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Do the 12 divorce myths apply in Texas? (part 1)

Do the 12 divorce myths apply in Texas?

The Huffington Post ran an article recently about the 12 Top Divorce Myths. The article was written by Daniel Clement, renowned divorce lawyer in New York, and they all hold true in Texas divorces as well. My favorite myth is #8. Read on to learn why.

Myth 1: Visitation can be denied if my ex doesn’t pay child support.

Like in the author’s come state, Texas does not tie possession of children with payment of child support. Enforcing a child support obligation is a separate and distinct process from possession of a child. Denial of possession can result in punishment by jail time, just as can failure to pay child support. The two issues are not related and trying to make them related could result in a big problem.

Myth 2: Commit adultery, lose everything.

Adultery is not the big-ticket issue that it used to be. Many, if not most, divorces have issues related to adultery. Keep in mind, adultery is not necessarily the same thing as infidelity. A person can be unfaithful to a marriage without committing adultery. Under Texas case law, adultery requires absolute proof of intercourse outside the marriage. Proof of adultery can be a factor in granting a fault-based divorce and can be used in considering what split of assets would be just and right under the circumstances. If a spouse spends money on a paramour, that can definitely be considered in the division of the estate. If a paramour is around the children, adultery can be a factor in determining each parent’s relationship with the children after the divorce. But, just because someone commits adultery does not equate to a huge windfall to the innocent spouse.

Myth 3: Divorce can be denied.

Texas is a no-fault divorce state. This mean that a person can get a divorce without having to prove a reason for the divorce. A judge cannot deny a divorce if one spouse requests it.

Myth 4: Mothers are always given custody of the children.

This is sometimes called the “tender years doctrine” – which presumes that mothers must have custody until the children are a certain age. This law was abolished in Texas in the 1970’s. Now parents are presumed to start on equal footing regardless of gender. Parents now are given joint custody of their children, with equal decision-making authority, unless a parent has a problem that really affects his or her parenting ability. Factors that can affect the judge’s decision can include each parent’s ability to coparent, the best interest of the child, and the circumstances of each family. See my previous blog post No Mommy Presumption in Texas.

Myth 5: You must have a lawyer.

You do not have to have a lawyer in Texas to get a divorce. I strongly advise it. But it isn’t mandatory.

Myth 6: You must get divorced in the state where you married.

Nope. You can get divorced in Texas, regardless of where you got married, if you have lived in Texas for at least 6 months.

For discussion of the remaining 6 of 12 divorce myths, read our post next week.