Divorce is one of life’s most emotional events. It involves a wide range of constantly-changing feelings for the whole family. Fear is usually the main feeling. Fear clouds our judgment and causes us to do and say things that promote distrust and more fear.
If you have never gone through a divorce, you probably lack adequate information about how to proceed and what to expect. Among other things, you are concerned about money and want to lessen the legal costs. You may believe you can cut costs by handling the divorce yourself, but the complexities of the legal system make attorney services almost necessity for most people. While you may not avoid at least some legal expenses for your divorce, you can control the costs by minimizing fear-based disagreement between you and your spouse. One way to combat fear is through information.
Obtaining your divorce can be broken into three stages: information gathering, resolution of issues, and finalizing the divorce. The MOST important step is gathering information before you begin negotiating with your spouse. Without sufficient information, you may get bogged down in arguments and distrust caused by misinformation and misunderstanding. Your negotiations will be inefficient at best and unsuccessful at worst if you do not adequately prepare.
1. Gathering information.
The first type of information you must gather is the rules governing divorce in Texas. People often mistakenly think they understand custody, child support, alimony, community property, etc.. The rules are generally not negotiable; they are what they are. Avoid arguing over what you think the rules should be by first gaining a clear understanding of the rules. Ideally, you and your spouse will work together to become educated. Attorneys can explain the various rules and how they are applied. If you decide to delay hiring attorneys, you should educate yourselves about the rules. Information is available from various sources, including the Internet. For example, the Texas Young Lawyers Association publishes two free documents: Pro Se Divorce Handbook and What to Expect in Texas Family Law Court. Remember, get educated BEFORE you begin discussing divorce details with your spouse.
Once you understand the rules that apply to divorce, you must gather the facts. Even if you hire an attorney, only you and your spouse can provide the facts about yourselves, your family, your assets, and your liabilities. As with the rules, the facts are generally not negotiable. Avoid arguing over the facts rather than simply gathering and understanding the facts.
Issues are those decisions over which you disagree. Common decisions in a divorce include:
Parent rights and duties.
Where the children live.
Sharing time with the children.
How much child support will be paid by whom, how, and when.
How children’s medical needs will be addressed.
How to divide joint assets and liabilities.
It’s important to understand each person’s opinion on each decision. You may find you already agree.
2. Resolving Issues.
Decisions on which you disagree ARE negotiable. However, avoid the temptation to immediately begin arguing over your opinions on each decision. Focus instead on understanding each person’s needs behind each decision. For example, mom may assume dad wants the kids to live with him to avoid paying child support. Dad’s real need may be to maximize his quality time with the kids and he believes the kids must live with him for that need to be met. Understanding the underlying needs opens the door to creative solutions that might otherwise be overlooked.
Ideally you and your spouse will be able to negotiate agreement on all the issues. If not, you will need help resolving the issues over which you disagree. Alternatives include:
Let a court decide. Unless you decide to represent yourselves in court, you must each have an attorney.
Use Collaborative Law. Each of you hires a collaborative law attorney to work with you together in private negotiation meetings. You direct the terms of settlement; the agreement you reach is the basis of the final divorce decree. If agreement is not reached or if one of you decides to go to court, you both must discharge the collaborative attorneys and hire new litigation attorneys before going to court (unless you decide to represent yourselves).
Use Mediation. Mediation is the most common form of dispute resolution used for family law matters. Many courts require mediation before hearing the case. A neutral person, called a mediator, meets with you and your spouse to help you find agreement on unresolved issues. Attorneys can be present during the mediation but are not required. You direct the terms of settlement. Agreement is not required and the mediator has no power to force you to settle. If agreement is reached, you can sign a written agreement that can be enforceable in court if you choose. The agreement is the basis of the final divorce decree. Issues not resolved in mediation can be still submitted to the court for a decision. Settlement discussions in mediation are confidential and cannot be brought up in court.