If you are preparing for a family law case of any kind, the decision that you make regarding what kind of attorney to hire for representation is crucial. Not all attorneys are created equal and it is up to you to figure out which ones are capable of providing you and your family with the representation that you deserve. At a bare minimum, the attorney you decide to hire should have family law experience. Being an attorney who has done a divorce or two won't cut it. Trust me- from being in courtrooms and mediations across southeast Texas I can tell you that there is a huge difference between an attorney who has handled one or has handled a hundred family law cases.
As you head into a case you likely have several questions that need answers. Whether this is your first foray into family court or has had multiple family law cases before, I wanted to go over some of the most frequently asked family law questions that you may be asking yourself now. I think going over these questions will do two things: 1) it will provide you answers that you need to expand your base of knowledge on this subject, and 2) it will give you something to ask a potential attorney when you are interviewing them for representation purposes. Simply put, if the attorney you are talking to can't answer these questions then you ought to leave their office and continue your search for representation.
I should mention that the attorneys with the Law Office of Bryan Fagan offer free of charge consultations with our licensed family law attorneys six days a week. You will have the opportunity to ask questions of one of our experienced family law attorneys and to receive direct feedback about your particular circumstances.
Can you make your spouse pay your attorney's fees in a Texas divorce?
When I first have a conversation with a new client I will always ask him or her what their goals are. The "magic wand" conversation is what I call it. I will ask the client to pretend that the pen that I am holding is a magic wand that can grant wishes. I want to know what that person wants to see happen in their case. In a perfect world, what does he or she want to have accomplished when the case is done and over with?
Many times that person will tell me that they want their husband or wife to pay for the divorce. As in, pay actual money for the divorce's costs- attorney's fees, court costs, etc. Their reasoning is pretty straightforward: my spouse caused the divorce to occur and therefore he or she should have to pay for the costs associated with my having to hire an attorney. But for their bad behavior, this person would not have had to hire an attorney, miss work, pay money for a babysitter, go through all the difficulties associated with divorce, etc.
Unfortunately, the situation that led to the divorce is often infidelity/adultery. People who are not faithful to their spouse, in addition to money fights and money related problems, are probably the two most common causes of divorce from my experience. People are enraged, understandably, when they find that their spouse has been unfaithful. There is a betrayal of trust that occurs in a marriage when one spouse has a romantic encounter or encounters with another person. The immediate reaction for many spouses is to move for a divorce.
Just about every adult knows that adultery is a reason why people can get a divorce in Texas. The state has certain "fault grounds" for divorce and adultery is one of those. What confuses some people is the issue of whether or not there has to be a "reason" listed in their petition for divorce, or if two people can get a divorce in Texas for no particular reason at all.
The answer is that Texas is a no-fault state as far as divorce is concerned. This means that you or your spouse can file for divorce at any time you want, for any reason (or none at all). No-fault grounds means that you are telling the court that your marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
Before you start to think that I suddenly became a very eloquent writer, that is the exact language from the Texas Family Code that is used in divorce documents every day in our state. Basically what it says is that you and your spouse's personalities differ to such an extent that you can no longer continue to be married and have no reasonable chance at reconciling. The bottom line is this: you can get divorced in Texas for something as serious as domestic violence or infidelity or for something as silly as your not liking the way that your spouse chews their dinner.
Either way, the divorce process will work the same- fault grounds or not. You will file a petition for divorce which will be answered by your spouse. From there you will either negotiate for final orders or attend a trial in which a judge will issue final orders for all the relevant areas of your case. Those final orders will be contained in the final decree of divorce that you, your spouse and the judge sign. Once that step is accomplished your divorce will be complete.
What are the fault grounds for divorce in Texas?
If you believe that you have a very good reason for divorcing your spouse, more significant than how they chew their food, then you will need to specify that particular reason in your petition for divorce. We call those "reasons" for divorce "fault grounds" for divorce. We've already discussed adultery as a fault ground as well as domestic violence (which falls under the headline of Cruelty). Additional fault grounds include conviction of felonies, abandonment, living apart and confinement in a mental hospital.
Whether you can cite one of these fault grounds for divorce or not, your spouse cannot offer a defense to the divorce petition that is sufficient to stop the divorce from occurring. Once the petition for divorce is filed, as long as you meet all the requirements for getting the divorce done you will get a divorce. This is true whether or not your spouse wants the divorce to move forward or not.
Why do fault grounds matter in the long run?
This is a relevant question to ask. If the only reason why fault grounds existed were to forever memorialize your divorce as one caused by your spouse's bad behavior, then fault grounds wouldn't serve much of a purpose other than to make you feel a little better by hurting the pride of your spouse or embarrassing him or her. However, this is not much of a victory for you and doesn't serve much of a purpose for anyone.
The purpose that fault grounds in a divorce serve is that a court may choose to consider the conduct of your spouse when determining how to divide up your community estate in a divorce. This is especially true when the fault ground involves your spouse misusing or abusing community assets. Such as if your spouse spent thousands of your community property income on gifts or hotel rooms, etc. for a girlfriend of his.
Courts start from a position that any community property owned by you and your spouse should be split evenly in your divorce. However, judges can take the specific circumstances of you and your spouse into consideration in awarding a disproportionate share of the estate to either you or your spouse.
This is where fault grounds come into play. Courts will not award a disproportionate share of your community estate to you to punish your spouse, but rather to divide things up in a manner that is fair and reflective of the relative fault that each spouse played in the breakup of your marriage. If your spouse was abusive towards you or used your community estate in a way that is inappropriate and wasteful then those are two grounds for divorce that you should consider filing under.
What do you need to do to prove a fault ground for divorce?
There is a big difference between telling a court in your petition for divorce that your spouse engaged in adulterous behavior, but it is an entirely different thing altogether for you to be able to prove those grounds for divorce to the extent that your final decree of divorce states that adultery was the cause of your divorce. The way to bridge this gap is to be able to prove that your spouse committed adultery (or any other fault ground) against you, therefore causing the breakup of your marriage.
If you are attempting to assert a fault ground for divorce, then it is up to you to establish the cause of action by a preponderance of the evidence. This means that you must be able to show that it is more likely than not that the fault ground led to the breakup of your marriage. You must be able to assert the cause of action and establish the facts sufficient to prove that cause.
What can be done (if anything) to keep your spouse from draining the bank account?
Are you concerned about the possibility of your spouse taking every penny in your joint bank account and either spending it all or hiding it from you? These are very well-founded concerns. People are not themselves during a divorce, and typically people end up being the worst versions of themselves due to the stress of a divorce. This can very easily lead to your spouse taking some liberties with the money that he or she has access to. Is there anything that you can do to prevent your savings from getting drained by your spouse while the divorce is going on?
After you file your divorce you can ask the court to grant what is called a temporary restraining order (TRO). This restraining order can be granted immediately upon the filing of your case without first having to go to a hearing to allow your spouse to offer arguments as to whether or not the restraining order should be granted. The purpose of the restraining order is to preserve the property of both you and your spouse.
Specifically, you and your spouse will be prevented from communicating with your spouse using vulgar language, threatening your spouse either in person or by phone, destroying the property of your spouse or harming your children. There are additional protections in place relating to damaging or tampering with the property of your spouse, as well.
What you can continue to do is spend money on reasonable attorney's fees. A temporary restraining order cannot prohibit you from entering your residence or from conducting your normal activities related to work. Otherwise, the temporary restraining order is a great way for you to protect yourself, your children and your property while you wait for a court date.
More frequently asked questions related to divorce- and their answers- in tomorrow's blog post
Please join us tomorrow as we continue to discuss frequently asked questions and their answers to important divorce problems. In the meantime, if you have any questions about the material contained in today's blog post then 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 are a great opportunity to ask questions and receive direct feedback about your particular circumstances.
Our attorneys and staff represent clients across southeast Texas and do so with a great deal of pride. We put the interests of our clients ahead of ourselves and strive to provide the best in legal services to those clients and their families. Thank you for spending part of your day with us here on our blog.