People turn to all kinds of sources to learn about divorce and their rights. There are many myths about divorce in Texas, sometimes you hear them from your recently divorced friend. Or you read the internet. They are everywhere.
Why 15? That’s the number of years I’ve been in practice.
MYTH 1: The Court can deny my divorce
It is a common misconception that one spouse must cause the divorce. This is simply not true. Texas is a no-fault divorce state, which means, all it takes is one spouse wanting the divorce, no reason needed
MYTH 2: I MUST FILE FIRST OR I WILL LOSE.
“You must hurry and file before he does.” I hear this often from a potential new client. There seems to be a common misconception that you have to file first in order to win the divorce, however, I haven’t found any correlation between filing first and any advantage at trial. There is one exception which is when the parties are separated for a long period of time and live in different counties. The first to file in their county sets the venue for the case.
MYTH 3: If I evade service the Court cannot grant my spouse a divorce.
While evading service makes it harder for the Court to grant a divorce, it is not impossible. If you evade service the Court can grant your spouse permission to serve you by alternate means, they can serve a family member or post in a local newspaper among other means. The danger to evading service is that the Court can grant your spouse a divorce, award custody, set child support and divide property in favor of your spouse without your knowledge.
MYTH 4: Children can pick where they live
In Texas, children 12 and over can talk to the Judge, if a party requests it. The Judge must interview the child if they are at least 12 years old upon motion by a party. The Judge can interview younger children if asked, but that is rare. It is not automatic for the Judge to allow the child to pick where they want to live. The Judge must still determine the best interest of the child. Where the child wants to live carry a lot of weight, but it is not the only consideration.
MYTH 5: We live together, so we are common law married
There are three tests you must meet to establish a common law marriage in Texas. 1) You must live together; 2) agree to be married; and 3) you must hold yourself out as married to others. You must have all three to have a common law marriage. A common law marriage is legally the same as a ceremonial marriage.
MYTH 6: Joint or split custody means the children are with each parent 50% of the time
In Texas, custody is called conservatorship. There are two main types, joint or sole. Joint managing conservatorship means the parents have equal rights and duties to the child. One parent will have primary conservatorship, which means they get to designate the residence of the child and receive child support. The other parent still participates in decisions regarding the child and gets regular possession of the child. Sole managing conservatorship means only one parent gets to make decisions regarding the child and the other parent gets visitation only with the child.
MYTH 7: There is no child support if there is a 50/50 custody of the children
Sometimes the parents decide that the children will live with both parents equally. Oftentimes this means neither parent will pay child support to the other parent. This is true when the parents incomes are equal or close to equal. If one party makes more money than the other, that parent may pay child support based on the difference in the income.
MYTH 8: Texas property is divided 50/50
Often this is true, but it is not automatic. There are many factors that determine property division in Texas. If there are fault grounds, such as adultery or domestic violence or if one party has significant separate property, then the Court may award a disproportionate share to the spouse not at fault or with less property.
MYTH 9: Texas property is awarded to the person whose name is on the title
In almost every case I handle at some point I hear, I don’t own anything, everything is in his/her name. It simply doesn’t matter whose name is on the title. The Court looks at inception of title. All property obtained during the marriage, unless it was a gift or from someone dying and leaving it to one spouse, is community property and both spouses own the property, despite whose name appears on the title.
MYTH 10: The person that earned the money gets to keep the money
It is not unusual that one party is the breadwinner in the marriage. They earn the majority of the money in the household. This does not mean that they get to keep all the income they earn when the parties separate. All income is part of the community estate and belong equally to both spouses. It doesn’t matter who goes to work and earns it. It is true for both spouse’s income, even if one spouse earns significantly more than the other.
MYTH 11: There is no alimony in Texas
Texas has spousal maintenance instead of alimony. There is contractual alimony, which is an agreement between the parties, but not ordered by the Court. You must meet certain requirements to have the Court order maintenance. The length of time a spouse can get maintenance is dependent on the length of the marriage. This does not apply to a disabled spouse.
MYTH 12: I will lose everything if I committed adultery
Adultery is a fault-ground. This means, your spouse can get more of the marital estate. It does not mean they get it all. Typically, the amount the innocent spouse gets is not that much more than a 50/50 split.
MYTH 13: Mothers always get primary custody
While there are still some Judges that give preference to mothers it is not always the case that mothers automatically get primary custody of the children. The Judge must determine what is in the best interest of the children. Sometimes the father is the better choice. The is a fact specific issue that the Judge must determine based on the unique facts of each case.
MYTH 14: Debts go to the person whose name the debt is in
Debts are part of the division of property in every case. Division of marital debt is 50/50. It does not matter whose name it is in. An exception is when one spouse has a debt that they incurred for their own personal wants, without the knowledge of the other spouse, and not debts incurred by both spouses or for necessary expenses for the spouses to live.
MYTH 15: All attorneys care about is money
This is probably the most hurtful thing a client can say to their Attorney. Attorneys often become close to their clients during a divorce case. They learn everything about the lives of their clients and their children. The Attorney mandated to always put the best interest of the client above their own by the Texas Lawyer’s Creed. According to American Law Magazine, lawyers lost over $4.4 Billion last year in unpaid bills, write-offs and discounts. This number would be much lower if Attorneys only cared about money. That said, Attorneys are performing a valuable service at a cost you agreed to pay.
Not all Attorneys charge the same and not all Attorneys are the same. Research Attorneys to find the best fit for you, look for best value not the cheapest. Find an Attorney that you trust. Read your employment agreement prior to signing it. You can ask to have another attorney review it before signing. Make sure you understand the terms of the entire agreement before you sign. And remember Attorneys are human beings doing a job just like you.
