Nobody who goes through a divorce does so to fight tooth and nail with their spouse along the way. We often hear that the path of least resistance is typically not optimal. However, the path of least resistance in a divorce may end up being beneficial for both you and your children. Assuming that a divorce will be a knockdown, the drag-out fight can be the first step towards a difficult and contentious divorce case. I believe that it is good practice to begin a divorce, assuming that you and your spouse will end your marriage amicably.
However, at the end of the day, to assume that there will not be any conflict in a divorce would be unrealistic, most likely. After all, you are ending the most important relationship of your life and are having to divide up your property, time with your children, and the rights and duties as they pertain to your children. To think that all of that could occur without at least some degree of conflict may be just as foolish as to believe that your divorce will be nothing but conflict from beginning to end. I think they are a point in between these two extremes where you and your spouse can accomplish your goals and seek to keep the peace between you.
For many married couples, this can start with discussing the state of your marriage and where both of you see it going, if anywhere. A difficult reality for many of you reading this blog post will be that your spouse can divorce you no matter what your feelings are. I want to think they’re in a functioning relationship; you would have some say in the future of your marriage before a divorce petition is filed. However, I know from experience that this is not always the case, and you may find that your spouse is not willing to work with you on any issues you were experiencing in your marriage before filing for divorce.
However, in some cases, you may be able to talk with your spouse before any decisions are made and seek outside intervention to avoid the finality of a divorce possibly. Even if this conversation does not occur before divorce being filed, it is certainly possible to work with them until the divorce is final to save your relationship possibly. While I may think that there is benefit 2 trying to save the marriage before divorce is filed, the law does not prohibit you from stopping the divorce when it is partially complete if you all determine that the relationship can be salvaged, and that is what both of you want.
Many times this means talking with an experienced marriage counselor or therapist. There are many different options in this regard, such as a traditional marriage or family therapist, a pastor or priest, a family member who can speak honestly and candidly about your relationship with the two of you, or even an experienced family law mediator who may be able to help you identify if she’s in your relationship to fix them before a divorce becomes necessary.
My point is that you have options before you as far as avoiding the permanency of divorce. The emotion that goes into filing for divorce should not be understated. There is something about filing the paperwork associated with the divorce and having your spouse served with notice of the lawsuit that has some degree of finality to it. While the reality is that you can stop the proceedings at any point with your spouse’s consent, the reality of your situation is that It can be difficult to convince your spouse to stop the divorce midway when it has already been started.
Using whatever capital you have in their relationship to attempt to work out your problems before the divorce is filed would be an ideal first step towards an amicable divorce should one need to be filed. Entering into a divorce with bad will or anger towards your spouse is a telltale sign that you all will have a difficult divorce case in front of you. On the other hand, if you have shown a willingness to meet your spouse halfway and be honest about your marital difficulties, then a contentious or conflict-filled divorce would be less likely to occur, in my opinion.
Is a premarital or post-marital agreement possible for you and your partner?
Many times when we hear about a prenuptial agreement, it is our instinct to raise an eyebrow and question the circumstances under which such a document can be negotiated and completed. In our culture, we assume that these sorts of documents are typically done either when two persons are very wealthy or when one spouse is trying to trick the other spouse into doing something against their best interests.
The reality is that entering into a premarital or marital property agreement can be a great decision for both persons involved. For instance, a premarital property agreement can be a brilliant contract to sign with your fiancé if you are trying to protect them from taking any responsibility in the marriage for deaths associated with your business. Why not seek to remove a potential point of conflict in your divorce before your marriage even begins.
You may take steps towards preserving an amicable relationship with your spouse through signing a marital property agreement. Married people can choose to negotiate with one another on subjects related to their community estate while they are on good terms rather than after a difficult relationship has already begun. As it has been said so many times: an ounce of prevention is worth a pound’s worth of cure. This means that if you can avoid a problem before it starts, that is even more valuable than learning how to solve it once it has arisen.
Being in a position to enter into a prenuptial agreement takes honest dialogue and trust with your fiance. Not only do you have to be able to identify potential weaknesses or trouble spots in your relationship, but you need to have trust with one another even to have these discussions in the 1st place. I think most people who are getting married do not trust their fiance to put themselves in this sort of situation. This is a shame because doing so can help work through problems and benefit the relationship in the long term.
I hold this view because you could look at the negotiation process in a prenuptial agreement as a kind of counseling. Even though you anticipate getting a divorce by even drafting a prenuptial agreement, you are also taking steps towards open and honest dialogue. Having the presence of mind to talk about difficult spots in your relationship before you get married takes a great deal of trust and maturity. The willingness to engage in difficult conversations like this can be the difference between a successful and unsuccessful marriage.
The document you create and enter into with your fiance only has a legal effect if a divorce is filed. You can create a prenuptial agreement with your spouse, and it will have no legal force if you all never get divorced. On the other hand, if you and your spouse get divorced, this document can be an important step towards avoiding conflict in maintaining a sense of civility during the case.
Hiring an attorney can help keep the peace more than you may think.
The general perception over a divorce is that the case will only become more contentious if an attorney is hired on either side. However, I think that this is a false assumption and is not true across the board. In my experience working with different types of couples going through divorces, an attorney can provide a lot of benefits for you and your spouse in a divorce, both in the early stage of the case and towards the completion of the divorce.
One of the many benefits of hiring an experienced family law attorney to represent you in a divorce is that you can now speak with that attorney for a consultation. Most family law attorneys do not charge for an initial consultation. This allows you to provide information to the client about the nature of your case, and you can receive feedback from the lawyer. Many times I will talk to a potential client about their case. In that discussion, the potential client will realize that a certain issue in their marriage is not as significant as they previously believed.
By the same token, a simple conversation with an experienced attorney can help reveal fault lines in the relationship that otherwise may have gone undetected. There is nothing worse than a surprise in a divorce. While I am trying to maintain a certain sense of optimism for you when writing about divorce, there are no two ways around the fact that a surprise in a divorce case is usually a bad thing. Discovering that your spouse has been unfaithful to you, has mismanaged money, or is attempting to army relationship between you and your children can be a damning thing to learn. Oftentimes it is extremely difficult to almost impossible for a person to amicably work through a divorce after finding information like this out through the legal structure of your case.
Rather, why not use this opportunity to speak with an experienced family law attorney to determine what issues may be relevant in your case that you had not already perceived to be in play? It costs you nothing but a small percentage of your day in having a conversation. You are under no obligation to hire the attorney that you have your consultation with. The information you learn in this consultation can be invaluable to you when setting the course for a divorce that is more amicable than contentious. While not every conversation you have with a potential attorney will reveal game-changing information or perspective, the opportunity loss is not engaging in these types of conversations can be particularly damaging to tear life and potential divorce.
Utilize mediation rather than litigation to maintain an amicable divorce
Without question, sometimes an attorney and client find themselves in a circumstance where a trial in the divorce case becomes necessary. For instance, if both you and your spouse are angling to be named as a primary conservator of your children, there is no middle ground between your two positions. When both of you believe that you are suited to care for your child consistently, and you both want to determine that Child’s primary residence, then a divorce trial on this issue may become inevitable.
In many divorces, the need to attend the trial or even a temporary orders hearing is much less apparent. Most of the time, I think agreements between houses are relatively simple to reach if time and care are taken to have conversations and engage in honest negotiation from the outset of the case. Even if all you can do is arrive at general conclusions in points of emphasis through negotiation, you can utilize the services of an experienced family mediator to help put you and your spouse over the top as far as reaching potential agreements and settlements on different subjects.
Mediation is a process whereby you and your spouse agree to appoint a mediator to help you settle your case either for temporary orders or final orders. In most jurisdictions in Texas, mediation is required by family court judges before either type of hearing or trial. One of the reasons why so many family court judges promote mediation is that it helps to avoid trials. Still, it helps parties negotiate their way through subject matter that they can better approach than a judge would be.
Think about it in terms of time spent on your case. Even the most diligent family court judges will have a limited opportunity to work with you on your case as far as sorting through issues and arriving at fair and equitable determinations. There are time limitations and restrictions that even the most conscientious judge must adhere to. If you are interested in working out solutions that suit you and your spouse well, you are better off negotiating with one another than relying upon the decisions of a judge who will not know you or your spouse nearly well enough to make decisions that are across the board beneficial for all of you.
Displaying a willingness to negotiate and meet your spouse halfway on as many issues as possible is probably the best way to ensure that your divorce is amicable. To burn freely, a fire needs oxygen. In the same way, for a conflict to burn freely, oxygen is also needed. When you and your spouse are trading barbs back and forth with one another, there is ample opportunity for a fire to be ignited metaphorically speaking. Mediation seeks two remove the kindling that would be used in starting contentious in a conflict-filled month within a divorce.
On the other hand, mediation takes the air out of any potential disputes that you and your spouse may become engaged in were you not to engage the services of an attorney or mediator. There is nothing wrong with having fruitful and result-oriented discussions with your spouse in a divorce, even if those discussions are contentious and difficult to engage in. However, if we’re honest with ourselves, many of these discussions would not be helpful and instead seek only two cause animosity to rise between you and your spouse.
Being intentional and directing your attention towards more productive avenues of discussion is what mediation truly does. There is so much external stuff involved in a divorce that it is easy to lose sight of what matters in what can help complete a case in a way that benefits both you and your spouse. I think mediation is a great way to cancel out any external noise and instead cause you and your spouse to focus on the most important issues that may end up causing problems for both of you later on in your case.
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 contained 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 six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and the circumstances involved in your particular situation. I appreciate your interest in our law office. We hope you will join us again tomorrow as we continue to post unique and original content on family law issues in Texas.
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
