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Ten Myths About Divorce


1. I DON'T NEED A LAWYER.

Maybe you don't. However, unless you have been educated to know the law, trained to present evidence in court and prepare legal documents, and have a basic understanding of legal procedure, representing yourself during a divorce is not advisable. If your spouse has an attorney, you should definitely not be on your own. The effects of your decisions made during the divorce process will be long term and can be very costly to correct. Legal representation is essential to a successful outcome.

2. THIS IS AN AGREED DIVORCE. MY SPOUSE HAS AGREED TO EVERYTHING.

There is no such thing as an "agreed divorce." Even though one spouse may initially say they don't care about who takes on the community debts or where the kids will live, they do care, and when the time is right, they will tell the other spouse exactly what they want. Many clients believe that conversations with their spouse regarding divorce prior to filing have some bearing on the final outcome of the divorce. This is not normally the case. A party's attitude regarding the other spouse evolves over time, usually for the worse. It is prudent to assume that most important issues (e.g. child custody, property, etc.) during the divorce will be disputed.

3. (S)HE CAN HAVE IT ALL. I DON'T WANT ANYTHING.

As discussed above, each party evolves during the divorce process. Things that seemed important in the beginning will lose their importance, and other things will gain importance. Also, a spouse who is trying to maintain the marriage relationship will many times appear agreeable in the hopes of appeasing the other spouse, but will be much more demanding when they realize that saving the marriage is impossible.

4. THE KIDS WILL BE "FINE."

Kids are a resilient bunch, but all children feel the effects of the breakup of a marriage. The children will no longer be raised in a home with both their parents. They may be put into step-family relationships that are difficult for both parents and children. Visitation schedules may be set at times that are not considerate of the children's desired schedules. Counseling may be necessary for the children of divorced couples to help them cope with the stressors created by divorce.

5. MOTHERS ALWAYS GET THE KIDS, SO WHY SHOULD I TRY?

Courts always determine custody based on the best interests of the child. Gender of the parent is not something that is considered; however, the amount of time available for parenting is a consideration. The parent who has the most time available to parent (especially for young children) may have the upper hand.

6. THIS DIVORCE SHOULDN'T TAKE VERY LONG.

All divorces take a considerable amount of time. The standard divorce action in Texas averages about 12.5 months. This is due, in part, to the court's scheduling of the case and the statutory requirements for notice, response, and the waiting period prior to granting a divorce (60 days). In addition to scheduling and statutory delays, divorcing parents with minor children are often required by the court to attend parenting classes before the divorce can be finalized.

7. MY SPOUSE CHEATED ON ME, SO I WILL GET EVERYTHING.

Although adultery is a ground for divorce in Texas, it does not necessarily mean that you will get all the property or custody of the children. Custody will be determined solely on the basis of what is in the "best interests" of the children. Although adultery may get you a disproportionate share of the property, it will only be one factor used in determining the distribution of the marital assets. Further, adultery, or other grounds, will not affect the distribution of the spouse's separate property.

8. MY CHILD'S PREFERENCE ABOUT WHO TO LIVE WITH WILL BE HONORED BY THE COURT.

Although a child's preference regarding with whom they would like to live is a factor in the court's determination of the child's best interests, it is not the sole factor to be considered. Many children, especially older children, would like to be with parents that tend to be more lenient and/or allow the children more freedom and less discipline. This is not necessarily in their best interest.

9. MY CHILD SAYS (S)HE WANTS TO LIVE WITH ME. THEREFORE, THAT IS WHAT THEY WANT.

Children of divorcing parents often want to make their parents happy. Many feel that they are, in some way, the cause of the divorce. Most will say whatever they feel the parent wants to hear, and then hope the decision never needs to be made.

10. I SHOULD SIGN THE WAIVER OF SERVICE.

A waiver of service should never be signed. A waiver of service usually contains language stating that you are not only waiving service, but that you are waiving notice for any future hearings, and that an order may be entered by the court without your notification or appearance. A waiver of service basically gives the opposing party permission to proceed forward to finalization without notice to you or your agreement to any final or interim hearing.