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Before the Divorce

Elizabeth S. Pagel, PLLC Aug. 6, 2020

From a very young age, most of us build an idea in our head of what life will be like.  The specifics of the plan might vary from person to person, but chances are we all had a similar structure: finish school, get a good career, make a family.  That life plan probably did not  include divorce.  Making the decision to file for divorce is likely to be one of the most difficult choices you make.

Whether you’ve already made the decision or are still trying to work things out, it is almost always a good idea to seek counseling.  An experienced and qualified marriage counselor may be able to help you both work things out, provided you’re both willing to do so.  Something has happened – or a bunch of different somethings happened – but it’s important that you make sure that all viable options have been exhausted before deciding to file for divorce.  It could help to avoid divorce entirely, but if it doesn’t, it will give some peace of mind knowing that you did all that you could. A good counselor can help you come to that final decision with a better understanding of what led you to it.

Divorce is inherently stressful and there will be consequences.  There’s no way to sugarcoat that fact.  When the time comes, having a good attorney can also help to mitigate some of the trauma to you and your family.

Before we can talk about the divorce process, there are a few common misconceptions that we should clear up right from the beginning:

  1. Legal Separation. There is no such thing as “legal separation” in Texas.  You’re either married or you’re not.  Even in the middle of the divorce process, even if there are temporary orders that say one of you can’t live at the house, you are still married until a judge signs a divorce decree.

  2. Common law marriage. Texas does recognize informal or “common law” marriage, but it’s a bit more complicated than most people realize.  The simplified version is that you cannot be married by accident.  There are quite a few wild ideas floating around about what a common law marriage is, but it comes down to these three things:

    1. You both agreed to be married. That means you have talked about it and decided you don’t want to fool around with the dress, the cake, the car, the folderol—you’re just married.  This must be an actual, joint decision.

    2. After that agreement, you live together as spouses in Texas. That’s a short sentence but there’s a lot going on, so let’s break that down:

      “After that agreement…”  Self-explanatory, but it means you probably can’t make the agreement that you had always been married

      “…you live together…”  There’s no time frame or magic number on this!  It doesn’t matter if you lived together for a month or twenty years, it still counts.

      “…as spouses…”  If you have separate bedrooms, it probably doesn’t count.

      “…in Texas.”  If you meet all the above requirements in Mississippi, but then you got separate rooms when you moved here, Texas is unlikely to see it as a valid common law marriage.

    3. Finally, you must “hold yourselves out” as being married. That means a whole lot of things.  You refer to each other as “my husband” or “my wife” or “my spouse.”  Your friends think you’re married.  You sign a lease or buy property together.  You use the same last name.  The point is, it’s not done in secret.  You can’t tell your friends that you’re married but tell your parents that you’re not.  The people in your life have to believe that you are actually married.

We can  help you figure out if you have a common law marriage or not.  If you do, then you are just as married as you would be if you had had the ceremony.  And although there is such a thing as common law marriage, there is no such thing as common law divorce.  Once you’re married, you can only become “un-married” by going through the courts.

  1. My spouse says he’ll never give me a divorce! Well, he’s right! It’s not your spouse who “gives” you a divorce—it’s the court.  Your spouse could, potentially, muddy the waters and drag things out, but if you want a divorce you are going to get a divorce.

  2. Uncontested Divorce. Divorces are not filed as “contested” or “uncontested;” they are just filed as a divorce.  Even if you think you’ve agreed to everything, chances are that there are issues you haven’t thought of.  But we’ll talk all of that through and figure things out.

  3. Mediation vs. Court. Often people just want to attend mediation and get things done that way instead of going to court, but this is not an either/or choice.  Mediation is a part of the process.  A mediator can help you reach an agreement, but they can’t grant a divorce or file papers for you.

  4. Do it Yourself, without a Lawyer. In short, don’t.  Are you required to have a lawyer? No, not by law.  You have the legal right to go to court without a lawyer.  You also have the legal right to take out a butter knife and remove your own appendix.  In both situations, the results are likely to be messy, unpleasant, and not what you hoped for.

Here’s the thing:  the court system is complicated.  Family law is a complicated part of the court system.  There are requirements that must be met.  On any day of the week, judges see multiple cases in which the parties tried to handle things themselves but missed an important step and the judge refuses to grant the divorce.  Don’t waste time, money, and effort—just hire an attorney from the beginning.

We want to help.  If a divorce is what is right for you, we want you to have what you need.  Call Elizabeth S. Pagel PLLC at 281-446-1437 to schedule your appointment!