Can I Get Custody Even If the Divorce Was My Fault?

There are always two sides to every story. That is what we hear when it comes to a marriage on the rocks. We enter a situation with preconceived notions of fairness, right and wrong. We listen to a person tell their story and we get convinced of certain things. Then we listen to the other person tell a completely different story. Sounds plausible enough to your ears. You get conflicted after hearing both sides of the story. Who is right and who is wrong? Who caused the end of the marriage? Tough to tell. 

Now transport yourself from the outside to the inside of this kind of situation. You are the one in the marriage that’s failing. It’s a tough pill to swallow but you’ve surely played your part in these hardships. Now that you can acknowledge these shortcomings it gets easier to think ahead to the divorce itself. Not exactly a pleasant subject to contemplate but it is necessary. You’ve stared down some tough obstacles in your life before. Count this as one more thing on that list. 

In any event, you love your children with all your heart. You want to do right by them. So, you decide to start paying attention to them more than ever before. You’ve run into issues with your attention span previously. Do not become overwhelmed by the magnitude of a divorce. Instead, be renewed in your drive to do your best for your children. 

The Law Office of Bryan Fagan provides you with a game plan for your divorce

The Law Office of Bryan Fagan is here to help you. Stick around and spend some time with us today here on our blog. We are going to show you how to win custody rights that are favorable to you even if your actions (or inactions) played a major role in the breakup of your marriage. The time for finger-pointing will come. However, it is necessary to have a plan if you want to achieve anything meaningful in your divorce.

Don’t just close your eyes, grit your teeth and power through your divorce. Rather, take the time to learn the important parts of your case so that you are not stuck dealing with unfavorable court orders. We will spend some time discussing how to modify a court order that is not to your liking. However, you should not assume that a modification is going to be easy. It is a better idea to get the divorce right the first time. 

Our attorneys are inside the courtrooms of Texas every day advocating for clients. We also understand the importance of negotiation. This is true both to reduce the overall time length of a divorce as well as the costs associated with a case. We have what it takes to guide you in a divorce. We don’t make the decisions for you. You take on the decision-making role. We provide you with a roadmap. 

Getting divorced- does it matter who’s at fault?

On the one hand, it does not matter which spouse is at fault for you to get a divorce in Texas. Some divorce cases center around getting to the bottom of who is more at fault in the divorce. However, plain, and simple it is not necessary to go through the trouble of establishing fault in a divorce. Why? Texas is a no-fault divorce state. This means that you can get divorced in the Lone Star State for no reason at all. Just file and state that there is a conflict in personalities in your Original Petition for Divorce. Done and done. 

Even then, many spouses spend a great deal of time trying to place blame on the divorce. These are the pride-driven fights that tend to bog down a divorce. Who said this and who said that? Arguments about who forgot to bring the kids’ backpacks home and whether it was on purpose. These are the types of arguments I am talking about. Approaching a divorce to settle a score is a recipe for disaster. You won’t be saving yourself any money, that’s for sure. 

In the end, people who get divorced for a specific reason (a cause) are just as divorced as people who get divorced for no reason. Orienting your entire divorce on finding a cause for divorce is not a great strategy. Thinking about what matters most to your children and your future is what matters. If that makes sense to you, give the attorneys with the Law Office of Bryan Fagan a call. We can help you in a divorce where you want to align your priorities with the circumstances of your life.

What is “custody”?

We hear about the word custody a lot in the world of Texas family law. On the blog for the Law Office of Bryan Fagan, we have countless blog posts about child custody. Custody issues are certainly important in a divorce as well. However, would you be surprised to learn that the word custody does not appear in the Texas Family Code even one time? It’s true. Custody is a term that is familiar yet at the same time foreign to the laws of our state. How do we as attorneys explain this contradiction?

Custody is a shorthand, simplified expression used to describe a complex, challenging series of topics, rights, duties, and other aspects of the parent-child relationship. Custody is short and sweet. It’s a part of our everyday language. Talk to fifty people in the street and ask them what custody means. I’m willing to bet at least 45 will tell you something about children or family law. Everyone knows what custody is. So why can’t we figure out how to manage this topic?

Simply put, custody is not as easy as we make it out to be. Being the parent who wins the right to receive child support or the right to determine where the child lives is great but it’s not everything. Relationships are challenging and managing them is an even bigger challenge. When you consider that you and your co-parent need to manage those relationships coming out of a divorce you have a great deal to consider in this case.

Getting custody- what does it mean?

Again, we use custody to refer to a seemingly never-ending list of components and issues related to children’s issues. The actual term utilized in the Texas Family Code to refer to these subjects is “conservatorship.” Look inside the Code for the word “conservatorship” and you find thousands of times this word is used. It just doesn’t roll off the tongue as easily as custody does. However, that does not mean that you don’t have to understand what conservatorship means. 

Conservatorship refers to a legal relationship between two people where one (the conservator) has rights and duties associated with the care of the other person (the ward or in this case a child). The conservator has the right to make decisions for their child. However, the conservator also has the duty to care for the child to the best of that person’s ability. This is where the rubber hits the road. When we talk about getting custody or winning this type of custody arrangement, we want parents to understand that you are really pushing for different rights and duties. 

Joint managing conservatorship- a default setting in custody cases

The presumption under Texas family law is that your child’s best interests are served by you and your co-parent becoming joint managing conservators of him or her. Joint managing conservators means that you and your co-parent share in an equal fashion the rights and duties associated with raising him or her. Time with the child, the duty to financially maintain the child, and an obligation to further the education/health of the child are included in this relationship. 

Joint managing conservators are the default setting in a divorce. Most of you reading this blog post should be prepared to wind up as joint managing conservators of your children. This is a surprising realization for many of you. We at the Law Office of Bryan Fagan know that many parents come into a divorce case with expectations of being named as a parent with “full” custody of their children. Full custody is a term that does not technically exist in family law but we have a solid understanding of what full custody means in the context of a divorce.

Full custody means having physical possession of your child more often than not. It also means possessing the lion’s share of the rights and responsibilities that come with parenting. In short, it means being in the driver’s seat related to your child’s upbringing. If we know that jointly raising your child is the standard, then getting to a point where you have superior rights and duties likely means a fault ground needs to be established in the divorce case. 

Establishing fault in a divorce- why do it?

At the beginning of today’s blog post we covered how it is possible to get a divorce in Texas for no reason. This is known as a no-fault divorce. No fault divorce makes it so you can get divorced because you feel like the relationship has run its course. No specific reason for the divorce. There may be underlying issues to be sure. However, a no-fault divorce does not establish for the record that there was one or two specific identifiable causes that led to your divorce being filed. 

Compare this to filing for divorce based on specific fault grounds. This goes beyond saying that the relationship has run its course or that you don’t like the way your husband chews his breakfast. Rather, when you assert that your divorce is necessary for a specific reason that tells the court you have evidence to prove your point. It is easy to say that you are getting divorced for a specific reason. It is more complicated to back up that language by asserting a particular fault ground with evidence. 

Some of the more common grounds for divorce include adultery, confinement in a mental institution, cruel treatment, and abandonment. Adultery comes to be found immediately for many people who go through divorce. Both because infidelity in marriage is common and because it is not always easy to find evidence of cheating. Having a suspicion that you have been cheated on is not sufficient to prove adultery. Your proof must be more than that. 

Still, why go through the trouble of asserting a fault ground for divorce?

Now that we know what the fault grounds for divorce are and the difference between a no-fault versus a fault-ground divorce, we can get into the most interesting question of all. Why go through all the trouble of proving a fault ground for divorce?

The reality is that some of you are in situations where one of these fault grounds has factored into the divorce. You were cheated on by your husband. Not only that but he used marital property to buy gifts for his girlfriend. On top of everything else, he thought it was a good idea to introduce your kids to this woman. The children came home devastated. This is a huge wrong that needs to be addressed in the divorce.

Or your spouse married you on a Sunday and by Monday he was out the door. He worked on an offshore oil rig on the Louisiana coast. You knew that going into the marriage. What you didn’t know is that the bank account he promised to keep flush with cash for the month he would be working didn’t exist. You had no money, no vehicle, and a house that needed repairs and maintenance. He left you in Texas with this big house and no way to take care of it. This is a situation where filing for divorce based on fault grounds is well merited. 

Do any of these situations sound familiar to you? Contact the Law Office of Bryan Fagan to discuss these and any other relevant circumstances with one of our experienced family law attorneys. It is a challenge to plead and prove a fault ground for divorce. However, we are the partner you need to put your best foot forward in a situation like this. Allow us to guide you in a difficult time like you are going through now. 

Defending yourself when the divorce was your fault

So where does this put you as the spouse who bears most of the blame for the breakup in the marriage? A relationship and a marriage is a two-way street. Both you and your spouse can claim credit for the successes and the failures in the marriage. However, let’s imagine a situation where you are more at fault for the end of the marriage. You committed some act that resulted in your spouse filing for divorce. She successfully collected the evidence necessary to prove the fault ground. Where does this leave you?

For one, don’t give up hope for accomplishing your goals. You may need to modify your goals to take into consideration the fault ground stacked against you. There is sufficient evidence that you acted cruelly towards your spouse. As a result, you are not able to win primary custody of your child. However, this does not mean you can’t win any type of visitation with your child. Do not let the fault ground define you for the divorce. Submit your best evidence to show that you are a good parent. That you are taking counseling or courses to deal with your stress and personal issues. 

Bring all of this to mediation. Your spouse and their attorney may be on a power trip to the point where a mediator needs to put an end to this. Strong evidence of you being a good father can counteract a fault ground for divorce. However, if you give up hope and assume that your case has no end point but a disaster for you then that is exactly what you will get. 

Final thoughts and custody and fault grounds for divorce

If nothing else, allow your divorce to be the first of a series of rehabilitation projects you engage in for yourself and your family. Winning the exact custody arrangement, you want now is not possible depending upon the specific fault ground being alleged. However, diligent parenting and a forward-thinking attitude can overcome these difficulties. Modifying your custody orders in the future is possible. However, you first need to submit your best possible case of a 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. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.

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At the Law Office of Bryan Fagan, PLLC, the firm wants to get to know your case before they commit to work with you. They offer all potential clients a no-obligation, free consultation where you can discuss your case under the client-attorney privilege. This means that everything you say will be kept private and the firm will respectfully advise you at no charge. You can learn more about Texas divorce law and get a good idea of how you want to proceed with your case.

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