In the years that I have been practicing family law I have realized that we, as lawyers, can become somewhat desensitized to the emotions that a client feels. There is the first time they see a copy of the divorce petition that has been filed by their spouse. There is the first time they meet with an attorney. The first time they go to court (if they have to). The first time they go to mediation. What I have come to realize is that there are little things that clients and their attorneys can do to reduce the risk of unintentionally causing a divorce to become contested.
1. Who pays the attorneys’ fees?
If you are the wage-earning spouse and your wife/husband was a stay at home parent, do not include a request for them to pay your attorneys’ fees in your initial pleading. Not only is it not likely to happen (because in Texas, both sides’ attorney’s fees are generally paid out of community property), it comes across as attacking and offensive. I have lost count of the number of times a potential new client (PNC) has sat in my office said “there is no way in H*&& I am paying their attorney’s fees.” If the other spouse truly engages in unreasonable behavior during the divorce and causes both of you to incur unnecessary attorney’s fees, you can always amend your pleading later to request those fees.
2. Think twice before making claims of adultery
The only reasons to claim that there was an affair are: (1) you can actually prove it, (2) you don’t care if your children someday see this document when it is a matter of public record and (3) it really is the reason you are filing for divorce. Under the Texas Family Code, “fault in the breakup of the marriage” is one of several factors a court can consider in giving one spouse more than 50% of the community estate.
However, rarely is an affair the one and only reason a couple is getting divorced, so if you raise this issue be prepared for the mudslinging to start from the other side. And just because your spouse has an affair does not mean that you will automatically be granted sole custody of your children. While it is understandable that you are hurt when you find out your spouse is having an affair, the expense in proving it, both financially and emotionally, may far outweigh any benefit you may derive from it.
3. Clearly state what you want and why
Tell your lawyer what you really want and why, and then make sure that is what they actually ask for. Most lawyers use the same document creation software and it comes with a lot of options of things you can ask for and allege. But there is a reason those programs give you the option of which ones to choose – they don’t all apply in every case. The other day I received a petition that asked for the court to order electronic access to the child when the child was in the other parent’s possession. This might seem reasonable on the surface, but the child was two months old when the petition was filed.
This same petition requested a psychiatric evaluation of that same two month old child. Also, you know your spouse better than the attorney does. If there is something that you absolutely know will send your spouse into a “this means war” mentality, then think long and hard before you include it, at least in your initial pleading. You need to have a frank discussion with your attorney of how your spouse will likely react to what you ask for in the petition; unless, of course, you want a lengthy, costly battle in which case you can include whatever you want and can reasonably prove.
4. Realistic and Reasonable Budgeting
When your lawyer asks you to put together your temporary budget or your post-divorce budget, be realistic and reasonable. Do not assume that just because an item is on your budget that your spouse will agree, or that the court will require your spouse, to pay that amount. If you are in the position of facing a temporary orders hearing and asking the Judge to order your spouse to pay temporary support, keep in mind that most judges will not likely spend $600 to $1,000 per month on personal grooming or clothes.
When I work with a client to determine what amount of support they need either while a case is pending or after the divorce, we always take into consideration what the other spouse can actually afford to pay while also being able to live themselves. It doesn’t do either spouse any good to have one spouse ordered to pay an amount that they truly cannot pay because it just results in more litigation and more conflict down the road.
Of course, every case is different and there are some instances when gearing up for battle is the only option. But divorce litigation can be very expensive, both financially and emotionally, so I encourage you to carefully consider whether that is the path you want to go down. While you cannot always control how your spouse will respond when you file for divorce, you can at least give them the chance to respond with dignity, and you might even get a little more with honey than you do with vinegar.