Same Sex Marriage: Can a judge stop you from getting a divorce in Texas?
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Despite the decision out of our federal Supreme Court a few years ago that legalized same sex marriage across our country there are still some misunderstandings and questions regarding that subject. This is understandable to a degree. The change in laws dramatically altered the landscape of family law in terms of who is and is not able to participate in the family law courts. In addition, some folks I have spoken with in my capacity as a consultative attorney with the Law Office of Bryan Fagan still have questions if marriage and divorce work the same for opposite sex and same sex persons. Today’s blog post will discuss marriage and divorce for same sex couples.
Expected length of time for a same sex divorce in Texas?
There are two roads that your divorce could go down. The first is the path of least resistance- an uncontested divorce. To be considered truly uncontested you and your spouse would need to be in agreement on getting a divorce, have a plan in place for diving up any marital property and if you have children would need to have every aspect of a parenting plan agreed upon as well. This means conservatorship, visitation, support, etc. all need to be decided prior to hiring an attorney. If even one piece of this pie is missing, then your divorce is not uncontested and will therefore require some degree of negotiation.
The second path is unfortunately the more common road that most divorces go down- a contested divorce. All of the above issues that I laid out are in play in a contested divorce. The more substantial your martial property or the more detailed your parenting objectives and plans are the more complicated and longer your divorce will likely take. There is not anything wrong with this as a general rule, but it can get tedious and tiresome for most people who are eager to complete their divorce and move on with the rest of their lives.
Generally speaking, a divorce in Texas must take at least sixty days from the date on which the Original Petition for Divorce is filed with the court. Ostensibly the sixty first date is the earliest date on which you and your spouse can have a judge sign a final decree of divorce. A final decree could be signed and ready the day after your petition is filed but absent extreme circumstances (like family violence being an issue) it is unlikely that a judge would waive the sixty-day waiting period. For those of you wondering, the waiting period exists in order for you and your spouse to make absolutely sure that you want to get a divorce rather than remain married and try to work it out together.
How can you avoid a long and protracted divorce?
The key to a fast-moving divorce is to understand early on that you are not going to get 100% of what you want. I wish there were some way to ensure that all of our clients always got just what they wanted out of a divorce but to this point I have not been able to do the math on how to get there. If any attorney ever does get to that point, then the rest of us may as well give it up and start looking for work elsewhere.
The reason that divorces end up being situations where you and your spouse both give up (and therefore gain) things in order to settle the case is that most family courts in Texas require that you attend mediation at least once throughout your case’s life. Typically, you will attend mediation once before any temporary orders hearings and then again before your trial.
Temporary Orders hearings have everything to do with how you and your spouse will be situated during your divorce from the perspective of making sure bills are paid, the kids are cared for and one another are treated with respect. Mediation involves attending a formal negotiation session with your attorneys in the office of a third-party mediator. The mediator is also very likely a practicing family law attorney him or herself so you will be able to gauge the relative strength or weakness of your arguments with the mediator as well.
In mediating for final orders you will likely be extending much of the temporary orders out into your post-divorce life as well as deciding what will happen with any marital property accumulated by you and your spouse. Texas is a community property state. This means that any property that you acquired during the course of your marriage is considered to be jointly owned by both of you and is therefore subject to being divided up in your divorce case. If it is your contention that something acquired during your marriage is your property separate from your spouse- like a gift of some sort- then the burden is on your to prove by clear and convincing evidence that this is the case.
Tips for preparing for mediation in your same sex divorce case
Attending mediation will be the same for you as it would be for persons going through any other divorce. You and your attorney should come prepared with settlement offers, a list of property that may be in play as far as negotiation is concerned as well as plans and ideas on how to divide up parenting time with your children. The more prepared you are and the more variations you have available to you of the different parenting plans the more likely you will be to reach a relatively pain free settlement.
For instance, it is commonly thought in opposite sex divorces that mothers have the advantage when it comes to being named the primary conservator of your child. Primary conservator means the parent who has the right to determine the primary residence of your child- among other rights. This allows your child to live with you throughout the school year and provides visitation time (mostly on weekends) to your spouse once the divorce has been completed.
In same sex divorces there would not be an apples to apples comparison due to there not being a male and female parent from which to choose from. You and your spouse should have had discussions heading into mediation regarding which of you is better suited to be named as the primary conservator of your children. Having an honest conversation with your attorney about which parent has been more active, more involved, and better acquainted with your children’s day to day needs is a good place to start. My admitting to yourself that your spouse has taken the lead in these areas throughout your marriage or has a work schedule that is more conducive to providing the level of care that is needed to raise a child on a daily basis is not admitting that you are not a good parent. It can, however, help you to eliminate contentious delays in your case and lead to a more developed settlement agreement.
Another aspect of divorce mediation that you need to be prepared for is determining how to divide up your bigger financial assets. Retirement plans, bank accounts, home equity and the like are probably the type of assets that you will have in play for your case. If you have not considered these subjects prior to entering into mediation you will find out that you will need to work through them in mediation. Seeing as how most mediation sessions are only four hours long you will not be optimizing your time by spending an undue amount of time on these sort of brain storming sessions while in mediation. Rather, spend a few weeks prior to mediation using your attorney as a go-between to communicate settlement offers to your spouse.
Finally, it is important to note that what you settle upon in mediation cannot (in most circumstances) be changed. That means that you cannot wake up the morning after mediation and call your attorney in a panic because you think you made a huge mistake in deciding to agree to a geographic restriction for your child when you really want to move back home to Colorado to be closer to family once the divorce is over with.
You can avoid problems like this by asking questions of your attorney about anything that you are agreeing or not agreeing to. If any settlements are reached (either in part or in full) then the mediator will present rough draft copies of what is known as a mediated settlement agreement to you and your spouse. You can and should go over them with your attorney to make sure that you understand everything that is being agreed to. If something doesn’t make sense, or if the wording of what the mediator included does not comport to the agreement as you understood it please raise that issue before mediation is over with.
Will you ever have to go to court in your divorce?
Thankfully you will likely only have one court date that you will have to attend during your divorce. That court appearance will be an uncontested appearance in what is known as a Prove Up hearing. The petitioner (party who filed the Petition for Divorce) will attend a quick hearing with their attorney in court. At the prove up hearing your attorney will be presenting you and your Final Decree of Divorce to the judge for his or her approval. The attorney will ask you questions regarding the divorce decree as a means to show the judge that you and your spouse have come to an agreement and are ready to move forward to close out your case.
In all likelihood your judge will not ask any questions and will send you off on your way. The divorce decree will be signed by the judge later that day and will likely be posted online in the day following. You can pay for certified copies at the clerk’s office shortly thereafter.
One question that I am sometimes asked by clients is how much of your prove up hearing will be heard by the public. It is true that anyone can walk into your courtroom during your prove up hearing and hear some details about your case. If you are at all trying to keep the divorce from becoming an “event” or something like that I understand why you may not be too excited to set foot in court and put your life on display in front of a handful of people.
I cannot emphasize, however, that it is unlikely that anyone in court other than the court report, judge, your attorney and you will be paying attention to a word of what is said. In Harris County, for example, you and your attorney will approach the bench and speak to the judge in a conversational tone. Therefore, a person in the first row of courtroom seats will have problems hearing what is happening in your case. The bottom line is that if you are worried about airing your business for all the world to hear then you should be at ease because a Prove Up hearing is not that kind of court appearance.
Closing thoughts on same sex divorce cases
It could be that you never imagined that you would ever get married in your life. Now you are having to contend with the thought of getting a divorce. This cannot be an easy time for you and your family. However, the attorneys and staff with the Law Office of Bryan Fagan are here to tell you that our office will stand with you throughout your case until your process is complete.
If you have any questions about the material that we have covered please consider contacting the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with our licensed family law attorneys. It would be our pleasure to talk with you and to answer your questions and concerns in a comfortable, pressure-free environment.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.