Mental Preparation for the Divorce Process
Usually when you think about divorce, you have some notion as to what it entails. You may have watched characters in movies or television soap operas going through a divorce, or maybe your co-worker, best friend, or neighbor may have confided in you. Perhaps, your own parents have gone through a divorce. However you may have encountered it, facing this type of a proceeding can be very stressful and can cause you emotional distress. Not only are you faced with the prospect of losing your spouse, nut you suddenly have to think about a multitude of other unpleasant circumstances such as making new living arrangements, division of property; and, if there are children involved, you will then have to come to terms with the possibility of not being able to see them on a daily basis. Therefore, it is important to understand the process, so that you are better prepared for what lies ahead.
Division of Property
The first thing you need to understand is that a divorce is a lawsuit. One spouse sues another to terminate the marital contract. After the Original Petition is filed, one of the first things that a divorce court will do is devise a plan for the division of property. Texas is a community property state. Community property is defined as all property acquired during the marriage except property acquired by inheritance or gift. Separate property is that which you owned before marriage and that which you acquired by gift or inheritance. With regard to property, it is the job of the Court and/or jury to divide the community property and to determine the character of property in the marital estate. The court's only guidance by Statute with regard to property is to make a "fair and just" division of the property. Depending on the facts of the case, the property will not necessarily be divided evenly. The Court takes various factors into account such as fault in the breakup of the marriage, age, education, work experience, and earning potential, to name a few. The Courts generally require an inventory of the property. The parties are free to work out their own division of the property and the Court will encourage you to make an agreement on the issue of property division as well. However, all agreements are still subject to approval of the Court.
Support Obligations
The next thing to consider is that a divorce court will ultimately determine the couple's support obligations, which might include spousal support; however, the award of spousal support in Texas is very rare and only occurs under very specific circumstances. And, if there are children, child support will be awarded to the custodial parent. The amount of child support is statutory and is based on an equation used to calculate your net income. If temporary spousal support is awarded, it is often awarded at a temporary orders hearing on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. There are no set guidelines for temporary spousal support, thus the party seeking support should be prepared to show what his/her needs are and what resources are available to the other spouse to meet those needs. Permanent spousal maintenance may also be awarded in certain situations. Child support payments are largely set by state law, however, deviation from those standards are not uncommon. Also, child support orders may depend on the custody arrangements ordered.
Child Custody and Visitation Schedules Lastly
When there are children involved, the divorce court is also responsible for setting child custody and visitation schedules. The court is required to make their decisions based on a set of factors that promote the best interest of the children, which can vary depending on the circumstances. Based on a limited view into the parents' lives, a divorce court may not always make a decision that serves the best interests of the children when it comes to determining custody rights. Therefore, it is important to consider negotiating a child custody arrangement that is mutually acceptable, as it will benefit everyone involved in the divorce proceedings, especially the couple's children. Absent an agreement by the parents and sometimes in addition to an agreement by the parents, the Court will insert something called the Standard Possession Order into the final decree. The Standard Possession Order is a set of guidelines based in statute which outlines child visitation standards.
A divorce is a lawsuit
One party is served with a Petition, the other party answers, temporary orders are addressed, discovery is conducted, and, then, the Court enters a final order. Having an experienced attorney guiding you through the process and knowing what to expect serves as a good beginning point for a satisfactory end to your marriage.
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