Dallas Divorce Law Blog by Michelle O'Neil

Divorce Procedure… the Discovery Process

 The next step in the divorce process is discovery. This procedure allows both sides to determine the size of the community estate and to learn the position the other party will take on certain issues. Discovery can be written or oral.

Written Discovery During Divorce 

Request for Disclosure: These are standard questions that are asked in every civil suit. Parties are required to identify persons with information relevant to the case, identify expert witnesses, detail the legal contentions and specify any economic damages.

Interrogatories: One of the most useful pretrial discovery methods, interrogatories are a set of written questions sent to the opposing party that require responses about relevant issues, such as the location of bank accounts, balances in those accounts and signatory privileges on the accounts. Although almost anything relevant to the case can be asked, the total number of questions is limited to 25.

Request for Production of Documents: This discovery tool allows a party to request copies of documents relevant to the issues in the case. Just about any document can be requested. The most frequently requested items are records reflecting bank accounts, 401(k) plans, stock options, income, gifts to people other than the spouse, safe deposit boxes, telephone records and insurance plans.

Request for Admission: These are statements that the opposing party must either admit or deny. If they refuse, they must state a reason why the statements can neither be admitted nor denied. The person answering these requests will be stuck with the answers, and failure to answer them will result in all of the requests being deemed admitted.

Sworn Inventory and Appraisement: This type of discovery is unique to divorce cases. It requires the answering party to list every asset he or she knows about. It also requires the party to characterize the assets as either separate property or community property and to place a value on it. This document is signed under oath, so a party who deliberately hides assets and keeps them off of the inventory will be subject to punitive remedies from the court.

Oral Discovery During Divorce

Oral discovery is in the form of depositions. These are pretrial witness examinations taken under oath in front of a court reporter. Any witness with information that will affect the case can be deposed. Under Texas law, the deposition testimony can be presented to the court as if the witness were testifying in person before the court.

The deposition is an incredibly useful tool because it locks the witness into the testimony he or she will give. The witness cannot come back later and change his or her story regarding a certain event. If they do this, then the deposition can be used to challenge their truthfulness as a witness.

There are four basic steps to a divorce proceeding:  filing the petition, the discovery process, resolution (trial or settlement), and finalizing the divorce decree and other closing documents.

FILING A DIVORCE PETITION

Any divorce, even one on friendly terms, must begin with the filing of an “original petition for divorce” in a state district court.

Some counties, such as Dallas and Tarrant counties, have specialized courts that deal only with family law matters like divorce. Other counties send divorces through the same general district courts used for all types of civil and criminal matters.

In order to file for divorce in Texas, one of the spouses must have been a resident of the state for the six months prior to filing the petition and a resident of the county where the suit is filed for 90 days.

Most petitions include a request for a two-week temporary restraining order (TRO). This freezes things as they are and prevents one spouse from taking any action that harms the other.

The TRO prevents spouses from hiding money or spending money in abnormal ways. It also prevents the interference of the use of the marital residence. The restraining order cannot order that the party be excluded from the home without special circumstances, and it prevents the changing of locks or any other type of exclusionary action.

Before the TRO expires, a judge will schedule a temporary orders hearing to determine if the TRO needs to be made permanent while the divorce goes forward. The judge will also make provisions for temporary spousal support, temporary custody and possession arrangements, temporary child support, temporary use of property and payment of debts, and payment of interim attorney’s fees.

In Dallas County, Collin County, Denton County and Rockwall County divorces, the Courts have imposed a Standing Order which replaces the TRO, standardizes the process, and applies to every family law case filed.  In these counties, no longer are standard TROs accepted; a TRO is only granted in extraordinary circumstances.

Whether or not the couple has children, the legal procedure for a divorce is similar to the procedure for other lawsuits.

The first step should be to hire an attorney. Although, it is possible to get a divorce without the assistance of an attorney, the process will be incredibly difficult, and it will be virtually impossible to know if your rights are being protected. An attorney will be able to guide you and make sure you have full knowledge about the applicable statutes. But, perhaps most importantly, an attorney will be able to approach the issues objectively, without succumbing to the emotion of the divorce.

Like many states, Texas has a no-fault divorce system, which simplifies the divorce procedure. Under a no-fault system, the spouse seeking the divorce merely files a petition with the court saying that the marriage has failed due to conflict of personalities, with no reasonable expectation of reconciliation. Under a no-fault system, a divorce can be granted without either spouse being forced to prove that the other was at fault in breaking up the marriage.  Under a no-fault divorce, usually the property and debts gathered during the marriage will be split evenly (50/50).

That does not mean that fault is never considered in a Texas divorce.

A spouse may still note in the petition for divorce that the other person was at fault in breaking up the marriage. If a court agrees that one spouse’s actions created fault, a bigger share of the property may be awarded to the spouse who is not at fault. Under Texas law, “fault” is defined as (1) adultery, (2) cruelty, (3) conviction of a felony and/or (4) abandonment.

The effect of claiming fault in the break-up of the marriage depends in large part of which county your case is filed in and which Judge will hear your case.  Some judges apply less “penalty” for fault to the division of property than others.  For example,  some judges feel very strongly against adultery and will penalize a party heavily if he or she has engaged in extramarital activities.  Other judges believe that an affair doesn’t break up a marriage — it was probably broken before the affair — so they don’t change the percentage of the division of property very much based on adultery.

No matter the fault in the break-up of the marriage, there is rarely a case where a spouse is so much at fault that one spouse will “get everything” and the other spouse will get nothing.

Tarrant County Family Lawyer Dick Price raised a good issue on his Blog this morning — What Happens After Mediation.  Many clients think once the case settles in mediation and they walk out with the signed settlement agreement, the case is almost finished.  They often don’t realize how much is involved in finalizing the case once the case is settled.  Here’s Dick’s list of what happens after mediation:

“Mediation is one of the best ways to settle divorces or other family law issues, assuming that Collaborative Law is not utilized. With significant effort by both sides, mediation is very successful, resolving around 90% of the cases, at least in my experience. Even those that don’t settle at mediation become more likely to eventually settle short of trial.

“Mediation can be very emotionally draining and often leaves the parties exhausted, but generally pleased to have the matter resolved. After all the time and energy has gone into preparing for mediation and then working through the negotiations, the post-agreement steps are not really discussed much. So, what goes on after mediation?

• The parties normally leave the mediation site with a written and signed mediation agreement that spells everything out in great detail, although not in formal language. The first step, post mediation, is to have the formal agreement/court order drawn up. The attorneys will make sure that appropriate language is included to make the agreement clear and enforceable.
• The agreement/order is then reviewed by the parties and their attorneys. Once everyone approves the language, they sign it. The signed agreement/order is then submitted to the court. Sometimes, the order can be signed by a judge without a formal prove-up; other times, at least one party and his/her attorney will have to appear in court and have a brief prove-up hearing.
• Some additional paperwork often must be filed with the court to comply with local and state rules. Vital statistics forms are used and sometimes a child support form will be required.
• There may also be some brief, related court orders, such as a wage assignment, a medical support order or a qualified domestic relations order (also known as a QDRO), which may need to be signed by the judge. The wage assignment sets up a mechanism to automatically withhold funds from a parent’s paycheck and then send the funds to the other parent. The medical support order similarly provides for payment for medical expenses and insurance provisions. The QDRO divides a retirement plan so that whenever payments are paid out from a plan, they are automatically divided between the two parties.
• There may be some real estate documents, possibly including a deed, deed of trust and a note for payment of a share of the equity. There can be assignments of mineral interests, utility deposits and other interests. Utility services may need to transferred.
• Car titles may need to be signed, or a power of attorney, limited to transferring a car title, may be used.
• Additionally, the parties will need to change their health, home, life and auto insurance.
• Sometimes, the parties will still need to separate their credit cards, although that is often done during a divorce.
• Parties also need to revise their wills and plan executors and beneficiaries.
• Furniture and belongings may still need to be separated and a specific date and time should be set to do that.
• The family photos and videos may need to be copied, scanned or otherwise divided between the parties.

“As you can see, there’s a lot that goes on before the fat lady sings. After the main court order is completed, the work is not too difficult. There’s just a lot of loose ends to take care of. Hopefully, the list above will help you think about what needs to be done in your case after mediation.”

For a FREE Divorce Guide offered to you by the Dallas divorce attorneys at The May Firm, click here.

The current economic crisis may be putting a strain on some couples.  According to the American Psychological Association, 83% of women and 78% of men are currently stressed out about money.  But what happens when one spouse lies to the other about money.  Take, for example, the Muniz couple interviewed on Good Morning America this morning.  When the wife was pregnant and due with their child, the husband changed insurance, resulting in no coverage for the wife and child at birth.  This caused the couple to incur significant medical bills for the hospital stay and some complications.

What is financial infidelity?  It is a subtle form of cheating — disloyalty to your spouse.  Many people think it is benign because you just leave out some information — like you bought a new dress and told your husband it was on sale when it really wasn’t.  Or, your spouse gets a credit card that you don’t know anything about and hides it, with the purchases, from you.  But, any lie can be damaging to the trust relationship in a marriage and can cause cracks in the foundation.

As a Dallas divorce lawyer, I see many couples who have issues of infidelity or lying about finances.  It is too common to see a wife who has zero information about the finances.  This causes such disparity in the divorce process.  The divorce lawyer for one spouse cannot get vital information from that spouse, so the information must come, unreliably, from the other spouse.  That can also raise the expense of the divorce because the other spouse may not be forthcoming in turning over the information.  This can leave the spouse without the information, usually the wife, in a vulnerable position, subject to the dictatorial demands in negotiations of the other spouse, usually the husband.

So, if you are married, encourage your spouse to be forthcoming about the finances.  If you find out that your spouse is withholding information or lying about the finances, carefully examine the relationship for other cracks in the foundation. 

If you are contemplating divorce in Dallas, Collin, Tarrant, or Denton Counties in Tx or anywhere else for that matter, gather information about your finances and educate yourself on your marital estate before you get taken advantage of!

Talking to your kids about your divorce is difficult, to say the least.  Try the following tips to help both the child and yourself with the challenge and stress of the conversation:

• Do not keep it a secret or wait until the last minute.  Kids tend to know more about what’s going on than parents given them credit for.  Tell them far enough in advance to allow them time to let it soak in and give them time to adjust.
• Tell the kids together.  Having the conversation together allows both parents to be involved in the conversation and gives each parent the same opportunity to participate in the discussion.
• Do not discuss the adult reasons for the divorce or talk about the other parent’s faults or problems.  Keep adult topics between the adults and let the kids know just what affects them.
• Tell the kids that the divorce is not their fault and both parents still love them.   Kids tend to take divorces very personally.  They think something they did or didn’t do was the cause of the break-up.  Reassure them that both parents love them, they just can’t live together anymore.
• Give the kids some idea of what life will be like after the divorce.  Even if you don’t know the specifics, maybe because custody hasn’t been settled yet, you can tell them that they will live some of the time with Mommy and some of the time with Daddy and Mommy and Daddy will both go to their games and events like they do now.

Also watch for signs of distress from your child.  Divorce is hard enough on adults, and many adults need counseling — it’s the same for kids.  Many kids will need counseling too, if for no other reason than to have someone safe to talk to that’s not mom or dad.

Continuing with the myths of divorce post from Rutgers University’s National Marriage Project:

8.  Myth:  “Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes.”  Marriages of children of divorce actually have a much higher rate of divorce than the marriages of children from intact families.  A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents.  In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.

9.  Myth:  “Following divorce, the children involved are better off in stepfamilies than in single-parent families.”  The evidence suggests that stepfamilies are no improvement over single-parent families, even through typically income levels are higher and there is a father figure in the home.  Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a very high risk of family breakup.

10.  Myth:  “Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce.”  All marriages have their ups and downs.  Recent research using a large national sample foudn that eighty-six percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier.  Indeed, three-fifths of the formerly unhappily married couples rated their marriages as either “very happy” or “quite happy”.

Extra Myth:  “It is usually men who initiate divorce proceedings.”  Two-thirds of all divorces are initiated by women.  Reasons for this vary and are somewhat speculative.  Women tend to receive custody by agreement in many cases, so they have more reason to file the divorce.  Also, husbands are more likely than wives to have problems with drinking, drug abuse, and infidelity, creating the impetus for the wife to initiate the divorce.

More about the myths of divorce from Rutgers University’s National Marriage Project:

4.  Myth:  “Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly.”  Divorce increases the risk of interpersonal problems in children.  There is evidence, both from small qualitative studies and from large-scale empirical studies, that many of these problems are long-lasting and may even become worse in adulthood.

5.  Myth:  “Having a child together will help a couple to improve their marital satisfaction and prevent a divorce.”  Many studies have shown that the most stressful time in a marriage is after the first child is born.  Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together for the sake of the children.

6.  Myth:  “Following divorce, the woman’s standard of living plummets by seventy-three percent while that of the man’s improves by forty-two percent.”  This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation.  A reanalysis of the data determined that the woman’s loss was twenty-seven percent, while the man’s gain was ten percent.  Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades.

7.  Myth:  “When parents don’t get along, children are better off if their parents divorce than if they stay together.”  A recent large-scale, long-term study suggests othewise.  While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce.  In examining the negative impacts on chidlren more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring.  In lower-conflict marriages that end in divorce — and the study found that perhaps as many as two-thirds of the divorces were of this type — the situation of the children was made much worse following a divorce.  Based on the fidnings of this study, therefore, except in the minority of high-conflict marriages, it is better for the children if their parents stay together and work out their problems than if they divorce.

An article from Rutgers University’s National Marriage Project lists the Top Ten Myths of Divorce 

1. Myth:  “Half of all marriages end in divorce.”  That may have been the case several decades ago, but the divorce rate has actually been dropping since the early 1980s.  In the early 2000s, the chances that a marriage contracted this year will end in divorce before one partner dies has been estimated to be between 40 and 45 percent.
2. Myth:  “Because people learn from their bad experiences, second marriages tend to be more successful than first marriages.”  Although many people who divorce have successful subsequent marriages, the divorce rate of remarriages is higher than that of first marriages.
3. Myth:  “Living together before marriage is a good way to reduce the chances of eventually divorcing.”  Many studies have found that those who live together before marriage have a considerably higher chance of eventually divorcing.  This may be, in part, because people who are willing to cohabit may also be those who are more willing to divorce.

To upload a copy of the article, click here:  Top Ten Myths of Divorce