Many people express a desire to get a divorce but far fewer people understand even the basic components of a divorce before their case begins. This is something that I've learned in my time representing people going through the divorce process. This is not to say that people aren't able to learn or are willing to do so. But what it does say is that most people inquiring about a divorce do so with other activities going on in their lives. It will be unrealistic for you to devote your life to learning about getting a divorce when you have other important considerations going on in your life simultaneously.
That is the tricky part of this entire process. A divorce can be difficult enough as it is under the best of circumstances. There are almost always twists and turns within a divorce that lead attorneys and clients alike to have to make decisions on the fly taking into account changing circumstances almost every day. But that said, however, what I recommend to people is that they learn the basics of a divorce case before the case begins. This is true even if you are going to hire an attorney.
Divorce is ultimately your case and not your attorneys
Even if you decide to hire an attorney to represent you in your divorce the reality of your situation is that the case is still your responsibility. You and your spouse will be the parties to a divorce and the judge's rulings and the decisions you make through negotiation will apply to you and your family. Even though your attorney will have responsibility for aspects of your case and in advising you in certain ways the case is not your attorney's divorce. He or she will not personally be impacted by the outcome of your case or the decisions that you make along the way.
Surely, the attorney has a legal duty after accepting representation of you in your case to be able to provide you with advice and perspective as to how to proceed in certain areas. Final decision-making responsibility rests with you, however. The attorney cannot make decisions for you nor should you want him or her to do that. Ideally, your attorney will be able to help provide you with information in the context of your case so that you can make decisions for yourself and your interests.
Think of your attorney as sitting in the back of your racecar as you drive through the course. He or she will not get behind the wheel and drive the car for you. Rather, he or she will guide you on how to avoid potholes or not take a turn too sharply. Your attorney's expertise and experience should not be treated as the gospel truth in any regard.
You should make decisions based on your feelings about the case your belief about your position within the case and your attorney's advice. When you can take all of these circumstances into account is when you will be in the best position to do well within your divorce. This is where you need to be able to learn the basics of a divorce so you can ultimately make decisions for yourself. When it comes to investing your money you wouldn't simply invest in a mutual fund or stock without learning more about the company or companies that are involved in the mutual fund or stock.
To summarize, do not take for granted the responsibility for your case. Even though the attorney has the law degree and the experience that led you to hire him or her, that should not be an excuse for you to not plan to represent yourself to the utmost as far as learning the in's and outs of divorce as well as how to plan for your life after a divorce. The attorney will guide you throughout your process but the ultimate responsibility and your success in the case will depend largely on your involvement and developing a productive mindset regarding your case.
How can you act intentionally during a divorce?
Asking basic questions like what is a respondent's original answer in a Texas divorce is a great place to begin when you are first learning about the basics of divorce cases in Texas. Make no mistake: many people go into divorce cases without knowing even this type of basic information. The people who failed to learn even the basics of a divorce case are the ones who fair the worst when the case is all said and done. These folks are also the ones who are most likely to blame everyone but themselves when their case takes a turn for the worst.
The best way to avoid a situation where your divorce does not end up going the way you want it to is to begin your case with goals in mind. This does not mean that you have to have thought through every issue in your case from beginning to end but it does mean that you would be better off considering the outcomes of the decisions that you make earlier rather than later. Every divorce has unforeseen events take place while the case is ongoing. This means that your beautifully drawn plan from the beginning may not be the same plan you have at the end of your case.
What it does mean is that the more prepared you are for a case from the beginning the more comfortable you will be adjusting your goals as your case changes along the way. If you fail to prepare in the basics of your case you will likely be unable to adjust the course and adapt to changes as they arise once your case begins.
Goal setting begins and ends with you acting and planning intentionally. I like to tell people that it is possible to wander into a divorce but it is not possible to wander out of a divorce. At least, it is not possible to wander out of a divorce and come away with a result that is favorable to you and your interests. Rest assured that your spouse is acting very intentionally in working your case and your choice to not do so is to your detriment.
Begin your case with the end in mind. This means that you should consider the possible outcomes for your case as soon as you begin thinking about divorce. What sort of final custody arrangements do you want for your children? How do you foresee community property is divided? Do you want to remain in your home after the divorce or do you believe the house needs to be sold?
These are the sort of basic questions that you should begin to consider sooner rather than later. The sooner that you can develop goals and strategies for your case the sooner you will begin to take ownership of the case and the results of it, as well. I have found that those people who take ownership of the case rather than seed ownership responsibilities to the attorney and staying more engaged in the case while also ending up more satisfied with the case's results once everything is said and done.
Are you going to file for divorce or will your spouse?
Whether you file for divorce or your spouse does is not overly important. The most important thing that I can think of when it comes to determining whether or not you want to file for divorce is whether or not you believe you need the extra time to prepare. The filing party for divorce is known as the petitioner. if you file the original divorce petition then you will be known as the petitioner. This is the initial filing document in any Texas divorce.
The original divorce petition specifies who you are, who your spouse is, and who your children are. The original divorce petition also lists any relief that you are requesting from the divorce court as well as any grounds for divorce as far as reasons why your marriage is coming to a close. If you file the petition then you will have had an opportunity to begin to organize your case and develop goals for the remainder of your divorce.
On the other hand, your spouse would be the respondent if you were to act as the petitioner. The respondent is responsible for responding to your original petition for divorce. The document used to respond two an original divorce petition is the respondent's original answer. The original answer is typically a very short document in that a response to the basic arguments presented in your original petition. Your spouse may choose to file a counter-petition in which he or she makes her allegations and can request certain relief from the court.
Once these initial documents are filed there is no benefit to either being the respondent or the petitioner. The biggest thing to keep in mind is that respondents must file their answers within 20 days of having been served with an original petition. If an answer is not filed within basically 20 days of being served with an original petition then you may be able to proceed with the divorce without input from your spouse. This puts him or her at a great disadvantage given that their input will not be taken into account when coming up with final orders for your divorce case.
Why do divorces take so long?
The reality of a divorce is that it is a process just like anything else. Unfortunately, it is not a very fun process and is one that certainly everyone involved with would like to have completed sooner rather than later. With this as a backdrop, I have never spoken with a client who wished their divorce to take longer than it already has. As the old saying goes, time is relative. A four-month divorce would feel much longer than a four-month vacation from work.
In reality, a Texas divorce must take at least 60 days to complete from the date on which the original divorce petition is filed. This is because there is a 60 day waiting period instituted within the Texas family code that requires parties to wait at least 60 days to finalize their divorce once this initial document is filed. I would imagine that the motivation for this law is to give parties, like you and your spouse, an opportunity to attempt to reconcile and save their marriage. The state does not want to encourage people to get divorced and would rather encourage them to remain married if at all possible.
From the get-go, you can already tell that your divorce is likely to take 60 days to complete. An exception to this rule would be if family violence is at issue in the divorce and prolonging the divorce could exacerbate this already sensitive situation in your home. Otherwise, you can expect your divorce to take at least 60 days from beginning to end. This gives you ample time to work on negotiating your way through any of the outstanding issues in your case.
From there, all of the factors that are a part of your divorce would go into how long your case would take to complete. For example, if you and your spouse are unwilling or unable to work together to create meaningful settlement negotiations between yourselves then it is unlikely that your case could be done as quickly as another couple who are willing to set aside your differences and work on creating solutions to your problems.
A big myth within the community of people getting a divorce is that your case is more likely to be decided in court than anywhere else. I can see why this opinion is held by so many in your position: the media, television, and movies lead us to believe that going to court in a divorce is the most likely outcome for just about anyone who files for divorce or participates in the process. However, that could not be further from the truth as the vast majority of Texas divorces settle outside of court rather than in court.
You and your spouse play the most direct role in determining how long your case will last period if you all can work together and set aside your differences then you can greatly shorten the length of your case. The more the two of you can work together to create solutions to your problems the less involved attorneys have to be. Attorneys act as middlemen in the middle woman when it comes to the negotiation process. If you and your spouse are unable to communicate with one another the attorneys will step in.
Keep in mind that when an attorney steps in and intercede into your divorce it not only takes more time but also costs more money. If you can pick up the phone and speak directly with your spouse about any aspect of your case then that saves a phone call to your attorney which saves time and money. You should consider the counsel of your attorney even if you can negotiate directly with your spouse. However, the vast majority of circumstances in a divorce can be negotiated without direct attorney intervention.
The final point I will make on a divorce case is that the less time that can be spent in court also means the shorter your case will be in all likelihood. By definition, the longest divorce cases are the ones that require a trial or at least require the serious consideration of one. Most divorce trials do not occur until 9:00 or even 12 months after a divorce is filed, at the earliest. When you consider that the intervening 8, 9, 10, or even eleven months from the date on which your divorce is filed were then filled with unsuccessful negotiations this can be even more frustrating. If you have serious concerns over a long divorce and you should consider speaking with your attorney early and often to determine how to effectively negotiate with your spouse.
A divorce does not have to take an eternity to complete. Other than the initial 60 days waiting. You have all the power that is necessary to work on efficiently completing your divorce. What this does require is for you to set aside ego and emotion and embrace a rational approach to your divorce. By viewing your divorce as more of a business transaction than as an emotional battle between you and your spouse, you can not only save time and money but also a great deal of sanity in the process.
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 consultation 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 as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.