When it comes to issues related to divorce, one of the big ones that I frequently encounter with clients is a concern that men/fathers have a tough time getting a fair outcome in divorce cases. Many of these men who come to us for representation have heard horror stories from friends and family about how divorces always go in favor of the woman/mother. The man could have been the best husband and father in the world, yet the divorce still ends up with an advantageous outcome to the woman. With this in mind, men will come to us with an attitude that "anything is better than nothing" and will have resigned themselves to the unfairness of divorce.
Rumors and stereotypes stick for a reason. If there were no truth to the story that men get the short end of the stick more often than not, the stereotype wouldn't have lasted until this day. From what I understand, in prior generations, women and mothers did have advantages regarding issues related to children. Judges presumed women to be in a better position to care for children. As a result, mothers were awarded primary custody of the kids more often than were fathers.
Next, since the mom would be in charge of raising the kids daily, they would be awarded temporary use of the house during the divorce. Fathers would almost guarantee that this would happen since they would more often than not move out of the family house before the start of the divorce. When you leave the house, you lose your bargaining position to remain at home, at least during the divorce. Even if the mother couldn't afford to stay in the place after the divorce, she would be able to keep during the divorce. The father would likely remain responsible for paying the mortgage, as well.
Finally, we have issues regarding property and finances. Since historically, mothers would remain in the home and care for the family, they were typically not able to go out into the workforce immediately and earn an income sufficient to provide a level of care adequate to feed, clothe and house children. As such, men would be in line to pay child support to help her deliver the necessities for the kids. During the mid-1990s, Texas joined other states by allowing for spousal maintenance (alimony) to be paid from one ex-spouse to the other if one of them (usually the wife) could not take care of themselves from a financial perspective immediately.
With that backdrop, the Law Office of Bryan Fagan would like to take some time with you today to discuss whether or not this is the case today. Do men in Texas stand to get a fair deal in a divorce? Can you "get half" of custody with your kids or property in your bank account/home? These are the questions that I will endeavor to answer in today's blog post.
What does getting half even mean?
We like to throw around phrases like "getting half" casually when discussing divorce. Just what that means to you and I could be different, however. I want to spend a little time going over what "half" exactly means in the context of a divorce. If you can gain a little perspective into what a fair outcome in a divorce is, you will be able to better approach this question.
Fairness is in the eye of the beholder. What is fair to me as a man and father may not be appropriate to you as a man and father. However, being a divorce attorney, I can tell you that facts and circumstances almost always play an essential role in a case. If you have set yourself up for an unfavorable outcome, then that will most likely occur. However, if you have made decisions that are in line with receiving a favorable outcome, that, too, is the most likely result for you.
For instance, as we discussed earlier, there was once a presumption in our family courts that women were better equipped to be the primary caregiver for children. I think this is, on the whole, not true, and I think most men would agree. In Texas, a judge will look at the totality of your circumstances and decide the kids' best interests. That could mean that your wife is awarded primary custody. However, if you set forth evidence to show that it would be best for the kids to live with you on a full-time basis, then that is a possible outcome.
With all of that said, it is more likely for your wife to end up with primary custody than for you to end up with that designation. This is true across the board- whether you end up settling your case in mediation or go to a contested trial where the judge decides this issue for you and your family. The secret to this reality is one that many fathers bypass on their way to becoming angry and the "unfairness" of the Texas family courts.
The structure of your family likely favors your wife being named the primary conservator of the kids.
Think about the structure of your family. Even in the best of times, I bet that your wife shouldered more of the burden associated with raising your kids than you did. That's not to say that you were not and are not an involved and loving father. All this means is that you ended up working more and parenting less than your wife. There is nothing wrong with this. You were not doing your children a disservice by providing them life by working. For your family and your family's needs, this may have been what worked best or needed.
However, in examining the circumstances I a divorce, a judge would be likely to give the leg up to your wife when determining which parent is better suited to be the primary caregiver of your kids. Judges like consistency and stability. For this reason, if your wife has been the parent to go over schoolwork, put them to bed, cook for them, pick them up from school, transport them to soccer practice, etc. I would think that the judge would want to allow that to continue- all things being equal.
Again- you cannot go back now and rewrite the past. Nobody is accusing you of being an absentee father if you were not at every soccer game, dance recital, etc. This means that your family took on a common parental framework where the mother did the heavier amount of parenting. Although you didn't do anything wrong, a judge would be unlikely to flip that arrangement around now. That is unless there were other circumstances present that warranted the judge doing so.
So, your history of involvement in the daily parenting responsibilities of your child is essential to this discussion. You should do your best to maintain contact with your kids throughout your divorce if you intend to push for primary custody. Much of the time, men lose out on the ability to become the primary conservator of their children just because they assume that they would not be able to win that argument. Leaving the family home before the start of the divorce and not working to see your kids as much as possible during the divorce will put an effective end to any argument that you are better positioned than the mom to be named primary conservator.
Consider your relationship with your children.
With winning a primary conservatorship of your children, a court will also look to how strong a bond you have with each of your kids. You will likely be at a disadvantage if your children are young due to spending more time with your mom versus you. This doesn't mean that you are not a good dad. Again, it's just the way that life goes for most families. For very young children who are still breastfed, there is an obvious need for child and mother to be close to one another much of the day. That is something that, biologically, you cannot compete with.
It is doubtful that you would win primary custody of your child for children under three as a father. However, if you have been as active in parenting your young child as possible, you can certainly position yourself to have split custody once your child reaches the age of three. Your visitation with a very young child may be limited in their tender years, but as they get older, the three-year-old child can have a more structured visitation with you.
It would behoove you to learn as much as you can about caring for your children. Asking their mother is not a wrong place to start if she is willing to help. Consult with relatives and other resources on how to care for a child on a day-to-day basis. I have found that many fathers have never cared for their children without the assistance of their spouses. It is sometimes a severe wakeup when you are tasked with managing your kids by yourself for an entire weekend. If you are unprepared to do so, that is a bad set-up for you and your kids.
Do not push away your spouse entirely.
If you are getting a divorce from your spouse, it is pretty obvious that your relationship with her is strained. However, if your case makes it to a trial, then the judge will look to see how well you and your wife work together in areas related to your children. Can you set aside your differences and make decisions that benefit your kids? A court will look for this when seeing if you are a candidate to share primary custody responsibilities.
Suppose the judge learns that you have taken extraordinary measures to harm your child's relationship with your spouse. In that case, this is something that could sink any chances you have of winning primary custody or even split custody. Parental alienation is an enormous problem, and judges are not sympathetic to parents who engage in that behavior. Read some of our blog posts on this subject if you are unfamiliar with what I am talking about.
Seek the advice of an experienced family law attorney if you want primary custody
If you are a father who wants to be named the primary conservator of your children, then you have your work cut out for you. Mothers still have a leg up on fathers in this area in most families. However, if you have been just as involved in the day-to-day raising of your kids as your wife, you should pursue your goal. A family law attorney can help guide you in this area. Their advice on what to do and what not to do in conjunction with your divorce can be the difference between winning and losing on this issue. Reaching out to a family law attorney early in your divorce can be the best decision you have ever made.
The experienced and professional attorneys with the Law Office of Bryan Fagan invite you to contact us with any questions you may have about divorce in Texas. We represent both mothers and fathers in divorce cases across southeast Texas. A free-of-charge consultation with one of our attorneys is only a phone call away. You can meet with an attorney in a pressure-free environment and ask questions about your specific circumstances by calling us. I appreciate your interest in this topic, and we hope you will join us again tomorrow here on our blog.