Divorce Options in Texas
Many couples are not aware of the choices they have to reach a resolution and may have the perception that only one option exists to dissolve a marriage. Fortunately this perception is not accurate and divorcing couples in Texas can choose the divorce option that is most appropriate for their individual and family needs.
In Texas, approximately 95 percent of all divorce cases are settled by agreement. How you come to an agreement about how to divide your community estate and the best arrangements for your children differs. The divorce options available in Texas include:
- Collaborative Law
- “Kitchen Table” Settlements
- Do-it-Yourself Divorce
The Basic Differences between Collaborative Divorce, Mediation, and Litigation:
One Denton County District Judge, Doug Robison, accurately summarized the differences:
- In Collaborative Divorce, the parties decide the terms of their settlement and the lawyers review and approve it
- In Mediation, the lawyers direct the terms of the settlement and the clients review and approve it
- In Litigation (also known as court, or trial), the judge or jury decides all the issues of the parties’ case
Collaborative Divorce has become a popular dispute resolution option in Texas. In the Collaborative Divorce model, you, your spouse, and lawyers agree in advance that no one will take any contested issue to court. The “Collaborative Team,” which often includes mental-health and financial professionals, focuses all its attention on finding ways to restructure the family so that the needs of everyone involved are met to the greatest extent possible. The lawyers in this team are divorce lawyers and family law attorneys with special training experience in Collaborative Divorce.
Collaborative Divorce starts with the idea that most people want to move through family law matters as quickly and efficiently as possible. Most people do not want to harm their spouse and children–they just want to change their situation from the way it is to something they believe will work better. Collaborative Divorce eliminates much of the strategic game playing that often accompanies litigation, as well as the hard feelings that are created when one person has to win and the other has to lose. In the unlikely event that clients are not able to settle all the issues in their case using the Collaborative Divorce model, a mediation can usually settle any remaining issues. In the few cases that are not able to be completed in the Collaborative Divorce, litigation attorneys can still take the case to court.
Mediation is assisted settlement negotiation within the litigation process. A common misconception is that parties can mediate their issues prior to filing for divorce, as a stand alone alternative dispute resolution process; however, mediation is usually part of and within the litigation process, taking place after a suit for divorce is filed. Mediators do not take sides and their sole role is to help people reach a settlement. In most cases, the parties are required by the judge of their case to try to settle their case through mediation before they go to court for trial.
Some positives to mediation:
- Mediators are neutral and can offer clients a different, unbiased perspective.
- Having both clients, lawyers and a mediator in the same place at the same time with everyone’s attention focused on getting a settlement can often create a positive environment for making agreements.
Some negatives to mediation:
- Mediation often takes place just before a case is scheduled to go to trial, after the parties have already spent substantial money, time and emotional energy fighting.
- Mediation under these circumstances can sometimes feel coercive to clients, who may never have discussed the realities of their situation with their attorneys.
- Mediation can be expensive. If the parties qualify for a sliding scale or low-fee mediation (available in some counties) the main cost for them will be their attorney’s fees, but if they do not qualify for a low-cost mediation, the parties will be paying for each of their attorneys (for extensive preparation and the hours spent during the mediation) plus the mediator’s fee, which can be up to several thousand dollars.
- Mediation is often limited to one-day. Most cases set for mediation in Texas for one full day with the expectation that the case will settle during that time. It is very difficult to adequately review and settle all the issues of a case during a typical eight-hour day long mediation, and if the mediation goes into extra hours, the parties, attorneys, and mediator are fatigued. The best decisions are not made in time-constrained situations or under stress.
- Many cases are mediated using the “caucus style,” which means each party is in a different room during the mediation. There is no opportunity for them to learn how to cooperate or work together after the mediation is over. If the parties have children together, learning how to work together during their divorce may be particularly helpful when they are co-parenting in the future.
In litigation, decisions are made for the parties by a judge, or sometimes a jury. There are very strict rules about what information may be presented to the decision-maker, who may have never seen you before, will have a limited time to get to know your case, and who will probably never see you again.
Litigation does provide resolution for people who cannot find a way to settle their differences any other way. The court system is the only way to “force” a reluctant party to deal with family law issues. Litigation, though, is a process focused on the negative aspects of divorce and other family law matters. In comparison to other divorce options, it causes people to focus on how they are “right” and the other is “wrong,” when they really just have different ideas about how their lives should look after divorce. Litigation is expensive and destructive to relationships. Even though most cases settle before they ever go to trial, the process of preparing to go to trial, if necessary, causes relationship damage that is difficult – if not impossible – to repair. Costs of litigation can use up funds that could be put to better use, such as children’s college costs or the parties’ post-divorce financial autonomy.
“Kitchen Table” Settlements
This settlement method is simple. The husband and wife sit down “at the kitchen table” and work out an arrangement that satisfies each of them. The agreement can be taken to a lawyer to be put into legal form or use complete do-it-yourself divorce forms.
Unlike some other divorce options, this method of reaching agreements can produce inexpensive, quick, private agreements for couples who do not have children or substantial assets. Without the benefit of legal advice, however, you may not know if you are giving up valuable rights. It is also easy to “re-invent the wheel,” or make mistakes that someone with family-law experience could help you avoid. People often find, upon taking the agreement to a lawyer, that questions will arise that may cause one or both spouses to change their agreement. If the husband and wife do not have equal information and equal power in the relationship, one person might not get his or her needs met.
Bookstores and on-line resources sell forms that can be used to handle a divorce without attorneys. Forms may also be available at local law libraries.
Divorce kits or forms generally provide a check-list approach to property and child-related issues, so users are not left completely in the dark about their options. These may be fine for people with no children or substantial assets. But not all forms are equal; some can create more problems than they solve. When children and real estate or other major assets are involved, the forms may not be detailed enough to do what you are trying to accomplish. Further, check lists cannot inform you of your rights and leave little room for creativity. If the husband and wife do not have equal information and equal power in the relationship, one person might not get his or her needs met.