Facts About Divorce in Texas (How Long Will It Take to Get Divorced?)
To file for a divorce in Texas, you must be a Texas Resident for 6 months, and you must have lived within the county you plan to file in for at least 90 days immediately prior to filing of your divorce petition. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.
Texas does not recognize legal separations.
It is possible to get a divorce even though the other party does not want the divorce to take place. Texas is a “no fault divorce state.” “No fault” means that one spouse does not have to prove the other spouse has done anything wrong in order to obtain a divorce. You cannot be held to a marriage because your spouse does not want to sign or refuses to participate in the divorce process. The court will enter divorce orders even if the other party refuses to sign them.
Texas requires a minimum 60 day waiting period before any divorce can be finalized. The 60 day period begins to run from the time the Original Petition for Divorce is actually filed with the court. In other words, the shortest time it will take to finalize a divorced in Texas is 61 days. On occasion, in domestic violence cases, there is an exception to the 60 day rule. If the parties are in agreement, a divorce proceeding can be finalized immediately following the sixty-day waiting period. On average, however, the time period is more likely to run 90 to 120 days in an uncontested divorce due to the crowding of court dockets and the time necessary for counsel to draft necessary legal documents and obtain the agreement of both parties regarding the wording of the final documents. If the parties are not in agreement, the time necessary to finalize the divorce will depend on the conduct of both parties and their attorneys, the court’s schedule, the matters in controversy and the complexity of the contested issues. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are deeply in opposition to an agreement on some or all of the core issues may take anywhere from several months to several years to complete.
As to the division of marital assets, Texas is a community property state. For more information on community and separate property, see our blog, Divorce: What is separate property and what is community property.
It is important to remember that, although the statutory waiting period to finalize a divorced is 60 days, it is more likely than not that your divorce will “not” be finalized on the 61st day following the filing of your petition for divorce.
My Divorce is Costing Me What? Why is This Divorce Costing So Much?
Financial costs of divorce may often be significant. Divorce lawyers, like any other professionals, are paid according to their skill, training and experience. In Texas, one can expect to pay an advance deposit from $2,500 to $25,000 depending on the complexity of the legal issues involved, as well as the quality and expertise of counsel selected. In addition to the legal fees, some cases require “expert testimony” regarding the value of certain significant assets, i.e. business interests, the marital residence, rental properties, art work and more.
One reason most experienced divorce lawyers want a substantial retainer is that once an attorney files an appearance, they are charged with duties in their role as an officer of the court. Under law and court procedure an attorney must make appearances and file specific legal documents with little or no discretion depending on the opponent’s conduct. Initial filings and other documents may appear deceptively simple, but can challenge even the most patient person. The devil truly is in the details, especially where haggling parties look for disagreement. Even minor issues can blow up, and evolve into unnecessary expense.
Divorces involve complicated issues and many times it is necessary to have a temporary hearing sooner rather than later to sort out legal and monetary issues for the pendency of the divorce proceeding. Who will continue living in the home? Who will make mortgage payments? Who will make payments on automobiles? Who will pay certain credit cards? Who will pay utilities? Who will maintain the property? Who will be responsible for the debts? All questions must be carefully considered and weighed out.
In divorces with child related issues there are more complicated factors to be considered. Who will receive primary custody of the children? Where will the children live and how often? What school will the children attend? How will their education be paid? How much child support will be paid? What visitation schedule will work for the parents and the children? How, when and where will the child exchange take place? Which parent will maintain health insurance? Will the child’s residence be restricted to a particular geographical area?
In all cases, marital assets must be divided; and even if there are few marital assets and only marital debt, there remains much to fight about, or resolve.
The state of Texas makes it unethical for lawyers to take a divorce action on a “contingency fee” basis. That leaves only two ways for a divorce lawyer to be paid: by the hour, which is the most common; or on a flat fee basis. Hourly fees in the Dallas/Ft. Worth metroplex area for a divorce lawyer range anywhere from $250 per hour to $550 per hour and up, depending on your choice.
In the cases where one party has a distinct financial advantage, the economically disadvantaged party can apply for temporary attorney fees and costs to be paid immediately by the party in control of the resources provided a fund is available for such use. In a proper case, such temporary motions often are granted by the trial court in order to level the playing field.
After every hearing, whether it concerns child related issues, marital assets, debts of the parties, or property owned by the parties, an order must be drawn by counsel based on either the court’s decision or the agreement of the parties. Many times these orders involve the drafting of further legal documents such as Deeds of Trust, Deeds of Trust to Secure Assumption; Special Warranty Deeds, and Real Estate Lien Notes relating to the parties home; Powers of Attorney to transfer title of automobiles; Wage Withholding Orders for the withholding of child support; and Austin forms (required by the Bureau of Vital Statistics in every divorce action). Often a Qualified Domestic Relations Order (QDRO) is necessary to divide retirement plans, accounts, pensions and the like. These are just a few of the necessary documents required in some divorce actions.
Bottom line is: the less the parties fight the less they will pay. Lingering animosities do not expedite resolution. Courts do not want to hear “he said/she said.” Whether that is right or wrong is for a social commentary, not a legal guide. That is why there are ‘irretrievable breakdown’ divorces.
Other factors that affect the cost of divorce are: whether the divorce is adversarial; how much you pay hourly for your legal counsel; if you and your spouse are battling over child custody issues involving children; the number of marital assets and debts you have to deal with; and whether your spouse’s attorney is unnecessarily aggressive and adversarial, without purpose.
When selecting a divorce lawyer know what you are looking for. Your counsel should be a person in whom you can put your total trust — after all your emotional health, the emotional health of your child(ren) and potentially the emotional health of your grandchildren could be at issue. The way to keep divorce costs under control is to select the right lawyer and to force your intellect to overrule your emotions when making decisions.
By All Means – Stop the Foreclosures (Part II)
Being forced to move from one’s home because one can no longer afford to make the payments is a problem devastating thousands of families throughout the United States in today’s tough economy. Borrowers whose equity has evaporated in the struggling economy have little or no excess funds to use to save their homes. Mortgagees have turned to the banks for assistance with home loan modifications and refinances as an alternative to the unavoidable humiliation and financial disaster resulting in a foreclosure, making it difficult – if not impossible – for them to maintain or acquire a new home mortgage for years after.
How bad is it? RealtyTrac, the online foreclosure listing service, reports that during the three summer months, the number of default notices, scheduled auctions of foreclosed homes and bank repossessions climbed to 930,437, up by nearly 4 percent from the previous quarter. During this period, one in every 139 houses in the United States received a foreclosure filing. Foreclosures in the United States grew 21% in 2009. At this time, there is no set number for 2010; however, one can bet it will be a daunting figure.
Foreclosures involve documents that must be properly submitted before the actual foreclosure can proceed legally. Homeowners, lawyers and analysts have been citing problems with foreclosure documentation for the last few years, but it appears to have reached such intensity recently that banks are beginning to re-examine whether the foreclosure papers are being prepared properly and whether homeowners are receiving proper statutory notice prior to foreclosures.
Today it is not uncommon for the original note and deed of trust signed by the parties to be sold to a mortgage servicer who does not maintain the original signed documents on-site. A deed of trust contains specific foreclosure language and procedures that must be followed in the event of a default. The servicer therefore has no clue as to what notices may exist in the note and deed of trust.
One of the leading culprits of the foreclosure crisis is a lack of communication within the banks themselves. While the loan modification department begins working with mortgagees to refinance and/or modify their existing loan, the delinquent loan is forwarded to the foreclosure department to initiate foreclosure proceedings. In some cases the home mortgagees are told to stop making payments so their loan will become “toxic.” They are led to believe that this will assist with the modification being pushed through. Unfortunately, by the time these families find out that they do not qualify for the loan modification, the home is already set on the foreclosure block or sold without proper notice to the homeowner.
Lawyers are discovering documents signed by Lender employees who say they have not verified crucial information such as the amounts owed by homeowners. Other problems involve questionable legal notarization of documents, in which, for example, the notarizations predate the actual preparation of documents — suggesting that signatures were never actually reviewed by a notary. Affidavits are placed on foreclosure documents that swear to the accuracy of the foreclosure proceeding even though the procedures stated have not been followed. Frequently the “affiant” has no personal knowledge when the affidavits are signed.
Other problems occur when notarizations take place so far from where the documents were signed that it was highly unlikely that the notaries witnessed the signings, as the law requires.
On still other important documents, a single official’s name is signed in such radically different ways that some appear to be forgeries. Additional problems have emerged when multiple banks have all argued that they have the right to foreclose on the same property, a result of a murky trail of documentation and ownership.
The sad shame of it all is that the industry that helped create the home mortgage crisis, is now feeding the crisis through bad business practices. Many believe the foreclosure crisis is having a ripple effect, a drop in city revenues, a spike in crime, more homeless and vacant properties. Cities are cutting revenues.
If you have received notice of foreclosure or you believe that your home has been improperly foreclosed on, contact counsel immediately. It is far easier, more effective and less costly to stop a foreclosure from taking place before the fact than it is to reverse a foreclosure after the fact.
Texas Attorney General Suspends Foreclosures
On Tuesday, Texas Attorney General Greg Abbott sent thirty mortgage companies’ letters demanding the immediate suspension of foreclosures in Texas, selling foreclosed properties in Texas and evicting people living in those properties. This moratorium should be obeyed at least thru October 15, giving the companies’ time to identify any employees who participated in unlawful practices and assure the state that the targeted companies are following Texas laws.
Dallas Attorney Mark Nacol of The Nacol Law Firm PC discusses with NBC Channel 5 Reporter, Susy Solis, on the impact of Robo – Signing on the Mortgage Business and current foreclosures.
Homeowners Beware: Mistaken Foreclosures are Occurring Due to Disorganization in Banks
In the continuing foreclosure crisis, millions of people are losing their homes. Disorganization within big banks that service mortgages is making a growing problem even worse. The number of cases is growing wherein the breakdown within the banking system is so absolute that it leads to mistaken and/or premature foreclosures. Many have lost their homes. Some homeowners, however, with the assistance of an attorney or housing counselor, have been able to reverse a foreclosure.
In the worst case scenario banks actually work at odds within themselves, with one arm of the company foreclosing on the home while the other arm offers assistance to the homeowner. This problem is occurring even among the servicers participating in the administration’s current $75 billion Home Affordable Modification Program. Servicers operating under the year-old program are forbidden from auctioning someone’s home while a modification decision is pending. However, homes are still being foreclosed on and auctioned off anyway.
The problem seems to lie in a lack of enforcement, lack of punishment and oversight. The Treasury Department has failed to penalize the servicer for breaking the program’s rules. Treasury officials overseeing the program say they’re aware of the problems and have moved to fix them. However, some states are moving forward to protect the homeowners with recent rules that stop the foreclosure process if the homeowner requests a modification.
Many homeowners have sought assistance through the courts to reclaim their homes. At a minimum 50 homeowners have recently filed lawsuits alleging a servicer foreclosed on their home while a loan modification was pending and while they were on a payment plan.
Homeowners commonly wait 6 months for a decision on a loan modification request. The new federal program for encouraging loan modifications includes a 3 month trial period, after which servicers are to decide whether to make the modifications permanent. Some homeowners are saying they have waited as long as 10 months for an answer only to be turned down resulting in misrepresentation and failure of the modification.
Millions of struggling homeowners have inundated banks and other servicers – Bank of America is the biggest, followed by Chase and Wells Fargo Bank – for assistance in an effort to avoid foreclosure proceedings. Communication breaks down because of the way in which the servicers are structured. While one division typically deals with loan modifications, another division deals with foreclosures. Often one division is not communicating with the other division.
Homeowners need to beware of companies that state they work with large banks to avoid foreclosure and of companies charging fees for their assistance. Many homeowners are entering into the loan modification process only to learn that while the modification is being reviewed their home is being foreclosed on and ultimately losing their home.
Under the new federal program, servicers must give borrowers a written denial before foreclosing. However, the servicer is allowed to push along the foreclosure process and even set a sale date. This allows the servicer to foreclose more quickly if it is determined that the homeowner doesn’t qualify for a modification. Ultimately, a homeowner may find that they get a modification offer one day and a foreclosure notice the next.
It is possible to contest a foreclosure under the new federal program. New rules issued by the Treasury Department say the servicer must first give the homeowner a shot at a modification before beginning the foreclosure process. If your home is being foreclosed on and you have sought to modify your existing loan, make sure you seek proper legal advice. The sooner the better and preferably, BEFORE the foreclosure date.
NACOL LAW FIRM P.C.
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Dallas, Texas 75231
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
