Agreed Divorce and or Negotiated Divorce in Tarrant County, Texas

I help people get an “Agreed Divorce” whenever possible. An agreed divorce usually means the other spouse does not hire an attorney, and both parties sign a document that contains all the terms that they agree upon.

If the parties cannot reach an agreement, I help with a “Negotiated Divorce.” A negotiated divorce usually involves me representing you and a different lawyer representing your spouse. However, rather than litigate and appear in court, both lawyers truly try to resolve the issue out of court. This works especially well with large estates and complicated estates.

After practicing divorce law for over 35 years, I believe that if two people are smart enough to accumulate an estate, then they are smart enough to be involved in the division of the marital estate. I have helped over 10,000 people reach an agreed divorce. Over 500 lawyers have hired me to help them negotiate the terms on thousands of different divorces.

The purpose of this article is to offer a brief summary of the factors and criteria that must be in place in order for a married person to obtain a professional, relatively painless agreed divorce and/or negotiated divorce under Texas law. This brief article cannot possibly address the myriad of vital issues that frequently arise in many contested or complicated divorce cases. However, this article should be of assistance in allowing the reader who is contemplating filing for divorce in Texas to assess whether or not his/her particular divorce is one that might be capable of being completed with dignity, communication and negotiation.

A period of 60 consecutive days is the shortest amount of time that a divorce can be accomplished under Texas law if certain criteria are fulfilled. There are a couple of very limited exceptions to this concept of the mandatory 60-day waiting period. But more on this in a moment. First, we must begin with the actual filing of the divorce. This requires a petition.

The petition is the legal document (also known as a pleading) that formally begins the divorce process in Texas. The petition is prepared by the spouse who is filing divorce. I prepare the petition for my clients. The filing spouse or the attorney must sign the petition. The Texas Family Code prescribes certain information that must be included in all divorce petitions. (complete name, address, last three digits of soc sec number, spouses name, childrens names and dates of birth, as well as the date of the marriage.)

The divorce petition is filed in the clerk’s office for the family court system associated with the county where the spouses reside. Almost all petitions I file are for clients in Tarrant County. That includes Fort Worth, Arlington, Southlake, Colleyville, Grapevine, Mansfield, Trophy Club, Westover Hills, Bedford, Euless, Burlson, Keller, Hurst, etc.

If the spouses reside in separate counties, then the divorce petition can be filed in the county where either spouse resides.

The filing of the divorce petition formally commences the divorce process. The Texas Family Code prescribes that the divorce may not be granted before the 60th day after the date the divorce was filed. A court may, in its discretion, waive the

60-day required waiting period in certain cases where the other spouse has been convicted of a crime of family violence committed against the filing spouse or member of the household. However, what is customary among most courts in the considerable majority of divorce cases is to require the completion of the 60-day waiting period before the court will consider granting the divorce.

At this point, it is important to keep in mind that just because all (or most) Texas divorces have a 60-day mandatory minimum waiting period, that does not mean that the divorce is automatically granted or finalized by day 61. Not every divorce case is ready or eligible to be finalized immediately upon expiration of the 60-day waiting period.

After filing the divorce petition in Tarrant County, there are two additional important criteria that must be fulfilled before the divorce case is minimally eligible for finalization. These two criteria are: (1) legal notice to the other spouse and (2) written agreement (or absence of disagreement) between the spouses as to the proposed settlement terms or final orders subject of the divorce case.

First, regarding legal notice, this is not the same thing as actual notice. In other words, informally notifying your spouse that you have “filed for divorce” may furnish your spouse with actual notice of the divorce, but that actual or informal notice is not the same thing as legal notice.

Legal notice to your spouse is what is required, and it is commonly accomplished in one of two ways. One way is for your spouse to sign a written document. The written document may be either a Waiver of Citation or an Answer. There is a substantial difference in a “waiver” and an “Answer.” Certain information must be included in either document, as specified under the Texas Family Code.

WAIVER: the waiver must be signed by your spouse in the presence of a notary public. Also, the waiver must be signed on a calendar date after the divorce petition has already been filed. Waivers that are not notarized are invalid, as are waivers that are signed on a date that precedes the actual filing date of the divorce petition. The function served by the waiver is to furnish the court with satisfactory proof that your spouse has proper legal notice of the divorce proceedings.

If you and your spouse are on reasonably good terms, and if both of you are in agreement with getting a divorce and with the settlement terms for the divorce, then the chances may be good that your spouse will agree to sign a waiver.

Of course, not every spouse will agree to sign a waiver. If your spouse does not sign a waiver or has not otherwise engaged the services of his/her own attorney to respond to the divorce on his or her behalf, then you will need to proceed with the other method of furnishing legal notice to your spouse. This other method is known as service of citation.

Service of citation involves having a sheriff or constable or court-authorized neutral third party (usually a process server) go out to where your spouse resides or works or can otherwise be found and hand-deliver a copy of the divorce petition with the attached citation to your spouse. The citation is a legal document that furnishes your spouse with prescribed due process notifications that the spouse is being sued for divorce, and that the spouse is admonished to respond to the divorce within a certain manner and time frame, otherwise the divorce may be finalized without further notice to that spouse. In certain cases, the court may approve alternative methods of service of citation if the court is satisfied that the spouse’s whereabouts are unknown or if the court is satisfied that the spouse is avoiding personal service of citation.

If your spouse is served with citation then they will probably hire an attorney. That attorney will file an Answer on their behalf.

Either way, once your spouse has received proper legal notice of this divorce, that is to say, once your spouse has either properly signed a Waiver of Citation or has been served with the citation, then the next step is to determine the specific legal and factual issues that are required to settle the divorce. In order for the divorce to be eligible for finalization upon expiration of the 60-day waiting period, it will be necessary for there to be a written and signed agreement between the spouses as to the settlement terms.

Texas law as applied to the circumstances of your own marriage will determine the legal requirements that must be included in any written settlement or final decree rendered by the Court in the divorce case. For instance, if there are children of the marriage and if there are no prior Court orders addressing custody and support issues, then the final decree will need to include provisions for allocation of the parental rights and duties between the two parents, as well as provisions for custody and possession of the children, and provisions for child support.

Similarly, the final decree will also need to include provisions regarding the arrangement for dividing the marital property between the two spouses. Also, in certain marriages of considerable duration (10 years or more), a spouse might be entitled to some post-divorce spousal support if certain additional criteria are fulfilled.

Texas law prescribes numerous criteria and guidelines for determining the correct and appropriate orders regarding issues of child custody, property division, and child and spousal support. These important issues are beyond the scope of this article. In many or most instances, the determination of the appropriate settlement terms on these important issues will require legal guidance from an experienced divorce attorney. In most cases, it is recommended that an attorney prepare or supervise the preparation of the final decree and other related documents.

But the important point for determining whether or not the divorce can be a quick divorce is to determine whether or not you and your spouse can come to an agreement, or have an absence of disagreement, as to these ultimate terms.

If your spouse has received legal notice by voluntarily signing a Waiver of Citation, then this is usually a reliable indicator that the two of you may be able to reach an agreement on these important settlement terms, which can then be included in the written final decree that you and your spouse can sign.

Or, if your spouse has received legal notice by being served with citation, and if your spouse has not subsequently hired an attorney or otherwise filed a written pleading with the court challenging some aspect of this divorce, then that may be a reliable indicator that your spouse is not interested in challenging or contesting the divorce. In other words, if your spouse receives legal notice of this divorce by being served with the citation, but your spouse does not subsequently respond to this divorce within the time prescribed, then that may indicate that there is an absence of disagreement between you and your spouse as to the terms of the divorce. If your spouse has been furnished with proper legal notice of the divorce and has not expressed any proper challenge to the divorce proceedings, then you may be eligible to finalize the divorce without further notice to your spouse. This is what is known as finalizing the divorce on a default basis.

In summary, if the above criteria have been accomplished within 60 days of the filing of the petition, namely, your spouse has either 1) received proper legal notice and has joined you in approving the written settlement terms and signing the final decree or2) has received proper legal notice but has declined to respond to the divorce within the 60-day period, then your case should be eligible for immediate finalization.

The finalization of an agreed or negotiated divorce will usually require that you make a personal court appearance. The court appearance in connection with an Agreed or Negotiated divorce in Tarrant County is usually a very brief proceeding, and the court to which your case is assigned will typically have regularly scheduled days and times when the court is available to hear its uncontested cases. Your spouse is not required to appear with you in court on the date of finalization of an uncontested divorce, and the testimony and formal finalization requirements in front of the judge are usually quite brief. I will appear with you for the court appearance and will guide you through the process.

AGREED DIVORCES in Tarrant County:

One party hires me to draft the petition, the waiver, and the Agreed Decree of Divorce. Note: my law firm does not handle the “cookie cutter” divorces offered elsewhere on the internet for a few hundred dollars. As a Board Certified Family Law Specialist my firm helps people with complicated assets, significant assets that may or may not be community property, assets that may be difficult to value, such as a small business. Another aspect of Agreed Divorces in Tarrant County is the children. The decree must lay out the terms regarding the children. This includes, conservatorship, custody, child support, health insurance for the children, visitation, summer possession, holiday possession, and any restrictions on residence. A common restriction is to have a court order that imposes a geographical restriction on the child’s (children’s) residence. A common restriction is “Tarrant County and counties contiguous to Tarrant County.” This requires that both parents remain in the same geographical area so that both parents can actually see the children on a regular basis, attend school functions, etc.

My firm’s minimum retainer for an Agreed Divorce in Tarrant County is $2,500 plus the filing fees paid to the county when the petition is filed. The normal filing fee for a Tarrant County divorce averages between $300 and $325 and that fee is paid to the county.

NEGOTIATED DIVORCES IN TARRANT COUNTY

A negotiated divorce usually occurs when both spouses want a divorce, and both wish to avoid a public trial. Avoid a court spectacle. In a negotiated divorce, I will represent you and file the petition for you. I will include specific language in the petition that advises both the court and your spouse that we wish to seek an agreement after negotiation.

A common question I receive is: “Why do we each need our own lawyer?” The answer is that often spouses going through a divorce do not trust each other, or, they do not trust only one lawyer being involved. The spouse wants a competent attorney whose sole objective is to represent one party and one party only. But we can still reach a negotiated agreement if two competent lawyers are involved. The objective of a negotiated divorc is to disclose all assets, and fairly divide all assets.

In a Negotiated Divorce in Tarrant County, it is common that an “Inventory and Appraisement” is filed by one or both parties. The Inventory and Appraisement lists all assets owned by either party. Each asset is valued by each party. Often assets are professionally appraised. Then each asset is characterized as either a “community asset” or as a “separate property asset.” Every asset is presumed to be a community Property asset, Community property assets are subject to division. But “separate property” assets belong to one spouse and to only that spouse. Because of that, the Court cannot divide “separate property assets.” Most separate property assets were either owned prior to marriage, or inherited, or were received as a gift. If you have separate property, then tell me so that we can discuss it. We have to prove separate property if your spouse does not concede that the property is your separate property. The State Bar of Texas published a form book, commonly called The State Bar Family Law Drafting Guide. I was the author of one of the first drafts of the Inventory and Appraisement published by the State Bar of Texas. I will help you draft the inventory and Appraisement.

Once an agreement has been negotiated, the next step is the drafting of a Decree of Divorce. In order to finalize the divorce, a decree must be drafted and signed by a District Judge in Tarrant County. The decree must contain all terms. “All terms” includes a description of specific property that is awarded to you and specific property awarded to your spouse. Who pays which debts. All provisions regarding children.

Then there are closing documents that must be drafted, submitted, approved, signed, and filed. These include deeds, QDROS (retirement divisions), wage withholding for child support, child support forms, and the Texas Bureau of Vital Statistics form that is required by the state.

FEES: My firm's minimum retainer for a “negotiated divorce when the opposing spouse hires an attorney is $5,000 plus the filing fees.

To conclude, it has been the purpose of this article to introduce and summarize the basic criteria for obtaining an agreed or negotiated divorce under Texas law. Such divorce can be done and finalized in Texas as quickly as 60 days from date the divorce petition has been filed if all legal criteria for the divorce have been satisfied within that 60-day period.

Needless to say, not every divorce case can or even should be finalized within 60 days. Some cases may have issues of considerable complexity that cannot possibly be resolved within 60 days. Other cases may present issues that do not lend themselves to immediate settlement or resolution between the parties. Such cases can and frequently do take considerably longer than 60 days to finish. Finally, there are some cases where it may not be a good idea to be in a hurry to finish a divorce, particularly if there is a possibility of reconciliation, or if one party might lose health insurance upon the granting of the divorce.

Whether your marriage has been a marriage of many years’ duration or of very brief duration, the decision to end the marriage is a decision not to be made lightly. It will involve considerable contemplation and personal decision on your part. It will most surely necessitate effective legal guidance and representation as well. I am here to help.

Dale O’Neal

Board Certified Family Law

L.L.M. Taxation Licensed US Tax Court

State Bar of Texas Authorized CLE Provider (I train other lawyers) Contributor, State Bar of Texas Family Law Manual

Fort Worth, Texas 817-877-5995

LawyerONeal@gmail.com

Principal Office: Fort Worth, and I have office privileges at all Regus Office Centers, so I am available at those locations by appointment.

GLOSSARY TARRANT COUNTY DIVORCES:

Answer The spouse of the party who files the Petition for Divorce must appear in the suit. This is done by filing an “answer,” which is essentially just making an appearance by filing a document with the Court. The same thing is often accomplished by a Waiver of Service of Citation. The Negotiated Divorce system provides you with documents for the Respondent to make an appearance in the case.

Cause Number The number assigned to your divorce case by the clerk of the court. It appears at the top of all documents filed with the Court. Most Tarrant County Divorces begin with three numbers, followed by a dash, then a longer series of numbers.

Character Whether property owned by a spouse at the time of divorce is community property or separate property. This is VERY important.

Child Support An amount of money paid to help meet the children’s financial needs after a divorce. Texas has enacted child support guidelines which stipulate the percentage of a parent’s net resources that should be paid as child support. Parents are free, however, to make agreements that are not consistent with the child support guidelines.

Community Debt Any debt incurred during a marriage by either party, unless specifically agreed otherwise between the borrowing spouse and the creditor.

Community Estate All community property and community debts. Sometimes called the “marital estate”.

Community Property     All property acquired during marriage by either spouse unless a spouse can prove, by clear and convincing evidence, that an asset is his or her separate property. Community property, along with debts incurred during marriage, make up the parties’ community estate.

Contractual Alimony Periodic payments from one ex-spouse to the other from future income of the paying spouse. Contractual alimony may be agreed to by the spouses if it makes sense for their situation. Previously, under the IRS Code, Alimony was taxed to the receiving party and deducted from income by the paying party. However, that tax benefit has been abolished.

Conservatorship How decisions about children are made. Parents can be appointed as “Joint Managing Conservators” who share some decision-making ability regarding children, and the Texas Family Code requires a presumption that appointing parents as Joint Managing Conservators is in the best interest of children unless there is evidence of family violence or some other situation which makes Joint Managing Conservatorship unworkable. In that instance, one parent will be named as the Managing Conservator, and the other will be the Possessory Conservator. Just because the parents are “joint managing conservators,” the parents are not necessarily equal in decision making rights. Often one parent is designated as the “primary” parent. The primary parent chooses the schools, etc.

Court Appearance In most Texas counties, one party must go before a judge to give some basic testimony in order to finalize a divorce and have the Divorce Decree signed. In Tarrant County there are six different divorce Judges that have the power and authority to grant a divorce. Different Tarrant County Judges have different procedures and different requirements.

Court Number The Court to which your case is assigned. The first three digits of your case number in a Tarrant County divorce. This appears in the first section of your divorce decree that identifies the parties, at the top of the first page.

Disproportionate Division of the Community Estate When one spouse receives more than half of the community assets. This is negotiable. One spouse may receive more than half because of: fault; one spouse has greater earning potential; age difference; health difference; guilt.

Discovery The formal process of exchanging information. Usually done to determine information regarding assets, such as what assets exist as well as what assets are worth. There are numerous types of discovery available to a spouse in a Tarrant County divorce: Depositions, Request for Production of Documents (such as bank statements or credit cards), Interrogatories (asking questions in a written form and demanding a written response within a certain time frame), etc. Discovery may be used in a negotiated divorce.

Divorce Decree The document that is signed by the judge, and that contains all the details of the parties’ parenting plan and property division. It contains all assets, all debts, and all provisions relating to the divorce. In selected cases, I can have the clerk “seal” the file so the general public cannot get access to your personal information. In other cases, I can draft an “Agreement incident to Divorce.” That document will contain all the personal details of your divorce and NOT be filed with the court, so that no one other than you will ever know the terms of your divorce.

Fault Texas law does allow a spouse to prove that the other spouse was at fault in the breakup of the marriage. If, after a trial, a judge finds that one party was “at fault,” it might affect how the judge divides community property. When the parties reach an agreement about how to settle the terms of their divorce, fault is irrelevant.

High Net Worth A large community estate. Often includes such assets as privately owned businesses, family businesses, retirement, 401K, pensions, annuities, private wealth management accounts, collectables, trusts, annuities, stock, stock options, investments, second homes, oil and gas, minerals, life insurance, employee benefits, professional practices, professional licenses, money markets, patents, intellectual property, etc.

Litigation The process of going to court for a trial. Most people consider litigation to be the “traditional” divorce process where, if the parties cannot agree on a settlement, the issues in a divorce are turned over to a judge or a jury to make a decision. I have litigated thousands of divorces. Thousands. A negotiated divorce and/or an Agreed divorce is far superior to litigation. In litigation, a Judge or a Jury decides your fate. In negotiation, you decide your fate. As I have said previously, if you were wise enough to create an estate, you should be wise enough to participate in the dissolution of your estate.

Mixed-Character Property owned partly as community property and partly as separate property. Property is of mixed character when part of the purchase price or down payment on a property comes from one spouse’s separate property and part comes from community property or is financed with both spouse’s credit.

No-Fault Divorce Neither spouse is required to prove that the other spouse was at fault in the breakup of the marriage. Either party may get a divorce without proving that the other party caused the marriage to end. In Texas, spouses may allege that the other spouse was at fault, which could have an affect on how a judge divides community property. When the parties reach an agreement about how to settle the terms of their divorce, fault is irrelevant.

Original Petition for Divorce The Original Petition for Divorce is the document filed at the beginning with the court to start a divorce. It contains simple information, such as identifying information, and does not contain any of the agreements that will be included in the final Decree of Divorce.

Parenting Plan The details about how divorced spouses will make decisions about their children, as well as when the children will be with each parent, and how the children’s financial needs will be met. The parenting plan will be part of the Divorce Decree.

Periods of Possession of and Access to Children Often called “visitation,” this is the schedule of time the children will spend with each parent.

Petitioner The party who files the Petition for Divorce. The other spouse is called the “Respondent.” In some counties, the Clerk will allow the parties to file a Joint Petition for Divorce. When the parties make an agreement about how to divide their property and care for their children post-divorce, it does not matter who is the Petitioner and who is the Respondent.

Property Division The details about how divorced spouses will divide their community property and confirm the ownership of separate property. The property division will be part of the Divorce Decree. It is very important that the property division is drafted in clear, unambiguous language.

QDRO Qualified Domestic relations Order. A specific court order that divides certain retirement benefits. Used to divide pensions, 401K’s and other qualified retirement benefits.

Reimbursement Money owed from one party’s separate property estate to the community estate or from the community estate to one party’s separate property estate because of contributions during a marriage. If, for example, a couple uses Husband’s inheritance to make improvements on their community property home, Husband’s separate property estate has a reimbursement claim against the community estate. Likewise, if Wife uses community property money to improve a home she owned before marriage, the community estate has a reimbursement claim against Wife’s separate property estate.

Respondent The spouse of the party who files the Petition for Divorce. The parties who files the Petition for Divorce is called the “Petitioner.” When the parties make an agreement about how to divide their property and care for their children post-divorce, it does not matter who is the Petitioner and who is the Respondent.

Separate Property Property that a spouse: 1) owned before marriage; 2) inherited, before or after marriage; 3) received as a gift, including gifts from a spouse; or, 4) received as a personal injury award (with some exceptions). Separate property claimed by a spouse in a divorce must still exist in some form in order to be claimed at the time of divorce. Separate property cannot be divided between spouses except by agreement.

Spousal Maintenance An award, as part of a divorce, of money to be paid from one ex-spouse to the other after divorce from future earnings. Texas courts may order spousal maintenance for a limited period of time under some circumstances. The purpose of spousal maintenance in Texas is to help a divorced spouse who does not have sufficient resources to meet his or her minimum financial needs.

Tax Provisions I routinely draft decrees of divorce in Tarrant County that have tax provisions, My L.L.M. in Taxation is an advanced degree that I hold for the express purpose of addressing Federal IRS tax issues in Texas divorces. Important divorce tax issues include: Who pays the taxes; Innocent Spouse IRS Tax relief (watch my video), tax provisions relating to children, tax recapture issues, taxation on distribution of the estate, etc.

Waiting Period The 60 days following the date a Petition for Divorce is filed with the Court. A divorce may not be granted until at least 60 days have passed since the day the petition was filed. This is a minimum, however, there is no set maximum time that your petition can be on file before your divorce is completed.

Waiver of Service of Citation One way for the Respondent to make an appearance in the divorce case.

DIVORCE ORGANIZATION TIPS

How to help resolve your Tarrant County Divorce - Gather the following information in an organized fashion:

House: Get the current payoff on the mortgage owed to your lender (if any.) Determine the current fair market value (ask a realtor or have it appraised). Determine if there are any other liens, such as IRS liens. Did either spouse invest any of their “separate property” into the house, either at purchase or later?

Retirement: Get a copy of ALL retirement plans. Current values. And, if you were a participant in that plan prior to marriage, see if you can find the documents that valued the plan on the date of marriage. That will help you.

Debts: Make a list of all debts. Credit cards, unsecured debts, secured debts, auto loans, etc. All debts. Inventory your house: Easy to do: go in each room and take multiple digital photos of all assets of any value. Cell Phone: Call your provider and ask if the phones can be split after the divorce.

Bank Accounts: get printouts of all accounts. Most recent bank statements. Look for unusual activity.

Safe deposit box: Inventory and photograph contents.

Password: change your passwords if you feel the need

Tax Returns: get copies of the last three years tax returns (at a minimum)

Credit Report: get a current credit report.

Credit Cards: Make a list of all cards. Find out who is the authorized user on each card. Find out if you have liability on each card. Find out the current payoff on each card.

Cash on Hand: Have some cash in case of emergencies.

Financial Statements: Get copies of any financial statements prepared for you and your spouse. Commonly prepared when applying for a loan or when you employ a financial advisor or wealth advisor.

Life Insurance: Get copies of all life insurance policies. Call the life insurance company and ask the following questions about each policy: Is it a term policy or a whole life policy? Is there any cash value? Are there any loans against the policy? What are the premiums? Who are the beneficiaries?

Monthly budget: Make a monthly budget. You usually need that information sometime during the divorce.

Proof of income: get proof of income for both you and your spouse. Paychecks, tax returns, etc. This information is usually important sometime during your divorce.

List children’s assets: 529 plans, trust accounts, cars, etc.

Titles and deeds: make copies of the house deed, deed of trust, all car titles, boat titles, etc.

Less Obvious assets: Travel awards or points; season tickets, time shares, health savings accounts, flex savings accounts, memberships, country club memberships, patents, royalties, etc.