Thinking About Divorce
So, you are thinking about divorce. It's always a trying time when you think your marriage may be coming to an end. Many, if not most, couples end up splitting long before ''til death do they part." So, remember you are certainly not alone. Even marriages that do survive will have moments when one or both of the spouses will consider divorce. Hopefully, that will be the case for you, but you should keep in mind that there is life and happiness after divorce, even when it is very difficult to imagine right now.
Our Role as Your Attorney in a Divorce
As attorneys, our job is not to provide you with marriage counseling. Likewise, we neither encourage nor discourage you from seeking a divorce. That is among the most important of decisions. It is yours to make and yours alone, but the decision should be made with strong experienced legal counsel guiding you through the process. Simply put, our job is to give you the best legal advice we can for you and your family, to present you with all your legal options, and to represent your interests zealously, without judgment.
When to See A Divorce Lawyer?
We strongly advise anyone considering divorce to meet with us as soon as possible. Too often, we see a new divorce client who wants to file for divorce immediately or has already been served with divorce papers. While we can certainly handle those immediate needs, the clients' legal options would likely have been better had the client consulted with us long before the decision to seek divorce was made. Preparing will almost always give you a better result and sometimes the reasons the client wants a divorce could be rectified by a solution other than divorce, such as legal separation, or post-nuptial agreements for example.
Ideally, the time to seek a consultation is when you believe divorce is a mere possibility rather than a certainty, perhaps even sooner. We would review your financial information, listen to your unique family situation, advise you on your legal rights in terms of property division, parenting issues, ongoing support etc., and counsel you on the steps we recommend you consider to put yourself in the most favorable position in the event you decide to move forward with a divorce.
One situation where we would likely advise clients to consider immediate action is when there has been violence or abuse in the family. If your spouse is violent , abusive, controlling, suffers from mental illness, or has a chemical addiction, the safety of you and your children should be your first priority. Even if you are also a victim, you have a duty to protect your children from abuses of the other parent.
It is not unusual for abusers to manipulate their victims. Their behavior may seem normal or the victim may even feel that the fault is theirs. If this is happening in your family, or even if you think it might be, you need to break that abusive cycle to protect yourself and your children. If this is happening to you, contact us immediately to discuss your options or if you are in immediate danger contact the police.
Meet with an Attorney
Every case is unique. Divorce and family law attorney David Chowins would be happy to meet with you to discuss your particular situation. Call 469-630-2550 to set up a consultation. Often he can meet with you the same day or arrange an immediate telephone consultation.
Can I Divorce If I Can't Locate My Spouse?
Yes. When couples split, one or both of them may not tell the other spouse where they have moved. Since the other spouse is out of their lives, legally divorcing the other may become less of a priority for both spouses than it should. Sometimes couples wait years to divorce for this simple reason. However, unless is reconciliation possible, that is probably a mistake. Some mistakenly believe they need to locate their estranged or missing spouse first. That is simply not the case.
Why divorce if my spouse is no longer around?
Financial and other problems with remaining married to an estranged spouse
Apart from the personal reasons for one to seek a divorce (e.g. being able to legally remarry), there are numerous reasons to avoid putting it off. First, even if the spouse seems long gone, they might appear unexpectedly. When that happens, they often have the same rights and duties as if they had never left including the right to be financially supported by the other, the right to inherit from the other, the right to exercise of parental rights of minor children, and even the right to obtain medical information and rights upon disability of the other spouse. Often times, finances can be negatively impacted by the delay. Accessing retirement plan funds and transferring real estate often requires a spouse's signature. It is also not unheard of for an estranged spouse to obtain loans that the other spouse may end up responsible for repaying.
You may have to pay more taxes by remaining married to an estranged spouse
"Married filing Jointly" will always be a preferable filing status than "Married Filing Separately". However, if you spouse is not around or unwilling to sign the return, you can't file jointly. Consequently, while you are still married, you will be required to file tax returns with a "married filing separately" filing status. This tax status almost always results in the greatest tax liability for the taxpayer. Filing as a "single" or "head of household" is simply not available to those legally married. Claiming either such tax status may even constitute fraud if the taxpayer is still legally married. Remember, there is no common law divorce even if the marriage was created by common law. Only divorce or death of your spouse will allow you to return to those more favorable filing status. Marital status is a legal status, not a mindset that can be changed by simply wishing it were so.
How do I get a divorce if I don't know where my spouse lives?
Texas courts, like courts in other states, have jurisdiction to dissolve the marriages of its own citizens residents even if the court does not have jurisdiction over the other spouse. In addition, if the other spouse cannot be located, service can be achieved by alternative methods such as by publication rather than by personal service.
For example, if you were married in another state and then moved to Texas, you can seek a divorce in Texas even if your spouse has no connection whatsoever with Texas. The rub is this--while Texas courts may dissolve the marriage itself, any additional orders pertaining to ancillary matters (e.g., division of property, alimony or spousal support, child custody and support) may not be effective against the other spouse.
When can Texas courts issue property and child custody orders effective against my spouse?
Family courts in Texas may issue property orders against Texas residents. Orders will generally be effective over nonresidents only when they have significant contacts with Texas such as when the couple was married in Texas or when the other spouse lived with you in Texas prior to separating. In the case of parenting issues, Texas typically has jurisdiction to make child custody orders if the child in question has lived in Texas for the previous six months so long as no other court has issued custody orders regarding that child.
Can My Spouse Divorce Me In Another State Without My Knowledge?
Perhaps. Your spouse would need to serve you with the paperwork, (petition, citation, summons, etc. ) if they know how to find you. However, in the case of a missing spouse, Texas and other states allow for alternative means of service such as by publication. So, if your spouse doesn't know where you are or how to contact you, they may have opted to serve you by publication which you may not have known about.
Your spouse should have made reasonable efforts to serve you. They most likely had to sign an affidavit describing the efforts they made and why an alternative means of service is necessary. Given there may be little incentive to make great efforts to locate a missing spouse if the other spouse simply wants the divorce and child custody orders, it is possible they may have merely claimed to have made adequate efforts to locate and serve you but then served you by publication. If you have no connection to that state that issued the order, you may be able to challenge portions of those orders, especially those pertaining to division of property and spousal support orders.
What do I do if I divorce and then later locate my spouse?
If you do not need any additional orders, your divorce is complete. However, if you need orders for alimony, or division of property and debts, or other orders, contact us to determine if you can pursue those court orders in Texas courts or if you need to seek relief in another state.
What do I do if I do not know if my estranged spouse is still alive?
Once separated, you may not actually be notified if your estranged spouse passes away. If you suspect this is possible, you should discuss the situation with us to determine what options may be available to you along with the risks and benefits of those options.