Dallas Divorce Law Blog by Michelle O'Neil

Before the wedding, the couple may make a pre-marital agreement (commonly known as a “prenuptial agreement” or an “antenuptial agreement”) that spells out who owns specific property in the event of a death or divorce.

The spouses may also create a post-marital agreement any time during the course of the marriage, as long as the agreement was not created in an attempt to defraud current creditors. A post-marital agreement might also change the status of property acquired in the future.

Both pre- and post-marital agreements must be in writing and signed willingly by both spouses. It is difficult to change the terms of these agreements when enforced at the time of divorce.

TRIAL OR SETTLEMENT

Not all divorce cases go to trial. First, after pretrial discovery is over, the spouses will probably be order to go into mediation. Mediation is a procedure where the parties and their attorneys meet with a neutral third-party (usually an experienced family lawyer) to try and negotiate a settlement. The vast majority of all family law cases are settled prior to trial.

If settlement is not possible, the case will go to a judge or jury. Either party has the right to request a jury trial.

Texas is the only state that continues to allow jury trials to determine child custody. A jury trial may also be held on other issues like character and value of marital property. If a jury is not requested or allowed, then the judge decides the contested issues.

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.

Parade Magazine ran an interesting story on marriages and divorces in America.  Their survey confirmed that money and sex are the main sources of stress in a marriage.  Of their respondents, 43% reported that they squabble over money.  Household chores ranked second, although men consider chores less of an issue than women – telling since men still do considerably less housework than women.  As for sex, three-quarters of the respondents in the survey reported their sex lives were fulfilling, while 25% put their sex lives on the tolerable or terrible end of the spectrum.  Even so, 60% of the men reported that they don’t have sex enough, while 51% of the women shared that feeling. Despite those complaints, most of the respondents reported being faithful to their spouses, although 25% of men said they’d strayed outside their marriage or refused to answer the question.  Only 15% of women reported cheating or refused to answer the question.

Of the women, 44% have thought about leaving their husbands, where 31% of men have had the same thought.

Question… with a national divorce rate holding around 50% (and a slightly higher rate of divorce in Dallas Texas area) the respondents of the Parade survey must not be typical of the whole of society.