The following provides a brief discussion of the major issues that arise in divorce cases. As always, these general discussions provide guidance for discussing your case intelligently with your attorney, not as a substitute for obtaining an attorney for yourself. The Texas Board of Legal Ethics requires us to caution you that every divorce case is different, and there are subtle nuances and twists to all of the topics below that might alter the discussion or make it so that the general discussion does not apply to your case. Please use the following as a starting point for discussing your case with an attorney, not as legal advice regarding your specific case.
Contested vs. Uncontested Divorces
Fault-Based Divorce: Cruelty, Adultery, Conviction of a Felony, Abandonment, Living Apart, Mental Hospital Confinement
Children: Possession, Access, and Child Support
Contested vs. Uncontested Divorces
There are essentially two kinds of divorces: 1) uncontested, and 2) the expensive kind. Uncontested divorces involve the parties agreeing to property and custody issues and using an attorney mostly to formalize and finalize the divorce. Although most people envision that divorce involves bitter courtroom battles, uncontested divorces are actually becoming the most common, if only to eliminate the often unnecessary legal expenses associated with prosecuting a contested divorce. Uncontested divorces also often make the "best" of a bad situation: instead of a judge deciding what will happen based on only a few brief glimpses into the marriage, the parties involved in the marriage more often than not are in the best position to craft an agreement that best suits the situation.
However, sometimes uncontested divorces are impossible, if only because of the highly-emotional nature of divorce. Many times, the parties need the advice of attorneys to help them understand how Texas Family Law applies in their cases, and need attorneys to help negotiate a settlement. Not all "contested" divorces remain contested such that they all go to a hotly-contested trial; the "contested" aspect merely refers to the fact that, at the point at which the parties consult their respective attorneys, the parties could not come to a comprehensive agreement on all issues and still have some lingering issues they still need to resolve.
The significance of the uncontested/contested distinction mostly affects the fee structure in hiring an attorney. Because an attorney can more accurately predict how much time and resources will be involved in formalizing a completely-uncontested divorce, most uncontested divorces can be handled on a flat-fee basis. For contested divorces, the unpredictable nature and extent of negotiation and litigation in divorce cases makes a flat-fee structure inappropriate. As a result, "contested" divorces are usually handled on an hourly-fee basis, with the ultimate overall expense depending on how much time and resources the attorney needs to spend to negotiate and resolve a case. Many attorneys, including our office, agree to handle such cases starting with an up-front "retainer" or "minimum fee," which serves as an up-front payment of a certain number of hours and expenses depending on the anticipated complexity of the case. If the hours or expenses exceed that retainer or minimum fee, then the attorney either collects another retainer or bills for the additional fees or expenses.
An "uncontested" divorce is not that same thing as a "No Fault" divorce. "No Fault" refers to one of many possible legal bases upon which a court my grant a divorce under Texas law: namely, that the marriage has become insupportable due to a discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. An "uncontested" divorce, on the other hand, refers to one in which the parties reach an agreement not only that the marriage should end, but also regarding the disposition of child care and property issues. Although the termination of the marriage might not be contested, the division of property or custody of children might still be hotly contested.
Also, just as not all "No Fault" divorces are "uncontested," not all "uncontested" divorces are "No-Fault." Sometimes parties agree to fault-based grounds, leading to an uncontested, fault-based divorce. As a result, "No Fault" and "Uncontested" divorces are not the same thing, and might or might not both apply to a particular case.
Typically, "No Fault" divorce requires only that one spouse wants the marriage to end. Although a technical defense exists that the parties might reconcile, the fact that one of the parties does not want to reconcile often rebuts than defense. No reported cases exists that reverses a divorce based on the "dumped" spouse believing that the parties may still reconcile, even if that belief is reasonable.
Although once a controversial provision because it allowed an "easy-out" from marriage, "No Fault" divorces now constitute the vast majority of divorces, mostly because there usually is little to no advantage to raising any of the fault-based grounds other than spite: and despite what everyone might think, spite does not play well in Family Court. Nonetheless, Texas law still contains the following six, more-traditional "fault-based" grounds for divorce:
Cruelty: not just physical abuse, but also including excessive and outrageous, non-physical, insulting treatment of a spouse. "Cruelty" was once the most common grounds alleged for divorce, and its rampant misuse in what essentially should have been "no fault" divorces provided much of the impetus for allowing "No-fault" divorce.
Adultery: sexual intercourse with someone other than your spouse, regardless of whether it occurs before of after separation. (Yes, it is still adultery even if you are separated, even though the separation will affect how much weight the court gives the adultery.)
Conviction of any felony.
Abandonment: moving out with the intent of staying away, and actually remaining away for one year.
Living Apart for three years.
Confinement in Mental Hospital.
Technically, fault-based grounds provide the court with legal justification to alter the schedule of child possession or the division of community property appropriately to the type and extent of fault involved. However, most fault-based grounds (especially the most common, adultery) provide little advantage to the "victim" of the fault in modern divorces. Indeed, most divorces are now "No-Fault" because the benefits of obtaining fault-based grounds are often slight at best, depending on the judge. In disputed property division cases, most community estates simply are not large enough to economically justify spending the additional legal fees necessary to prove fault-based grounds, merely to get an extra 5-10% of a $50,000 estate. If the judge is highly-moralistic, then that judge might divide the property more unevenly in favor of, say, a non-adulterous spouse. However, most Family-Court judges have heard so many lurid tales of blatant adultery that one more tale of infidelity is not likely to get much notice; and most community estates do not reach the levels where obtaining an extra 5-10% of the community estate is worth not only the extra legal fees, but also the additional heartache, bitterness, and delay that alleging, proving and defending fault-based grounds would produce.
That said, in contested child custody cases where grounds exist to prove extreme cruelty, abandonment, conviction of a felony involving moral turpitude, or mental illness that would prove a risk of harm to the children, most of the evidence that would prove the fault-based ground would come into evidence during the custody battle, anyway, so adding fault-based grounds might help one's spouse's case.
Texas is a "Community Property" state that generally considers all income and property acquired during the marriage to be Community Property unless a party can prove the property falls within one of the narrow exceptions for Separate Property. Although some Community Property states presume a 50-50 equal split of the Community Property, Texas provides for a more flexible "just and equitable" split of the community, which usually starts from a presumption of an equal split but can deviate from a strictly equal split to accommodate for the unique circumstances of any given divorce without the court making detailed justifications or factual findings.
Although the Community Property theory has been much-maligned by comedians and commentators (like Eddie Murphy's "HALF!" diatribe in "Raw"), it does eliminate a great deal of bickering by creating a standard default position from which the parties can negotiate.
Community Property eliminates spousal alimony by presuming that a just and equitable split of the community estate should provide for each spouse according to the proportionate wealth of the parties. Instead of treating marriage as a life-long commitment even after divorce, the Community Property theory more aptly treats marriage as a partnership, both emotionally and financially. If the marriage was "profitable," then that profitability should be reflected in the division of the community estate. If the marriage was not "profitable," then imposing an ongoing alimony obligation would be onerous on the person obligated to pay alimony.
The Community Property theory, most importantly, provides finality to a divorce instead of maintaining an unnecessary, perpetual alimony relationship between two people who no longer want to maintain a relationship except perhaps to continue to "punish" the other.
Spousal Maintenance: not the same as "Alimony"
Because a strict business-partnership approach towards dividing the Community Estate can sometimes cause hardship to a non-income-producing spouse who sacrificed career development to care for home and children, Texas Law provides only for the possibility of limited spousal maintenance for marriages that lasted more than ten years.
Instead of the antiquated "lifestyle to which s/he is accustomed" standard by which alimony was determined in the Old English days of Lords and Ladies, spousal maintenance only provides for the non-monied spouse's "minimum reasonable needs:" essentially, enough to rent a two-bedroom apartment and living expenses sufficient to give the non-monied spouse time to restart his or her career. Spousal maintenance is also rare and generally should not be expected in marriages over ten years except in clear cases of rather disparate income potential where the division of the community estate is not sufficient to support the non-income-earning spouse. Even in marriages over ten years that qualify for spousal maintenance, courts usually find that the division of community property sufficiently provides for the non-income-earning spouse.
Children: Possession, Access, and Child Support
Children obviously complicate the issues involved in any divorce. Nonetheless, Texas Law has simplified two of the more contentious issues in divorce cases involving children: namely, the schedule of child possession (commonly referred to as "visitation") and the amount of child support.
Once the primary residence of the children is determined, Texas law contains default, prescribed formulas for both 1) periods of possession (via the standard possession order) and 2) child support (at a set percentage of a non-custodial parent's net resources per child).
Although the parties may agree to deviate from these standard arrangements--or may also ask the judge to deviate from these standard arrangements--these default positions often provide a starting point (and usually ending point) for what otherwise might be rather difficult, time-consuming negotiations.
Of course, simplifying these two issues does not address what is often the most contested issue in divorce cases involving children: namely, which residence shall serve as the children's primary residence: the father's or the mother's.
Although the primary residence issue will often turn on case-specific facts that differ from case to case, Texas law does help mollify this issue by subtly changing the terminology, focus, and stakes of this issue. Instead of speaking in terms of which parent shall have "custody" of the children and which parent shall merely be reduced to a "visitor" with the children, Texas law presumes that both parents will become joint managing conservators with equal rights and obligations regarding the children except for one: the exclusive right to designate the primary residence. By shifting the focus from (a) which parent exercises primary dominion over everything involving the children to instead (b) presuming that both parents will continue to share those most of those rights and burdens--and by shifting the focus from "full custody" over the children to just "the primary residence" of the children--even the parent who "loses" the "primary residence" issue may still remain a significant and vital role in the children's lives.