A Financial Information Statement is a court-required document for nearly all temporary orders hearings and final trials in Texas divorce cases. Here is a sample Financial Information Statement so you have an idea of what they look like. The names and details used are all fictional, although the facts used are relatively typical of the issues dealt with in a Texas divorce. The sample document is based on a husband who expects to move out of the residence and pay child support. In a real case both sides prepare and submit a Financial Information Statement to the court prior to a temporary orders hearing.
What is the Purpose of a Financial Information Statement in a Divorce?
Essentially this document shows to the court the gross and net income of each party as well as a list of the necessary expenses of the party preparing the Financial Information Statement. When I sit down with a client to prepare this document it is often the first time they have given much thought to what their resources are and what they will need post-separation. Obviously, the financial and cash flow issues in a divorce case are extremely important and need to be evaluated early on in the case.
The Financial Information Statement document is extremely important for helping the court (as well as your lawyer) evaluate the financial issues in the case. Assuming there are not large discrepancies between the numbers on each party’s Financial Information Statement, the decisions in a temporary orders hearing are largely decided by the evidence in each party’s Financial Information Statement.
What are the Pitfalls in Preparing Your Financial Information Statement?
In preparing the Financial Information Statement clients sometimes tend to underestimate their expenditures and give “low ball” expense numbers. Maybe this is because they are embarrassed and they give what they think the number should be, rather than what it actually is. It is important that you give accurate numbers in order to get the result you need. For example, if you typically spend $1000 per month for groceries based on your actual past history, then this is the number you should use for the Financial Information Statement. If instead you put $400 because that seems like a more reasonable number, you’re very likely to have financial trouble as the case progresses because you underestimated your actual expenses and don’t have enough coming in to cover everything. So try to be as accurate as possible in preparing your Financial Information Statement.
Of course the specifics of each individual case are unique and you should discuss with your attorney the preparation and use of the Financial Information Statement.
I came across a thought-provoking article by Pamela Cytrynbaum on psychologytoday.com, entitled Top 10 Tips for a Great Divorce. It gives her suggestions on how to turn an amicable separation into an amicable divorce. I mostly agree with what she suggests, although I have different thoughts on a few of the issues. I encourage you to check out the article. Here are my thoughts on some of her tips that I took issue with:
Her Tip #2 – Lawyers Prepare for the Worst. Mediators Bring out Your Best.
The author encourages people to not hire lawyers but instead go to a neutral mediator to settle their case. This is an issue that I have been asked about from time to time. The motivation behind this idea is a good one, that is to try and resolve the divorce without ugliness. The problem is that the issues are simply too complicated to address without legal advice. If you are the spouse who has less information about the finances (or simply are missing financial information about accounts and your spouse’s name), then following this advice could lead to a disastrous result for you.
MY ADVICE – Hire a good lawyer with the instruction that they try to resolve the case fairly but in the early stages if at all possible.
Her Tips #5 – Agree on How to Disagree and #6 – Timeouts: Outline Clear and Effective Consequences
On these two tips the author recommends that the agreement be clear on how to handle issues that might arise in the future (she gives as examples if one party relocates or remarries) and what the consequences are for violating the agreement. Again, in principle these are great ideas. However, unless you have the experience of a good family law attorney in your jurisdiction who knows the law on these particular issues and can draft the language so that it is enforceable, it is very unlikely you’re going to be able to effectively deal with these issues.
MY ADVICE – Again, you need a good attorney to assist you with the key issues in the case and to put the agreement in a language that courts will enforce later if necessary.
Most of the rest of Ms.Cytrynbaum’s tips are great and people would do well to follow them. For example, she encourages the parties to occasionally get together with the children and have dinner as a family. I think this is a wonderful idea and when this is possible it would be a very positive thing for your children to experience.
She also discourages people from introducing any new boyfriends or girlfriends to the children until long after the divorce is final. I agree that this can be a damaging and traumatic thing for children if it happens too soon after the divorce.
Overall, it was a very interesting read and I think a lot of people could benefit from following her advice, except for the tips described above that I have issue with. Take a look at the article and let me know your thoughts in the comments section below. I’ll be interested to hear your thoughts.
The Standard Possession Order (SPO) is a default visitation schedule defined by the Texas Family Code that is used in the vast majority of Texas divorce cases involving children. It is extremely detailed and lengthy and is one of the main reasons that divorce decrees in cases with children are usually 30 to 40 pages long. The Standard Possession Order statute is Texas Family Code Section 153.3101 through 153.317.
Every order has its own particular provisions, so please refer to the specifics of your own order for guidance if you have one. Also note that all of the terms are subject to alteration, either by negotiation or court order. This article is designed to give a brief overview of the statute and how its key provisions work when the standard language is used without tweaking. Here are some of the key provisions of the Standard Possession Order, as applied to parents who live within 100 miles of each other (the statute is somewhat different for those that live more than 100 miles apart).
The non-primary parent has weekend periods of possession beginning on the first, third, and fifth Fridays of each month. Note that not every month has a fifth Friday, but for those that do it means that the non-primary parent will have possession for two consecutive weekends (a fifth Friday in a month will always be followed by a first Friday on the following month).
The beginning time of the weekend period can either by 6:00 p.m. or when school is dismissed. The ending time of the weekend period can either be 6:00 p.m. on Sunday or Monday morning when school resumes, depending on which election is made by the non-primary parent. If the period begins when school ends on Friday the non-primary parent is responsible for picking the child up from school and if the period ends on Monday morning the non-primary parent is responsible for delivering the child to school.
The statute provides for the non-primary to have visitation every Thursday during the school year. The standard visitation is just a dinner period, from 6:00 p.m. on Thursday until 8:00 p.m. that same day. However, the non-primary parent can elect to extend that visitation to begin as early as school dismissal on Thursday and to end at school resumption on Friday morning. In effect, this gives the non-primary parent the option to have at least one overnight per week and avoids going the extended period of time between weekend visitation periods without having the child overnight.
I recommend you check the language in your order if you have one for all specific provisions that apply to your situation, or the language of the statute if you do not, and this is especially true for holiday visitation. Holiday periods are probably modified more than any other area of the Standard Possession Order schedule because every family is different and has different holiday traditions. Also, please note that the holiday periods trump the weekend and Thursday visitation periods. In other words, if there is a conflict the holiday schedule applies, not the weekend or Thursday schedules.
Summer – Generally, the non-primary parent gets 30 days in the summer. There are a number of ways this period can be scheduled under the SPO, with certain restrictions. The 30 days can be exercised in either one or two periods of at least ten days each. The non-primary parent is required to notify the other parent in writing of the summer schedule by April 1. If no notice is given then the default period is July 1 through July 31. There are a number of restrictions and details that are too lengthy to discuss in this post so see your order for the specific requirements in your case.
Christmas – In alternating years each parent gets either the first half or the second half of the Christmas break.The Christmas break is defined as beginning at either 6:00 p.m. on the day school is dismissed for the break or at the time of school dismissal, depending on whether the extension election is made. The break ends either at 6:00 p.m. the day before school resumes or at the time school reconvenes. The exchange time (the break between the two halves) is noon on December 28th. The non-primary parent gets the first half of Christmas during even-numbered years and the second half during odd-numbered years.
Thanksgiving – In odd-numbered years the non-primary parent has possession during the Thanksgiving break. In even-numbered years Thanksgiving goes to the primary parent.
Spring Break – In even-numbered years the non-primary parent has possession during Spring Break. In odd-numbered years this period goes to the primary parent.
Mother’s & Father’s Day weekends – Moms get possession of the child during the Mother’s Day weekend and dads get possession of the child during the Father’s day weekend.
Child’s Birthday – For the parent that does not have regularly scheduled possession of the child on the child’s birthday, that parent gets possession from 6:00 p.m. to 8:00 p.m. on that day.
So that is a somewhat brief overview of the Texas Standard Possession Order language. Again, please refer to your order and the language of the actual statute (and get advice from a lawyer) if you have specific questions regarding your situation.
Not every case is a simple one and it is very common for lawyers to have to conduct and/or respond to written discovery requests. Usually clients are confused by the process and what it involves so in this post I am going to lay out a basic explanation of the kinds of written discovery requests that typically get made in a Texas divorce case, the purpose of each, and how difficult and time-consuming each is to respond to. While there are forms of discovery other than written discovery (the most common being the deposition), this post will discuss only written discovery.
What Gives Attorneys the Right to Send Discovery?
The Texas Rules of Civil Procedure are what provides the authority for lawyers in Texas cases (including divorce and other family law cases) to conduct written discovery. In general, the purpose of written discovery is to gain information about the case in order to help you evaluate the case for settlement purposes as well as to prepare for trial. If you have done an effective job in obtaining discovery from the other side then you should be fully prepared to negotiate a settlement of the case if possible, or try the case if necessary.
Interrogatories are basically questions that you get to ask the other side. While each case has its own nuances and facts, there are basic interrogatories that most lawyers ask in every divorce case. These might include who the party knows that may testify in the case (basically, a potential witness list), what assets exist, what liabilities exist, what a party’s income is and information about their employment history, and details about that party’s contentions in the case. Depending on the issues in the case there are likely to be questions about other issues like child support, proposed conservatorship and visitation issues, spousal support, reimbursement, etc.
Frequently one side will not like some of the answers given by their spouse. I have often been asked by clients what we can do about some claim made by the other spouse, in other words how can we make them retract that statement. Generally, the answer is that we cannot do anything about it. They are allowed to take whatever position in the case they care to. Our job is to prove to the court that our position is the proper and correct position.
Depending on what is asked the Interrogatories can be fairly complicated and time-consuming to answer. Your attorney should help you in answering the questions and making any objections that are necessary and appropriate.
Request for Disclosure
These are somewhat similar in nature to Interrogatories, but they are very limited. The rule that allows for Requests for Disclosure limit the questions asked in the Request to only questions that are explicitly laid out in the rule. Neither party is entitled to ask additional questions or to modify the questions. They are basic questions that should get asked in every case, such as identity of individuals with knowledge of relevant facts, identity of any expert witnesses, and contentions about the various issues in the case.
Answering Requests for Disclosure is relatively straight forward and one of the simpler discovery documents to respond to. No objections are permitted so you and your lawyer simply answer the questions.
Request for Production
A Request for Production is a request to produce written records of various kinds. The person responding to the request is required to compile all the responsive documents and “produce” them. Depending on the issues in the case, the amount of records that might be at issue can be huge. Sometimes this is necessary because an issue in the case requires a great deal of documentation to evaluate and to prepare for trial. However, this is one of the more abused areas in the discovery process, as it is sometimes used simply to force the other side to do a lot of work and incur a lot of expense on the case.
Your lawyer should give you significant guidance in terms of what documents to compile and also what requests should be objected to, either entirely or in part. Responding to the Request for Production is one of the more time-consuming issues in discovery and can add significantly to your overall attorneys fees expense in the case.
Request for Admission
A Request for Admissions is essentially one party asking the other to answer a series of yes/no questions. The idea behind sending a Request for Admissions is to get the other side to admit to certain facts that will help you limit the issues and thus reduce the number of things that you are required to prove.
For example, if you were seeking a court finding that a piece of real estate was your separate property because it was given to you as a gift by your parents your lawyer might send a Request for Admission asking the other party to “admit or deny that the 101 Jackson Street property was given to husband by his parents.” Requests for Admission are not typically done in divorce cases but they sometimes are an effective tool and are used occasionally. Due to the yes/no nature of the Request for Admission they are not usually very time-consuming to answer.
Those are the key areas of written discovery. If you getting divorced and are fortunate enough to be certain that you have all the necessary information already readily available to you and your spouse, then discovery may not be necessary. However, if you are in the position of not knowing exactly what assets or liabilities are involved or information about any other issue in the case, then written discovery can be a very effective way to get information and documents to help you analyze the case.
Adultery is a Statutory Grounds for Divorce in Texas
The Texas Family Code has long held that adultery is a grounds for divorce. See Section 6.003 of the Texas Family Code. Its use as a grounds for divorce has become far less significant since Texas became a no-fault divorce state many years ago. Nonetheless, it is frequently pled as a grounds for divorce and a judge can find that the grounds for divorce was adultery, not the much more commonly used irreconcilable differences.
Adultery Can Have an Impact on Property Division in a Texas Divorce
The Texas Family Code also provides that the court can consider fault in the divorce in dividing property. See Section 7.001 of the Texas Family Code. This gives the court the authority to make a disproportionate division if it believes that one side was more to blame for the divorce than the other party. Consequently, adultery can be a factor that leads to one spouse being awarded more property in the divorce case. How much of an impact it makes in any given case is highly dependent on the specific facts of the case and the predilections of the judge. To some judges affairs are a significant factor in a divorce case, to others they are more a symptom of an unhealthy marriage.
Adultery Generally Does Not Impact Custody or Access to Children
While affairs can have an impact on property division, they generally have no impact on custody or access issues. The court’s determination of custody and other access provisions are still governed by the overriding principle of “best interests of the children” as well as a number of specific statutes in the Family Code.
Thus, adultery is typically a non-issue in a custody case with one major exception. If the affair occurred or is ongoing in some way that the court deems to be harmful to the children, this can have a major impact. An example of this would be having the children in the presence of the paramore (boyfriend or girlfriend) prior to the divorce being finalized.
Adultery Can Complicate a Divorce and Create Hostility
So far we have discussed the specific legal issues in detail, but in my experience the practical implications of affairs on a divorce case are often much more impactful. I personally have seen many cases that initially appeared to be relatively calm, civil divorce cases that look like they would be resolved amicably turn into contentious, ugly battles after one spouse learned of an affair. This is especially true when that spouse believes that their marriage was “broken up by this homewrecker” and that there was nothing wrong with their marriage until the affair occurred. Situations like this can cause a divorce to turn into a lengthy, expensive nightmare of a battle.
I sometimes get asked by a divorced mom whether she is required to let her ex-husband have his visitation with the children if he is not currently paying his child support. The reasoning behind the question is that if he is not following the court order, then why should I?
Two Separate Issues Under the Texas Family Code
The answer is that yes, you must follow the court order and allow the father to exercise his visitation regardless of whether he is in arrears on his child support. The court will view those issues are entirely separate and either party will be at risk of being held in contempt of court if they fail to follow the court’s order.
Let Him See the Children and File an Enforcement Action
The appropriate action for the mother to take in that situation is to hire an attorney to pursue an child support enforcement action against the father. The Texas Family Code has very strong enforcement remedies for failure to pay child support on time, including the very real possibility of jail time.
Since mom’s who are not receiving their child support are typically already strapped for cash, the idea of having to pay an upfront retainer to pursue dad in the enforcement action is usually not an attractive one. Fortunately the Texas Attorney General’s office has a child support division that handles enforcement cases for free. While the service may not be the same that you would get from a private law firm (as they are fond of saying “I don’t represent the party, I represent the State of Texas”), you can’t beat the price.
As a Texas family law attorney for my entire career I have seen client after client be surprised by how the Texas Family Code requires that property be divided in Texas divorces. Most clients have heard that Texas is a community property state. While this is correct most people misunderstand what that means.
Texas Family Code Gives Court Broad Discretion in Property Division
Clients will say that they already know that since Texas is a community property state the property will be divided 50/50. The reality is that while Texas is a community property state, unlike many other community states the community property is not automatically divided evenly between the parties. The Family Code requires the trial court to divide the property in a “fair and just” manner. If you ask a qualified Austin family law attorney what this means they will tell you that a separate statute gives the court a list of factors that it can consider in making a disproportionate division (meaning that one side gets more than the other, such as 55/45).
The factors are many but the one that factors in most often is disparity of earning capacity. When one spouse makes significantly more than the other the court will often give the spouse with the lower earning capacity a larger share of the community property. The reasoning is that if the court were to make an equal division at the time of divorce it wouldn’t be equal for very long, due to one spouse greatly out earning the other spouse for a few years after the divorce.
Other factors courts can consider in dividing community property in a divorce include (but are not limited to) needs of the custodial parent, amount of separate property a spouse has, and fault.
Most Common Factor in Disproportionate Division: Income Disparity
A very common scenario that occurs in divorces is for the couple to consist of a primary breadwinner (frequently but not always the husband) and a spouse who works part time or not at all and is primarily responsible for taking care of young children. In this situation a court is likely to consider a disproportionate division in favor of the custodial parent. Part of the reasoning behind this is that being primarily responsible for raising children is likely to reduce one’s ability to advance their career and earn a high income.
Another Factor in Property Division: Amount of Separate Property
Another factor that courts can consider in deciding whether to make a disproportionate division is how much separate property a spouse has. Let’s use as an example a couple who got married at the time of marriage one of the spouses had a million dollars of separate property while the other spouse has no separate property. The marriage then created $200,000 of net community property for the court to divide at divorce. The court may very well consider making a disproportionate division in favor of the spouse who has no separate property.
Fault Can Also Play a Role
Lastly, the court can consider fault as a factor in making a disproportionate division. While fault does have an impact in some cases, it is far less frequently a significant factor in a disproportionate division than disparity of earning capacity or some of the other more commonly applied factors.
The main point here is that while Texas is a community property state that does not mean that the community property will be divided 50/50 in a divorce and there are a lot of variables that need to be considered. This is just another in the long list of reasons why everyone going through a divorce needs to be represented by a knowledgeable Austin family law attorney.
Please note that the clients and lawyers referenced in the video and transcript are purely hypothetical and not based on actual people. If you prefer reading to watching, please see the transcript below:
Selecting a lawyer who is going to effectively handle your divorce is extremely important, but most people have no idea how to pick the right lawyer for their case.
What you need is a divorce firm that specializes in divorce and that has a track record of satisfied and happy clients. A firm that focuses on what should be the main objective in every divorce case: getting the client a fair result as early in the process as possible.
Lets do a hypothetical comparison of two men who have decided to get divorced.
One, lets call him Bill, mentions to a co-worker that he and his wife have separated and that he’ll be getting divorced. His co-worker enthusiasticly tells him about his lawyer nephew who handles divorces. Bill, thinking his case will be simple and his spouse will agree, ends up hiring the nephew even though he is primarily criminal lawyer. Bill thinks to himself, ‘how hard can a divorce be, right?’ 12 months later, a frustrated Bill is still not close to being divorced.
Lets compare Bill’s situation to Steve’s. Steve had heard plenty of nightmare stories from his divorced friends and knew that he didn’t want to take any chances. He wanted an excellent divorce lawyer. Steve asked these same friends for recommendations, but none of them gave what you would describe as a “ringing endorsement” of their attorney.
So Steve went online looking for the right divorce lawyer for his case. He was looking for experience, a focus on family law, and a firm that had a track record of satisfied clients. When he found a firm that fit this description he scheduled an initial consultation to meet with the lawyer and see if his experience in person would match what he found online. When it did, he hired that firm. Even though his case involved children and some complex assets, four months later Steve was divorced and very satisfied with the result.
Why were these two outcomes so different? Let’s examine what happened.
Bill’s attorney, not having much experience in divorce cases, was never entirely sure how to proceed. He was frequently hesitant to push forward on the case because he was afraid that he might miss something. He spent a lot of time on issues that turned out to be not that important, while he neglected to focus on issues of extreme importance. He just never was confident that he was handling the case correctly, so he moved very slowly and indecisively.
In contrast, Steve’s attorney knew from experience exactly what needed to be done. He focused on the steps that needed to be taken to get a fair result for Steve as soon as possible. The steps required vary depending on the particulars of each case, but what is crucial here is that Steve’s attorney remained focused throughout the case on the primary overriding objective: get Steve a fair result as soon as possible.
These two men had very different experiences. One had a divorce case filled with frustration, delay, and unnecessary expense. The other experienced a smooth, efficient process handled by a true professional.
While divorce is always an emotionally difficult and painful situation, it shouldn’t be made more difficult by having an attorney who is not qualified or experienced enough to get you an excellent result in a reasonable amount of time.
If you’re interested in working with a divorce firm that knows exactly what it takes to get a fair result in the minimum time required, then feel free to call the Morgan Law Firm. We would be happy to schedule a consultation to discuss your situation in detail along with your options. Just fill out the form below and we will review it and get back to you to schedule a consultation. If you prefer, just call our office and you can schedule a consultation right away. We look forward to helping you in any way we can.
When confronted with a Travis County divorce case (or any other location for that matter) many people will choose not to hire a lawyer, even if their spouse has hired one. Some make this decision out of a sense of guilt or a desire to not turn it into an “ugly” divorce. Others don’t really think a lawyer will make much difference in the outcome of their case. There are also those who think they cannot afford to hire a divorce lawyer. Hopefully, this article will show that you cannot afford to not have a quality divorce attorney represent you in your divorce case.
Don’t Face Divorce on Your Own
As an experienced Texas divorce attorney I have done many consultations with people who previously appeared in court or settled cases without representation and were hoping that I could undo the damage that had already been done. With a few exceptions, there was nothing I could do to improve their bad outcome. It is unfortunate because most of the damage could have been avoided with a good divorce attorney.
A Bad Decision in Your Divorce Today Can Have Long-Lasting Effects
Examples of bad outcomes include getting a bad property division. I once met with a man whose ex-wife had been represented in their divorce by a very good board certified family law attorney. The husband felt the divorce was entirely his own fault (in my experience, this is rarely true) and out of a feeling of guilt he had signed off on a Divorce Decree that not only gave his wife 100% of the community property but also obligated him to pay alimony far in excess of what a court would have ordered. About a year after the divorce his business suffered a severe down turn and his income dropped dramatically. There was very little I could do to help him at that point. This was unfortunate and unnecessary as any competent divorce attorney would have advised him strongly against accepting the settlement terms.
How Good Advice Can Make a Difference
Here is an example with a happier outcome. The client came to see me early in the process. He had been married for several years and had two children in elementary school. His wife had been talking about divorcing him for quite a while. Near the end of the summer she told him that she was taking the children and going to another city to stay with her parents. She planned on enrolling the children in school there. He told her he disagreed but she packed the kids up and left anyway. Although he didn’t want a divorce he was smart enough to realize he needed the advice of an experienced divorce attorney.
It was explained to him that if let her enroll the children in school out of town and waited, hoping that she would come back, it would greatly damage his case and likely result in her being able to get a final order making the children’s primary residence the new city. If he wanted the kids to live in the same town as him he needed to act promptly to avoid creating the appearance that he willingly allowed wife move to the children. He understood the gravity of the situation and immediately filed for divorce, allowing him to get in front of a judge and very quickly get an order requiring wife to return the children home. Had he not quickly gotten good advice and quality representation the outcome (and thus his relationship with his children) would likely have been very different.
As you can see, it is extremely important that you get sound advice and a good divorce lawyer when confronted with the possibility of divorce. If you face the possibility of divorce make sure you get advice and representation. It is money well spent.
This video explains the basics of separate property in Texas. If you prefer, you can read the transcript below:
My name is Scott Morgan, I am a board certified family law attorney. In this video I am going to give an overview of separate property in Texas.
Texas is a community property state. In a Texas divorce case all property owned by either spouse is presumed to be community property. The court is required to divide the community property in a fair and just manner.
However, you can rebut this presumption if you can prove that an asset meets the definition of separate property. In that case the asset is confirmed as your separate property and not factored into the community property division. The court has no authority to award one parties separate property to the other spouse.
Under the right circumstances this can make a huge difference in the overall outcome of a property division.
So what is separate property? There are three types. First, certain types of personal injury recoveries are separate property, but this is quite rare. Second, gifts and inheritances are separate property. Finally, property that was owned by a spouse prior to marriage is that parties separate property.
A common complication is that separate property is not always easy to prove.
You must prove that an asset is your separate property by clear and convincing evidence. This evidentiary standard is significantly higher than the usual preponderance of evidence standard.
Additionally tracing the asset back to its origin can also be challenging.This is especially true with financial assets that have mutated and grown and moved into different accounts during the marriage.
The bottom line is that if you’re getting divorced and have significant assets that you believe might be separate property, you should get a very good family law attorney to help you prove those claims.
I hope this video has been helpful and informative. If you have any questions comments or suggestions for future videos please feel free to comment below.