Dallas Divorce Law Blog by Michelle O'Neil

A lot of times clients come into our Dallas divorce law office looking for “revenge” during their divorce proceeding.  While this is understandable given the amount of emotion involved in any divorce, having your lawyer take an overly aggressive approach with the other side can end up costing you dearly.

In our experience, opposing counsel generally falls into one of three categories.  The first type is the attorney who is passive and avoids confrontation at all costs.  Obviously, this isn’t the type of attorney you want handling your case.  Second is the attorney who is the complete opposite of the first type.  Attorneys falling into this category argue for the sake of arguing and take the “tough”  approach that some equate with successful advocacy.  Attorneys falling into this category often are overly aggressive to the point it costs the client (both in attorneys’ fees and in property division).  The final category is composed of attorneys that know when to be aggressive and when to be less than aggressive.  Lawyers in this category truly see the forest through the trees and obtain the most favorable outcomes for their clients.

A prime example of the effects of an attorney being overly aggressive recently occurred in an elderly abuse case in California.  In that case, the trial court expressly noted that the attorney’s conduct in examining a witness was the final straw in ruling in favor of the opposing party.

Bottom line, the attorney’s overly-aggressive approach ended up costing his client the case, and in all likelihood increased the amount of costs and fees for both parties.  At our Dallas divorce law firm, we take pride in knowing when being aggressive is appropriate and when to take a more relaxed approach.

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.

Divorce can be a complex process that affects just about every aspect of your life, from financial to emotional, physical to legal.  Unless you have been married a short time and have no property, assets or kids, your divorce may be more complicated than you expect.  The central figure in your divorce (besides the obvious you, your spouse and kids) is your lawyer and her staff.  But assembling the best team to assist you through the process can help achieve your goals for the divorce more efficiently.

Financial planners (here’s one) can be useful in helping prepare budgets and examine the cash flow needed after divorce.  Accountants (here’s one) can help with tracing assets for characterizing as community or separate property and valuing business assets.  A therapist can help you with the emotional turmoil of divorce.  A litigation coach can help you navigate the waters of testifying and making strategic decisions.  Sometimes private investigators (check this out) are necessary to discover certain information.  And, forensic computer specialists may be useful to trace information contained on a hard drive.

Experienced family lawyers are familiar with the experts in these fields and can assemble the right team for your case.  If you are in need of a team that specializes in divorce, please contact us.

The outcome of your divorce proceedings will change the course of your life forever; so invest the time and money to find the lawyer who will do the best job for you.  Here are some suggested questions to ask during your initial interview:

• Do you practice family law exclusively? What percentage of your practice is family law?
• What is your retainer? Is this fee refundale?  What is your hourly rate?
• What is your billing technique?
• Approximately how much will my divorce cost?  Your lawyer can only provide you a general idea of costs based on the information you provide and a guess about how amicable the process will be.  Even if you think your case is simple, but the other side makes it unnecessarily complicated, you can expect your costs to increase.
• What do you think the outcome will be?  Remember you are looking for an honest assessment, not necessarily what will make you happiest.
• If you spouse has retained an attorney, ask your prospective lawyer what she knows about this attorney. Have you worked with her before? Do you think she will work to settle?
• What percentage of your cases go to trial?  You actually want to choose a lawyer with a balance of settled cases versus trials.  Do not choose a lawyer that tries too many cases because that shows a lack of willingness to settle and will be more costly for you in the long run.
• How long will the process take?  Again, the best this can be is an approximation.
• What are my rights and obligations during this process?
• Will you actually handle my case or will someone else in your firm be responsible for my case?
• Should I consider mediation?
• What information will you need from me?
• What happens next?