There is nothing fun or comfortable about going through a divorce. Divorce is emotional, exhausting, infuriating (at times) and expensive, to name a few descriptors, and there is no need to unnecessarily (and sometimes unknowingly) exacerbate an already tenuous situation.
It is perfectly normal and acceptable to feel lost or intimidated at the outset of a divorce, but it is the decisions one makes at this juncture that will set the tone going forward and, potentially, have a big impact on life long after the divorce is over.
In any given divorce you will always have the following:
The marital estate,
Issues regarding children (if applicable),
The law of the State in which you are divorcing (or where property may be located) and the facts, nothing more.
Clients need to realize the end-goal upfront; which is to protect and provide for the best interests of the children, if any, and finalize the divorce as swiftly, amicably and economically as possible.
Understanding, of course, that not all divorces are created equal and that each independent divorce will inevitably require different actions be taken, and, depending on the facts and circumstances involved in each particular divorce, certain supplementary steps may be required. These supplementary steps can prolong the process and increase costs but are necessary nonetheless to achieve the end-goal (i.e. custody evaluations, business valuations, appraisals, etc.).
As oxymoronic as it sounds, a divorce should be an aggressively calm act.
In Texas, you cannot legally be divorced until the sixty-first day after an Original Petition for Divorce has been filed. Therefore, divorcing parties have, at a minimum, two months to determine what issues, if any, will arise regarding the children and what the overall makeup of the marital estate is.
It is of the utmost importance to remember that these two areas (children and property), although both need to be agreed upon in order to reach a settlement, should be kept separate and never used as a bargaining chip or leverage against the other. The mixing of these areas will only lead to the creation of more issues and have a negative effect on the children.
2 Most Important Issues You’ll Deal With During Divorce
One of the most heart-breaking things to witness is when a parent, albeit at times unknowingly, doesn’t put their child at the forefront of their mind when going through a divorce. There is one thing that will never change, and that is the fact that even though two parents are divorcing they will still be required to co-parent their child.
Fighting with your spouse, running their name through the mud, spreading rumors, airing all of your spouse’s dirty laundry, etc., while it may feel good at the time or make you feel as if you are “winning,” is really only going to achieve prolonged and more expensive litigation. It will also have a negative impact on your child, both at that moment and potentially into the future.
There is no requirement when going through a divorce that you attack the other party as a parent or complain about their inability to parent or care for the child (more than likely for the very first time). You brought a child into this world with your spouse and while you might be divorcing your spouse you are not divorcing your child and a divorcing parent should act accordingly. The fact that you are now divorcing your spouse and may not love them any longer does not mean your soon-to-be ex-spouse is a bad parent or does not love your child.
A parent should not alter reality or what they believe solely because they are now going through a divorce… if you believed your spouse was a good mom or dad prior to the divorce then absent some intermediate event that belief should not change.
A divorcing spouse who frivolously tries to paint the picture that
(1) their spouse is a bad parent,
(2) does not want what is best for their child or, heaven forbid,
(3) does not love their child, is not only severely impacting their own case and credibility (a Judge will see right through it) but adding fuel to a fire for no reason other than fear or intimidation.
If both spouses love their child and possess the ability to provide for their child’s best interests, there is nothing wrong with that simply because you are in a divorce. In fact, that is how it should be.
Outside of extenuating circumstances, a court is not going to take a child away from a parent or prevent that parent from seeing the child on a consistent basis just because that particular parent has a full-time job or has not been the primary caregiver during the marriage. The goal of divorce should not be to prevent the other parent from having possession of and access to their child, so one should not approach divorce with that goal or mindset as it is, more often than not, a dead end.
Outside of a legitimate concern regarding one parent’s ability to provide for the safety and welfare of the child, it is in that child’s best interest to see both parents. After all, the child is not the one who decided their parents should get a divorce and parents should keep that in mind when making decisions regarding their child.
While a divorcing parent has every right to be upset with, disappointed in or even wish ill-will upon the other parent, it is paramount that you never let these emotions be shown or trickle down to your child. Divorcing parents must take every necessary step to shield their child from the divorce; do not discuss the divorce within earshot of your child, do not leave documents regarding the divorce laying around where a child can access them and never ever speak to your child about the divorce.
It is natural for a child to be curious or have questions about your divorce.
And the best way to address this is to make an appointment for your child to speak with a neutral third-party professional in a healthy environment so that they can process any emotions, ask questions or voice any concerns they have. If you are worried the divorce will have or is having, an effect on your child take the steps necessary to do something about it, don’t count on it to just disappear over time. While children are very resilient if divorcing parents are not cognizant of the potential lasting implications a divorce (contentious or otherwise) can have on a child they risk affecting their child in ways that can last well into the future.
Just because you are going through a divorce doesn’t mean you stop being a role model or that your child stops paying attention. Children, regardless of age, see everything. Never forget: they are very perceptive and remember things. It is important to keep in mind that divorce is not a game or a competition, and when a divorce is over no spouse ever “wins,” but a child can easily “lose.” If a child’s parents do not check their egos at the door and put their child’s best interest first, but instead allow their emotions to distract them from what truly matters in the end, the child will most certainly be the only one to “lose,” and thus be negatively affected, as a result of a process over which they had zero control.
Managing the emotions and expectations of each spouse along with understanding that what each spouse believes is “fair” or what they “deserve,” plays a huge part in any divorce and mostly to both spouses’ detriment. When a spouse feels “entitled” or believes they should receive a larger share of the marital estate because “their pay-check paid for everything,” or “I stayed home with the children all day every day,” to name a few, it can lead to the creation of larger, sometimes unnecessary, issues which only prolong the divorce process, have an adverse effect on the child (if any) and increase the overall cost.
While it cannot be denied that going through a divorce can be expensive and emotionally taxing, it by no means must be that way. The most important thing to do when tackling the property aspect of any divorce is to first GET ORGANIZED and determine what makes up the marital estate.
The first step toward achieving this goal is to obtain an agreement for each spouse to create and exchange a sworn Inventory & Appraisement (“Inventory”). This will require each spouse to list all of the property (real, personal, financial, etc.) of which they are aware and provide backup documents supporting the values of everything listed. While this is helpful in the not uncommon scenario where one spouse has controlled the finances throughout the marriage and the other spouse has been, for the most part, completely in the dark it is not the only tool available.
If a spouse either knows or feels as if the other spouse has not been honest and forthcoming on their Inventory they may choose to engage in discovery (Request for Disclosure, Request for Production, Interrogatories and/or Request for Admission) to obtain further information and documentation in a more formal, and enforceable, way.
Once the marital estate has been established you will then have a clear picture of what the “next steps” should be; do you have property to appraise, businesses to value, etc., or will you be able to agree on these values without these supplementary (albeit prudent and necessary in most cases) steps. Once you have assigned a value (or competing values) to each asset within the marital estate it is time to divide the estate.
This process (and the ending result) is driven by the particular facts in each case, but whether those facts are that one spouse spent thousands of dollars on a paramour, the marriage was perfect and both spouses have the same earning potential and separate property, or that one spouse has been a stay-at-home parent and has never worked while the other was CEO of a billion dollar company… the facts shall set you free (whether you like it or not – it is what it is).
One of the biggest mistakes a spouse can make during a divorce is trying to hide assets.
Bottom line: don’t do it. First, if it is discovered during the divorce that a party has attempted to hide assets or has been dishonest with the court it will destroy your credibility with the court and end up hurting you in the long run (not to mention cost a lot more money). There is no reason to misrepresent the assets within the marital estate or fail to disclose assets. The law within the State you are divorcing will control the characterization of your property so there is nothing you can do prior to divorce (except for a Partition or Exchange Agreement or something similar thereto) that will necessarily benefit you, property-wise, one way or another.
Trying to get sneaky or play fast and loose with the marital assets will only result in you spending more money on litigating and fighting in the divorce and may even result in you losing the asset you attempted to hide (or failed to disclose) altogether. In most Texas Divorce Decrees there is language which states that if it is discovered post-divorce that an asset was intentionally not disclosed by a spouse that asset is awarded, in its entirety, to the innocent spouse.
A spouse is not necessarily off the hook once the Divorce Decree is signed by the Court if undisclosed assets are discovered at a later date (sometimes years down the road), they are still subject to division by the court. Do not make this process harder than it has to be.
The marital estate does not change upon the filing for divorce.
A spouse’s feelings toward their soon-to-be ex-spouse may change which in turn rouses emotions which can lead to the making of poor, irrational and emotionally-fueled decisions. It is the emotions which each spouse must keep in check (easier said than done, I know) in order to treat the property issues for what they truly are; a business decision.
Taking actions which intentionally complicate or delay discovering what the marital estate consists of will only lead to distrust which in turn will increase litigation, costs, and attorney fees. Divorce is already expensive enough and taking action just to be difficult and delay the inevitable is nothing more than a waste of time and money. In the end, the more the spouses spend on their divorce the less they are dividing amongst themselves. That is not good business.
We are all human and we all (whether we want to admit it or not) have egos, especially when it comes to divorce. When a divorce is filed people naturally get defensive and think it automatically has to be WWIII, but it doesn’t. Humans are predisposed to feel threatened in situations like this (sometimes rightfully so), but at the end of the day, there is one goal which is the same for ALL divorces and those involved: protect the children, move on with your life and go your separate ways.
Spouses can either choose to go about it the unnecessary, (more) expensive, way or the economical business-minded way. The end result will be the same, that is the spouses will be divorced having resolved issues regarding the children and property, but the question will be, were the children hurt in the process and how much more property would each spouse have walked away with if they would have been amicable.
No spouse will tell you the fight, stress, and disruption of their lives during a nasty divorce was worth it… if only they knew pre-divorce what they now know post-divorce. Divorce sucks (I’ll just say it) but that does not mean it has to ruin you financially, destroy any chance of co-parenting in the future or, most importantly, have a negative effect on any child involved. Make good decisions.
KoonsFuller Family Law attorney Richard Gray’s practice focuses on divorce, child custody, child support, complex property division, prenuptials and postnuptial agreements, among other family law related matters. He is a member of the State Bar of Texas, State Bar of Texas Family Law Section, Dallas Bar Association, Dallas Bar Association Family Law Section and an active member of other organizations including being a fellow of the Texas Bar Foundation. www.koonsfuller.com
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