Recently on our legal forum a user asked, “I am getting married in a few months. My spouse and I are each independently wealthy from a previous marriage. I have heard that sometimes courts choose not to enforce a prenuptial agreement. What steps can I take to ensure this does not happen?”
Recently I found out my wife is having an affair. She told me she wants to get a divorce. She plans on marrying the guy. We have two young children together. She also wants me to leave our home. I am wondering why I should leave the home if she’s the one who cheated on me and wants a divorce. I want her to end the affair and try to reconcile the marriage. I am wondering whether I am legally required to leave the home just because she says that’s what she wants. What are my rights?”
Recently no our legal forum a user asked, “I live in the State of Texas. I have been married to my husband for twenty-five years. He came home last night, told me he has a lover, and wants a separation. I am devastated. I do not believe in divorce, and I have some hope he might come to his senses in a few months. Is there a way to file for legal separation in Texas and financially protect myself while I give our marriage a second chance?”
The topic of domestic abuse has been front and center in the media reports over the last several weeks with Amber Heard, Johnny Depp’s wife, appearing in court on May 27 with a bruised cheek and asking for a temporary restraining order against Johnny Depp.
Despite rumors of domestic violence, however, Depp has been spotted out and about with onlookers describing his appearance as “at ease” and “fine.” He even reportedly stayed out until the wee hours of the morning at a bar last week “chatting” with a woman.
Recently on our legal forum a user asked, “I found out my husband is cheating on me, and I am going to file for divorce. My state will allow me to file on the grounds of irreconcilable differences. I am wondering what that means and whether or not I should file a no fault divorce or a fault divorce with the stated reason of adultery?”
TYLA emphasizes need to address domestic violence first
April 27, 2011
[Note: Also see “Getting a Divorce in Houston“]
By Mike Hinshaw
Residents of any state who are facing the painful prospect of divorce often share the same similar questions about residency requirements (six months in Texas), grounds for divorce, where to file, asset distribution, child custody, and so forth. Texas law provides the usual grounds for divorce in appropriate cases but is also a “No-Fault” state.
County of residence
The Petitioner files in the county of residence, usually with the District Court’s Clerk’s Office, although some counties hear Family Law in County Court, so the paperwork goes through the County Clerk’s Office. Also “special instructions” apply in Travis County.
Domestic violence? Resolve that first
However the attorneys at Texas Young Lawyers Association (TYLA) insist that if domestic violence is involved, you must first address that issue. In the introduction to its Pro Se Divorce Handbook: Representing Yourself in Family Court, TYLA writes (in big, all-caps letters): “In the event you or any member of your family is the victim of domestic violence, you should immediately contact 1 (800) 799-safe (1-800-799-7233).
“You should also contact a private attorney or your local Legal aid provider before filing for divorce. This handbook and the pro se divorce process may not be appropriate for a divorce where domestic violence is involved. Domestic violence can include physical, mental, emotional and verbal abuse.”
Having your own attorney recommended
I think it’s safe to assume they intend that if domestic violence is involved, you really do need a lawyer. It’s something they repeat at the beginning of the text, in reference not only to violence but also to all but the very simplest cases, in which both spouses agree on everything: “Divorce is more than an emotional event; it is also a legal proceeding. Failing to protect your rights during a divorce, as with any legal matter, can have serious, longterm consequences . . . . Although you have the legal right to represent yourself in any court proceeding, the process can be quite complex and, if at all possible, it is recommended that you have an attorney represent your interests, especially if domestic violence, child custody or large amounts of property are involved.”
Texas law presumes all property acquired during the marriage to belong jointly to both spouses. Exceptions are things acquired by gift or through inheritance. However, this can get tricky, and if one spouse disagrees, the court will require clear evidence for proof. Furthermore, all debt is likewise a joint responsibility and must be addressed, even if both parties agree on their separate obligations. According to the handbook, agreements can be created before the marriage, or anytime during, to address property ownership.
Spousal support, child support, child custody
The court is limited in what it can order for “alimony” and child support and can not extend beyond certain limits. However, the court has great leeway regarding child custody and visitation.
And that’s where we come in–If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.
Divorce is a difficult decision and should not be made without first considering the impact it will have on you and your family. Talking to a divorce lawyer may be the first step. Your divorce lawyer can also outline your state’s laws for divorce and how they will impact child custody issues, property division, child support, legal separation and spousal support.
Steps in filing for divorce:
- File the Petition for Dissolution of Marriage
To initiate the divorce process the petitioner of the divorce submits the Petition for Dissolution of Marriage to the appropriate court. States may have a residency requirement which must be met prior to filing for divorce. The Petition for the Dissolution of Marriage must state the reason you are requesting the divorce.
- The Respondent responds to the Petition for Dissolution of Marriage
After the petition has been filed a copy will be sent to the respondent. State laws allow the respondent a set number of days to respond to the petition. Failure to respond can be considered contempt.
The Petition generally outlines the basic facts of the case such as parties involved, the assets maintained by the couple and whether they have children. The Petition also may outlines relief for child support, spousal support, child custody and division of assets and debts.
- Answer and Counter Petition
The respondent must answer the Petition and either affirm or deny the petitioner’s allegations. If threspondent does not answer and a waiver or extension is not granted the petitioner may request a default which is the relief which was requested in the Petition.
- Schedule a Temporary Hearing
Under some conditions, a temporary hearing may be requested (while the divorce is pending) by filing a motion to resolve issues related to the divorce. Issues which may be decided at a hearing can include the use of marital assets, temporary custody of the children, temporary child support, and injunctions against misusing the financial assets.
Orders from the hearing are considered legally binding and failure to follow the orders can result in fines or jail time for the violator.
- Attempt mediation
Many states require the parties in the divorce to attempt to mediate their disputes prior to submitting the case to court. Mediation can be done with attorneys for both parties present.
The goal of mediation is to allow a mediator or neutral party to help the spouses resolve their differences. The mediator does not provide legal advice.
- Attend Parenting Classes
Many states have instituted policy changes which require parents to attend parenting classes prior to a divorce. Parenting classes can help parents understand how to navigate the divorce and lower the negative impact of the divorce on the children.
Discovery is the legal process used to gather information from each spouse for the divorce. It is considered the investigative phase, and it is used to resolve contested issues. There are generally five steps in the discovery process, but state laws may vary on how discovery is done.
- Disclosure – Each party is required to provide certain documents to the other party.
- Interrogatories – Questions are sent to each attorney and each party has 30 days to answer the questions. Objections can be made to specific questions if either party believes they could lead to inadmissible evidence. The number of interrogatories which may be asked may be limited in certain states.
- Admission of Facts – Each party may request the other party to admit to relevant facts concerning the divorce proceeding.
- Releases of Information – Requests may be made from one party to the other to ask for third parties to release any documents which are relevant to the divorce proceeding.
- Depositions – Depositions allow the divorce attorneys to subpoena and question individuals who have information that is necessary to the divorce proceeding. All information gathered at a deposition can be used in court and statements are made under oath.
- Divorce Court
Couples who are unable to resolve their disputes through mediation may have to argue their divorce case before a judge. Divorce judges will review the evidence and make their decision. If the parties disagree with the judge’s decision they may file a motion to appeal the order. Motions are often denied, and couples may have to file their appeal with the state appellate court.
If neither party disagrees with the judge’s decision they will sign the final decree for divorce. The final divorce degree will outline all of the divorce issues such as child support, child custody, spousal support, and distribution of assets.
Divorces can be expensive and complicated. If you are filing for divorce, especially if you have children or assets, you may want to contact a divorce lawyer. Divorce lawyers to file all the necessary divorce paperwork and answer all of your divorce questions.
Celebs have access to high-octane lawyers–but what about the rest of us?
April 20, 2011
By Mike Hinshaw
Divorce often becomes–or devolves into–celebrity news in Los Angeles because of the often volatile mix of movie stars, famous athletes from equally storied professional sports teams and the ever-present paparazzi.
For example, Bloomberg reported today that, “Major League Baseball will appoint someone to oversee business and day-to-day operations of the Los Angeles Dodgers as divorced owners Frank and Jamie McCourt argue over how to divide the team.
“ ‘I have taken this action because of my deep concerns regarding the finances and operations of the Dodgers and to protect the best interests of the club, its great fans and all of Major League Baseball,’ Commissioner Bud Selig said in a statement released by MLB.”
Even Michael Douglas, who has been remarried for years to Catherine Zeta-Jones, is back in the glare: his ex-wife wants a slice of the pie from the “Wall Street” sequel because she was awarded money from the original movie a decade ago.
Resources for the ‘rest of us’
But regular people get divorced in LA, too–people who need legal help, family counseling and other services. Fortunately, the LA Superior Court maintains an excellent Web site, with many good resources for anyone beginning the often-painful process of divorce.
According to the site:
This action can be filed by a married person to end the marital relationship between a husband and wife. Along with restoring the parties to single status, the Court will issue orders for custody and visitation of the minor children of the marriage, child support, spousal support, and confirm or divide community and separate property assets and debts.
Once an action is filed by a Petitioner, the other party, Respondent, must be personally served with specific paperwork. If the Respondent fails to file the necessary responding paperwork within thirty (30) days of service, the Petitioner may request an entry of default. Once the default is entered, the Petitioner can complete the divorce proceeding without the participation of the Respondent.
If the Respondent files the necessary responding paperwork, the case will then proceed as either a contested matter or an uncontested matter.
Respondent can elevate separation into divorce
Furthermore, notice by the Petitioner of a legal separation can be turned into divorce proceedings with the appropriate filing by the Respondent.
Also, the Family Law Information Center (FLIC) “provides family law information, referral, and assistance to the public” if the person has no lawyer. However, FLIC can not act as an advocate (legal counsel) for either party.
Remember, legal experts and court officials recommend that anyone contemplating or undergoing divorce proceedings to hire an experienced, trained attorney.
And that’s where we can help. If you’re ready to begin the search for a compatible, well trained, experienced divorce attorney, you can start with our free case evaluation. If you need more information, please browse our site, using the tabs at the top of the page.