We have all heard the statistic that is thrown around these days that half of the marriages end in divorce. It can certainly seem like it at times. We hear about people getting divorced all the time. The reasons why a couple may end their marriage are unique to them but some combination of infidelity, money fights, money problems, disagreements on children, stress, apathy, and emotional distance usually are some of the most common reasons why marriages end in divorce. If you are facing a divorce in your own life, then you may be interested to learn more about how the length of your marriage can impact divorce settlements.
One of the great misnomers about a divorce case in Texas is that once you file for divorce the case is completely in the hands of a family court judge. This family court judge would essentially do all the decision-making for the two of you and would then leave you and your spouse to simply be bystanders or observers in your divorce. Judges bang their gavels and you and your spouse would just nod your heads, sheepishly accepting everything that the judge has to say. Is this really what you and your spouse should expect in your divorce?
What happens in a divorce?
We’ve all heard the expression: People are unique as snowflakes. The point is that no two people are exactly alike. Have you ever met identical twins? These two people could look exactly alike and, in many ways, they probably are very similar. However, it is not strange that one likes a particular kind of food while the other can’t stand to eat it. One of them is interested in sports while the other is an actor. No two people are the same. Just the same, no two divorce cases are the same.
You should expect a family court judge to look closely at the circumstances of your life to determine how to proceed with making decisions. Do not necessarily rely in total upon the beliefs or opinions of your friends or neighbors to guide you in your divorce. Rather, you should be prepared to take on your divorce one day at a time. What you encounter in your divorce case is probably not going to be what your friend or neighbor encountered in their divorce. That's ok. It's great to have a support system that can provide you with guidance about your case. Just don't take everything they say as Gospel-level truth.
If we are going to look at divorce cases from 30,000 feet in the air and make some general statements, the first I would talk to you about is that most divorces do not get decided in a courtroom. You may spend some time in court but probably not in a trial. A trial, of course, is the final courtroom appearance that a person can make in any contested divorce. You submit evidence and your spouse does the same. The judge takes all the evidence admitted into the record at the end of a case and then issues a series of decisions on any issues that were outstanding. You and your spouse would then live by those orders.
This is a problematic situation for many reasons, not the least of which is that you and your spouse are allowing a stranger to step into your lives and issue decisions that are intended to be in the best interests of your children and yours as well. No matter how long your trial is or how well your attorney presents the case it is no doubt that the judge will not know you and your spouse as well as the two of you know each other and your family. This is true even if you and your spouse are not necessarily seeing eye to eye now. Which is likely considering that the two of you are going through a divorce.
Do not let the disagreements that you all are experiencing hold you back from having some optimism that your divorce can be settled rather than thrown to a family court judge. The system is designed to draw out the divorce and force you two into a settlement. Those divorces that do not settle and instead go before a family court judge are the exceptions rather than the norm. You should expect to be able to settle your case and not rely upon a judge to make decisions for the two of you. The most important reason why this is the case is due to mediation is so effective.
The role of mediation in a Texas divorce
Mediation is a process where you and your spouse mutually agree to have a third-party attorney host the two of you and your lawyers for formal settlement negotiations. Throughout the divorce, the two of you will be negotiating with one another on the issues of your case. Some of those settlement negotiations will be done directly with one another and some will be done through your attorneys. However, settlement negotiations are not going to only occur in mediation. If mediation is the only place that settlement negotiations occur, then something has gone wrong in the case. However, even little by little the two of you will be negotiating during the "downtime" that is plentiful in your divorce.
When you arrive at the mediation location you will be put in one office while your spouse is in another. Many spouses cannot stand to be near one another during a divorce. Having to look across the table at your spouse on the other side can be enough to make even promising settlement negotiations go haywire. Next, we can appreciate how mediation allows the mediator to get in between both sides and offer different perspectives on the settlement negotiations. Even the attorneys in a divorce can get tired of interacting with each other by the end of the divorce. It's not that your attorney will become unprofessional, but another old saying is that familiarity breeds contempt. After so many negotiation sessions, phone calls, and emails, your attorneys will be tired of one another, as well.
This is where an experienced mediator comes in handy. The mediator can sanitize settlement offers that otherwise could have come off as aggressive, pithy, or full of attitude. When we talk about a mediator, he or she is acting like a ping pong ball, going back and forth between you and your spouse to communicate settlement offers and counter offers as well as give you all some food for thought as you think about the case and your prospects of going to trial. Sometimes playing devil’s advocate is the most important role of the mediator- someone who can help you to view the other side of an issue that you may not have been considering fully enough to that point.
Another benefit of working with an experienced mediator is that the mediator is likely to be a practicing family law attorney or even a former judge. Both groups of people have the sort of experience inside the courtroom to be able to help guide you when it comes to anticipating future actions and likely outcomes in a trial. Sometimes a client may need to hear from another person besides their attorney that a certain outcome is likely. The mediator does not represent either party but can provide information or context that is designed to help the two sides settle their case rather than proceed to the courtroom for a trial.
Here is the main point I am trying to make for you. Assuming that you will need to go to trial in a divorce is incorrect. Making that assumption is understandable but once you start to internalize that mindset it can start to impact your perspective on the case and on how you are going to be moving forward with your case. Remember that you could direct the course of your case and do not need to necessarily go to trial. It can happen but do not assume that you will have to do so. Once you know that there are options other than a judge issuing a ruling in the case the way that you negotiate and approach your divorce may change for the better.
How does marriage length impact your divorce negotiations?
The length of your marriage can have important consequences on how your divorce settlement ends up looking. I am going to discuss this subject with you all in the following way. There are two parts to a divorce. Property division and child custody/conservatorship. The length of your marriage can have direct and indirect impacts on each side of your divorce. We are going to cover both sides in closing out today's blog post. The discussion we are about to have is very general so if you have a specific question about an area of your particular divorce then I would encourage you to contact the Law Office of Bryan Fagan today to schedule a free-of-charge consultation with one of our experienced family law attorneys.
On the property division side of the ledger, Texas is a community property state. This means that when the property is divided in a Texas divorce it is likely to be property that was purchased or acquired during your marriage. Here is where Texas differs from many other states when it comes to property division. First, income earned during the marriage counts as property. So, if you earned $150,000 per year on average and your spouse never worked outside the house then not only is your household income $150,000 but your community property income is $150,000. Your spouse is viewed under the law as having earned that money just as much as you have. Here is why that is important to learn.
If the income that you used to purchase property is community property, then the property that you purchased with the income is also community property. It doesn’t matter if your spouse was a stay-at-home mom and you were a VP for an oil and gas company. The home you bought during your marriage, your cars, jet ski, stocks, bonds, mutual funds, etc. is all divisible in the divorce so long as they were all purchased with income during your marriage. You should not expect to be able to keep the property that you own just because you bring home the bacon. Keep this in mind as you think about negotiations. The longer your marriage the more likely it is that your community property will be greater in number than if you were married for a short period.
The length of your marriage will also impact property division in the sense that your retirement income may only be divisible if you were married for at least ten years. This is true with some government retirement benefits such as those which are offered through the military. An example would be if you and your spouse were married for twenty years, of which your spouse was in the military for that entire period. If that were the case, then you would be eligible to keep health insurance through the military even after you get divorced. You would also be eligible for a portion of your spouse's retirement benefits.
Another area of your divorce that is impacted by the length of your marriage is spousal maintenance. If you are seeking post-divorce financial support from your spouse, then you need to know that in most cases you all must have been married for at least ten years to be eligible. There are exceptions to this rule but in general, the if you were married for ten years then your spouse is eligible for spousal maintenance as are you. The longer you were married equates to a longer period that a judge may award spousal maintenance.
Imagine a situation where your spouse stayed at home to care for the house and your children while you went out into the workforce and earned a great salary for you all. Or a situation where your spouse worked a couple of waitressing jobs when you were younger to put you through dental school. In either of these scenarios, the length of your marriage matters to a judge because if called upon to decide regarding community property division he or she may be more likely to award your spouse a disproportionate share of your community estate with a background like this.
The reason being is that a judge would understand that the wealth of your family was due in part to your spouse's willingness to work hard while she was younger to provide you with the income needed to go to school and make a great living now. Especially if you got married young and your spouse has little in separate property then a judge would be even more likely to award her a disproportionate share of the community estate to help her stay on her feet while she transitions into single life. Additionally, her income earning potential is not as great as yours in part because you all decided that she would stay home with the kids while you gained experienced, beefed up your resume end got a lot of hard work under your belt.
Finally, the length of your marriage can impact how your retirement benefits are divided. Imagine a situation where you and your spouse have been married for forty years or more. I know it sounds odd to think about people who have been married for that long getting a divorce, but “golden years” divorces are increasing a great deal. With that said, if retirement benefits are important for you and your divorce then the longer, your marriage has lasted the closer you are to retirement age. You are very likely to negotiate differently if your retirement were five years away than if it were 45 years away. Your divorce settlement may look like you have focused your attention on retirement savings rather than upfront cash. This is a logical decision for you to make given that you are closer to your retirement years than a younger person will be.
Last, the length of your marriage has an impact on how child custody is determined insofar as if you were married for a very long time then it is unlikely that you have minor children whose rights and duties will be a part of your settlement. Parents who have been married for a short period are more likely to be parents of young children and that will be an issue in the divorce.
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 contained 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 consultations six days a week in person, over the phone, and via video. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.