Law Office of Michael G. Diaz, P.C.
Providing Personalized Counsel for a Positive Future
Providing Personalized Counsel for a Positive Future
Contact Us at 972-542-6820
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The vast majority of divorces, child custody cases, and other family law cases do not reach trial. In the vast majority of cases, agreements are reached between the parties prior to trial. The most common form of settlement is through mediation.
Mediation is where an impartial third party works with the parties and through negotiations back and forth helps promote settlement. A mediator’s job is to encourage communication and help present ideas and solutions that the parties are willing to agree to. Most cases that go through mediation do reach successful settlement. Because mediation can help spouses avoid trials, most courts will require that parties go to mediation before trial. If the parties do reach an agreement they can execute a written “mediated settlement agreement.” If the mediated settlement agreement includes certain things such as prominently displayed language that the agreement is not subject to revocation and is signed by the parties and attorneys then the agreement is binding. A properly executed settlement agreement is binding immediately and even the court has limited power to deny the agreement. A court may only review whether the agreement is illegal or one party entered into it because of fraud, duress, or other dishonest reasons. If no such reason is evident then a party is entitled to judgment on that agreement. Mediation can be a very effective way to reach a conclusion in a divorce or custody case. Mediation can help craft a custom solution to a party’s particular circumstances that might not be possible in a trial. Mediation can also help the parties save the significant time and money required to proceed to trial. Every divorce must include at least one ground as the basis for the divorce. The Texas Family Code provides for 7 different grounds for divorce:
1. Insupportability, 2. Cruelty, 3. Adultery, 4. Conviction of a felony, 5. Abandonment, 6. Living apart, and 7. Confinement in a mental hospital. These grounds for divorce are divided up into no-fault grounds and at-fault grounds. Insupportability, living apart, and confinement in a mental hospital are considered no-fault grounds. In a no-fault divorce neither spouse is alleged to have caused the breakup of the marriage. The vast majority of all Texas divorces are based on insupportability. A divorce based on insupportability removes any need to involve personal details of either spouse’s conduct during the marriage. This makes the divorce process much easier for those spouses wanting a divorce based on insupportability. Cruelty, adultery, felony conviction, and abandonment are considered at-fault grounds for divorce. One spouses is alleging the other spouse’s actions are the reason for the break-up of the marriage. Fault grounds can give a spouse a basis on which to request a greater share of the community estate and can help determine the amount and duration of any spousal maintenance payments. Many times people assume all community property will be divided 50/50. In most divorce cases based on insupportability (no-fault), the community estate is divided equally. However, the court has the ability to divide the estate in any manner it feels is a just and right equitable division. If one spouse has been shown to have committed adultery and is at fault for the break up the marriage, the court may award the other spouse a share that is more than 50%. It is important to discuss with an attorney the appropriate grounds for divorce in your case. You want to understand the benefits to alleging a no-fault divorce or an at-fault divorce based on your particular circumstances. In addition to a traditional, ceremonial marriage, Texas does also recognize what it terms as an “informal marriage”- what people commonly call a “common law” marriage.
An informal marriage in Texas requires three elements: (1) the parties agreed to be married, (2) the parties lived together in Texas as spouses, and (3) the parties hold themselves out to other as spouses. The first element of agreement can be shown by evidence that the parties had a private ceremony in which they agreed to be married, but never got a marriage certificate. An agreement could also be established just by two people “agreeing” to be married. However, an agreement to be married is not simply two people living together without some discussion or act to enter into an actual marriage. The second requirement that the parties lived together is generally one of easier elements to show. There is no set time limit requirement, but it must be that the parties established a home together and didn’t just stay some nights in the same house. The last requirement of an informal marriage is “holding out” to others that the parties are married. This could be something like naming the other party as wife on a life insurance policy or filing taxes together as married, filing jointly. Each party must make some show that they are married. An informal marriage has the same legal effect as a ceremonial marriage. Spouses who are informally married are entitled to the same benefits such as establishment of a community estate, homestead rights, and potentially spousal support. Community property would be divided among spouses the same as it would be with spouses who had a ceremonial marriage. Separated spouses living in different cities or states or spouses who have recently moved to Texas, may have a questions as to where that spouse should file for divorce. The Texas Family Code sets forth the requirements for filing for divorce.
Under Section 6.301 and 6.302, generally a spouse may file for divorce if that spouse has been “domiciled” in Texas for the past 6 months and resided in that county for the past 90 days. A party may also file in the county where the other party has resided for the past 90 days if that party has been “domiciled” in Texas for the past six months. Texas courts have held that residing in a county requires the spouse to be physically present and living in the county, but does allow for temporary absences from the county. Often times courts will look at if the person had a good faith intent to live in that county. So if someone moves to Collin County, Texas, buys a house, and seeks to establish themselves in Collin County, then even if that person then goes out of the country for 6 weeks for a job, the court will probably say they resided in Collin County the entire time. Much of the same requirements apply to establishing a “domicile” in Texas for meeting the 6 month requirement. Generally, the person much live in Texas and have the intent to make it his or her home. For military service members and his or her spouse, if they establish a residence in Texas then even if they get stationed overseas they will generally, be considered as having been “domiciled” in Texas the entire time. If both spouses live in the same county, then a decision on where to file will be straightforward. If the spouses live in different counties then it is important to speak with an attorney and look at the options on would be the best county to file. |
AuthorMichael Diaz is a Divorce and Family Law attorney in McKinney, Texas. Archives
March 2018
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