If you are like most people who are facing a divorce then you are experiencing a complex set of emotions. Sadness, anger, confusion, anxiety and even fear can enter into your mind and fill you with a great deal of worry in the weeks and days that lead up to a divorce. You have probably never gone through a divorce before. The folks in your life who have gotten divorced may have filled you with the wrong idea about how a divorce goes. One size does definitely not fit all when it comes to getting a divorce.
What I would recommend to you is to take into consideration the advice of people that have not only experienced one divorce- but those that have experienced thousands. The attorneys with the Law Office of Bryan Fagan serve southeast Texans everyday in the family courts of our area. Doing so has allowed us a unique perspective into how divorces work and how to maximize the opportunity for yourself and your family. Divorce is not enjoyable but it can result is the possibility of a new beginning for you and your family. That is the message I want to share with you all today.
Divorce tends to start off as being all about emotion. We’ve already discussed the range of emotions that you may be feeling at this very moment in time. Putting an end to a marriage is enough to put anyone on their backside as far as the emotional impact of the case. Do not underestimate the role that emotion plays in a divorce case. Even if you consider yourself to be someone who is emotionally “stable”, no degree of stability can prepare you for all the elements that a difficult divorce with present you with.
As your case progresses, I think most people find that it becomes less about emotion and more about family and finances. How can you use the facts and circumstances of your case to maximize the time you have with your children and the finances that are relevant in your life? When it comes to your money a divorce has the ability to harm you a great deal moving forward. You could end up spending more than you need to on an attorney and the facts of your case may lend themselves to putting you in an unfavorable financial position.
For that reason, you need to be prepared for your divorce. Heading into a divorce with the assumption that your attorney will handle everything for you and that all you need to do is sign the checks and show up to court is not a productive or intelligent way to go about the case. Ultimately, a divorce is your case- not your attorney’s. You are the person who will have to live with the consequences of a divorce that does not go in your favor. With that said, it is up to you to spend the time that you need preparing for your divorce.
Financial messes and messy divorces go hand in hand
To start with, if you are going through a divorce and either have young children or are in your golden years (aged 55+) then you are at the highest risk of suffering financially as a result of your divorce. For younger adults who have little kids at home you likely do not have much in the way of retirement savings, little liquid cash in an emergency fund and have the added stress of being responsible for caring for your children. Adding in the costs of a divorce and the uncertainty that one presents can be harmful to your peace of mind and to your pocketbook.
If you are in your golden years then you run into the issue of either closing in on retirement and not being in a great position to rebuild wealth that is lost in a divorce, or you may have been a stay at home spouse/parent for many years who is now having to re-enter the workforce. Neither is a particularly enviable position to be in. Yes, if you have not been in the workforce for many years and have been married to your spouse for an extended period of time you may be eligible for spousal maintenance. However, it is still a precarious position to be in- that of having to rely on an ex-spouse for income.
There are many topics that relate to finances that you need to familiarize yourself with before beginning your case. Foremost among them are attorney’s fees, community property, spousal maintenance, debt and retirement savings. These are the main features of a divorce that can impact your finances- either negatively or positively. Child support is another financial topic that is very important which will relate to your divorce in the event that you and your spouse have children under the age of 18.
There is no guarantees that I can give you regarding your divorce case. There is no specific piece of advice that I can give you which will ensure your success in the divorce that you are facing. However, it is my experience that these issues are ones that you should focus on prior to beginning your divorce if you want to make it out of your divorce in one piece from a financial perspective. Negotiations with your spouse on financial issues go much better if you are able to come into those negotiations with some degree of knowledge on the subject matter.
Attorney’s fees- do you really have to pay an arm and a leg to find quality representation?
You do not have to hire an attorney to represent you in your divorce. The court will not refuse to hear your case if you are not represented. Your divorce will just as much merit as anyone else’s who has an attorney. However, the nuts and bolts of a divorce can get complex. Even if the complexity of your case is minimal, there is a time commitment that you need to give to your case if you want to get it done and over within a reasonable amount of time.
Family law attorneys charge by the hour. This means that your attorney will assign himself an hourly rate at which he will bill your case for work performed. He will also assign any other attorney in his office, paralegals, legal assistants and office staff with an hourly rate by which they will also bill your case for work performed. The more complex your case is, the more frequently you contact your attorney by phone or email, the number of court appearances and the degree to which problems arise during your case will all impact how much representation costs you.
Your representation by an attorney will likely begin by you paying what is known as a retainer. A retainer will do exactly what you think it would- it retains the attorney’s services for you during the course of your divorce. Think of a retainer as a down payment for your lawyer- almost like how you would pay a down payment on a motor vehicle or home that you are purchasing. Like those situations, most people going through a divorce will pay their attorney a monthly payment amount to ensure that their case has money available for the attorneys and their staff to complete the necessary steps of the divorce.
Texas is a community property state
The significance for you of Texas being a community property state is as follows: any property that comes into your possession (or your spouse’s) during the course of your marriage is presumed to be owned jointly by you and your spouse. It doesn’t matter who was physically presented when the property was purchased. It doesn’t matter whose income (yours or his) was used to make the purchase. It doesn’t matter whose name appears on the title to the property. It is presumed that if it came into being during the course of your marriage that it is community owned. That means that it can be divided up in the divorce if necessary.
Separate property is the other side of the coin from community property. Separate property is any property that you or your spouse owned prior to your marriage. It also consists of property that was acquired during the course of your marriage by gift or inheritance. So, if your Aunt Gertrude makes it clear that she is gifting you a computer for use with your business (and makes it clear that the gift is for you alone), that would make the computer your separate property. If challenged on that account by your spouse, you would need to present evidence to rebut the community property presumption. A birthday card from your dear Aunt which states that the computer is for you alone and not your spouse would be an example of that sort of evidence.
What about issues like child support and spousal maintenance?
Depending upon the length of your marriage and whether or not you all have children together, the issues of spousal maintenance and/or child support may be relevant to your divorce. To answer the question of which parent is in line to be paid child support, you must first answer the question of which parent are your children going to live with primarily. This is usually one of the most emotional questions for parents to answer in a divorce. You both want to have possession of your kids as much as possible. Typically, however, even when both parents are well situated to take on this responsibility only one of you can be named as the managing conservator of your kids.
In Texas, the best interests of the child will be the standard that a court would apply to your case to determine where your children should live primarily. Best interests of the child means that the judge is able to consider a wide range of evidence such as what environment would foster their educational and emotional growth the best. Whose home environment is more stable, safe and capable of producing contributing members of society. Ultimately, however, the state of Texas allows judges to arrive at this decision essentially any way the judge sees fit.
Spousal maintenance refers to when one ex-spouse pays the other a sum of money on a monthly basis. That is an arrangement that is set up when the ex-spouse who receives the income is not capable of meeting their minimal, basic needs on their own. The court would consider the job prospects, history and earning ability of the spouse who is asking for maintenance.
The judge would also look to the terms of the divorce to determine whether or not sufficient separate property or divided community property could allow him or her to subsist without having to award spousal maintenance. The fact of the matter is that courts in Texas are not eager to award spousal maintenance.
Dividing up property is not always simple
Dividing up community property is not always something that is straightforward. Depending on the circumstances of your case, you may find that you have to utilize a Qualified Domestic Relations Order (QDRO) to divide up a retirement account. This is a document signed by the judge that instructions the folks running your or your spouse’s retirement plan on how to divide up any portion of the retirement account that has been awarded to the other spouse. This document is not overly complex but it does take planning to make sure this process runs smoothly.
We will talk in more detail in tomorrow’s blog postabout some of the other detailed portions of property division.
Questions about divorce and finances? Contact the Law Office of Bryan Fagan
If you have any questions about the material that was 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. These consultations will allow you to ask questions and receive direct feedback from our lawyers about your specific circumstances.