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Name: Hal Davis

Location: Plano, Texas, United States

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In today's economy, more folks are trying to save money on their divorce by getting forms online and filling them out and filing them without a lawyer. Unfortunately, divorce law is not as cookie-cutter as online forms sellers would have you believe. And divorce laws are significantly different in each state. The divorce forms folks get over the internet are usually prepared by non-lawyers, and they're almost never prepared by a Texas lawyer.

Recently I migrated the Texas Divorce News blog because Blogger discontinued support of publishing by FTP. This is a test to make sure things are up and running again. Thanks!

Lots of divorce forms available over the internet claim to be "valid in all 50 states", and people often ask if the forms are "legal". The answer isn't simple, but the questions you should be asking are whether the judge will sign the forms, and whether they offer you the same protection as papers drawn up by your own Texas lawyer. I've just created a list:

Top 13 Signs Your Divorce Forms Weren't Written by a Texas Lawyer (and are likely to be rejected by the judge):

• Your packet includes a Complaint For Divorce, or anybody in the document is referred to as a "complainant"
• Your packet includes or refers to a Marital Settlement Agreement
• Your packet includes or refers to a Marital Property Agreement
• The final order doesn't include all of the warnings and admonitions required by the Texas Family Code (divorces with children)
• The packet doesn't include a detailed script for what to say when you're standing in front of the judge (the judge is prohibited from telling you what to say)
• The packet includes or refers to a Quit Claim Deed (this can really screw things up in Texas)
• There's no paperwork to protect you if your spouse is supposed to keep the house and make the mortgage payments, but doesn't actually make the mortgage payments.
• If there are children, there isn't a statement in the papers presented to the judge that states whether there has been a history or pattern of child abuse or neglect within the last two years
• If there are children, the word "visitation" is used regarding the time parents spend with the children.
• There is no language about where the primary parent can live with the children.
• There is no language about making child support payments through the State Disbursement Unit in San Antonio (comlete with their mailing address)
• There is no language about withholding for child support from the payor's paycheck
• An Employer's Child Support Withholding Order isn't included in the packet

While we're at it, here are the top 4 questions a judge will ask at the final hearing that will stop a divorce cold, if the parties don't have an attorney to help them prepare answers:

• Why should I approve this non-standard possession order?
• Why is there no time ordered when the father can have the kids with him?
• Why isn't child support being ordered?
• Why should I approve the payment of child support directly, instead of through the State Disbursement Unit, as provided by law?

I suppose it was bound to happen sooner or later, but it still surprised me to learn this. According to the Dallas Voice blog, a lesbian couple married in Massachusetts in 2004 and adopted a child together. They moved to Texas and one has filed for divorce. The other one is taking the position that gay marriage is not permitted under Texas Law, therefore there can be no divorce in Texas, so let's divide stuff as though we were roommates.
http://www.dallasvoice.com/instant-tea/2009/12/16/austin-woman-contests-wifes-divorce-petition-by-arguing-that-their-marriage-is-illegal/

Of course, this is taking the opposite position of the two men married in Massachusetts, moved to Texas, filed for divorce here, and the trial court judge has ruled that it is unconstitutional for Texas to prevent folks married in another state from pursuing a divorce here. This case is still in the early phases, and it's certain that when this case is over somebody's going to appeal it, and it's in the appellate court system that you get rulings that amount to law.

I guess that in nearly every divorce it would be advantageous to one side or the other to be able to claim that the parties were never married in the first place. If the parties are married, everything they have is presumed to be community property, subject to a "just and right" division, and if you want to claim something isn't community property, the burden of proof is on you to show that you had it before the marriage, or you got it by gift or inheritance.

If there's no marriage, then there's no community property, and you divide stuff like roommates would, including discussions of who actually paid for something, whose name is on the title or receipt, and whether something was a gift to the other.

In this particular gay relationship, whether there's a marriage or not doesn't make much difference regarding the child they adopted. The court would still make the same decisions and on the same basis on parental rights, possession schedule, and child support whether there's a marriage or not. Adoptive parents are legal parents whether they were married or not, and whether they are gay or straight.

I just read an Ezine article by Virginia Keeley who quotes some Texas divorce statistics. Here's a link to the article: http://ezinearticles.com/?Youre-Not-Alone---A-Look-at-Recent-Divorce-Statistics&id=3138848
Let me know if this link doesn't work and I'll snip it out.

She says her numbers come from the Census Bureau, the National Center for Health Statistics, and other independent studies.

According to the article, the average divorce rate in the United States in 2007 was 3.6 per 1000 persons. And, by the way, I believe that the 1000 includes infants, children, bachelors, and widows. So, on average, there would be about 856,000 divorces each year in the United States. But, if Collin County's population is 500,000, you'd expect to see something like 1,800 divorces a year in Collin County, or about 7.2 divorces filed each day that the courts are open. That seems a bit low to me, but feels like it's in the ballpark.

At any rate, her statistics state that of those marriages that end in divorce, first marriages last "an average of 8 to 11 years" and remarriages that end in divorce last an average of 7.4 years for men and 7.1 years for women. This is vaguely in line with a study I did about Texas marriages that end in divorce, mingling first and subsequent marriages, that showed that Texas marriages ending in divorce lasted a little over 7 years (the 7-year itch?).

What I found most interesting was this:
• If you have an annual income of over $50,000, your risk of divorce decreases by 30%.
• If you wait to marry until you're over 25, your risk of divorce decreases by 24%.
• If your parents are happily married, your risk of divorce decreases by 14%.
• If you have strong religious beliefs, your risk of divorce decreases by 14%.
• If you've attended college, your risk of divorce decreases by 13%.

I've never really seen good statistics on the odds of a marriage ending in divorce, but I'm thinking it's in the ballpark of 50%. So, if you start with 50% and apply the adjustments above, you appear to be able to drastically decrease your odds of being divorced, The problem is that if you satisfy all of the adjustments above, the odds of getting divorced are -95% (a negative probability is impossible).

I'm reminded of the quote from Mark Twain: "There are three kinds of lies: lies, damned lies, and statistics."

Dallas Morning News, Friday, October 2, 2009, front page, "Texas judge rejects gay-marriage ban."

The Honorable Tena Callahan, Democrat, Presiding Judge of the 302nd Family District Court in Dallas, ruled that two men married in Massachusetts could legally proceed with their divorce in Texas. She ruled that prohibiting their divorce violated the equal protection clause of the 14th Amendment to the United States Constitution.

It appears that the men had been in relationship for some time, moved to Massachusetts together a few years ago, got married there, moved back to Texas, and filed for divorce in Dallas, and it was randomly assigned to the 302nd District Court. State Attorney General Greg Abbott (Republican) intervened in the divorce to convince the Judge Callahan that the Texas Courts were prohibiting from dissolving a gay marriage, because under Texas law there was no marriage at all. Texas Law specifically defines marriage as the relationship of one man and one woman.

So far this is only the opinion of one judge. Until this is appealed and upheld by an appellate court, there is no authority anyone can cite in other similar cases. Similar cases are working their way up through the appellate courts of other states.

Because this hangs on the United States Constitution, this can ultimately be resolved only through a decision of the United States Supreme Court. I would be surprised by a speedy ruling by the US Supremes. I suspect that they'll want to see the rulings of a number of state supremes to weigh their logic and authority.

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Update 10/4/09. I just saw a clip of a network TV news interview with one of the men in the divorce proceeding. He and his lawyer are quick to say that they didn't engineer this as a test case for gay marriage, as it's Attorney General Greg Abbott that had a press conference on the matter, not them, and I'll grant them that. However, Mr. J.B.goes on to say that this isn't about gay marriage, but about gay divorce, and that this is completely different, and I completely disagree on this point. In order for a Texas court to have jurisdiction over a gay divorce, the courts must necessarily recognize the validity of a gay marriage from somewhere else. Recognizing a Massachusetts gay marriage doesn't get you all the way to allowing gay marriages in Texas, but in my opinion it's more than half way.

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Update 8/5/10. Just saw a news article that the Dallas Court of Appeals affirmed the trial judge's ruling that a same-sex couple married in another state had standing to file for divorce in Texas.

I suspect that this will be appealed to the Texas Supreme Court, and perhaps to the U.S. Supreme Court.

Labels: equal protection, gay divorce, gay marriage, homosexual divorce, homosexual marriage

If you want legal advice, go to a lawyer. If you want relationship advice, go to a professional counselor. But, since you asked, here's a little relationship advice from a lawyer.

Way too often, I'll see folks come to me about a second divorce -- less than a year or two after their previous divorce. I've been curious about this phenomenon, and have been paying attention to some information tidbits that float by me.

At a conference for divorce lawyers a very interesting statistic was thrown out. I can't remember it exactly, and have been unable to run down the source, but the essence was something like this: "Of all relationships begun within 2 years of a divorce, in which the new relationship ends in a marriage, 87% of those new relationships end in divorce."

You may need to read that several times to really pull it apart, but the essence is that after a marriage, you need some time to re-set, to become an individual, before you can productively enter a new relationship.

The image that comes to my mind is that of a memory foam mattress "as shown on TV". You push your hand into the mattress, then remove your hand, and for a while the outline of the hand is still visible.

To me, it seems that whether it's a good marriage or a bad marriage, being married to someone leaves an imprint on you like on that memory foam mattress in the TV commercial. We form patterns of behavior and thinking because of the marriage, whether they're productive and helpful behaviors or not.

Then, when that relationship ends and a new relationship comes along, if it hasn't been long enough for the imprints of the previous marriage to fade, a lot of the behaviors and patters of the new relationship are reactionary: the primary filter is the extent to which the new behaviors or values or whatever are different from or the same as the previous patterns.

There's a lot to be said for long courtships, but there's also a lot to be said for just staying out of relationships for a while to give you a chance for the memory foam imprints to fade, before you go exploring new relationships.