Picture the following scenario. You are leaving work one day and walking out to your vehicle, contemplating how to handle a counterpetition in your Texas divorce. Suddenly, a person appears holding paperwork and walks up to you he does not smile but does ask your name. When you identify yourself, he hands you the papers he was holding and walks away. Dumbfounded, you stop in your tracks and unfold the documents that you are carrying. It appears that you have been handed a divorce petition that was filed by your wife. Before you drive off to go home you sit down on a bench and read everything that was handed to you.
It has become apparent to you that your spouse has filed for divorce and possibly a counterpetition in Texas. What this means for your future is up in the air at this point. You have so many questions about where to go from here and few answers to help guide you. However, after doing some preliminary research, you find out that the Law Office of Bryan Fagan offers free-of-charge consultations. Since an experienced family law attorney with a good reputation is what you are seeking, a consultation sounds perfect.
Responding to a Divorce Petition and Filing a Counterpetition in Texas
One of the first things that an attorney with the Law Office of Bryan Fagan would tell you is that you need to respond to the petition. However, there is a limited amount of time for you to do so. Your Answer must be filed within approximately twenty days of having been served with the divorce petition. Our attorneys know that divorce can be a confusing situation to find yourself in. As a result, we want to help provide you with information I can guide you in the early stages of your case. Protecting your rights and helping your children are notable goals of our attorneys in a divorce case.
A divorce case involves several different subjects. The divorce ends your marriage, divides property and debts, and determines custody of minor children. The subject matter of your case will determine which areas you need to focus on. For that reason, you must work with an inexperienced family law attorney. An attorney can help you to learn more about your specific case and different issues which may arise.
Are There Different Parts of a Child Custody and Divorce Case in Texas?
The term child custody cannot be found in the Texas Family Code. Rather, conservatorship is the term that more accurately summarizes the rights and duties that a parent has concerning their children. In addition, visitation, access, and child support are also determined in a divorce. If a counterpetition is filed in your Texas divorce, you’ll need to be prepared for all these issues. If your spouse has filed for divorce, then the odds are good she has put some thought into these subjects already. For you to play catch up, you will need to learn as much as you can about these subjects.
Does a judge need to decide the final issues of your divorce?
One of the great misconceptions about divorce cases in Texas is that judges are the ones who always make the final decisions about a case, including any counterpetition. It is easy to think this based on what movies and television shows tell us. In those settings, it always seems like a judge is the one who determines the outcome of divorce cases. However, in real life, you and your spouse are given ample opportunity to negotiate a settlement to your case.
This is done through working alongside your attorneys. There is ample time in a divorce case for negotiations to occur. For that reason, you need to be able to lean on your attorney to communicate settlement offers and negotiate on your behalf. However, ultimately it will be you and your spouse who accept or decline various settlement offers. Your job is to stay informed of the issues to be able to make good decisions for yourself.
Having an experienced family law attorney by your side is the best way to stay up to date on the important issues of your case. You are only able to make good decisions when you have a solid understanding of the law and your circumstances. This is why having an experienced family law attorney Matters so much. An attorney is not there only to represent you in court. Rather, an experienced family law attorney can help guide you during settlement negotiations and help you learn more about the law. Speak with the attorneys at the Law Office of Bryan Fagan about how we can serve your family.
Community Property Laws in Texas
Community property laws in Texas dictate how your marital property and debt are divided. A just and right division of marital property and debt must be the result of your divorce. Bearing this in mind, you need to understand the basics of community property law in Texas before your case begins. To start with, there is a presumption that all property owned by a union spouse at the time of your divorce is community property. Therefore, it is subject to division in your divorce.
However, you and your spouse can put forth evidence in your Texas divorce case and counterpetition to show that certain property is separately owned by either of you. Examples of separate property in Texas are any property owned before your marriage or property acquired during the marriage by gift or inheritance. Clear and convincing evidence is needed to overcome the community property presumption. As a result, you need to be prepared to have evidence on hand sufficient to prove your separate property argument in your counterpetition.
Debts are also divided in the divorce. Much of the same rules apply when it comes to dividing up debts. An important attribute of a divorce is that a divorce decree does not change any preexisting loan agreements with creditors. For example, your credit card company will still look to you for payment if your name is on a credit card. It would not matter if your spouse were awarded that debt in your divorce. He may be responsible for paying the debt but legally speaking your name is still on the loan agreement.
Dividing retirement accounts in your divorce
One of the major concerns that people have heading into a divorce relates to the division of retirement accounts. Even if you and your spouse are not of retirement age this is still a major subject. Given the length of your marriage, it is likely that at least a portion of your retirement accounts will be subject to division in the divorce. Depending upon the type of retirement account you have different mechanisms in play must be considered. Speak to one of the experienced attorneys with the Law Office of Bryan Fagan to find out more about your specific retirement circumstances.
A qualified domestic relations order (QDRO) is the tool used by courts to divide retirement funds. Your attorney must prepare the domestic relations order before you go to court to finalize your divorce. The reason is that it is most efficient to have a judge sign the domestic relations order in your final or prove-up hearing. Typically, you should contact the plan administrator for the retirement account to verify how that particular organization requires language to be included in the domestic relations order.
Even if you plan on using the form sent by the company that hosts the retirement funds it is wise to have an attorney look over the language. A lot is going on at the end of a divorce. If you have never drafted documents like this there may be small details that miss your attention. For this, it is best to work with an attorney who has served many people in divorce cases previously
Spousal support during a divorce
You may be ordered to pay your spouse temporary spousal support during the divorce case. Or the shoe may be on the other foot and your spouse may be ordered to pay you temporary spousal support. The two of you may agree to temporary spousal support or a judge may order it depending upon the financial circumstances of your case. You would need to ask for temporary spousal support in your motion for temporary orders. The hearing would be set and mediation attended before the hearing. Temporary spousal support is easier to receive than spousal maintenance after a divorce.
What is contractual alimony?
You and your spouse may negotiate a specific amount of money to be paid on a monthly or annual basis from one to the other after the divorce. This is known as contractual alimony. You may be familiar with the term alimony from movies and television shows. Texas does not have alimony as other states do but we do honor the agreement made between spouses for support financially. You need to include the contractual alimony agreement within your final decree of divorce.
What is spousal maintenance?
The last type of spousal support we are going to discuss in today’s blog post is spousal maintenance. A judge may order spousal maintenance in a trial. Typically, spousal maintenance is difficult to receive. Spousal maintenance may only be ordered if you or your spouse lack sufficient property after the divorce to provide for your minimum reasonable needs. On top of that, other circumstances must be in place that would allow for a judge to order spousal maintenance.
The most common circumstance involves your marriage lasting for at least 10 years. Another would be when your spouse is unable to earn sufficient income for themselves due to their suffering from a disability. Or, if your spouse cares for a disabled child and is not able to work then spousal maintenance may be ordered, as well. Finally, if your spouse has been convicted of a crime involving family violence against you or your child within the previous two years then spousal maintenance may also be ordered.
Community Property Laws in Texas and the Impact of a Counterpetition on Your Divorce
A counterpetition for divorce in Texas informs the judge of what orders you would like to see issued in your case. Typically, this counter-petition is filed with your original answer. There are filing fees associated with filing a counter-petition. You can contact the district or county clerk in your area to determine what those fees will be. It is possible to have those fees waived by filing a statement of inability to afford payments. A judge would review your petition and determine whether your fees can be waived.
It is good practice to file a counter-petition for divorce with your answer. This allows you to make your own allegations and request orders from the court. You can think of a kind of petition as playing offense whereas an Answer is playing defense. You may want to bring to the court’s attention specific circumstances not alleged in your spouse’s petition for divorce. Your way to do this is by filing a counter-petition with your answer.
Handling a hearing date in your divorce
Suppose that you have been served with an original divorce petition filed by your spouse and also a counterpetition in Texas. Along with that divorce petition, you see paperwork where a hearing date has been set for something called temporary orders. The first thing that you should plan to do is to attend this hearing. Not going to the hearing means that a judge can issue orders about your life, property, and children without your input. This is a major disadvantage and is like a forfeit in sports. Even if you are unsure of yourself or what the hearing could mean, you should make plans to attend.
An attorney with the Law Office of Bryan Fagan is ready and willing to assist you with any questions you may have about an upcoming hearing. It happens all the time that a potential client walks into our office for a free-of-charge consultation who was just served with divorce papers. Additionally, those papers very well could contain a hearing date. When you have a hearing date already set in your case you need to act. We have what it takes to help prepare you for a hearing date and to help you make the most of the divorce process.
What is the significance of a temporary restraining order?
If your spouse has filed for divorce, then she may have also filed a temporary restraining order. The purpose of a temporary restraining order is to prevent you from doing certain things until a hearing can be held on temporary orders. The duration of a temporary restraining order is typically 14 days. Here are some thoughts from our attorneys on how to handle a temporary restraining order before your hearing.
You should first read the order to make sure that you understand it. Once you have read through it. Make sure that you obey the court orders as they are detailed. This is true even though you have not participated in any process that issued those orders. Some things you see may be out of line with reality or downright unfair. This is to be expected when your spouse was the one to request the orders from the court. However, a judge can still hold you in contempt if you do not obey the court orders.
A temporary order hearing is a great time to be represented by an attorney. An experienced family law attorney can help you to present evidence and refute arguments made by your spouse. Additionally, an attorney can assist you by getting your case in front of an experienced family law mediator. A mediator can help you settle your case before going to court is even necessary. This could help save you time and money.
Final Thoughts on Counterpetitions in Texas Divorce Cases
Having a divorce or counterpetition filed against you by your spouse in Texas can send you reeling. Many people who have a divorce filed against them take time to recover. It can be surprising to hold the papers in your hand that your spouse is trying to end the marriage. Even though it is a very understandable feeling to be caught off guard in this situation, that does not mean you can sit idly by for much longer. You have a family, a life, and children to protect.
Working with an experienced family law attorney is a great way for you to protect those things most important to you in the world. The attorneys with the Law Office of Bryan Fagan Are here to walk alongside you during this difficult time we understand that there are complexities associated with the divorce that you may not understand. However, we are here to help educate you and provide you with the tools you need to make good decisions both for yourself and your children.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
