The strategy is important in a divorce. As a family law attorney, I understand how complex some divorces can get Anne and how critical it is to develop a case strategy from the beginning. The earlier you develop a strategy and the more closely you follow that strategy, the better off you and your children will be. Those who do not develop goals within a divorce will quickly find that their spouse has and will be behind the 8 balls early in their case. For that reason, you should think through the steps of divorce before your case begins.
The main problem with this is that you may have little to no formal understanding of the steps in a divorce. While you likely know someone in your life who has been through a divorce, you probably don't know each step of a divorce just from talking to this person before. Rather, you may have a general understanding of the case but no specific knowledge. This is where you could be hurt when accomplishing goals and achieving fair and just results. I want to help you learn about divorce in this blog post to help you focus on developing achievable goals.
Accomplishing goals means being able to take your circumstances and plan for the future. Doing so means putting to bed any hopes of going through and relitigating the past. A divorce will offer you plenty of opportunities to think about and consider what has happened in the past, but by no means will it offer you the ability to change what has already occurred previously. I know from experience many people. We'll attempt to use their divorce as a way to relitigate the past and continually discuss how their spouse has wronged them in some way. While I don't necessarily blame these folks for feeling that way, I would advise that you focus on matters that you can change moving forward.
While your divorce may feel like it is taking forever, the reality of the situation is that you will have a limited amount of time to accomplish goals and create a court order that defends those goals. Along the way, you will have to compete with the goals that your spouse is setting. If you do not develop a plan to accomplish those goals, then you will be in trouble. Before you can even get to the point where you have a goal to accomplish, you need to determine your goals and objectives for the case. That is why planning is so crucial to your success in a divorce case. Without proper planning, any goals that may have been achievable will pass you right by.
For starters, let's answer the question posed by the title of today's blog post. Many people hesitate to file for divorce for a range of reasons. You may be concerned that the divorce is going to hurt your children. You may be concerned that the divorce is going to hurt you as an individual. You may be concerned about the future financial implications that divorce may have if you are reliant upon your spouse for food, shelter, and other essentials. There is nothing wrong with having these sorts of concerns, but then again, these concerns are insufficient, in my opinion, to hold you back from filing for divorce if that is what is best for you and your family. I would recommend that you consider those concerns that are based in reality and what concerns are based more so on your fears and unfounded beliefs.
I have talked with people over the years who believe that there is some advantage to two filings, first in the divorce. Other times, I will hear from people that it is better to respond than file for divorce. On a practical level, there is no real difference between the two. Procedurally, the law does not favor the person who files for divorce. However, there are practical advantages to filing for divorce, such as having advanced notice of what is coming in having more time to prepare.
Have you ever been surprised by the actions of another person? Have you ever received news that caught you off guard and left you pondering what to do next? That could easily happen if your spouse files for divorce against you. You can be served with divorce papers out of the blue with no warning at all. This can put you in the unenviable position of having to respond to a divorce that you had not considered previously. What would you do next? Who would you turn to? Would you even know where to begin?
By filing for divorce, you would have ostensibly put some thought into whether or not to file and would have developed goals or at least motivations as to why you are filing for divorce. Most likely, you would have hired an attorney, and that lawyer would have helped you with the process; it would have helped you develop in fine-tune the goals you have set for yourself. This is a distinct advantage because he will not have to spend time thinking about these things while your spouse is being served with the paperwork. Rather, you can take that opportunity to plan the next stages of your divorce or two and put into action some of the goals you have set for yourself.
Another advantage of filing for divorce from your spouse rather than responding would be that you have an opportunity to collect information in documents while you prepare for the case. So much of a divorce is negotiating over subjects related to community property. If you believe that you will be the spouse who leaves your marital home, you may lose access to documents on a home computer or contained in a file cabinet. If you think this is the case, you can use your time preparing for the divorce to take photos of items, inventory rooms in your home, collect documents, and make copies where necessary. I'm certainly not telling you to hide documents or destroy things, but I am telling you that you can take the time to organize your case from this perspective by filing the first period.
On the other hand, responding to divorce means that he will not have this opportunity to prepare as much. Rather, you may end up being caught flatfooted and will have to respond to your spouse, who may be ahead of you in the planning process. This offers a bit of a disadvantage, at least at the beginning of your case but keeps in mind that as long as you respond with an answer to your spouse's original petition for divorce the courts cannot move on without you in the case. You would need to be given notice and the opportunity to respond to any pleadings or an opportunity to attend any hearings that are set up.
If you have been served with divorce papers and it seems like your spouse is light years ahead of you, don't worry. While you may be at a disadvantage from a practical standpoint, for now, you will have an opportunity to catch up to them by being diligent and speaking with an attorney as quickly as possible.
What to do if you are served with divorce papers out of the blue?
Let's suppose that you had been considering filing for divorce from your spouse for some time but that your spouse beat you to the punch. They file for divorce, and you are served with divorce papers at home on a weekday afternoon. You had no idea, but the divorce was coming, and you had not given any specific thought as to how you would go about completing your case. All you know is that one minute you were married, and in the next minute, you had a process server on your doorstep handing you divorce papers. What should you do next?
The first thing I would do is stay calm. Getting flustered and worried about the path of a divorce is not good for you or your children if you have any period; rather, keep in mind that if your spouse wants to get a divorce from you, they can. It does not take two to tango when it comes to a divorce. Rather they can move on with the divorce from you whether or not you choose to participate in the case or not. Likewise, you should not worry yourself too much over what is contained in the initial paperwork.
I would recommend that you read through the paperwork that was served upon you by the process server. Most likely, an original divorce petition will be included that names you, your spouse, and your children as persons participating in the case. There may be some reference to Community property owned by you and your spouse and how you all anticipate that Community property being divided. Also, if you have children, your spouse will likely ask to be named as a primary conservator of the children allowing them to make decisions such as where your child lives on a primary basis.
At this point, you may be asking yourself how you will ever be able to read through divorce pleadings and understand what is being provided to you in the documents. You may be a plumber, electrician, teacher, accountant, or another profession that does not involve the law 1 bit. You've never read a legal document in your life and have no interest in learning to do so at this point in your life, either. After all, isn't that what an attorney's for? I want to encourage you to take ownership of your case, and part of that ownership means understanding as much as you can about the process even before an attorney is hired.
Yes, I would recommend you hire an attorney for your divorce. Having an attorney by your side office you a better chance at accomplishing your goals than not having an attorney. However, that does not mean that you hand your keys to the car over to the lawyer and expect them to make all decisions for you in the case. Rather, you should take ownership which means understanding as much as you can about the process Anne is going through and the trouble of taking time out to read the documents you have been served with. Ultimately you are responsible for your case and not your attorney. The attorney owes a certain degree of competency to you and representing you, but you are not giving them full responsibility for your case. Rather you are a party to the case and not your attorney.
Once you have read through the documents you have been served with and have a basic understanding of what he's going on, you should understand that you have essentially 20 days to file an answer to the documents you have been served with. Failing to file an answer or participate in the divorce does not mean that the divorce goes away. More likely, not filing an answer or participating in the divorce means that you will be living a post-divorce life under the guidelines provided by your spouse. They can proceed with the divorce whether or not you participate. That means that they will create the final orders that dictate life after your divorce. You do not want to put yourself in a situation like this by not responding to divorce as soon as possible.
Even if you are caught off guard by having a divorce filed against you, that does not mean that you can stand idly by. The law allows you some time to get back on your feet as far as responding to the original petition for divorce filed by your spouse. Your spouse will not be able to proceed without you in the divorce, and here she bylaw must provide you with notice of any hearing or other case setting once you file your answer. Talk with an attorney as quickly as possible and interview multiple lawyers before selecting one to represent you.
The attorney will then file an answer to the petition for divorce, and at that point, your divorce has truly begun. Keep in mind that you will be working closely with your attorney throughout the case, so do not miss an opportunity to provide them with context or information that may be important. If your spouse has requested documents or other information via the discovery period, then you should do your best to obtain any documents, statements from retirement accounts, or things of that nature and provide them to your lawyer and their staff immediately. This will help get everyone organized and on the same page.
Final thoughts on whether or not there is an advantage to filing first for divorce
Whether or not you choose to file for divorce depends on several specific factors for you and your family. I cannot possibly tell you whether or not a divorce is right for you or whether you should hold off in hopes of a reconciliation with your spouse. However, I think it boils down to, on a certain level, whether or not you feel like the marriage is salvageable and whether or not you and your spouse are both willing to put in the effort to save the marriage. At a certain point, you have to decide whether or not you are willing to put in the work. If you get to the stage in your life where you are not willing to put in the work to salvage the marriage, then it is time for a divorce.
While there is no legal, explicit benefit to filing for divorce, I think we have covered enough topics in this blog post to show that there are certain advantages, but she may derive from filing before your spouse does. Not the least of which is preparing more fully and with less of a rush for the changes in your life that will be seen as a result of filing. There are many benefits to getting your ducks in a row and being organized as you approach the end stages of your marriage. Simply knowing that you have to be organized, intentional, and goal-oriented for your divorce is a tremendous advantage that you may have over your spouse. Please speak with an attorney about fine-tuning your goals and developing a strategy for accomplishing them.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
if you have any questions about the material in today's blog post; please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations can go a long way towards helping you learn more about the world of Texas family law as well as about the circumstances facing you and your family in whatever stage of a case you find yourself in.
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