Archive for July, 2017
Does it matter who files for divorce first?
Either the husband or the wife may file for divorce in Texas. Sometimes, when it appears that divorce might be coming, we are asked whether it matters who files first. The short answer is: it does. While the burdens of proof and presenting evidence do not change based on who files first, other, important, tactical factors will vary.
For example, the person who files first will usually get to present his or her case first at trial. This is an important advantage, because research shows that people don’t like to remain uncertain about an issue, but instead want to make a decision on the issues soon after starting to consider a controversy. And so, being able to present your case first works to sway the Judge or the Jury deciding the case, to your side.
Another advantage of filing first is that you will get the last word in the Closing Argument. And, research shows that the last information that we receive is also more persuasive than most information earlier-presented information. This is why Closing Arguments are powerful and important. And, if you file for divorce before your spouse does, then in most cases, you will get to present your Closing Argument first.
Also, when you file your divorce case first, you can plan to file it when you are emotionally and financially ready to do so. And, at least in Texas, you get to choose on which of the available hearing dates (for Temporary Orders and the like) your initial hearing will be set. And, if it is possible to file your divorce in more than one Texas County, then you will get to choose the county where the case will take place. This could be very important.
But, if your spouse files for divorce first, then you will have to react to that filing. It will have already been filed in a county selected by your spouse (if it is proper in your case to file it in more than one county). The initial hearing will have already been set for a time that is convenient for your spouse and his or her lawyer, and not necessarily when it is convenient for you and your lawyer.
Filing your case first can give you some important advantages.
Like many other things, divorce in Texas is a bit different than in other states. One of the most obvious differences is that Texas is one of the few remaining community property states when dividing marital property.
More specifically, Texas is one of very few states that requires divorce mediation when child custody or visitation issues are contested during a divorce (except where there are allegations of abuse or domestic violence).
Mediation can be a very helpful tool, and there’s no need to wait for a court mandated reason to use it. In fact, for many couples, mediation is the best path through divorce, allowing them to keep the children they love at the heart of the process.
Children are often the greatest victims of divorce, but your children don’t have to be. If you and your spouse are willing to work together for the good of your children, you can achieve a successful divorce that is often less expensive than traditional litigation, without ever stepping foot in a courtroom.
A mediator keeps things fair for all parties
In a traditional divorce scenario, two opposing teams of attorneys fight each other for the best interests of their respective clients. This is effective, and often necessary, if one side or the other is unwilling to act reasonably.
Contrastingly, in mediation, parties sit down at a neutral location with a professionally neutral mediator. The mediator understands the full scope of the legal issues that must resolve in the negotiation, and also understands how to ensure that each party wins and sacrifices fairly to reach an equitable agreement, especially when it concerns children.
While mediation is helpful for divorcing couples in many different scenarios, those with children can reap additional benefits that can pay dividends for years to come.
A mediator protects children first
When you use a mediator to mediate your divorce with children, you make a very specific statement to your family and community that you put your children first above your own privileges and comfort.
A mediator walking with a family through the divorce process understands that what one parent or another wants, or is even rightfully entitled to, is not as important as what is best for the children in the family.
A good mediator requires that both parents sacrifice for the sake of their children, and also gives parents great opportunities to display hard lessons to their children about love and responsibility.
Not only may you save significantly over the cost of traditionally litigated divorce by avoiding a courtroom, you may save yourself thousands in future therapy costs because you chose to love your children well in this difficult season.
Just because you and your spouse want a divorce doesn’t mean that your children should lose any depth of relationship with either of you. With the help of a mediator, you can preserve your relationships with the children you love, and demonstrate that divorce doesn’t have to be the ugly, mean thing it’s often presented to be.
While many parents wish to have sole custody over their children, in practice it is rare that it is granted. The courts generally assume that it is in the best interest of children for their parents to have joint physical custody. However, there are situations in which sole custody is the best option, particularly when one parent has an issue with substance abuse or mental health issues.
If sole custody is being sought by one of the parents, the standard for making a decision does not change. As with any other custody case, the outcome will be determined by what is in the best interest of the child. In reaching a conclusion on what is in the child’s best interest, the court will examine factors such as the ability of each parent to care for the child, the emotional and physical needs of the child, the current relationship each parent has with the child, and the stability of the home seeking sole custody.
A common example of when the court may grant sole custody is in a situation where one of the parents has demonstrated a clear history of family violence. Another is when a parent has a history of substance abuse or mental illness that leaves him or her unable to consistently provide proper care for his or her child.
Whether you are seeking primary custody or want to prevent the other parent from getting sole custody, remember the court will always look at what is in the best interest of the children.