Author: Larisa Martirosova

Litigation

Litigation basically means that issues relating to divorce will be settled in a family court. The process typically begins with one party filing an original petition for divorce. The other party will respond by filing an answer or a counter-petition, and both parties typically hire lawyers to assist them in divorce litigation. During the process, both parties and their attorneys will make several appearances in court and in front of a judge. Most divorced people who end up litigating are those in a very high-conflict divorce.  The issues that often end up leading to litigation are spousal support, division of property, child custody, and child support.

Collaborative Divorce

The collaborative divorce approach is a settlement process that focuses on resolving issues without having to go to court. As part of the collaborative law method, both parties hire separate attorneys whose job it is to help them settle the dispute. In collaborative divorce, neither party is allowed to go to court. If that should occur, the collaborative law process ceases and both attorneys are disqualified from any further involvement in the case.  As part of the process, each party signs a contractual agreement, which includes the following terms: disclosure of documents, respect, insulating children, sharing experts, win-win solutions, and agreement to not go to court. Because there is no judge ultimately deciding the parties’ issues, collaborative divorce typically involves a team of professionals who help parties understand and resolve their disputes relating to different issues. This team of professionals may consist of mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed. In the unlikely event that clients are not able to settle all the issues in their case using the collaborative divorce process, mediation can usually settle any remaining issues. In the few cases that don’t end up settling, litigation attorneys can still take the case to court. Collaborative divorce is beneficial for people who want to move through family law issues as quickly and efficiently as possible, without hurting the other spouse or children.

Mediation

Contrary to what many people believe, mediation is not a stand-alone alternative dispute resolution. Rather, it is a component of the litigation process and usually takes place after a suit for divorce is filed. Mediation is essentially a negotiation facilitated by a neutral third party, a mediator. Mediators do not take sides and their sole role is to help people reach a settlement. The mediator is there to help the parties find common ground and deal with certain expectations that may not be very realistic. The mediator can also help understand concerns, define problems, and offer creative solutions. In most cases, the parties are required by the judge of their case to try to settle their case through mediation before they go to court for trial.

“Kitchen Table” Settlements

This method is the simplest, but arguably requires the most trust for the opposing party. Basically, the parties sit down “at the kitchen table” and come to an agreement about an arrangement that satisfies both of them. After the parties reach an agreement, they can take it to a lawyer to transfer it into a legal format or do it themselves by completing pro-se divorce forms.  This method is easy, inexpensive, and works well for couples that do not have children or complicated assets. Of course, couples do run a risk of making mistakes or leaving out important information without the benefit of legal advice.

Do-it-Yourself Divorce (Pro-se)

Divorce kits are available online at https://texaslawhelp.org or at a local law library for those couples who do not wish to involve attorneys. Divorce kits or forms generally provide instructions and a checklist approach to property and child-related issues, so users are not totally unaware of their options and requirements. These forms may be fine for people with no children or substantial assets, but they are not for everyone.  When children, substantial real estate, or other major assets are involved, the forms may not be detailed or flexible enough to accommodate what the couples are trying to accomplish. They may also leave little room for creativity, in which case it may be beneficial for parties to seek legal advice.

By: Larisa Martirosova

Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

 

In Texas, a marriage relationship can be created either through a (1) ceremonial process, (2) an informal or “common law” marriage relationship, or (3) marriage by proxy. Once a marriage relationship is created, it’s presumed to be valid.  This presumption of validity applies to every form of marriage, whether ceremonial or informal, and applies whether the marriage was entered into in Texas, another state, or another country.  Tex. Fam. Code § 1.101.  Unfortunately, many marriages nowadays eventually lead to divorce. Whether a couple has been married for 3 years or 30, wed in a church, in a common law marriage or are a same-sex couple whose marriage is now recognized, the same rules typically apply to all who decide to divorce in Texas. There are several ways to go about the process of getting divorced. A couple may decide that they want to go through litigation, or they may decide to do everything outside of court in a collaborative divorce process. A less formal approach toward divorce is called a “kitchen table” settlement, where the parties come to an agreement without any outside assistance. Lastly, parties who typically cannot afford an attorney or whose divorce is fairly simple can employ a “do-it-yourself” approach and divorce on their own. Each possible approach to marriage and divorce is discussed in more detail below.

Ceremonial Marriage

A ceremonial marriage is the traditional marriage that one thinks of and that complies with the statutory requirements listed in Family Code for obtaining a marriage license and participating in a marriage ceremony. This is the most common form of marriage in Texas.  To enter into a ceremonial marriage, a person must obtain a marriage license and voluntarily participate in a marriage ceremony.  First, individuals who want to get married must get a marriage license from the county clerk of any county in Texas. A person who is 18 years or older can get a marriage license.  There are ways that a person under the age of 18 can get married in Texas, but it’s best to consult an attorney in that situation. In Texas, a person cannot get a license to marry a relative, a person currently married, and a person that has been divorced within the last thirty days.  Generally, a person who has recently been divorced in Texas cannot remarry for thirty days after the divorce was signed.  As of 2015, same sex marriage is allowed.

Common Law Marriage

            A valid common law marriage in Texas, also called informal marriage, is a legal marriage where individuals become spouses without getting a marriage license and having a marriage ceremony. In Texas, there are two ways to establish a common law marriage.  A couple may establish a common law marriage by signing a declaration of their informal marriage, which must be certified by and filed with the county clerk. Another way to establish common law marriage is to agree to do the following three things: a couple must agree to be married, after the agreement, the couple must live together as spouses in Texas, and lastly, the couple must represent to others that they are married. All three requirements must be met in order to have a common law marriage. Proving a common law marriage does not depend on how long you have been living together or whether you have children together. Once proved, a common law marriage has no lesser status, which means that it is as legally valid as a formal marriage.

Marriage by Proxy

A proxy marriage is when the marriage is performed despite one party, or both parties of the marriage, are not physically available at the ceremony. There are several reasons why a proxy marriage or wedding may occur. This option tends to be the last resort of sorts when partners want to marry each other but either one or both of them are unable to be in attendance. Generally, some reasons why couples cannot be present include military service or travel limitations. In Texas, Section 2.203 of the Texas Family Code guides proxy marriages. This section states that upon receiving an unexpired marriage license, an authorized person may conduct the marriage ceremony as provided by this subchapter. The 72-hour waiting period after receiving the marriage license still applies in proxy marriages, just like it does in a ceremonial marriage. The second part of the statute states that a person may agree to marriage by the appearance of a proxy appointed in the affidavit if the person is: (1) a member of the armed forces of the United States stationed in another country in support of combat or another military operation; and (2) unable to attend the ceremony. Thus, the individual requesting the proxy by marriage must be serving in the military and stationed outside of the country. In 2014, an outcry of public opinion prompted a change in policy to allow Texas prisoners to get married by proxy, thus prisoners in Texas are now allowed to marry someone on the outside.  In most of the United States, marriage by proxy is not allowed, but a small handful of states still permit it, including Texas.

By: Larisa Martirosova

Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.