before making a decision that they believe aligns with what a court would decide. When an agreement is reached in mediation, then each party will have to sign the mediated settlement agreement before leaving. That signed agreement will be taken to the court with a divorce decree that mirrors that mediated settlement agreement. Mediation and collaborative divorces allow parties to avoid the expense of the trial.
A marriage or family counselor can serve as a mediator and can be useful in determining why spouses are so argumentative and unable to reach an agreement. Spouses might agree that the marriage is over but can’t agree on who gets the car, house, more visitation with the children, etc. Family counselors can observe the arguments and encourage the parties to see that the fighting is not only useless but also hurting their children.
A mediator makes a binding decision that will be put down into writing and signed by the parties and their attorneys. This document is called a mediated settlement agreement; once signed, it is nearly impossible to get out of.
The first step in dividing property is to made an inventory of EVERYTHING in the marital estate. If either party owns separate property it should be included in the inventory under the heading “Separate Property.”
Every piece of property should have a MARKET VALUE column; an AMOUNT OWED column (if any); and EQUITY column. Then two more columns labeled HIS and HERS. Fill in the all the columns except the His and Hers columns.
If the parties cannot agree on a division of the property, a family law judge will begin his/her determination of the estate in a 50%/50% split. The judge, in his discretion, will take into consideration many other facts and considerations. An incomplete sampling of those considerations include but are not limited to the following: number of children, any special needs of a spouse or child, amount of separate property the spouses own (if any), the profession of each spouse and how much they make annually, does one spouse need education to be able to make a livable wage, will contractual alimony be awarded, was one spouse the cause of the divorce, abuse of a spouse or child and many other possible considerations.
Finally, the Judge will decide the division of property.
I will end by stating two points that might made you choose to come to an agreement with your spouse on child support, division of property and child custody.
Both Collaboration and Mediation save time and money.
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