In the event that 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 issues related to your children and to 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. With these orders, your case does not amount to much more than some negotiations mixed in with some headaches.
It is not an exaggeration to say that if your Final Decree of Divorce is not well drafted that it is not worth the paper that it is printed on. The whole point to a divorce is obtaining orders that you can enforce in the future in the event that your spouse violates some portion of them. Unclear, incomplete or otherwise deficient orders means that the judge will not enforce them. You could find yourself in a situation where everyone involved knows that you meant by something, but if the order isn’t explicitly clear then 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 extremely well thought out and even more importantly is drafted so well as to remove any doubt as to your intentions in negotiating for it. In today’s blog post from the Law Office of Bryan Fagan, I would like to share with you some advice in regard to 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, that 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 final decree before signing it. You need to know how your attorney will approach drafting 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 incredibly important to your life now and in the future. If you have children then the orders that it contains will impact how frequently you are going to see your children, with whom your children will live on a regular basis as well as 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 then you need to have this document drafted and signed well before you head to court for your prove 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 days to correctly draft a final decree of divorce. That much (and more) is what it should take you or your spouse. If you think that you have a good 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, especially 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 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 that goes against state law or public policy then 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 in order to review any settlement agreement between you and your spouse and to 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 fully represent you then the lawyer would be willing to perform these tasks for you as well. 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?
In the event that either you or your spouse have 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 document that is 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. You need to get 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 is going to 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 that they need to be included in the QDRO. The issue is that not all QDROs should be drafted exactly the same. Your plan may require certain language be included in the QDRO in order to divide it up. If you or your attorney use boilerplate language that you found on the internet without checking with the plan first you will be in trouble.
The easiest thing to probably do is ask the plan administrator if he or she would be willing to email you a sample/template of the language that needs to be mimicked in your own 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 drafted. 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 correctly draft the QDRO. 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 if you all are not receiving a portion of an account held in the other spouse’s name, that a QDRO does not need to be drafted.
What about debt? Is that important in a final decree of divorce?
Debt is one of things that we wish we could just forget all about and often times 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 away from debt.
I think the most important part of 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. In fact, it is highly likely that 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 your debts are treated by a creditor.
Let’s say that you and your spouse purchased a home together. Along with the purchase of 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 terms of the loan. Just because you are responsible for its payment 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 decree 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, then you are still responsible for the mortgage payment.
There are ways to protect yourself in situations like this, more than just those that involve a house that has a mortgage on it at the conclusion of your divorce. The key is being able to get protection if your spouse agrees to take on a debt. It could be that the protection comes in the form of additional documents that he or she will sign to make sure that you can come back and get the house in the event that 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 a great 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.