Filing for Divorce in Texas?

This video features Samuel E. Bassett, a Criminal Law attorney based in Texas.

Divorce Attorney Explains What You Need to Know

Video Transcript:

Sam Bassett:

One of the best ways to save money in a divorce is to try to deal with the emotions outside of the legal context.

Rob Rosenthal:

Do you know the ins and outs of getting a divorce in Texas? We're going to find out right now, because that's what we're going to ask the lawyer.

Hi again, everybody. I'm Rob Rosenthal with askthelawyers.com and my guest is attorney Sam Bassett from Austin, Texas. Sam, good to see you again. Thank you for making some time to help us out.

Sam Bassett:

It's good to see you. Thank you.

Rob Rosenthal:

I want to remind everybody that if you do have questions about your specific situation, you can go to askthelawyers.com, there's a button that says “Ask a Lawyer” right at the top of the page, you can go there and submit your questions. Let's just jump right in.

Getting divorced in Texas, Sam. What's the basic procedure? And does it matter who files first in that situation?

Sam Bassett:

Well, the basic procedure starts with filing of a petition for divorce. The petition is a new lawsuit. Even though it involves your family, it's a lawsuit, and so the first person to file generally is going to have preference if there's a trial in presenting their case first. So in that sense, it does matter who files first, but the vast majority of divorce cases get settled through other means than trial, so often who files first doesn't matter a lot. As a corollary, who files first can also strategically be important if you're trying to gain control of assets or trying to set a hearing soon if there's an emergency type situation going on, or if you're worried about the safety and welfare of children.

Rob Rosenthal:

So it sounds like getting an attorney involved as early as possible is the best idea even if you don't end up filing first, but end up getting somebody to give you advice early on is a good idea.

Sam Bassett:

Absolutely, having an attorney advise you even before you make the decision to divorce is sometimes really helpful, because that attorney can tell you how to best prepare information and best have contingency plans for when the divorce starts, particularly when children are involved or particularly when you have assets that one party can attempt to hide or overspend if they react to your filing the divorce.

Rob Rosenthal:

Is Texas a no-fault state when it comes to divorce? And what does that mean?

Sam Bassett:

Yes, Texas is a no-fault state. What that means is that you're not required legally to give a reason that you want a divorce. In the old days, divorce could only be granted on certain grounds, cruelty or adultery, something like that. In the more modern era, everybody in the country, I believe, recognizes that a divorce can be granted for no reason given, and a person can't be forced to remain married if they don't want to remain married. At the same time, you can allege fault grounds for divorce, but that's a topic for another day.

Rob Rosenthal:

What about mediation? Is that required in Texas or just recommended? Where do we stand on that?

Sam Bassett:

In most jurisdictions, particularly the urban jurisdictions, the courts require you to go to mediation before trial. If the trial is a very short trial sometimes they don't require it. There are some counties in Texas that don't require mediation, but my experience tells me those are usually counties that are more rural with lower populations.

Rob Rosenthal:

So mediation is only necessary if it is going to indeed progress to trial. It's not all the time, right?

Sam Bassett:

Right. The requirement of mediation is generally for trial situations only, but most people, if they can't settle the case discussing between lawyers or between themselves, most people will try mediation first because it generally saves money and it also relieves the parties of some of the emotional turmoil of preparing for trial and going to trial.

Rob Rosenthal:

What about property? That's one of the big things that people get emotional about in a divorce. How is the property in Texas divided and decided who gets what?

Sam Bassett:

Well, Texas, like many states, is a community property state. To the extent community property is created during the marriage, either through assets or liabilities, the other type of property you can have is called separate property; generally that's property that you have inherited, has been given to you, or is the product of gifts from other persons. So gifted or inherited property or property that you had before you got married cannot be divided by the court, and that is often a very complex analysis that is required in high asset divorces as to what is community property and what is separate property, because that characterization of property is critical to determining who gets what at the end of the divorce.

Rob Rosenthal:

You kind of touched on this a minute ago, but what if one party in the divorce suspects the other is hiding some property, hiding some assets? What is the process here? What can be done?

Sam Bassett:

Obviously, if somebody is really sneaky about it, it can require quite a bit of investigative resources be expended to determine what the hidden property and or expenditures have been occurring during the marriage. It's a real challenge when somebody has their own business and can manage the flow of financial cash and or other assets that are hard to trace. It's usually not as easy to hide assets if you're employed by an employer or a larger employer especially, who is required to keep regularly audited books and things such as that.

Rob Rosenthal:

That makes sense. What if someone's thinking, Sam, they're going through a divorce and they want to save some money. Are there some quick tips and things you can offer that might help save some money in the process?

Sam Bassett:

Well, saving money is important, especially for folks who don't have a whole lot to divide. There are a lot of available resources online, county libraries and county clerks often have resources, the State Bar of Texas sometimes provides resources for people who don't have lawyers; it's a little bit risky though if you have children or issues involving significant amounts of property to try to do it yourself.

Having said that, one of the best ways to save money in a divorce is to try to deal with the emotions outside of the legal context. Counseling for couples or individual counseling can save you a lot of money, because if you're very emotional, you can be irrational, and you can take positions that ultimately cost a lot of money in legal fees that weren't necessarily required. So that's another thing you can do to save money.

The other final thing I would say is, as far as the finances of a marriage, before you go see a lawyer, the more organized you are with the information to be provided as far as assets, liabilities, any issues involving children, the more organized you are and the more you have categorized documents that saves you money with the lawyer you're going to be using because you don't have to pay him or her or their staff to do that for you. So that's another thing you can do to save money during a divorce.

Rob Rosenthal:

Makes a lot of sense and lots of great helpful information there. I do appreciate you making some time to answer our questions.

Sam Bassett:

Thank you, sir.

Rob Rosenthal:

That's going to do it for this episode of Ask the Lawyer. My guest has been Austin attorney Sam Bassett. Remember, if you have questions about your specific situation, go to askthelawyers.com, click on the button at the top of the screen that says “Ask a Lawyer”, and you can ask your questions right there.

Thanks for watching, I'm Rob Rosenthal with AskTheLawyers™.

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