If you are getting a divorce in Texas, everything you do throughout the life of your case leads you towards the Final Decree of Divorce. This is the document that contains the final orders from the judge in your case. It will direct your actions regarding all your children's issues and property that came from your marriage. You are bound to follow the orders and comply with the requirements of this document or risk facing penalties from the court for violating them. Your case does not amount to much more than some negotiations mixed in with some headaches with these orders.
It is not an exaggeration to say that if your Final Decree of Divorce is not well-drafted, it is not worth the printed paper. The whole point to divorce is obtaining orders that you can enforce in the future if your spouse violates some portion of them. Unclear, incomplete, or otherwise deficient orders mean that the judge will not enforce them. You could find yourself in a situation where everyone involved knows that you meant something, but if the order isn't explicitly clear, a judge will not go out on a limb to enforce it.
Hopefully, you can tell that just how important it is for you to have a Final Decree of Divorce that is exceptionally well thought out and, even more importantly, is drafted to remove any doubt about your intentions in negotiating for it. In today's blog post from the Law Office of Bryan Fagan, I would like to share some advice about how best to draft a Final Decree of Divorce.
I will note that even if you have an attorney representing you in your divorce or plan on hiring an attorney to represent you, it is still a good idea to know how your final decree will be drafted. After all, you will be expected to read every word of your last order before signing it. You need to understand how your attorney will approach drawing this very long document so that you can ask questions and learn about the process as well as you possibly can.
What does it mean to have a final decree of divorce?
Not to put too fine a point on it, but your final decree of divorce is significant to your life now and in the future. If you have children, then the orders that it contains will impact how frequently you will see your children, with whom your children will live regularly, and how much child support you will pay or be paid. To sum it up, your marching orders are contained in the final decree of divorce.
If you are representing yourself in your divorce, you need to have this document drafted and signed well before heading to court for your proof-up hearing. It is not wise to come to court with some notes and then expect you or your spouse to draft the orders while you are in the courtroom. It takes a seasoned attorney day to prepare a final decree of divorce correctly. That much (and more) is what it should take you or your spouse. If you think that you have an excellent final decree of divorce drafted, that means you should go back and check again.
The other thing that you should keep in mind is that primarily if you are representing yourself in the divorce that the judge in your case can and will make changes to the final wording in the divorce if the information has been left out that is necessary or if a mistake has been made. For instance, if you and your spouse have agreed to something against state law or public policy, the judge may cross out your language and insert his own that conforms to these two principles. That doesn't mean that you have done anything wrong necessarily or have angered the judge. It's just that the judge has a job to do as far as following the law.
The last thing that I will note about this subject is that if you are representing yourself in the divorce, you do not have to take on the monumental task of drafting a final decree of divorce on your own without the assistance of an attorney. You may choose to hire an attorney based on a limited scope agreement. This is a relationship where you will pay an attorney a lessened fee to review any settlement agreement between you and your spouse and draft the final decree.
This attorney will not (likely) be willing to attend a hearing with you and will not speak to your opposing counsel if your spouse has an attorney. Now, if you pay the attorney more money to represent you fully, the lawyer would be willing to perform these tasks for you. However, an attorney who is a drafter of a final decree or a reviewer of the draft that you created is a limited scope attorney and does not represent you in your divorce case as a whole.
What role do your retirement accounts play in drafting the final decree of divorce?
If either you or your spouse has a retirement fund that needs to be divided, you will need to have drafted a form called a Qualified Domestic Relations Order (QDRO). The QDRO is a document directed to the plan administrator for the retirement plan that needs to be divided per the instructions in the final decree of divorce. It Is not as simple as filling out this form on the day of your hearing. It would help if you got this form drafted well in advance. Check with your attorney to ensure that this has been done.
First off, you will need to contact the plan administrator of the retirement plan as soon as you know that it will be divided up in your divorce. Get the administrator or their office and the phone and let them know that you need them to send you the language to be included in the QDRO. The issue is that not all QDROs should be drafted the same. Your plan may require specific language to be included in the QDRO to divide it up. If you or your attorney use boilerplate language that you found on the internet without checking the plan first, you will be in trouble.
The easiest thing is to probably ask the plan administrator if they would be willing to email you a sample/template of the language that needs to be mimicked in your QDRO. It is not a bad idea to ask a local attorney to sit down with you and review the QDRO that needs to be drafted.
You may even be able to find an attorney who will accept a flat fee to draft your QDRO once you know how it needs to be drawn. You do not want to put yourself in a position where you are sacrificing tens or hundreds of thousands of dollars due to your inability to draft the QDRO correctly. All the more reason to seriously consider hiring an experienced family law attorney to represent you in your divorce.
Keep in mind that if you or your spouse do not own a retirement fund or are not receiving a portion of an account held in the other spouse's name, a QDRO does not need to be drafted.
What about debt? Is that important in a final decree of divorce?
Debt is one of the things that we wish we could forget all about and often do forget all about. I bet when you talk to friends and family about your divorce, that debt is probably not in the top five or maybe even in the top ten issues of your case that you mention to other people. Yes, it is an important subject, but there are so many other pressing subjects in your divorce to divert your attention from debt.
The most crucial part of the debt in a divorce is that you and your spouse can choose to divide up however you all want. A judge, likewise, can do the same. As long as that division of debt does not run afoul of a creditor's rights, does not go against state law or public policy, then those debts can be divided in whatever fashion you all or the judge choose.
However, the division of debt in the final decree of divorce does not necessarily mean that a creditor will abide by those orders. Likely, the individual creditors will not care one bit how you and your spouse chose to divide your debts in the divorce. Let's walk through an example to illustrate just how much difference there can be between how the decree divides your debts and how a creditor treats your debts.
Let's say that you and your spouse purchased a home together. Along with buying that home, you also took out a mortgage to pay for that home. The mortgage bears the name of you and your spouse. Both of you signed up for the loan and are on the hook for its payment according to the loan terms. Just because you are responsible for its income under the decree does not mean that the creditor can't come after you for repayment.
What ends up happening is that a person leaves the divorce breathing freely because he thinks that the divorce decree can be sent to the creditor to show that he is no longer responsible for paying that loan. The creditor will not consider the order and what it says at all. Your agreement with them was signed before your final decree of divorce. If your spouse falls behind on paying the mortgage, you are still responsible for the mortgage payment.
There are ways to protect yourself in situations like this, more than just those involving a house with a mortgage on it after your divorce. The key is being able to get protection if your spouse agrees to take on debt. It could be that the safety comes in the form of additional documents that they will sign to make sure that you can come back and get the house if she falls behind in payment or receiving an amount of community property equal to the loan's value so that you can be compensated for taking on the risk of your spouse not paying the note after your divorce.
Closing thoughts on drafting a final decree of divorce
Whatever route you choose to take- hiring an attorney or not- you are responsible for the choices that you make. Your future self will not catch any breaks because your past self chose not to hire an attorney. You are better off making a short-term investment of hiring an attorney rather than dealing with the consequences for many years to come of going it alone.
Questions about the final decree of divorce? Contact the Law Office of Bryan Fagan
If you have any questions about the information that we shared with you today, 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 here in our office. These consultations are an excellent opportunity to ask questions and receive direct feedback about your particular case. Thank you for joining us today on our blog, and we hope to see you again tomorrow.