Among the top concerns in any Texas divorce is the issue of financial cost. It’s not just the cost of hiring lawyers but the costs of all the mechanics of a Texas divorce, including filing fees with the Family Court, appraisals, retrieving financial records, expert testimony and so forth. Admittedly, the cost of attorneys represents the majority of the cost of litigating a Texas divorce; but that is because litigation involves an enormous amount of preparation and time.
As a result, many people understandably prefer to avoid costly litigation of their Texas divorce. It’s not a good option for most people. It is rare for the property or child issues in a Texas divorce to be so messy or so contested that no solution but litigation in front of a Texas judge or jury is the best way to resolve the conflict. Aside from the outright financial costs, most families do not have the liquid assets to make tens of thousands of dollars spent on litigation good value for their time or money. It’s also very stressful and it can take months to get in front of a judge or jury, sometimes spilling over into years. As a result, many people prefer to look for other, less costly and lengthy processes to arrive at their Texas divorce. This post will explore some of those options.
The Legalzoom Divorce in Texas
One way people attempt to avoid a lengthy and expensive divorce is to run to a website, like Legalzoom, or a forms bank to generate the forms and approach their divorce from a do-it-yourself approach and often seek an uncontested divorce, in which the spouses reach an agreement on all property and child issues and the judge signs off on the final decree of divorce based on that agreement. There is nothing generally wrong with the uncontested divorce approach. It’s a good idea if the spouses can reasonably discuss the property division and child issues.
The caveat I place on that statement is that it’s a good idea if each spouse understands what they are entitled to and the long term implications of what they are giving up to the other spouse. Few people really understand how the Texas Family Code divides property, debts and deals with child issues, so negotiating your divorce without experienced assistance may result in leaving some of your financial assets on the table, taking on too much of the marital debts, or giving up some of your rights with your children.
LegalZoom offers a sleek interface to generate Texas divorce forms for several hundred dollars. They even offer lawyers who will review the documents (although you may pay an additional fee for that service). The forms are generally fine but I have a couple strong objections to suggesting people take this approach. First, the forms are the easy part of your divorce. LegalZoom can’t and won’t tell you if you are filling out the right forms or using the right language for your needs.
A brief phone call or instant message exchange with a lawyer won’t explore all of the necessary issues. They can’t tell you whether the arrangement you reach with your spouse is in your best interests. Second, the forms LegalZoom creates are essentially the same as free forms you find online (which are not necessarily right for your situation). If you’re going to fill in your own forms, you may not need to pay somebody to help you do that, but read the next section before you start printing forms.
Other Do-It-Yourself Texas Divorce Approaches
There are other forms online or in form books at law libraries around the Dallas and Fort Worth, Texas area. Something you won’t find on any forms website is how the growing use of uncontested divorces without lawyers (or pro se uncontested divorces) is that the family courts in Texas are swamped with divorces that require additional review of the paperwork by the judge and many Texas family courts are running months of delay in approving forms before people can get divorced.
In Texas, you must wait sixty days after filing a divorce petition to receive the judge’s signature on your divorce decree but in these cases people are waiting weeks or months beyond that time period. It may not be worth your time to wait out your marriage to save a few hundred dollars on a divorce. Uncontested divorces with a lawyer involved on one or both sides do not have to wait out that judicial review. As lawyers, we know how to draft documents and remain liable for what we draft for clients.
Issues with forms
Additionally, as I said before, the forms won’t tell you whether the language you put in the documents is in your best interests or accurately explains the agreement you reached with your spouse. Generic language may not apply to your situation. A common problem arises when people try to draft their own language. If the spouses understand what they meant happily follow the agreement then the quality of drafting generally matters little.
The problem is that people often do not happily follow the agreement, especially with children involved. When the parenting relationship falters, the possession order in the divorce decree governs the relationship. If the possession order is unclear or even contrary to what the spouses originally agreed to it can create a lot of problems. The result in those situations is a lot of family stress and having to spend money to have a lawyer file a petition to modify the possession order, redraft the whole thing and go through a separate lawsuit to obtain a new court order. If there is disagreement on what the new order should read then things can be hotly contested and the cost of a modification can easily run into thousands of dollars. It would have been cheaper to have the divorce decree and possession order professionally drafted the first time.
Mediation in Texas divorces
Mediation is where most contested divorces end up when informal negotiation fails. It is a process in which both sides come to the bargaining table with a neutral third party. That third party, the mediator, tries to bring the parties to an agreement. A mediator’s opinion is not binding and a settlement is only reached if the spouses voluntarily reach an agreement. The spouses may agree to mediation on their own; or the court may order mediation in a divorce before setting a trial. Most contested divorces reach an agreement through mediation or informal negotiations after mediation concludes. Mediation can vary in cost depending on the number of outstanding contested issues.
Arbitration is another form of alternative dispute resolution like mediation but with a very important difference. In arbitration the neutral third party, called an arbitrator, has the authority to rule on the contested issues. The arbitrator’s ruling binds on the parties. Arbitration occurs outside of a courthouse in front of an arbitrator, who may be a former judge, lawyer, or expert. Both spouses present their cases to the arbitrator as they would in court.
The arbitrator then considers the arguments and issues a written decision that resolves the contested issues. Because arbitration is binding, a Texas family court cannot order parties to submit to the decision of an arbitrator. Instead, the spouses may agree to let an arbitrator decide their contested issues. The arbitrator’s decision is then submitted as part of the divorce decree. The judge will accept the arbitrator’s decision just as he or she would a settlement agreement reached by the spouses. Arbitration is usually more expensive than mediation; but in divorces it often is a worthwhile option when the parties need an expert to determine issues.
Collaborative Law under the Texas Family Code
Collaborative Law is a fairly new method for resolving divorces. It requires both spouses and their attorneys to enter into an agreement that they will cooperate. Collaborative Law advocates pitch the process as a cheaper and less stressful divorce process than any of the above processes. It isn’t always cheaper or less stressful. Sometimes collaborative law makes sense for clients who have enough assets or conflict about how to deal with the children.
Whether collaborative law is a good option for you depends upon whether your spouse will behave honorably. There is plenty of legitimate criticism of the collaborative law process; but it can be an effective tool. It shouldn’t be discounted if both sides remain open to the idea. Whether collaborative law is best is dependent on the relationship, the complexity of property and child issues.
What path is right for you
No one solution is right for all people or any class of people. Every family situation is different. The only solution that applies to everybody is to talk to a Texas family lawyer familiar with these processes. While not afraid to litigate a divorce, I rarely believe clients are best off by that approach.
Whether you want a lawyer to handle every aspect of your divorce or you are trying to learn more about the uncontested divorce process in Texas, an important step in that process is talking to a family lawyer about your options and how they meet your needs.