The privilege of confidentiality (also called “attorney-client privilege”) prohibits disclosure of any information, whether spoken or written, between the attorney and the client, so long as the information was meant to be confidential. For example, if you tell your divorce lawyer that you are having an affair with an intern, your lawyer cannot tell your spouse or spouse’s lawyer. Just don’t tell your lawyer one thing then testify to something completely different in court. Privileged communications also include all correspondence or documents from your attorney/staff to you, and vice versa (e.g., information sheets you prepare for us), as well as all telephone conversations and in-person conferences between you and your attorney and staff.
A divorce may be granted on one or more “fault” grounds or the “no fault” ground expressly set out in the Texas Family Code. Most divorces are granted on the no-fault ground of “insupportability.” This is the ground to use if either spouse feels that the marriage has become insupportable because of a conflict in personalities which makes any reasonable expectation of reconciliation impossible. In English, that essentially means you just don’t like each other anymore, and cannot stand to live together as husband and wife.
“Fault” grounds for divorce include: adultery, cruel treatment, conviction of a felony, abandonment, living separate and apart for three years, or confinement in a mental hospital. A court may (but does not have to) consider “fault” in the breakup of a marriage as a factor in deciding how to divide the property and debts. For this reason, a spouse may choose to plead a “fault” ground for divorce.
Loosely speaking, it means that most of the property, both real estate and personal property, that you acquire during your marriage will belong to both of you equally. No matter who paid for it. The basic concept is “Your, Mine and Ours.” The “yours” and “mine” are what is called Separate Property under the law. The “ours” is what is called Community Property.
“Separate property” is property either (1) owned or acquired by a spouse before marriage or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance. It is the date you got the property and the source of the property that controls, not how it is eventually paid for. For example, if one spouse owned a house or car before marriage, at the time of divorce it will be that spouse’s separate property, even if it was paid off in whole or in part during marriage. A court has no authority to take a spouse’s separate property from him or her at the time of divorce.
“Community property” is any property acquired by either or both spouses during marriage by other than gift or inheritance. This includes virtually everything purchased during marriage. It is important to remember that a marriage legally still exists even after are separated (whether before or after the divorce petition has been filed) so any property obtained after separation will be still be community property. This is true even if the property is not physically received until after the final decree of divorce. For example, if the day before the divorce is granted a wife contracts to purchase a new home (with closing set off for one month later), or husband enters into a partnership agreement, this will be characterized as community property. Moral: be careful and be patient.
“Alimony” does not exist in Texas; rather, Texas has spousal support; that is, funds paid by one spouse for the support of the other spouse. Texas was the only state in the nation in which a court had no authority to order alimony to be paid after the final divorce. However, in 1997, the Texas legislation made provisions for very limited “alimony” which requires extensive proof of an inability to support oneself. It is best to talk with your attorney about the availability of spousal support in your case, as each case differs greatly. Also, the parties may, by agreement (i.e., contract), provide for alimony to be paid after the final decree of divorce is entered. The party paying alimony may deduct these payments from that party’s income to gain a tax benefit, while the alimony recipient must declare these payments as income.
While these proceedings may be confusing and strange to you, there are six typical phases which average divorce cases may go through:
- Initiating the divorce (filing the Petition of Divorce)
- Temporary orders (if necessary)
- Discovery of evidence
- Settlement negotiations
- Trial (if no settlement)
- After trial / settlement
Although each divorce case takes on its own unique personality, these basic steps occur in one form or another in most divorce cases. You should discuss each step with your attorney. He or she can give you more personalized feedback on how your particular case is likely to progress.
Note: The law prohibits a divorce decree from being entered until at least 60 days have elapsed from the date the divorce petition was filed. This “cooling off” period is, of course, just a minimum period of time. Most cases take much longer to complete.
Judges have a fairly wide range of discretion in deciding who gets what in a property division. The Texas Family Code tells us, “In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” This is what is called making a “Just and Right Equitable Division,” which I will abbreviate as JARED.
The most important and often-times misunderstood word in a JARED is “equitable”. Equitable does NOT mean equal. Neither you nor your spouse is automatically entitled to a numerically perfect half of everything. Instead, the judge will consider a list of factors, and make a decision on who gets what based on what the judge believes to be “fair”. The factors that the court will take into consideration include:
- You and your spouse’s levels of education
- How much money each of you is capable of making
- Any business or employment opportunities available to you
- How big a gap there is between how much money you make, and how much your soon-to-be-ex makes
- Your health
- Your age
- Whether either of you have a need for future support
- Who was awarded custody of the children
- How your amount of separate property compares to your soon-to-be-ex’s
- The condition of your personal finances in comparison to your soon-to-be-ex’s
- How long you were married to each other
- Any fault in the breakup of the marriage
- Whether either of you has been draining assets out of the estate, especially by wasting assets or by giving away community property assets as gifts
- If there was a fault in the breakup, any benefit the “innocent” spouse would have received from staying married
- The nature of the property to be divided
- Tax consequences
- Attorney’s fees
- Whether either spouse has committed fraud against the other
Remember, each one of these is only a factor for consideration. At least in theory, no one factor should completely decide the case; however, every judge is different. Some judges will put heavier importance on some factors due to their own personal opinions and experience. Your lawyer should know or be able to find out what your particular judge tends to put importance on, and how he or she tends to rule. This will help you and your lawyer strategize your case.