So you have finally made it to the end of your divorce. It has taken a great deal of effort and time. You’ve had to miss some time from work and have had to pay an attorney some money to help guide you through the process. No matter what you have had to go through to get to this point, you probably don’t want to think for a second longer about your case. Once the trial has wrapped up or mediation has been completed you may have thought that all that was left to do was sign the final decree of divorce and you would be on your way towards the single life.
While that may be an option in your case, I would advise against it. The reality for you and your family is that if you have spent all this time going through the divorce you ought to finish your case off on the right foot. That is what I am here to share with you at the beginning of today’s blog post from the Law Office of Bryan Fagan. How can you ensure that your divorce concludes the “right” way? Read through the advice I am about to provide you with to find out more.
To begin, you can’t have a completed divorce in Texas until you have waited at least 60 days from the date your divorce was filed. This means that if you file your divorce and settle the case for final orders two weeks later you will still have to wait about forty-five days to appear before the judge with a signed divorce decree. Odds are decent that this will not be a problem for most of you reading this blog post. A majority of divorces take upwards of four to six months to complete- plenty longer than sixty days. However, for those of you in a rush to complete your divorce, nothing can be formalized for sixty days after the filing of the petition.
What ways can you take advantage of when it comes to settling your divorce case in Texas?
As we have been discussing the past few days, your divorce can be finalized either in mediation, informal settlement negotiations or in a trial. Mediation is probably the most effective and widely used method to settle a divorce. Not only are you and your spouse paying money to show up and utilize the mediator’s services but you are also attempting to avoid spending more time and money in a trial setting in order to finalize your case. These are a couple of strong motivating factors that I think make mediation particularly effective.
People enter a divorce worried about a trial- how much it will cost and how bad the outcome can be, potentially. However, I would tell most of you that the odds of your case reaching a trial are quite low. Do not be so concerned as to assume that your case will not settle and that a divorce trial will be necessary. The numbers say that upwards of 90% of divorce cases filed in Harris County end up settling and never reach a courtroom. Assume that you will need to find a middle ground to conclude your case.
Finally, settlement negotiations that are informal (i.e. outside of mediation) are also in play when it comes to settling cases. However, be aware that there are no guarantees when it comes to informal mediation. Whatever you agree to needs to be signed off on by both parties in a final decree of divorce or neither of you is bound to abide by what you settled upon. In that way, mediation is seen as much of a sure thing.
Once your divorce has concluded what do you need to file?
Like most things in life, a divorce requires that you follow some rules in order to finalize your case. First of all, you and your spouse need to have reviewed and signed off on a final decree of divorce. The final decree of divorce reflects the terms by which your divorce will divide parenting time with your kids, property in the community estate and the rights and duties associated with parenting your child. In short, the decree represents the marching orders that you and your spouse have for years to come.
If you or your ex-spouse has been ordered to pay child support then a Wage Withholding Order will also need to be completed and filed. This order allows the judge to order the obligor spouse’s employer to withhold income from his or her paychecks. That wage withholding order is sent on to the appropriate employer and will be in effect until further orders of the court.
There are various other forms that detail the members of the family effected by the order, Qualified Domestic Relations Orders (QDRO) and other documents like this that are required in counties across Texas. If you do not know what your county requires it is worth looking it up online to make sure that you are not going to court lacking anything necessary. The judge will not hesitate to not grant your divorce and ask you to come back when all of your paperwork iss in order.
What happens if your divorce is to wind up in a default judgment?
All of the aforementioned advice assumes that your spouse is going to work with you on the divorce and participate in the process. What happens, however, if you file for divorce, have your spouse served with notice of the proceedings and he or she chooses to ignore the case? Can you get a divorce even when your spouse refuses to abide by the rules?
In short, yes. You can get a divorce from your spouse even if your spouse refuses to play along. This is known as a default divorce. You can have your own final decree of divorce ready for presentation to the judge even if your spouse has chosen not to participate even after being served and provided with the original petition for divorce.
First, you will need to come to court with a copy of your final decree of divorce. You are able craft the order based on your preferences but it is unlikely, for example, that a judge would allow you to completely box your spouse out of any parenting time with your kids. You should balance what you want to see happen with what is in your children’s long term benefit. Ultimately it is the responsibility of the judge to determine that the order is in the best interests of the children. Absent evidence to counter your positions it is likely that your order will be approved by the judge.
For the sake of due diligence you will need to file paperwork with the court that shows that your spouse was served successfully, that he or she is not a member of the United States military and a document that shows the court that you are providing them with your spouse’s last known address. These forms are probably listed on the clerk’s website for your court but you should call the clerk if you have any questions ahead of time. Again, it is not wise to show up to court and wing it. You will likely be told to come back later when all of your paperwork has been filed correctly.
What does a final decree of divorce have to include for the judge to sign it?
A final decree of divorce is a rather long document when compared to an original petition for divorced. The reason is that the final decree of divorce reflects all of the terms associated with the dissolution of your marriage as well as the court orders that require you and your spouse to abide by these terms until further order of the court.
The two big areas that must be accounted for within the final decree of divorce are provisions associated with the division of your community estate and provisions associated with your children- possession, visitation, support and conservatorship. These are all areas that need to be taken into consideration within your final decree of divorce. Allusions to any of them without concrete orders weakens the document and may not be something that the judge can sign off on.
How is your family home going to be dealt with? Put on the market with a percentage of the equity going to you and your spouse? Are one of you going to remain in the house and pay the other one their equity share after you refinance the mortgage? What happens to your various retirement accounts? Do you need to include a Qualified Domestic Relations Order with your final decree of divorce?
Conservatorship (rights and duties) of your children is the other main area that needs to be met head on. Where are the kids going to live primarily? Which spouse has the right to receive child support payments from the other? You will also need to spell out a visitation plan that is specific enough so that it can be followed reasonably well by you and your spouse moving forward. Remember- an order that is vague may not be enforceable by either spouse and will almost certainly leave you and your spouse confused in the future.
What can a court not do for you and your spouse in a divorce?
There are parts of a divorce that the court cannot force you or your spouse to do. Likewise, just because you have created a court order signed by a judge does not mean that any other entity outside of the divorce must honor every single provision included therein. Let’s walk through a few examples of this while we wrap up today’s blog post.
First of all, if you have entered into any legal contracts prior to your divorce, the divorce decree will not unbind you from the terms you agreed to in that contract. The divorce decree impacts you and your spouse. It cannot force any other person, business, creditor or debtor to take any sort of particular action- even if that action is vividly described in the final decree of divorce.
For example, your spouse may be ordered to pay the entire balance of a credit card debt. However, the credit card company has a contract that was signed by you and your spouse saying that both of you agree to pay the debt. The credit card itself bears both of your names. As a result, you are still legally liable for that debt, even despite what the final decree of divorce states. If your spouses fails to pay the debt then you are still responsible for this failure to pay. The creditor will come after you and it doesn’t matter what your final decree of divorce has to say.
If you are awarded the house in the divorce and are ordered to refinance the mortgage there is nothing that can be done to force you to do so. Again, you have a contract with a mortgage lender stating that you will pay that note. The lender cannot be forced to lend you additional sums of money on a new loan- especially if the lender doesn’t believe you to be credit worthy.
There are other examples of this reality that can play out in your case. If you have any questions about this subject please speak to your attorney or contact our office to set up a free of charge consultation.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan thank you for your time and consideration in spending part of your day with us here on our blog. We offer free of charge consultations for potential clients and anyone interested in learning more about family law in Texas. Please contact us today so that we can share more information with you and to discuss how our office can best serve you and your family.