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Name: Hal Davis

Location: Plano, Texas, United States

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Lots of divorce forms available over the internet claim to be "valid in all 50 states", and people often ask if the forms are "legal". The answer isn't simple, but the questions you should be asking are whether the judge will sign the forms, and whether they offer you the same protection as papers drawn up by your own Texas lawyer. I've just created a list:

Top 13 Signs Your Divorce Forms Weren't Written by a Texas Lawyer (and are likely to be rejected by the judge):

• Your packet includes a Complaint For Divorce, or anybody in the document is referred to as a "complainant"
• Your packet includes or refers to a Marital Settlement Agreement
• Your packet includes or refers to a Marital Property Agreement
• The final order doesn't include all of the warnings and admonitions required by the Texas Family Code (divorces with children)
• The packet doesn't include a detailed script for what to say when you're standing in front of the judge (the judge is prohibited from telling you what to say)
• The packet includes or refers to a Quit Claim Deed (this can really screw things up in Texas)
• There's no paperwork to protect you if your spouse is supposed to keep the house and make the mortgage payments, but doesn't actually make the mortgage payments.
• If there are children, there isn't a statement in the papers presented to the judge that states whether there has been a history or pattern of child abuse or neglect within the last two years
• If there are children, the word "visitation" is used regarding the time parents spend with the children.
• There is no language about where the primary parent can live with the children.
• There is no language about making child support payments through the State Disbursement Unit in San Antonio (comlete with their mailing address)
• There is no language about withholding for child support from the payor's paycheck
• An Employer's Child Support Withholding Order isn't included in the packet

While we're at it, here are the top 4 questions a judge will ask at the final hearing that will stop a divorce cold, if the parties don't have an attorney to help them prepare answers:

• Why should I approve this non-standard possession order?
• Why is there no time ordered when the father can have the kids with him?
• Why isn't child support being ordered?
• Why should I approve the payment of child support directly, instead of through the State Disbursement Unit, as provided by law?

I suppose it was bound to happen sooner or later, but it still surprised me to learn this. According to the Dallas Voice blog, a lesbian couple married in Massachusetts in 2004 and adopted a child together. They moved to Texas and one has filed for divorce. The other one is taking the position that gay marriage is not permitted under Texas Law, therefore there can be no divorce in Texas, so let's divide stuff as though we were roommates.
http://www.dallasvoice.com/instant-tea/2009/12/16/austin-woman-contests-wifes-divorce-petition-by-arguing-that-their-marriage-is-illegal/

Of course, this is taking the opposite position of the two men married in Massachusetts, moved to Texas, filed for divorce here, and the trial court judge has ruled that it is unconstitutional for Texas to prevent folks married in another state from pursuing a divorce here. This case is still in the early phases, and it's certain that when this case is over somebody's going to appeal it, and it's in the appellate court system that you get rulings that amount to law.

I guess that in nearly every divorce it would be advantageous to one side or the other to be able to claim that the parties were never married in the first place. If the parties are married, everything they have is presumed to be community property, subject to a "just and right" division, and if you want to claim something isn't community property, the burden of proof is on you to show that you had it before the marriage, or you got it by gift or inheritance.

If there's no marriage, then there's no community property, and you divide stuff like roommates would, including discussions of who actually paid for something, whose name is on the title or receipt, and whether something was a gift to the other.

In this particular gay relationship, whether there's a marriage or not doesn't make much difference regarding the child they adopted. The court would still make the same decisions and on the same basis on parental rights, possession schedule, and child support whether there's a marriage or not. Adoptive parents are legal parents whether they were married or not, and whether they are gay or straight.

I just read an Ezine article by Virginia Keeley who quotes some Texas divorce statistics. Here's a link to the article: http://ezinearticles.com/?Youre-Not-Alone---A-Look-at-Recent-Divorce-Statistics&id=3138848
Let me know if this link doesn't work and I'll snip it out.

She says her numbers come from the Census Bureau, the National Center for Health Statistics, and other independent studies.

According to the article, the average divorce rate in the United States in 2007 was 3.6 per 1000 persons. And, by the way, I believe that the 1000 includes infants, children, bachelors, and widows. So, on average, there would be about 856,000 divorces each year in the United States. But, if Collin County's population is 500,000, you'd expect to see something like 1,800 divorces a year in Collin County, or about 7.2 divorces filed each day that the courts are open. That seems a bit low to me, but feels like it's in the ballpark.

At any rate, her statistics state that of those marriages that end in divorce, first marriages last "an average of 8 to 11 years" and remarriages that end in divorce last an average of 7.4 years for men and 7.1 years for women. This is vaguely in line with a study I did about Texas marriages that end in divorce, mingling first and subsequent marriages, that showed that Texas marriages ending in divorce lasted a little over 7 years (the 7-year itch?).

What I found most interesting was this:
• If you have an annual income of over $50,000, your risk of divorce decreases by 30%.
• If you wait to marry until you're over 25, your risk of divorce decreases by 24%.
• If your parents are happily married, your risk of divorce decreases by 14%.
• If you have strong religious beliefs, your risk of divorce decreases by 14%.
• If you've attended college, your risk of divorce decreases by 13%.

I've never really seen good statistics on the odds of a marriage ending in divorce, but I'm thinking it's in the ballpark of 50%. So, if you start with 50% and apply the adjustments above, you appear to be able to drastically decrease your odds of being divorced, The problem is that if you satisfy all of the adjustments above, the odds of getting divorced are -95% (a negative probability is impossible).

I'm reminded of the quote from Mark Twain: "There are three kinds of lies: lies, damned lies, and statistics."

Dallas Morning News, Friday, October 2, 2009, front page, "Texas judge rejects gay-marriage ban."

The Honorable Tena Callahan, Democrat, Presiding Judge of the 302nd Family District Court in Dallas, ruled that two men married in Massachusetts could legally proceed with their divorce in Texas. She ruled that prohibiting their divorce violated the equal protection clause of the 14th Amendment to the United States Constitution.

It appears that the men had been in relationship for some time, moved to Massachusetts together a few years ago, got married there, moved back to Texas, and filed for divorce in Dallas, and it was randomly assigned to the 302nd District Court. State Attorney General Greg Abbott (Republican) intervened in the divorce to convince the Judge Callahan that the Texas Courts were prohibiting from dissolving a gay marriage, because under Texas law there was no marriage at all. Texas Law specifically defines marriage as the relationship of one man and one woman.

So far this is only the opinion of one judge. Until this is appealed and upheld by an appellate court, there is no authority anyone can cite in other similar cases. Similar cases are working their way up through the appellate courts of other states.

Because this hangs on the United States Constitution, this can ultimately be resolved only through a decision of the United States Supreme Court. I would be surprised by a speedy ruling by the US Supremes. I suspect that they'll want to see the rulings of a number of state supremes to weigh their logic and authority.

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Update 10/4/09. I just saw a clip of a network TV news interview with one of the men in the divorce proceeding. He and his lawyer are quick to say that they didn't engineer this as a test case for gay marriage, as it's Attorney General Greg Abbott that had a press conference on the matter, not them, and I'll grant them that. However, Mr. J.B.goes on to say that this isn't about gay marriage, but about gay divorce, and that this is completely different, and I completely disagree on this point. In order for a Texas court to have jurisdiction over a gay divorce, the courts must necessarily recognize the validity of a gay marriage from somewhere else. Recognizing a Massachusetts gay marriage doesn't get you all the way to allowing gay marriages in Texas, but in my opinion it's more than half way.

Labels: equal protection, gay divorce, gay marriage, homosexual divorce, homosexual marriage

If you want legal advice, go to a lawyer. If you want relationship advice, go to a professional counselor. But, since you asked, here's a little relationship advice from a lawyer.

Way too often, I'll see folks come to me about a second divorce -- less than a year or two after their previous divorce. I've been curious about this phenomenon, and have been paying attention to some information tidbits that float by me.

At a conference for divorce lawyers a very interesting statistic was thrown out. I can't remember it exactly, and have been unable to run down the source, but the essence was something like this: "Of all relationships begun within 2 years of a divorce, in which the new relationship ends in a marriage, 87% of those new relationships end in divorce."

You may need to read that several times to really pull it apart, but the essence is that after a marriage, you need some time to re-set, to become an individual, before you can productively enter a new relationship.

The image that comes to my mind is that of a memory foam mattress "as shown on TV". You push your hand into the mattress, then remove your hand, and for a while the outline of the hand is still visible.

To me, it seems that whether it's a good marriage or a bad marriage, being married to someone leaves an imprint on you like on that memory foam mattress in the TV commercial. We form patterns of behavior and thinking because of the marriage, whether they're productive and helpful behaviors or not.

Then, when that relationship ends and a new relationship comes along, if it hasn't been long enough for the imprints of the previous marriage to fade, a lot of the behaviors and patters of the new relationship are reactionary: the primary filter is the extent to which the new behaviors or values or whatever are different from or the same as the previous patterns.

There's a lot to be said for long courtships, but there's also a lot to be said for just staying out of relationships for a while to give you a chance for the memory foam imprints to fade, before you go exploring new relationships.

The legislature just meets every two years, but when they meet they always make a lot of changes to the Texas Family Code. This time most of the changes were minor, or about cleaning up language, or don't really deal with the kinds of family law that I practice, Civilized Divorce. There was, however, one change that can affect my clients. For divorces filed on or after September 1, 2009, the parties may agree not to name either parent as the parent who has the right to determine the primary legal residence of the child, provided that the parents do agree that the residence of the child shall be restricted to a specific geographic area, such as Collin and contiguous counties.

Many parents would be negotiating the terms of divorce, and neither party wanted the other to "win" on the right to determine the legal residence of the child, even though the parents were still pretty agreeable on the terms of possession for the children. But mediators would have to keep sending them back in to reach an agreement, because the law previously required that one party be named as the "primary" (the parent with the right to determine the primary legal residence of the child).

So, now, if this is the only thing keeping parties from settling, they can agree that neither parent has the right to determine the primary legal residence of the child.

Now some folks will see this as the key to also having no child support. Well, the parties can agree that there will be no child support, but that's almost never what a judge would do if the case came down to a trial. There has been a LOT of litigation about which parent is responsible for what expenses of the child, whether the other parent has an obligation to contribute, and whether the person receiving child support is required to give an accounting of how child support money was spent.

The courts found long ago that the way to stop all the squabbling about expenses for the children is to make one parent responsible for most of the expenses of the child (school supplies, clothing, etc.) and for the other parent to pay child support. The amount of child support is based on the income of the person paying support. And the person receiving support does not have to account for the money. And the obligation to pay for school supplies and clothing has nothing to do with who has the right to determine the legal residence of the child, or even how many nights a year the child spends at a particular parent's house. So, while the parties can agree that no child support is paid, if a judge has to decide, he or she will choose the option that makes it less likely that the same folks will be back in court in a few months arguing over child support or the expenses of the child: one person will be required to pay child support.

Labels: child support, primary conservator, primary parent

One of the questions I get most often (especially from dads) is: "We've agreed on Joint Custody. That means I don't have to pay child support, right?"

Well, first, the question is wrong. "Custody" is a word that doesn't appear in the Texas Family Code, and really shouldn't be used in discussions about divorce. When one says "custody", he's usually talking about two different concepts: conservatorship and possession.

Conservatorship means the rights and responsibilities of each parent toward the child, such as the right to make educational decisions for the child, and the obligation to pay for health insurance for the child. The obligation to pay for the child's day care, after school care, school supplies, clothing, and karate lessons. The obligation to pay child support.

Possession refers to when each parent has the right to have the child with him or her.

Under a 50/50 possession schedule, most of the expenses of the child are not materially different from under a standard possession schedule. Paying for half the child's groceries isn't nearly as significant as the obligation to pay for school supplies, clothing, and so on.

Lawyers are trained to see how things can go wrong, and to try to limit those opportunities, or at least to provide for what can be done to remedy them. You don't need a lawyer to tell you to share the expenses of the child. But a lawyer will tell you that there has been a great deal of litigation (and attorney's fees) over who is responsible for what expenses of the child if the parents stop agreeing. After decades of litigation, the legislature set up the Texas Family Code to provide that one parent is responsible for the expenses of the child, and the other parent is responsible for paying child support. It just saves so much wrangling in the courtroom. You don't argue about whether $50 is too much to pay for jeans, or that the other parent bought a $40 shirt for the child. One parent pays child support per the guidelines, and the other parent buys whatever she/he believes is necessary (and that she/he can afford) for the child.

Note that the costs for providing for the child's after-school care, clothing, school supplies, extracurricular activities and such have little to do with whether the child spends 2 nights, 3.5 nights, or 5 nights a week with a particular parent. That's why a 50/50 possession schedule has nothing, directly, to do with whether child support will be paid.

Now, the parents can agree to darned near anything they want on conservatorship, possession, and child support. But a good lawyer will likely try to talk them out of an unusual arrangement, because the lawyer sees how many ways this can go wrong, and doesn't want to be accused of negligence when things fall apart and someone doesn't have a legal remedy. And, if you don't reach an agreement and you have a trial, the judge WILL order that only one parent will have the right to determine the legal residence of the child, and the other parent WILL have to pay guideline child support, and will have possession of the child according to the standard possession schedule.