In this podcast, Joshua Woodburn, a Certified Family Law Specialist by the Texas Board of Legal Specialization, answers common questions about the divorce process in Texas.
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Hosted By: Diana Shepherd, Editorial Director, Divorce Magazine
Guest Speaker: Josh Woodburn, Certified Family Law Specialist in Amarillo, Texas
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Read the Transcript of this Podcast Below.
What should you do and what should you not do when getting a divorce in Texas? My name is Diana Shepherd and I’m the editorial director of Divorce Magazine and Family Lawyer Magazine. Joining me for this podcast on common questions about the divorce process in Texas is Joshua Woodburn, a family lawyer in Amarillo, Texas. Josh is board certified in family law by the Texas Board of Legal Specialization, which means he has substantial experience as well as demonstrated and tested special competence in family law. Josh enjoys fighting for people that he believes in. He takes pride in making the lives of his clients, their children, and his community better.
Diana Shepherd: If someone has decided to get a divorce, what’s the first step they should take?
Joshua Woodburn: Each divorce is unique and the circumstances involving it are unique, so the first thing I would advise any person who’s considering divorce to do is to speak with an attorney and talk with your attorney about the unique circumstances involving your divorce. Beyond that, I would tell them that they need to be prepared emotionally to go through the divorce process; in Texas, the divorce process is mandatorily at least 60 days, but it usually lasts more than six months. In that sense, the divorce process is really a marathon and not a sprint. With that in mind, I would advise clients to develop a support system that will help them cope through this process and to gather documents that they think are relevant. I would advise them to acquire their own bank accounts so that they have control over their assets.
I would not advise them to cancel or to close out any bank accounts, but I would advise them to have their own bank account where they can deposit their paycheck stubs so they can live while this case is pending. They should keep track of their spouse’s social media postings, document all their interactions with their spouse, and not post anything on social media that they wouldn’t want the court to see. I also would advise them to speak civilly in any emails or text messages with their spouse.
Is there a way to plan for this process? What steps would you recommend for someone who is considering divorce before they break the news to their spouse?
That really depends on the demeanor and attitude of the spouse. In a lot of cases, if you think that there is not much to argue over and that settlement is likely, it’s not necessarily a bad idea to break the news to your spouse in advance of filing. However, if there is a chance that things are going to be highly contested or you are fearful that the other spouse may take some action to deprive you of your property or prevent you from having access to your child while the case is pending, I would advise you to wait until the divorce has been filed before informing them. The reason for waiting in that scenario is that you can ask for the court to impose injunctions or orders for the other spouse not to do certain actions that will jeopardize the estate.
There are some advantages to filing first and those include that you’ll be able to present your case to the judge and likewise, you’ll be able to prepare for the case before the other spouse really has any idea that something is looming. That’s an advantage you don’t necessarily want to forfeit by telling your spouse in advance of filing. So to answer your question, I think you really need to consider what your goals are in the divorce and how you think your spouse is going to react.
What should someone consider when choosing a divorce lawyer to represent them?
First, you should determine whether your attorney has experience in family law: both knowledge of family law and the ability to try your case before a judge or a jury. You ultimately don’t know if you will be trying this case in court or if you’ll be reaching an out-of-court settlement, and so it’s important that you have somebody who has experience both in knowledge of the law and how to try your case. I’ve been practicing family law for over 15 years. I’m board certified as a family law specialist and I have been successful and in trying multiple trials both to a judge and a jury.
Second, you should hire someone that you feel comfortable with and with whom you have a good rapport. The divorce process can be extremely personal and you may be sharing details of your life that you’ve never told anyone about. You want to make sure that you feel like you can trust this lawyer, that you can talk with and you can be candid and open with them so that you get the best advice that you deserve.
What documents should someone bring with them to their first meeting with their divorce lawyer?
I would recommend that they bring in tax returns and paycheck stubs for both themselves and their spouse. Retirement records, both your retirement records and your spouse’s, credit card statements, documents related to health insurance, and specifically what that cost is for you and for any children. Bring in text messages and email messages and social media records from Facebook, Twitter, etc. that you think are relevant. With regard to the social media and text messages, I would always advise my client to print out a hard copy of those messages and postings because you never know if their spouse may erase those or get rid of them before you have a chance to download them. If there are any criminal records for you or your spouse, you should bring those with you. Bring any old orders that may affect the children, including if there are any prior orders for your spouse to pay child support for any other children or if there are any CPS records.
What are the top two mistakes most people make in divorce – and how do you help your clients avoid them?
A lot of people make the mistake of waiting too long to file for their divorce. I certainly am not advocating divorce: I understand why people try to keep the relationship going as long as it can. I think a lot of people wait too long and allow the other spouse to take action that may harm their case. The second biggest mistake people make is to act deceptively or shady immediately before the divorce process begins. When a client deprives the other spouse of money – either by transferring it, withdrawing money, or giving it to friends or family – that can really sour the court’s impression of that person. While I understand the desire to protect your assets, it can really harm your case if you do something deceptive like that. The court will not appreciate or approve of that.
What effect does a prenuptial agreement have on a Texas divorce?
A prenuptial agreement can define the rights and duties of each spouse who’s about to marry. There are several reasons why someone may want to enter into a prenuptial agreement, including preserving a family fortune or asset that was acquired by inheritance before you were married. They can also eliminate or set future alimony or spousal support. It can predetermine what property belongs to each party and how the property will be divided at divorce. And it can also make a spouse’s income separate property when it otherwise would be community property. There are some things that a premarital agreement can’t do, including things like adversely affecting child support, defrauding creditors, waiving certain retirement benefits, or violating a criminal statute or public policy. The prenuptial agreement will need to be in writing if it’s agreed to, and each spouse must provide a full financial disclosure to the other spouse. And it must be signed before the marriage. The prenuptial agreement can be void if it’s not voluntarily executed or is found to be unconscionable.
Some of the ways that it can be found to be involuntarily executed as if it’s executed right before the wedding. Sometimes people want to spring a prenuptial agreement on their fiancée days before the wedding, and that has been determined by courts to be an example of putting undue duress, influence on the party who has been asked to accept it. So if you intend to file or acquire a prenuptial agreement, it’s probably best that you contact an attorney well in advance of the wedding day.
Are assets split 50/50 in a Texas divorce? What about the debts?
In Texas the judge is ordered to divide the community estate in what’s called a just and right manner. That means that the court has really broad discretion in dividing the community assets. The court will generally try to divide things equally, but there are a lot of factors that the court can consider when dividing a marital estate. In general, there are four different categories that the court will consider when making a determination of how to divide assets, and they will also consider factors involving the need for future support by a spouse. This can include if one party is going to take the children and what that need for support of the children may be. They’re going to consider each spouse’s education, earning ability, and employability. They’ll also consider the health and age of each spouse.
Another factor the court may consider is whether a spouse has committed some act of wrongdoing. To that end, they may consider whether there’s fault in the breakup of the marriage – things like adultery, domestic violence, or cruel treatment. The court can also consider whether there has been any fraud committed in that a spouse has tried to deprive the other spouse of a community asset by transferring it to a third party without that spouse’s knowledge. And they can also consider whether there has been waste – things like gambling debts, money spent on a extramarital affair, or other wasteful spending by one spouse.
Finally, the court can consider things like the financial costs surrounding the divorce. If one party is paying temporary spousal support, or if one party is a paying all the expenses to maintain property, then the court may potentially award a larger share to the spouse who is providing those necessaries.
If someone doesn’t want to accept their spouse’s settlement proposal, does the divorcing couple have to go to court to settle their differences?
No, you don’t necessarily have to go to court. It depends on how the parties approach the divorce. In Texas, there’s a new trend called collaborative law, which is a process of resolving a case that virtually ensures that you will not go to court.
First, both parties must agree to participate in a collaborative law process, and they do that by signing a participation agreement. When they sign that agreement, what it says is that neither party will go to court – and if they cannot reach agreement, both collaborative attorney must withdraw and the couple must each hire a new lawyer to represent them in court. This helps to keep the lawyers engaged in trying to resolve this dispute collaboratively and not give up the first time that there is some disagreement. This process is a little different than the normal divorce process because it’s supposed to be done with full disclosure to the other party so that there’s no discovery. And there will not be any court involvement if things are resolved through the collaborative process.
You may not want to participate in the collaborative process if you are having trust issues with your spouse, if you think that that spouse will not be transparent, or that they will not negotiate in good faith. If there is a fear that other spouse does not intend to provide full disclosure or negotiate in good faith, you’re probably going to spend more money trying to get this divorce accomplished because you’ll have to fire your collaborative attorney when you fail to reach an agreement with your spouse.
I am trained in collaborative law, so if you decide that you wanted to go that route, I could certainly help you.
Another way to resolve a divorce without going to court is through the process of mediation. Mediation is a process where the parties meet with a neutral third party who helps them try to resolve the issues in their divorce. If the parties reach an agreement, that agreement is binding. Sometimes that process is initiated by the attorneys to try to get a resolution, but the court often mandates mediation before you can set a date for a final hearing. Mediation is probably the most common way of resolving the divorce without going to trial in Texas.
Diana Shepherd: My guest today has been Joshua Woodburn, a family lawyer at Woodburn and Watkins in Amarillo, Texas. Josh was drawn to divorce and family law because he finds the challenge of resolving complex issues to his client satisfaction deeply gratifying. If you have questions about Texas divorce, you can learn more at www.amarillofamilylaw.com.