Collaborative law is another option that divorcing spouses have where it is agreed that the case is kept out of the courtroom. A divorcing couple is more likely to come out feeling completely satisfied if they were able to resolve things amicably without court intervention. Divorce is never pleasant, but it is possible to move out of the process without a lot of bitterness and resentment. This is especially important if children are involved and there will be a future co-parenting relationship.
Collaborative cases are very private and confidential, and the results are predictable since the spouses must agree on all issues. The level of hostility in a collaborative divorce is drastically reduced, and the goal is to produce a settlement that maximizes assets and relationships. The spouses in a collaborative divorce will attend face-to-face meetings (joint meetings) with a team, which consists of the clients and their lawyers, a neutral mental health professional and a neutral financial professional. The joint meetings are typically two hours in length, and generally are held every other week. The average collaborative case is resolved in four to six joint meetings.
There are other unique features of the collaborative process, and additional information can be obtained from the website of the Collaborative Law Institute of Texas at collablawtexas.com. One of the unique agreements that is reached at the beginning of a collaborative divorce is that if the case does not settle and litigation becomes necessary, both collaborative lawyers must withdraw from the case and the clients must hire other trial attorneys if they want to litigate the divorce. Although most collaborative attorneys are also trial attorneys, they cannot wear both hats in the same case. This makes sense because the collaborative process requires that everyone feel comfortable and safe to negotiate the best possible outcome and it keeps the lawyer’s interests aligned with the client’s interests.
Mediation is a forum in which an impartial person facilitates communication between the parties to promote settlement or understanding between them. In a traditional, non-collaborative case, most Texas judges will order the case to mediation before trial. If mediation fails, and the matter is not otherwise settled, the case may proceed to trial. The mediator is usually selected by the attorneys for the parties and is a competent family law specialist. The mediator may not impose his or her own judgment on the parties, but he or she will encourage and assist the parties in reaching a settlement of their dispute without compelling or coercing the parties to enter into a settlement agreement.
All matters disclosed during mediation and any record made during the procedure are confidential and generally may not be disclosed to anyone, including the court which referred the case and appointed the mediator, unless the parties agree otherwise. However, an oral communication or written material used in or made part of a mediation is admissible or discoverable if it is admissible or discoverable independent of the mediation. Although mediation is a non-binding settlement conference, if an agreement is reached it is binding on the parties so long as the legal requirements are followed.
An ex parte protective order may be issued in an emergency and is designed to protect the applicant or family member from domestic violence. This order may force the other spouse from the home without a hearing if the complaining spouse signs an affidavit providing a detailed description of the circumstances and testifies at a temporary ex parte hearing. For the court to order a person excluded from his or her home without a hearing, the complaining spouse must have lived at the residence within the past 30 days, the person to be excluded must have committed family violence during that time period, and there must be a clear danger that the person to be excluded may commit further family violence.
Since a temporary ex parte protective order is only valid for 20 days, a hearing during that time will determine if a final protective order should be issued. At the hearing on an application for a protective order, the court must find whether family violence has occurred or is likely to occur in the future. Once a protective order is issued, if it is violated, the police can be called and they may enforce the order by arresting the offender. Violation of a protective order is a Class A misdemeanor, unless the defendant has previously been convicted two or more times or has violated the protective order by stalking or assaulting the other party. In this event, the offense is a third-degree felony.
Generally a protective order will last two years. The person found to have committed violence may be prohibited from communicating with anyone protected by the order, going near the residence or place of employment or business of a protected person, and harassing or following him or her. The court may also require the person found to have committed violence to complete a battering intervention and prevention program, attend counseling and perform other acts.
The first step to dividing assets in a divorce case is to identify the assets. In some cases, this is the easiest step in the process. However, in cases where assets are kept from one of the spouses, this step can be difficult. In most cases, both spouses will be required to complete and sign under oath an Inventory and Appraisement. The Inventory is simply a complete listing of all of the assets and debts of the spouses, both community property and separate property. In some cases, this is all the discovery that is done, along with informally requesting and providing necessary supporting documents for the assets identified in the Inventory.
There are also several forms of formal discovery that can be utilized in a divorce case. These may include the following:
Interrogatories are written questions from one party to the other. Answers are given under oath and usually must be prepared and sent to the requesting party 30 days after the request. Interrogatories may include questions relating to a party’s employment and salary information, bank accounts, charge accounts, businesses, assets and other personal information.
Request for Production of Documents
Requests for production of documents contain specific requests for certain documents needed for the preparation of a case. Documents requested may include two to five years of bank statements, tax returns, credit card statements, business records, insurance information, financial data, documents supporting separate property claims and any evidence the other party plans to use at trial. In most cases, if a party fails to produce a document when requested, he or she will be prevented from using it in court.
Requests for Admission
Requests for admission are written questions in which a party is asked to admit or deny pertinent facts in the case. For instance, a party may be asked to stipulate that a piece of property is actually the opposing party’s separate property and not part of the community estate, since it was acquired prior to the marriage or during the marriage by gift or inheritance. This is often used to avoid attorney and expert witness fees when a piece of property is clearly not part of the community estate.
A deposition is a more expensive discovery tool that is taken in person and under oath, with a court reporter taking down the testimony. Typically questions about finances, assets, history of the marriage and the children are asked.
In family law cases, clients may be motivated to record telephone conversations of their spouses with third parties or access email or voice mail communications. Spouses are increasingly searching for proof of the other spouse’s infidelity or gaining favorable evidence by reading emails, wiretapping the home telephone, eavesdropping on cellular phones, or retrieving records from internet conversations in chat rooms. The legality of these actions, and the use of evidence gathered this way, is a complicated matter. If the retrieved messages are stored on a home computer that allows equal access without passwords to both spouses, there may be no violation of the law.
Federal and state wiretap statutes regulate the recording of telephone and face-to-face conversations and accessing email and voice mail. Both federal and Texas statutes prohibit the electronic interception of a voice communication unless at least one party to the communication consents to it. Improper retrieval of electronic communications may constitute a violation of the law that carries criminal and civil penalties. It is important to talk to your attorney about the legality and complete range of effects before gathering electronic evidence.
What is the difference between community property and separate property, and why might this be important?
Once the assets are identified, the next step to dividing the marital estate is to characterize the assets as separate property or community property. Community property is defined in the Texas Family Code as property acquired by either spouse during the marriage that is not the separate property of one of the parties. Case law has defined community property as any property or rights acquired by one of the spouses after marriage by toil, talent, or other productive faculty, and as property acquired during marriage other than by gift, device or descent that is the product of the unique, joint endeavor undertaken by the spouses.
The court can only divide community property, and there is a presumption that all property that either spouse possesses upon dissolution of the marriage is presumed to be community property unless proven otherwise. Separate property remains with the spouse who can prove ownership.
A spouse’s separate property consists of:
- Property owned by a spouse before marriage
- Property acquired by a spouse during the marriage as a gift or inheritance
- Recovery for personal injuries sustained by a spouse during marriage, except for any recovery for loss of earning capacity during marriage
- Property that can be traced to a separate property asset.
Spouses may also reach certain agreements regarding the character of assets in a prenuptial or postnuptial agreement.
All income acquired during marriage, whether from separate or community property, is community property, unless the spouses have agreed otherwise in a prenuptial or postnuptial agreement. For example, if one spouse comes into the marriage with $50,000 in a brokerage account, any interest or dividends earned on the separate property funds are community property. If a spouse is asserting that his or her property is separate property, it must be proved by clear and convincing evidence.
Separate property commingled with community property remains separate property as long as its identity can be traced. Sometimes tracing separate property assets, especially through financial accounts, can be complicated and expensive. Forensic accountants can be hired to trace separate property.
The amount of child support that an obligor must pay is calculated by the Child Support Guidelines contained in the Texas Family Code. The charts that accompany the guidelines are updated each year. Essentially, child support is calculated by multiplying the proper percentage (as set forth below) by the obligor’s net income. The amount of monthly resources subject to child support is capped at $7,500.
The calculation begins with gross income, which consists of salary, commissions, overtime pay, tips, bonuses, interest, dividends, rental income, royalty income, trust income, retirement income, disability income and any other form of income.
From gross income, the following are subtracted to give net monthly resources-Social Security taxes, federal income tax (based on the tax rate for a single person claiming one exemption), union dues and health insurance premiums for the children. Once net monthly resources is calculated, a percentage of those resources is paid as follows:
- If the spouse seeking maintenance will lack sufficient property, including separate property, on dissolution of the marriage to provide for his/her minimum reasonable needs and the spouse from whom maintenance is requested has been convicted of or received deferred adjudication for family violence against the other spouse or the other spouse’s child within two years before the date the divorce is filed or while the suit for divorce is pending;
- If the spouse seeking maintenance will lack sufficient property, including separate property, on dissolution of the marriage to provide for his/her minimum reasonable needs and he/she is unable to earn sufficient income- to provide for his minimum reasonable needs – because of an incapacitating physical or mental disability;
- If the spouse seeking maintenance will lack sufficient property, including separate property, on dissolution of the marriage to provide for his/her minimum reasonable needs and has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for his/her minimum reasonable needs;
- If the spouse seeking maintenance will lack sufficient property, including separate property, on dissolution of the marriage to provide for his/her minimum reasonable needs and is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.
- If the marriage lasted less than 10 years or more than 10, but less than 20 years, the court may order spousal maintenance for 5 years after the date of the order;
- If the marriage lasted at least 20 years, but less than 30 years, the court may order spousal maintenance for 7 years after the date of the order;
- If the marriage lasted 30 years or more, the court may order spousal maintenance for 10 years after the date of the order.
1 child: 20% of net resources
2 children: 25% of net resources
3 children: 30% of net resources
4 children: 35% of net resources
5 children: 40% of net resources
6+ children: Not less than the amount for 5 children
A parent with an obligation to support children who live in different households will pay a lower percentage of net resources as set forth in the statute. Additionally, the child support obligor will be required to provide health insurance for the children.
Divorcing parties with high incomes, or those who share almost equal access to the children, may follow different rules from those described above. If an obligor parent has net resources in excess of $7,500 per month, the court can order more child support if it is solely based upon the needs of the child. The court can look at the income of the parties and the needs of the child to determine if additional child support should be paid. If a child is disabled and has extraordinary needs, the court may deviate from the guidelines to ensure that the child gets the additional services he or she needs. Further, if the parents have substantially equal periods of possession, the guidelines may not be appropriate.
The Texas Family Code provides for child support payments to be sent to the state disbursement unit in San Antonio and this state government agency forwards the payments to recipient parents. Payments cannot be made directly between the two parties.
The Texas Legislature first enacted an alimony – spousal maintenance – statute in 1995. After several revisions, the most recent occurring in 2011, the statute now provides for spousal support in the following circumstances:
As a general rule, spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking to earn sufficient income to provide for his/her minimum reasonable needs or in developing the necessary skills to provide for his/her minimum reasonable needs during the couple’s separation and during the pendency of the divorce.
If the spouse seeking maintenance establishes his/her eligibility under one of the scenarios listed above, he/she may obtain spousal maintenance for as long as 10 years depending upon the duration of the marriage as follows:
A court however, may order spousal maintenance for a longer period of time if the spouse has a physical or mental disability or if there is another compelling impediment that prevents that spouse from providing for his/her minimum reasonable needs.
The maximum amount allowed for spousal support is the lesser amount of $5,000.00 or 20% of the paying spouses average monthly gross income. Irrespective of the statute, spouses can and often agree to pay the other spouse contractual alimony. In many cases, this is driven by tax considerations. Under the Internal Revenue Code, alimony payments are considered income to the spouse receiving the payments and a deduction to the payors spouse’s income.
It is important for clients to establish their goals and make certain that the actions they take in the divorce process will accomplish their goals. The following are some tips on how money can be saved on a divorce:
- Don’t use your lawyer as a counseling service.
- Help your lawyer gather financial information and documents, and assist in other work requested by your lawyer.
- Don’t allow your attorney to fight for an asset that is worth less than the cost of acquiring it.
- Tell your lawyer your goals and what is important to you.
- Settle issues on your own if possible, such as the division of household items.
- Help your attorney organize and collect financial information.
- Carefully complete the Inventory and Appraisement and gather all requested documents to support the Inventory.
- Choose your battles wisely: Do a cost/benefit analysis.
- Look for resolution, not revenge.
- Make a plan to move forward with your life rather than dwell in the past.