What do you think about a divorce case what comes to mind? If you are like most people, it is probably a courtroom. Attorneys, you and your spouse, the judge, and a handful of other people. Wooden furniture and the judge banging their gavel. We all know what a courtroom looks like. This is what many of us expect when we begin a divorce.
However, the reality of the situation is that most divorces do not involve courtrooms. True, you do need to go through the courts to get a divorce. For most divorce cases It is negotiation is more likely to solve the disputes in your case. Negotiation geared towards settlement. This is what most divorces end up looking like. Very few divorces conclude in a courtroom. While divorces can end in a trial that should not be your expectation.
Rather, today’s blog post from the Law Office of Bryan Fagan focuses on negotiating a successful family law settlement. Specifically, a settlement focused on a divorce case. While every divorce case is unique there are parts of a settlement that are common across the board in divorce cases. That is what we will be discussing in today’s blog post.
Focusing on cooperation
One of the major sticking points that people experience in divorce cases is trying to negotiate with their spouse. Ironically, the one person who you must negotiate with is the one person that you are likely the most upset with. Going through a divorce means having your emotions under control. Many people do not take seriously the degree to which a divorce can take your emotions for a ride. Acknowledging this reality is the first step towards gaining a better understanding of your case and how to avoid the worst outcomes of a divorce.
Working with your spouse to cooperate during the divorce is your best path toward a successful negotiation. Again, you can define success however you would like. There is no one way to negotiate a divorce. However, we are going to cover a range of topics in today’s blog posts that are frequently negotiated upon during divorce cases in Texas. From there, you can apply the facts and circumstances of your case to these negotiations. Hopefully, you will gain a better insight into your case so that you can prepare more diligently for your divorce.
Everything begins and ends with cooperation. You and your spouse are not going to be able to negotiate with one another when you are in constant disagreement on the issues in your case. It is normal to disagree with your spouse on several subjects related to your case. Again, the two of you should not expect to agree with each other on everything or even most things in your divorce. That does not mean that you cannot be civil with one another and agree to try and cooperate while negotiating.
What are the main subject areas in a Texas divorce?
There are two main parts to divorce cases in Texas. The first is property division. Property division involves several different parts of your financial life. Determining community property versus separate property is likely the most important aspect of the marital property division. From there, you and your spouse would negotiate on how to divide your assets and debt between one another. This requires you to not only have a knowledge of community property law in Texas. Also, you must have concrete goals that are well thought out as well as a plan for achieving those goals.
Next, issues related to child custody are relevant for many spouses in a divorce. Minor children fall under the jurisdiction of a Texas family law court. With that in mind, there are elements to your divorce case that relate to issues like possession, visitation, and child support. Courts and parents alike make decisions based on the best interests of the children. Planning out a visitation schedule and determining rights and duties for each parent are hallmarks of child custody negotiation.
With so much at stake in a Texas divorce it is no wonder that many people feel overwhelmed because of the process. If you are concerned with how you will handle each of these subjects then you should not feel alone. 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. The assistance of a Texas family law attorney cannot be understated during a divorce.
Negotiating property division in Texas
Some steps should be followed when it comes to negotiating a division of your community property. Before you can start to propose a division of the property you need to understand what property is in play. This means compiling a basic inventory of your property. Doing so allows you to have a better feel for the property that exists in your life. In many situations, our lives become so busy that we easily lose track of the property that we own. Performing this sort of basic inventory forces you to come to grips with the property that you own as well as the debts that are owed.
Once you have performed this inventory you are ready to take the next step. In Texas, there are three categories of property to concern yourself with. The first is community property. This is property that you acquired during your marriage with a handful of exceptions. Importantly, community property is subject to division in the divorce. That does not mean that you and your spouse will agree to how the property will be divided, however. That is where the negotiations come into play.
The other type of property relevant in a Texas divorce is known as separate property. This is property acquired by either spouse before the marriage or acquired during the marriage by gift or inheritance. Depending upon the length of your marriage much of your property may be community property. Negotiating on property means agreeing to what category your property belongs in. Once you agree to this you can figure out how to divide the property between yourselves.
How is income treated in the divorce?
A reasonable question to ask yourself is how your income is treated in a divorce. In most marriages, both spouses are working. This reflects the societal reality that both spouses’ incomes are frequently needed to pay bills and maintain a certain lifestyle. As such, you and your spouse both have incomes which may be a part of your divorce. Many spouses deposit their income into a bank account with that of their spouse. Or you all may have separate bank accounts where each of you deposit income.
No matter how you handle your wages once they are earned it is likely that the income is community property. It does not matter where the money goes after you earn it. This is a surprise to many people who go through a divorce. It does not matter if your spouse is a stay-at-home mom while you are the spouse who earns all the income. The income that you earn is just as much your spouse’s income as it is yours.
It follows, then, that the property purchased with the income is treated the same as the income itself. For example, your home, vehicles, personal property, and other effects are likely community property if acquired during the marriage. This is a protection involved with marriage in Texas. Some money earned during the marriage may be separate property, however. Keeping track of this money is critical so that it does not become community property. Talk with an attorney with the Law Office of Bryan Fagan about any questions you have about your sources of income and how they may be treated in a divorce.
Debt and divorce
When it comes to community property division, debt is a relevant subject as well. Debt is a major issue in many of our lives. Credit cards, home equity lines of credit, mortgages, car loans, and student loans are different types of debt that you may be responsible for. For each of these loans, you and/or your spouse signed paperwork promising to repay the loan within a certain. Other terms of the loan including the interest rate also agreed to.
These loan agreements are in place regardless of whether you divorce. Your mortgage company does not particularly care how the money they are owed is paid. Same for the car financing company. Whether you are divorced or single is not a huge concern of theirs. However, making sure that your payments come in on time and in full is what they care about.
Debts can be divided in a divorce much like property is. However, bear in mind that if your spouse becomes responsible for a debt that bears your name you are still legally responsible for the debt. Having a certain level of trust in your spouse to pay that debt is crucial. If your ex-spouse stops paying the debt, then that can reflect negatively on you and your credit. Factoring in these issues within your divorce negotiation is a crucial part of the case, as well.
Division of retirement assets
Depending on your circumstances, it may be necessary to figure out how to divide up your retirement benefits. Let’s consider a divorce where you and your spouse are both in your golden years. Reaching the end of your working years can be stressful if you are not set up to live independently in retirement. This is where retirement benefits come into play. These benefits are subject to division in a divorce under the same sort of analysis that we have discussed earlier in this blog post. However, the numbers tend to be more significant for people who have been working for some time.
The different types of retirement accounts- 401K, Individual Retirement Account (IRA), pensions and 403(b) accounts- become relevant to a divorce, as well. How these accounts are funded, and the length of your marriage determine the type of division possible in the divorce. Defined benefit and defined contribution plans are the two types of retirement plans most encountered.
Consider your age, your health, and your work experience when negotiating on retirement division. The closer you are to retirement age then the more important it is to try and hang onto as much retirement savings as possible. On the other hand, for younger people division of retirement becomes less of a factor, potentially. You may need an infusion of cash after the divorce to help you get back on your feet. That may be a more attractive portion of your community estate to ask for.
Negotiating on child custody issues
The other major area of a Texas divorce relates to child custody. “Child custody” is a broad term. It is used to incorporate topics like visitation, possession, and writing all into one conversation. Surprisingly, custody is not a term that you will find in the Texas family code. Rather, it is a more casual term used by attorneys and the public. However, even judges tend to use this term to describe topics related to minor children. When you prepare for a child custody case it is important to focus on my handful of details.
The most critical detail to the entire case is the understanding that the best interests of your children need to be served first and foremost. The best interests of the child standard look at the needs of your child presently and in the future. This means they’re emotional, physical, and educational needs are all to be considered. Families with unique circumstances like a disabled child may require additional thought and consideration regarding these subjects.
From experience, we at the Law Office of Bryan Fagan can tell you one of the more difficult parts of a child custody case is understanding that your best interests are not always the same as your child’s. So much of the time, we as parents mistakenly put our needs on the same level as those of our children.
While this is understandable in some regards it is not always helpful for our children. Instead, working with an experienced family law attorney can help you to better understand how to position yourself within a child custody case. The emotional and legal aspects of a child custody case are many. An attorney helps you to identify the most critical areas of your case. From there, you can advocate more effectively for your children.
Primary conservatorship
Becoming the primary conservator of your child is frequently cited as the most important goal for many parents in a custody case. The primary conservator of a child can choose the child’s primary residence. Most often that means your child can reside with you in your home. Your child would attend the schools in your school district. This allows you to spend more time with your child.
Along with the ability to determine the primary residence of your child, as the primary conservator you can receive child support. Child support is paid by one parent to the other. You and your co-parent can negotiate a settlement for child support. However, if you are unable to do so a judge would likely determine child support based on the guidelines outlined in the Texas Family Code. The needs of your child need to be considered when assessing child support.
This is not to say that the primary conservator of the children holds all the rights and duties. Rather, parents are most frequently named as joint managing conservators of their children. This means that you and your co-parent will manage the affairs of your children as a team. Many rights and duties are jointly held, and decisions must be made together. The idea that your child’s mother, for example, would be able to have your parental rights stripped or severely curtailed in a divorce is usually unfounded. Mothers and fathers are treated equally in child custody cases under the law.
Final thoughts on how to settle a Texas divorce
There are many moving pieces to a divorce in Texas. Depending upon your specific circumstances you may have issues related to child custody and property division to concern yourself with. These are hefty responsibilities to place on your shoulders. As a result, finding an advocate capable of assisting you in a divorce is crucial.
Hiring a family law attorney is a short-term investment into your long-term future. The Law Office of Bryan Fagan knows what it is like to face difficult times in a divorce. Contact us today to learn how we can be there for you just as we have been there for thousands of Texas families.
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.
