Divorce is a time where preparation, rational thought and a willingness to make long term decisions are critical but these things can be hard to do because divorce is often also a very emotional time. Texas family law attorneys assisting clients in divorces have a responsibility to the legal interests of their client. Some attorneys take an aggressive approach while others prefer mediation or collaboration. No matter the approach taken by the divorce lawyer, the divorce lawyer’s ability to benefit the client is often hindered by the client’s emotional decision making or unwillingness to be involved in protecting his or her own interests in the divorce. As a result, common mistakes occur time and time again.
Divorce mistakes in Texas
Here are some of the most common mistakes in Texas that a client should always try to avoid.
1. Concealing information from your divorce attorney.
Yeah, you probably did some things you don’t want to admit or have to talk about. That is understandable; but your divorce attorney needs to have an honest and accurate understanding of the situation to properly advance your interests.
2. Not concealing enough information online.
While I realize we are a social media-obsessed society and you might want to air out your dirty laundry about your spouse or express your frustrations with the divorce process, realize that what you say online can be obtained by your spouse by subpoena and used against you. If you need to share your thoughts with friends and family, do it through face-to-face conversations and phone calls.
Deleting or removing content related to a lawsuit or divorce is a bad idea. Rules of evidence prohibit parties from destroying evidence. Destroying evidence can open a party to sanctions as well as result in the court accepting as truth that the evidence existed and that it was harmful to your position. Before deleting any social media content, you should talk to your divorce lawyer.
3. Wanting to use the divorce process as a weapon to personally attack your spouse.
Sometimes people want to drag out the process, refuse to turn over records or property, or just be plain difficult because they think the time wasted and frustration inflicted on the spouse will make them feel better. It might make them feel better for a short amount of time but when they realize how inconvenient it can suddenly be for them and how expensive it is to deploy lawyers in a personal quest to cause agony the less of a good idea it becomes. The divorce attorneys likely receive pay from community money so you pay for both divorce attorneys to waste time.
4. Alternatively, giving your spouse anything she or he asks for just to get it over with.
It’s sort of a more reasonable concept – wanting to move on – but sole focus on doing whatever it takes to get past the divorce can leave you financially disadvantaged for years, or even the rest of your life, and you may lose access to your children that you otherwise deserved. There’s something to be said for not sweating the small stuff; but you need to walk away from the marriage in a reasonable position.
5. Trying to win back your spouse through generosity.
Sometimes one spouse will try to win the other back by offering the other spouse everything or all the valuable assets to show that what he or she really cares about is staying married to the other spouse. It’s a touching gesture but it’s also a high stakes gamble that almost always loses. Find another way to mend the relationship issues. You can always remarry if the relationship rebounds but you cannot rewrite the terms of the property division in your divorce.
6. Moving out of the house before divorce proceedings begin when there are children.
Now if there is domestic abuse against either the spouse or the children then there is a good reason to leave, but often one spouse leaves the house just because he or she doesn’t want to be in the same house as the other spouse. While that is understandable, if you leave the family it sets the tone that you are less involved and care less about the children. A court is more likely to favor the spouse that stays with custody and support.
7. Attempting to divide property without a proper inventory.
When you divide the marital property you need to carefully inventory everything. Checking, savings, investment and retirement accounts. Real estate, cars, boats, furniture, appliances, electronics, clothing, everything. Whether you are sitting down to divide property with your spouse or with the assistance of lawyers, you and your divorce lawyer need to know what property is out there to determine the value and make sure both spouses get a fair division of assets. That means you need to access the financial records and provide that information to your attorney.
8. Neglecting or abusing the finances.
Often in the course of divorce proceedings assets disappear from accounts, debts go unpaid, spouses take money from accounts or rack up the credit cards either to inflict suffering on the other spouse, to try to financially take advantage of the situation, disagreement over who is responsible for what, or just sticking your head in the sand and waiting for it to go away. Whatever the reason, you need to be aware of all the accounts and debts so you can use them reasonably.
9. Assuming all the property and accounts should divide 50/50.
In Texas this is not the case. The spouses jointly own community property. The court does not have to divide it 50/50, only equitably. There is also the separate property of each spouse; the divorce does not divide it. Also there are many reasons why a court may choose to separate the community property differently than 50/50 and spousal maintenance (alimony) or child support may play a factor in dividing the assets.
10. Ignoring the tax issues.
When dividing property in a divorce, many latent tax issues can arise that eat away at the property awarded. Since neither spouse likely is a fan of paying taxes there should be little problem in obtaining the help of a tax adviser to review a settlement agreement or even an award to discuss how taxes affect each spouse and how to minimize tax liabilities.
If a spouse receives part of a pension through a QDRO and cashes out, the spouse like owes taxes. The spouse will owe ordinary income tax and may additionally owe a 10% penalty for early withdrawal. The spouse could end up losing as much as 45% to taxes and penalties.