Posted by Ashley Russell on August 1, 2011

The divorce process is not an easy one, nor is it uncomplicated.  Divorce can bring up many questions that may not have been considered prior to filing.  Divorce Magazine did a piece on FAQs during divorce.  I offered my responses to a couple of these questions.

What if we decide we want to reconcile?

            Second thoughts after a divorce has been filed are not uncommon.  This is an important question to ask.  While a case is pending, couples often decide that they would like to try to reconcile and work out their differences instead of pursing the divorce.

            If both parties agree that they want to stop the divorce, the answer is an easy yes.  In this situation, the parties can agree to nonsuit their divorce action and the case will be dismissed by the court, no questions asked.  The document filed with the court is called a Notice of Nonsuit.

            Likewise, if only one spouse has filed affirmative pleadings in a case, that spouse can unilaterally decide to nonsuit their claims, thus stopping the divorce.  However, since a party’s Notice of Nonsuit only dismisses that party’s claims.  One party can not unilaterally stop a divorce by filing a nonsuit because the other party’s claims will still remain pending. 

            Once a party files a Notice of Nonsuit, their claims will typically be dismissed without prejudice.  This means that if the parties want to re-file their divorce at another time then they are not prohibited from doing so. It is important to note that dismissal is final, by a Notice of Nonsuit or otherwise.  It does not pause the divorce or hold it while the parties make up their minds.  In the event attempts at reconciliation are unsuccessful, the parties will have to re-file their divorce action.

           It is possible to continue hearings or trial dates while parties attempt reconciliation, but the court is not likely to postpone the resolution of a case indefinitely or allow the case to remain on the docket for years.   While the litigation can be stalled for a little while, at some point parties attempting reconciliation will have to decide whether to nonsuit their case and dismiss the divorce or whether to move forward with ending their marriage.

 

 Will I get 50% of our family assets?

            Not necessarily.  While many people believe that they will get “half of everything” upon divorce, an equal division of the community estate is not required in Texas.  Although the property division often ends up at an award of roughly 50% of the community estate to each party, this is not the legal standard.  Instead, the Texas Family Code provides for a “just and right division” of the community estate. Specifically, in a decree of divorce, the court is required to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

            Absent an agreement of the parties, the court is afforded broad discretion in deciding how to divide the community estate in a just and right manner based upon the evidence before it.  While the division will typically start at 50/50, the court will then consider various factors that can shift the percentage of the martial estate awarded upon divorce in favor of one spouse or the other in order to each a “just and right” division.  A property division weighted more heavily in favor of one spouse than the other is referred to as a “disproportionate division”.

            Among the factors that a court will consider in arriving at a just and right division are the following: (1) fault in the breakup of the marriage; (2) the spouses’ capacities and abilities; (3) benefits which the party not at fault would have derived from the continuation of the marriage; (4) business opportunities of either spouse; (5) relative physical conditions; (6) relative financial conditions of the parties, including their obligations and need for future support; (7) disparity of ages; (8) size of separate estates; (9) the nature of the property; (10) debt owed by a spouse; waste or concealment of community assets; (11) disparity of earning capacity; and attorney’s fees.  This list is not exclusive and the court can consider other evidence it believes to be relevant to its decision.

            While this seems complicated, in a no-fault divorce where the parties are of similar age, in similar health, and have roughly equal incomes, debts, separate property, and have committed no real wrong doing during the marriage, then the court will typically divide the community estate in a roughly equal manner.  It is situations where one party has extenuating medical circumstances, the parties have disparate incomes or earning capacities in the future, or one party has been the victim of cruel treatment or abuse, for example, that the division will have to favor one spouse over the other in order to be just and right.  

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.