Put yourself in the following position then consider what you would do. You are just pulling into the driveway after getting home from work and someone with a stack of paperwork approaches you and asks your name. You confirm your name and accept the paperwork that he is offering to you. The man walks away, gets into a vehicle, and leaves your home. What he has left with you appears to be some legal documents from your husband. Even though your head is spinning you can see that he is filing for divorce.
You would probably be experiencing many emotions associated with this development but one of the dominant feelings you are experiencing may be simply wanting to get this over with. To see if there's a chance at a quick resolution to this matter you call your husband and talk with him about the divorce and everything that goes along with it. After feeling comfortable with what has been discussed, you decide that the divorce may not be the worst thing in the world after all and want to move on to talking about how to resolve the case amicably.
He tells you that this is exactly what he wants and begins to list out how he thinks the case could be resolved. In a general sense, he provides you with a rundown of his goals for the case and how he thinks both of you would come out evenly as a result. He is talking quickly and moving fast and so you ask him to email you a rundown of what you just discussed. He agrees. The following day you receive an email from his attorney with a list of divorce terms for you to consider.
When you have some time to yourself you sit down and consider exactly what the lawyers sent you. While some of it matches up perfectly with what you discussed the previous day portions of what was stated in the email are completely different than what you all talked about on the phone. You may even feel uncomfortable with some of the plans he has for dividing up time with your children and your community is state liquidation, as well. Still, you do want to move forward with your life and not dwell on the divorce for all that long. Even if the terms listed in this email are not exactly what you discussed previously should you agree to them rather than put your family through a long and tedious divorce?
That is what I would like to discuss in today's blog post. You may be confronted with a situation where your spouse, eager to complete the divorce sooner rather than later, sends to you or communicates to you a list of their terms to finalize the divorce. Even though it may be your desire to put the divorce behind you and get through it as quickly as possible that does not necessarily mean that you should immediately accept any terms thrown at you by your spouse. We will consider not only the timeline of a typical divorce but what you should be aware of when negotiating with your spouse over the final terms of a Texas divorce.
Consider the divorce to be your one chance to “get it right”
The thing about getting it right the first time is that you do not need to worry about getting it right the second time, or the third time or the…you get it. Many people who go through a divorce assume that there will be an opportunity to come back and adjust any mistakes made in the divorce. While there is a type of family law case known as a Modification, this is not a guarantee by any means that you will be able to adjust your divorce decree to your future needs.
Consider that there will need to be a substantial and material change in circumstances to justify a modification of your divorce decree. This is a fairly high burden that must be reached just to get your issue before a judge. Furthermore, any issue that you are trying to modify that is related to your children must also be in their best interests. Then consider that your ex-spouse will have an opportunity to present contrasting evidence as to why the modification that you are seeking should not be granted.
All in all, it is far from a sure thing that any future modification you want will be approved by a judge. Your best bet Is to take the time necessary to ensure that your decision is 1 that reflects what is best for you both now and in the future. Getting into a situation where you can anticipate your future needs means taking the time. If you jump at the first opportunity to settle your case just because you don't want to think about it any longer or put up with any anxiety associated with dealing with your spouse then you may be setting yourself up for a long term mistake.
An example of this took place years ago when I first began practicing law. I was working with a client who was a stay at home mother of two teenage children, whose husband owned a very profitable small business. In this instance, the client came to us with concerns about settling her family law case as early as possible. She was the type of person who shied away from conflict and wanted to do everything she could to place the focus of her case onto her children rather than herself. This was a Noble ambition, I thought, but one thing that we wanted to emphasize to her was how important it was to make sure that she was protected as far as how her community's state will be divided.
When it became time to negotiate with her husband he was very unwilling to provide us with details associated with the business. We suggested that he hire an attorney and we could exchange financial documents with him but he insisted that he would rather do things informally. Our client would become upset on occasion at how long the case was taking but we assured her that taking the time necessary to go through these steps would be for the best.
As luck would have it when it came time to negotiate on the final settlement terms of the divorce we became aware that the business was even more profitable than our client had thought. As a result, the community property division ended up being much different than we had anticipated. It took us some extra time to get to the bottom of the situation but ultimately we were able to resolve it in favor of our client.
What this should show you is that extra time spent on the case can be extremely productive if you use your opportunity intentionally. Simply dragging your feet or delaying a case will not likely make a difference but to provide yourself a better chance at having more information at your disposal I always suggest taking steps towards developing a game plan and focusing on your goals. The more intentionally you act and the more information you obtain the better off you will be.
Negotiation: The way to achieve greater parity in your divorce
Rather than simply agreeing to your spouse's terms in leaving it at that I would recommend that you engage in full-fledged negotiation throughout your case. The benefit of establishing the groundwork for negotiation early in your divorce is that you all can better work with one another in hopes of avoiding a trial later on in your case. The simple fact is that nobody wants to find themselves in a position where they are in danger of having to go to trial in a divorce case. Many people believe that they will have to go through a trial on their divorce and that is simply not true.
Quite the opposite, most divorces in Texas settled before a trial is necessary. However, a settlement through negotiation does not come automatically. Rather, you and your spouse must be willing and able to negotiate with one another rather than to assume that a protracted legal battle is a necessity. I recommend working with your attorney from the beginning of your case to begin working towards a settlement that works best for all parties. By doing so you can not only create an atmosphere where dialogue is to be expected but you can avoid putting yourself in a position where you do not know what your spouse is considering as far as the settlement in vice versa.
the other big thing to keep In mind is that there is a 60 day waiting period for most divorces in Texas. This means that from the date on which your original divorce petition is filed the earliest that your divorce could be over is 60 days after this date. That gives you and your spouse reason to engage in serious negotiation given the fact that you have to wait 60 days anyway to get a divorce. To me, it makes no sense to accept a settlement based on the terms of your spouse at the very beginning of the case rather than to at least attempt to negotiate in good faith with one another.
keep in mind that the 60 day waiting period also offers you and your spouse an opportunity to attempt to reconcile and save your marriage. I can't honestly say that this is a route that most people head towards in the divorce but it is certainly possible. Maybe you begin the divorce and start to walk through a settlement of your case only to find that you are uncomfortable with the idea of moving on from the relationship. If your spouse feels the same way you all could then at least attend counseling or start to talk through some of the issues in your life that led to the divorce.
ultimately, by working together with your spouse to settle your divorce you are avoiding the possibility of a judge making decisions for you. This gives you and your spouse more power and more autonomy over your circumstances which is what you should want to happen. Although a judge will be well-meaning and prepared to give final orders for your case it is much more desirable for the two of you 2 put your heads together and come up with solutions that work best for your family. Nobody knows your family better than the two of you then nobody will be better equipped to handle negotiations than you and your spouse.
Use the temporary orders phase of your case as a trial period to see if you are settlement negotiations are going to work in the long term
If this is your first and your spouse's first divorce then you all will have no idea if the orders that you have come up with in negotiations are going to work long term. Therefore, you all could use the temporary order stage of your divorce as a trying out period to determine whether or not you're negotiated upon settlement will work for you all in the long term. Temporary orders establish the ground rules for your divorce between you and your spouse. Much of the time the final orders in your case look very similar to the temporary orders. As such, you can try out your orders temporarily and if they work well then you can essentially copy and paste them into final orders.
On the other hand, if the temporary orders do not work out well for you and your spouse, in addition to your children, then you know ahead of time that you will need to work harder to establish a set of long-term orders that work better for all of you. Considering how the temporary orders phase of a divorce typically lasts for months you should have ample opportunity to work through the issues in your case and try out various living arrangements related to conservatorships of your children, child support, living arrangements, and things of that nature.
Mediation is your last and best chance to settle your case
The vast majority of family courts in Southeast Texas will require that you attend at least one session of mediation before the conclusion of your divorce. The reason for this is manyfold but the primary reason, as far as I can tell, is that mediation more often than not results in a settlement of your divorce. Many courts will require that you mediate more than one time if a settlement cannot be reached especially if it is apparent that you all are very close to settling on all issues in your case.
Mediation is where a third party (typically an experienced family law attorney) will be able to act as an intermediary in hopes of helping you and your spouse settle your case. The mediation process is informal and allows for you and your spouse to communicate settlement offers to one another and have the mediator play devil's advocate and context-provider throughout the process. Additionally, you will have your attorney's undivided attention throughout the helpful mediation session, to say the least.
Consider that mediation offers you and your spouse a great opportunity to ensure that both of you have your feelings expressed and communicated to the other party. There is no doubt that you will spend the duration of the session communicating your thoughts on the status of your case in terms of settling. A trial, on the other hand, involves communication but it is focused on communication to the judge and not one another. An adversarial trial rather than a mediation focused on consensus and settlement is not the best environment to achieve an outcome that benefits all persons involved.
Concluding thoughts on whether or not to accept a settlement quickly to avoid conflict
I can completely understand the desire to avoid conflict in a divorce. We all hear horror stories about divorce cases that get out of control and end up leading to situations that escalate and destroy relationships and families. However, you have to balance concerns like that against the need to defend your interests, those of your children, and your post-divorce life. There is no merit and no benefit to avoiding conflict for no other reason than you are uncomfortable with it. Rather, you should prepare a plan, act intentionally, and surround yourself with a team who can help you overcome your concerns rather than accept a settlement that is not beneficial to you or your children.
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 opportunity to learn more about Texas family law and how your family's circumstances would be impacted by the law in a child custody or divorce case.