Why Cases Aren't as Simple as You May Think

Some people get caught up in the "Do it Yourself" movement and decide to represent themselves in a divorce.  After all, how hard can it be? They're thinking:  Texas is a 50-50 property state, so you divide everything equally.  Then you use standard visitation and child support guidelines. You just write down what you want and the Judge will straighten out any problems and then grant the divorce.

Now, back to reality. Life is complicated.  The more assets you have, the more important it is to use a lawyer for a divorce.  If there are children, there are many important issues other than child support and visitation.  Judges don't fix your mistakes.

Here are some issues you may need to consider.

1.  There are parental rights, powers and duties that have to be allocated between the parents.  Some can be shared, some might work with consultation between the parents, some might need a tie-breaker if the parties can't agree, and others are usually controlled by just one parent. These can decide the outcomes of some very important issues.  You need knowledgeable guidance on them.

2.  There are many different variations in the possession (visitation) schedules for the kids.  You have to come up with something that both parents accept and use language that is specific enough to be enforceable in case of future conflict.

3.  Child support can have some issues as well.  Is is really necessary?  Should you use the guidelines or try something else?  Will the Judge approve something else?  How to you calculate it?  You also have to use correct and specific language in creating the order.

4.  What do we need to divide?  What is separate property (which the Court can't divide) and what's community?   Are there any tax consequences? Can all assets be divided?  If not, what do you do?

5.  How do you handle health insurance?  Can one spouse provide it for an ex-spouse?  If so, how?  How do you set up the health insurance for the kids?  Who pays what?

6.  Can we divide retirement accounts?  If so, how?

7.  What do we do with the house?  One party keeps the house -- how do you get the other spouse's name off the mortgage?  Can you refinance the house?  Do you want to sell it now?  If so, you need detailed plans for that.  What do you do with the proceeds?  What if you can't sell it?  What if your ex-spouse won't sell it?  There's a lot at stake with the house.

These are only some of the issues you may face in a Do-it-Yourself Divorce.  If you have children,  more than a little property or a marriage longer than a year or two, you definitely need a lawyer to help make sure you don't make a mess of your financial and family futures.

5 Top Myths about Litigation

I often run into a client or potential client who seems unreasonably confident about the outcome of his or her divorce case.  The reason usually is that they have heard and believed some common myths about how the divorce litigation system works.  At the risk of damaging some happy feelings, I find it's necessary to expose some of the worst myths.  Better to be disappointed now than to continue to count on something that will never happen!

1.  The Court will figure out/discover the "truth".  Unspoken is the assumption that the truth found by the Court will be the same one believed in by the party.  In reality, Courts often find facts to be different from what one or both of the parties believe, or a Court may decide it hasn't been convinced by sufficient evidence one way or the other.  Truth is usually in the eye of the beholder, and Courts very often disagree with the parties about what the truth is.  What is obvious to a party may be completely invisible to a Judge, so don't count on a Judge automatically agreeing with your view of the truth.

2.  Justice will prevail.  Just like with truth, there is no universal, indisputable "justice".  Don't assume that a Judge's decision will coincide with your view of justice.

3.  The Court will divide everything 50-50.  There's nothing in the law that requires a 50-50 split of property or debts.  The Family Code calls for a division that is "just and right", a  standard equally as vague and undefined as "justice".  The Judge actually has a lot of discretion about how things are to be divided.  There is no concrete, black-and-white answer.

4.  The easiest solution is to just go to court.  HA!  There's a lot of preparation for both sides and you can expect to wait many months for your day in court.  Settlement, while sometimes emotionally difficult, is much better than preparing and going to court.

5.  I know what will happen because of what happened in my sister's (or best friend's or neighbor's or hair dresser's, etc.) case. No two cases are alike.  The facts are different and the cases are probably in different courts, with different parties, different attorneys and different issues.  Don't assume that what worked for someone else will work for you.

So, what can you do if you can't rely on these handy my?  Talk with an attorney and get some qualified advice.  Follow your attorney's advice.  Do yourself a favor.