Preparing for Divorce- A Checklist of Things to Do and Think About Prior to Filing for Divorce in Texas

Posted By on Jun 4, 2015 |


This list was compiled by attorney Elisse V. Woelfel as information for individuals who are planning to divorce in Texas.  This list is not exhaustive and it will not fit every divorcing couple’s situation.  It should not be considered legal advice and it does not create an attorney/client relationship.    Before taking any actions on this list you should consult directly with an experienced family law attorney.  The single most important step you can take when involved in a suit for divorce is hiring a family law attorney to advocate on your behalf!

 

Counselling

Though marital counselling is not required to receive a divorce in Texas, you should consider counselling if you believe a chance for reconciliation with your spouse exists.

Consider counselling for yourself and/or your child(ren) to assist with the emotions and changes brought on by divorce.

 

Hire an Experienced Family Law Attorney

Do NOT take legal advice from friends or family who think you can do your own divorce by filling out some forms.  If you and your spouse have minor children and/or have acquired property together you should seek the advice and assistance of a Texas licensed family law attorney.

Do NOT hire a paralegal to prepare forms for you; this is an unauthorized practice of law and paralegals are not permitted to give legal advice.

Do NOT believe signs and advertisements that say “$150 divorce”.  The county filing fees alone for a divorce are typically around $300.00.

Find an attorney whom you like and trust and whose style is right for your situation.

 

Understand Where and When You Can File For Divorce

Generally, either the petitioner or respondent must have been a domiciliary of Texas (lived in) for the preceding six (6) month period.  See Texas Family Code § 6.301(1)

 

Generally, either the petitioner or respondent must be a resident of the county in which the suit is filed for the preceding 90-day period.  See Texas Family Code § 6.301(2)

Research whether or not the county you will file suit in has a “Standing Order” that applies to all divorce suits and suits affecting children.  Dallas, Collin, Denton, and Rockwall Counties all have standing orders for family law cases.  These orders require and prohibit certain conduct.  Understand your rights, duties, and obligations under the orders and speak with your attorney about steps that should be taken prior to you being bound by the orders.

 

Change Beneficiaries and Power of Attorney Designations

Consider changing your beneficiary designations for life insurance, financial accounts, and retirement accounts (if allowed by the plan, advised by your attorney, and not in conflict with any court order you are subject to).

Revoke any powers of attorney your spouse holds for you and change your power of attorney designations if necessary.  Provide notice of your revocation to any institutions that have your power of attorney on file.

 

Financial Accounts, Cash, and Property

Open a bank account in your own name in anticipation that you and your spouse will be separating your finances.
Change the passwords and security questions for accounts that are solely in your name.
Have an amount of cash on hand for emergencies.

Do NOT clean out bank accounts, cash out retirement accounts, or otherwise destroy or hide community funds, property, or assets.  Spouses in Texas have a duty to support each other.  See Texas Family Code § 2.501(a).  Furthermore, spouses in Texas owe each other a fiduciary duty regarding their community property.  You and your spouse will owe these duties to each other until your divorce is finalized.

Understand that property you own or acquire from the date of your marriage until the date your divorce is finalized will generally be considered “community property”.  There are some exceptions to this rule, including, but not limited to gifts and inheritance.  There is no “legal separation” in Texas.

 

Communicating with your Spouse

When speaking with your spouse, assume that you are being recorded and be polite and respectful.
Don’t say or do things to your spouse that you would not want to explain to a judge or jury.
Avoid communicating with your spouse via text messages.  Emails are easier to preserve and produce as exhibits and some judges consider them to be more compelling evidence than text messages.

 

Inventory and Documentation

Create an inventory of the property you and your spouse own in anticipation that one of you will be moving out of the marital residence.  Take photos or videos of high-value items like electronics, furniture, paintings, antiques, appliances, and jewelry.

Gather important information and documentation and either store for safe-keeping or make copies.  Examples include but are not limited to:

  • Deeds and information on real property;
  • Titles and information on motor vehicles (cars, motorcycles, boats, planes, etc.);
  • Statements and records for financial, brokerage, and retirement accounts;
  • Tax returns and supporting documents (at least 5 years);
  • Marital agreements (pre and post nuptial);
  • Benefit information and cards (medical, dental, vision, prescription, etc.);
  • Statements and records for debts and liabilities (mortgages, car notes, student loans, credit cards, personal lines of credit, etc.);
  • Insurance and Annuity Information:
    • Life Insurance;
    • Accidental Death and Dismemberment (AD&D) Insurance;
    • Annuities;
    • Health Savings Accounts;
    • Medical Savings; and
    • Disability Insurance;
  • Business records;
  • Employment records and information:
    • Payroll records for you and your spouse;
    • Bonus information; and
    • Stock options;
  • Spouse’s Driver License Number;
  • Spouse’s Social Security Number;
  • City and state where your spouse was born;
  • Your birth certificate;
  • Your passport;
  • Your Social Security Card;
  • For the children of the marriage:
    • Social Security numbers/cards;
    • Birth Certificates;
    • Passports; and
    • Driver license numbers.

 

Social Media, Email, and Socializing

Be careful with what you post on your social media accounts!  Photos and posts from social media accounts are often used as evidence in contested divorce cases, especially when children are involved.

 

Set your social media accounts to “private” and make sure you know and trust who has access to the photos and information you post to your account.

 

Understand that setting your social media accounts to “private” will not prevent an attorney from gaining access, through a process known as “discovery”, to information and photos you have posted.  The best rule of thumb is do NOT post a photo or information that you wouldn’t want to have to explain to a judge or jury!

 

Change the passwords and security questions to your social media accounts.

 

If you have a joint email account with your spouse, open or maintain an email in only your name.

 

Change the passwords and security questions for any email accounts that are only in your name.

 

Do NOT date while your divorce is pending.

 

Divorces Involving Child(ren)

Do NOT speak negatively about your spouse to, or in front of, your child(ren).

 

Do NOT allow family members or friends to speak negatively about your spouse to, or in front of, your child(ren).

 

You should not be dating (see above) and you certainly should not bring someone you are romantically involved with around your child prior to your divorce being finalized.

 

NEVER take illegal or non-prescribed prescription drugs or abuse alcohol.  The court can consider if a party has a drug or alcohol problem when determining what is in the best interest of a child.  See Texas Family Code § 153.134(a)(7).

 

Understand that in most cases the court will find that it is in the best interest of the child(ren) to have a continuing and meaningful relationship with both parents and will name them as Joint Managing Conservators.

 

Understand that you will most likely be co-parenting with your spouse until your child reaches at least the age of 18.  Effective and cooperative co-parenting is important for a child’s development and well-being and it will also make the parents’ lives MUCH easier.

 

Be involved with your children!  Know their routines, likes, dislikes, and friends.  Attend their activities and school functions.  Make yourself available to them when they need to talk or spend time with you.   Show and tell them that you love them and they are your priority!

 

Secure your children’s passports if you have any reason to believe your spouse may try to flee the country with your children when he or she finds out you are planning to file for divorce.  It could prove difficult to impossible to get your children back if your spouse successfully removes them from the United States.