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What You Need to Know About Divorce Law
People approaching divorce are often surprised by the deficiency of clear rules. People ask their lawyers, '' How much alimony do I have to pay?'' ''How much child support will I owe'' How long I will have to pay'' How much of my pension does she get." With very few exceptions, the lawyers cannot give to you very precise answers.
Either you and your spouse will negotiate a settlement between yourselves or a judge will determine the conclusion for you. In most states there are now formal guidelines that the court must follow in awarding child support. But in most states, and on most issues, judges are unfettered to implement their own discretion after hearing evidence, and this discretion extends even to child support guidelines.
You take your chances when you and your spouse go to trial. It can be a roll of the dice. Most judges do their best to be fair and professional, but, like the rest of us, judges are susceptible to their own prejudices and biases. If you don't like the judge's decisions you will either learn to live with them or you can appeal to a higher court, but few people ever utilize the appeal process. Appeals are difficult to win because the burden is on the person making the appeal to prove to the higher court that the trial judge misinterpreted the law or abused the discretion permitted the judge by law. Even if you are one of the few who wins on appeal, all you get most of the time is a new trial. The only way to be sure that your divorce meets your needs is for you and your spouse to negotiate the resolution yourselves.
When you negotiate your agreement, you negotiate a contract voluntarily. You sign it voluntarily. You cannot decide that neither of you will support your children, and you cannot subject your children to danger or neglect. But, within very broad limits you are free to decide together, how you will resolve the issues at hand.
Settlement arrangements are negotiated in the shadow of the law. That means, you negotiate with an eye on what you think would happen if you were to go to trial and let the judge decide. Experienced lawyers often think they can predict what would happen at trial. Divorce lawyers tend to develop a consensus or sense of industry standards about the results of trials. They may agree that the judges "always give the wife half the house" or " a third of the husbands pension." They might agree that in a particular case $200.00 a week for child support would be unlikely. Lawyers who have appeared many times before the same judge may acquire useful generalizations. Much of this may be true indeed, but the truth is that you cannot depend on it. You may get a particular judge, or you may get that judge on a bad day, or your lawyer may be wrong. Although most lawyers will sovereignly foretell the outcome in court, few will guarantee you the conclusion. You need to treat such predictions with healthy skepticism.
Judges understand that you can do a much better job of generating an agreement that works for you both, which is why they don't meddle in a settlement agreement. Ultimately, the law governing your settlement agreement is what you together believe to be fair and in the best interest of your family.
Every settlement agreement or divorce decree must deal with five basic issues. These issues deal with:
These five issues must be determined by the divorcing couple in order to obtain an uncontested divorce. If you and your spouse agree on everything and put it in writing, you have an uncontested divorce; there is literally no contest. If there is any issue on which you disagree, you have a contested divorce. Invariably, contested divorces center around one of the five issues of divorce: property distribution, alimony, custody, visitation, and child support. When a divorce is contested, it is usually because the couple has not been able to agree on one or more of the above mentioned issues.
When a marriage dissolves, the state has several concerns that must be satisfied before a divorced is proved up and approved. The state wants to know how the children will be supported, who will support them, and who is in charge of them. The state is the parent of last resort. If children are abandoned, the state must provide for them. Because it wants this role minimized, the state, through its courts, requires that provisions be made for children at the time of the divorce. Thus the court requires an agreement or a court order specifying the duties and rights of each parent with respect to raising and supporting the children. These are the issues of custody, visitation, and child support.
The issue of alimony, sometimes referred to spousal support or maintenance, springs from a similar concern. The state does not want to support a divorced spouse. Today, at least in theory, alimony is gender neutral, and, if circumstances warrant, the wife can be obliged to pay alimony to the husband.
The last issue of concern to the state is clarity in title to property. Historically, the interest of the state has been to make sure that property could be freely transferred with a clear title. When a marriage dissolves, the state needs to know who owned what property and needs to extinguish any claims each spouse had to the other's property. Therefore, the state asserts that upon divorce, property be clearly divided into two separate baskets: the husband's and the wife's.
Now let's explore more closely these five issues of divorce. I will elaborate their implications, the range of court involvement, and what choices you have as a couple in agreeing on these issues.
Custody and Visitation
Most people believe that custody refers to which parent gets the children. In fact, custody refers to three parenting roles:
Custody is in other words, about parenting. Yet the term has come to stimulate fear and anxiety and to signal the disenfranchisement of one parent. The reason for this reaction is in the win/lose portrait of the adversary system. In the past when divorce was fault-based and trial labeled one of the parents as "guilt" a custody award to the winner gave that parent absolute power over the children. That power could be used to punish the other parent by cutting him or her off from the children.
Today, most states take a more benevolent approach to the issue of custody. Even when custody is awarded to one parent, the law requires the judge to protect the parental role of the other parent with adequate rights of visitation. Over the prior ten years, some states have altered their custody laws to eliminate the win/lose connotation of custody. Eleven states at this time and the number is growing, have adopted laws expressing a clear preference for joint custody, an arrangement in which the full parental rights of both parents are preserved and enhanced. Some states have gone as far as to abolish sole custody. Others have made joint custody a legal presumption.
For now, the important thing to know is that as a couple you can negotiate any parenting arrangement you wish as long as the arrangement takes care of the children. How you label the arrangement is not important. You do not have to use the words "custody" and "visitation." The most important thing is that you negotiate a parenting agreement that realistically reflects your strengths and needs and the needs of your children. If you can negotiate such an agreement and are able to live by it and be committed to it, the court will accept it with open arms. Judges do not like making decisions about your children and prefer that you can make them.
Three Concepts You Need to Understand
The court serves as the parent of last resort. Generally the court never interferes when parents agree. However, if the parents cannot agree on basic custody and visitation arrangements, the curt will decide. The court retains this role until the child reaches adulthood.
Custody fights do not occur prior to divorce. Sometimes an existing custody agreement breaks down over time after the divorce, and one parent petitions the court for a change. The court can alter custody and visitation arrangements upon petition if the judge agrees that the alteration would be in the "best interest of the children."
The law states that it is the duty of both parents to support their children according to their ability. In most cases children live principally with one parent, and the other parent makes child-support payments to the parent with primary residence of the children. Here are some frequently asked questions about child support.
Alimony, known as spousal support or maintenance, is support paid by one spouse to another. Although the law is usually written to permit either husband or wife to receive alimony, it is rare for a woman to pay alimony to a man.
Of all the issues needed to be resolve to complete the dissolution of marriage, alimony is the issue of least consensus and unification among lawyers and judges. Today there is a growing expectation among lawyers and judges that women can and should support themselves. Alimony is now awarded for a shorter period of time and most likely provides less than the standard of living during the marriage. Alimony is often the most difficult issue to negotiate successfully. It directly addresses the lifestyles of both parties, and when they are not balanced, resentment occurs.
Division of Marital Property
Marital property includes anything of value now or in the future that was acquired during the marriage. This includes tangible property such as automobiles, jewelry, and real estate and intangible property such as a pension, patent rights, or retirement accounts. Texas is a community property state and any property owned by either individual prior to marriage is exempt from division. This means that property is not necessarily split 50%/50%. Ask your lawyer or mediator how your state treats assets, as well as debts.
Whether you and your spouse can negotiate an agreement beforehand or you resort to fighting it out in court, the five issues of divorce must be settled and resolved in order for you to be granted a divorce.
Texas refers to custody as conservatorship and possession of a child. Texas law assumes that awarding joint conservatorship is in the best interests of the child. This would pertain to joint legal conservatorship, not necessarily physical conservatorship. The court defines the rights and obligations of each parent. Living arrangements are often designated to the parent that has been the primary caretaker of the child.
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