Divorces can be tricky. You probably didn't need me to tell you that, but a lot of people experience divorces that involve one degree or another of complicated negotiation and problems associated with getting to the bottom of a number of issues. Divorce cases involve deeply intimate and personal matters related to your family, your relationships and your money. I can't think of many other processes that involve all of these factors and roll them into one setting. When you file for divorce, you can think about the case as being a business transaction but in actuality it is so much more.
Part of the difficulty in most divorce cases is being able to identify what the pertinent issues are and how to resolve them with your spouse without having to resort to going to court. I think a majority of people believe that divorces are almost always determined in finalized in court. This is actually not true. Most divorces settle outside of court without the need for any sort of judicial intervention. There are many reasons for this, but I believe that cost, time and the unwillingness to submit yourself to further examination by the legal system into your personal lives are among the most important reasons why divorces settle in Texas with much greater frequency than they finish in the courtroom.
With all of that said, that does not mean that you and your spouse will never have to see the inside of a courtroom at all throughout the duration of your divorce. There is a reason that family law attorneys tend to be the busiest of all lawyers in terms of frequency of trips to the courthouse. While your divorce may not require a hearing or trial it is likely that at least one of your attorney's clients requires a trip to the courthouse to finalize some matter related to their case.
One of the areas that you can expect to hit some roadblocks on the way to a successful completion of your divorce is in the area of dividing up your community estate. As I mentioned a moment ago, divorce means that not only will you and your spouse be splitting up time with your children, but you will also be splitting up your money. If your assets and debts are relatively small, then this may not be an area where your case faces a potential roadblock. However, if you own a home, own a business, have retirement funds, earn income from places other than your primary job or have a more detailed than average financial life it may be the case that you and your spouse need to dig a little deeper into your finances in order to resolve your case.
Depending on each of your willingness to be forthcoming with information during the divorce the roadblocks you face could be relatively small or relatively large. One of the suggestions that I typically will provide to people when they ask about how to best prepare for a divorce is obtaining important documents regarding any of the above financial subjects that I just finished mentioning to you. Doing so will allow you and your spouse to organize yourselves before the divorce starts and will minimize any extra work that needs to be done during the case. It isn't often that you can save time and money by doing one thing, but I can almost promise you that you can save both by following through with this piece of advice.
You can save yourself time because it is likely that you will be thinking more clearly in advance of your divorce then you will during the case. I'm no doctor and I have no medical knowledge of this phenomenon, but something seems to happen to a person's brain when they start a divorce where they are not as capable of completing tasks and generally thinking as clearly as they had before the case was filed. By organizing financial documents and being forthcoming with information to your attorney before the case really starts to get underway you can save yourself time and energy that otherwise would need to be devoted to this activity during the case itself.
Additionally, you can save yourself money because if you have problems locating, organizing or sending out information regarding these subjects during your divorce it is likely that you will need help from your attorney. While there is nothing wrong to ask help from your attorney, in fact that is the exact reason while you hired a lawyer in the first place, it will cost you money for your attorney or their staff to help you sort their documents and organize them. Whynot save yourself the hassle, time and money and do the work yourself. This is especially true if you are going to be the spouse who files for divorce rather than the spouse who is served with divorce papers.
Why is it important to organize information for your divorce?
All of the preceding information takes us to this question. Why do you even need to organize information and documentation so meticulously, anyways? After all- aren't most divorces around six months in length? Don't you have all the time in the world, in that case, to organize yourself and put your information together? Getting your ducks in a row shouldn't be that big of a need at the very beginning of your case, should it?
Here's the thing about organizing and delineating information, especially when it comes to your finances in the divorce. Not only do you need to do this for yourself and for your attorney, but you also need to do it for your spouse. Within a divorce, it becomes necessary at a certain point for you and your spouse to understand the nature of your case. While the issues surrounding your lives as parents may be more visible to each of you, your finances may be a mystery to one of you or even both of you.
Let's draw on an experience that I had in the past few years of working with a married couple going through a divorce here in the Houston area. This couple had been married 4 20 years, had three children together and we're more or less able to work through the problems in their marriage. However, at a certain point the two mutually decided to get a divorce. The wife ultimately filed for divorce from her husband and she chose our law office to represent her.
Upon meeting with her for the first time I wanted to get a better idea about her marriage and where things stood with her children and with her finances. It became apparent very early on that the two of them had essentially agreed that our client, the mother, would be raising the children on a daily basis and the kids would remain in the family home after the divorce. Once we determine how best to negotiate through issues regarding child custody, conservatorships and child support it made sense to them consider the financial state of the parties and how that issue was going to be attacked by both sides.
Here is where this family's divorce and our blog post come together: our client in this particular divorce had no knowledge or access to any financial information for her family. Essentially how the family operated was that the father owned a small business that was doing very well. Our client did not work in the business and had no say on a daily basis as to how the business was run. She had no interest in learning about the business and took no initiative towards that end, either. All she knew was that her husband owned a machine shop of some kind and that she had a debit account that allowed her to withdraw money as needed.
While this arrangement may have worked well for these two parents on a day in and day out basis, once the divorce started this presented a problem. That problem was that because Texas is a community property state the value of that business and the assets held by the business or technically community property. This meant that they could be in probably should be divided up in our divorce. However, because our client had no knowledge of the financial details of the business, and even more than that had no access to even a checking account, she was completely in the dark when it came to anything having to do with the family finances.
This is why it is so important that you and your spouse be able to share information about finances with one another during the divorce. There is no way that our office could have adequately represented our clients’ interests in this divorce without being able to figure out information about the value of this business and any other finances associated with it. That doesn't even get into additional information about bank accounts, savings, investment accounts and retirement savings. All these issues are pertinent in just about any divorce.
Discovery as a means to obtain information in a divorce
in some divorce cases the spouses may be able and willing to share information with each other without a court order. We see this happen when parties submit discovery requests upon one another at the outset of a divorce. Discovery requests seek to do exactly what you would think: discover information as a means to learn about the case and learn a little bit about the probable strategy of their opposing party. It is commonplace 2 submit discovery requests upon your spouse at the beginning of divorce. Most of the time you will have approximately 30 days to respond to questions, turn over documents in otherwise submit yourself to the discovery process.
However, if you are not successful in obtaining valid information from your spouse with a simple discovery request you may need to resort to taking your case to a judge. This process typically begins with your attorney filing a motion to compel discovery with your family court. Essentially, your attorney will explain to the judge that despite your validly submitted request for discovery, your spouse has failed to respond in the time period allowed under Texas family law. At that point, a hearing will be scheduled to have the matter addressed by a judge.
If, at the end of your hearing, after hearing all of the facts associated with your case the judge decides in your favor an order will be issued mandating and compelling your spouse to turn over the requested information that you have sought. It is likely that your spouse will be ordered to pay whatever attorney’s fees were necessary for your attorney to prepare and attend this hearing on your behalf. Not only that, he or she would be ordered to turn over the financial documents that could have, theoretically, been submitted to you without much hassle by simply responding to your request for discovery.
if you are in a position where you are in the dark when it comes to your finances and believe that your spouse may have hidden assets or simply have information that you do not have access to , then a request for discovery responses is a good idea in your divorce case. Once it becomes apparent that your spouse will not cooperate to your validly submitted request for discovery then you and your attorney should consider taking your case to a judge so that you can obtain Information that you have a right to access.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material shared in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations in person, over the phone and via video six days a week. These consultations are a great way for you to learn more about our office and about Texas family law. We value the opportunity to represent our clients and their families and look forward to being able to discuss the services we can provide to you and your family, as well.