Updated on December 23, 2021
So you’re considering a divorce? It’s a big step, and an undeniably difficult one to make. The first step is also, perhaps, the most intimidating. If you’re in this circumstance and wondering how to get started, we have detailed below how the divorce process most typically unfolds.
The steps taken in obtaining a divorce depend on your particular situation. A divorce between two people who have been married for a relatively short period of time, have no children, and simple property and assets could be less involved than those married for a long period of time, have minor children and assets/debts, or those with complex property to divide.
Beginning the Divorce Process
The first thing you’ll want to do is to schedule a consultation with your lawyer.
A consultation with a divorce lawyer can help you narrow down several important things, including:
- Getting the full scope of divorce implications: you can get an overview of the full picture of what a divorce will include for your situation (what will division of assets impact, do you have children to consider in the process and potential custody disputes, what will your post-divorce life be like, etc).
- Assessing the divorce lawyer: your divorce lawyer is going to be your partner in a very life-changing chapter of your life. It’s important to research, interview, and bond with your lawyer to see if they are a good fit for you.
- Strategizing: the best strategy for your divorce will vary depending on your life circumstances. A lawyer can help you pinpoint things you may want to change before you begin the process to produce the best outcome.
- Reflecting: your consultation may alter how you approach the divorce. It may cause you to re-consider it, change tactics, or to delay the process for more optimal timing. Whatever you decide, it’s important to reflect on the consultation to make an emotionally grounded and thought-through decision.
If you decide to move forward with the divorce, a lawyer drafts and files the Original Petition for Divorce, then the petition has to be delivered to the opposing party. There are several options on how this might occur; you and your attorney will discuss and decide on the option that is right for your situation.
Investigation and Information Gathering
What are your goals for the divorce?
This is something your divorce lawyer will ask you to define and clarify. Your attorney will document your defined goals, investigate any claims, and address immediate issues.
You’ll also be assigned tasks, such as preparing a budget, inventory, and appraisement, supporting documents.
Discovery can be a formal or informal exchange of information between the parties. The attorney will assign the client tasks in order to prepare for the exchange of information. After the attorney receives the documentation, all documentation is exchanged for review by each party and their respective attorneys.
You will likely need to continue gathering information and documents as requested by your attorney.
Settlement Negotiations and/or Mediation
Once you’ve completed the discovery session, your attorney will review it with you and reassess your goals. Settlement negotiations can be initiated through counsel and/or, in some cases, discussed between the parties. If the parties are unable to reach a settlement through informal settlement negotiations, then mediation can be coordinated.
If mediation is the next step in your divorce process, you and your divorce lawyer both attend mediation with the Opposing Counsel/Party. Mediation is a process wherein the parties engage the services of a qualified Mediator to hear the positions of both parties individually. A mediation can take place over teleconference, in separate rooms for each party, or in a combined setting.
The mediator’s role is to assist the parties in reaching an amicable solution to all disputed issues. If mediation is unsuccessful, the case can proceed to trial, or the parties and their respective attorneys can try to continue settlement negotiations.
If mediation is still unsuccessful, the case will proceed to trial.
If all else fails, issues that the parties cannot resolve between themselves will be decided at a trial. Unfortunately, going to trial will take longer, cost more money, and have less predictable results. If your divorce does come to trial, it will be crucial to rely heavily on your lawyer’s help.
In preparation for trial, the lawyer gathers and prepares all evidence, creates and prepares trial exhibits, coordinates expert witnesses and/or lay witnesses, and prepares them for trial testimony. Your attorney will also supplement your discovery, prepare your pre-trial statements, and can continue settlement negotiations with Opposing Counsel/Party.
Finalizing Your Divorce
Once settlement is reached or the court renders a judgment, the Final Decree of Divorce must be completed by your attorney, which will divide all of the assets and liabilities of the marital estate and memorialize the terms of settlement or the court’s order. This will require additional drafting and communication with the Opposing Counsel/Party.
Your divorce lawyer will continually advise you of the additional work that will be required to finalize the divorce.
The process may seem harrowing, and it’s sure to come with many of the hardest challenges and decisions of your life, but be assured that there IS help and hope for you.
Kelly J. Capps is an experienced and diligent family law attorney who works hard to find the best path forward for her clients and their families. From the conference room to the courtroom, we work with each client to develop a customized strategy that encompasses your unique situation and objectives.
Reach out to us, and get the divorce process started with an attorney who will fight for you.
To arrange a consultation with Capps Law Firm, PLLC, call our Austin office at (512) 338-9800
Find An Attorney Who Understands Complex Property Division
Guidance through the process of dividing complex assets
Dividing a family’s assets during a divorce can be quite difficult, especially if there are significant assets such as property, retirement plans, stocks, deferred compensation, brokerage accounts, businesses, professional practices, etc. Deciding the value of these assets and how to divide them can be quite a challenge, even in the best situations. While Texas law designating marital properties as “community properties” allows for simpler 50/50 splits in some circumstances, there are still many factors to consider. In contentious divorces this becomes especially complex.
Assets should be carefully analyzed to determine their liquidity, cost basis, and any tax implications tied to their sale. It is not always in your best interest to divide simply based on their current dollar value. You need to understand which assets will be best for your short- and long-term financial security.
As the value of marital property increases, it is even more important for your attorney to analyze all of the divisible assets including:
Any businesses or business property
Deferred compensation packages
Offshore bank accounts
Annuities, pensions & retirement plans
Life insurance policies
Profit sharing plans
Complex tax issues
Real estate holdings
When you are evaluating a divorce attorney for your complex property division, be sure to ask the following key questions:
How will they assist you with the characterization and division of various assets?
It’s important they understand how to evaluate your retirement benefits, private pensions, defined contribution retirement accounts such as 401(k) and 403(b) plans, received benefits through a trust, federal and state employee retirement benefits, and military service member pensions. These are among the common complex assets, but there are many more.
Do they have experience in dividing stock portfolios?
This may include stock options, restricted stock units (RSU’s), stock acquired through employee stock purchase plans (ESPP’s), stock acquired through employee stock ownership plans (ESOP’s), and stock held in stock portfolios.
Have they handled complex division of business assets in a divorce before?
There are unique issues involved in a divorce where the party or parties own a firmly held business or a sole proprietorship. Working alongside financial experts who understand business valuations can provide a more accurate picture for your situation. Learn more about complex asset division on our related post.
The Wrong Decision Could Cost You Far Too Much
Believe it or not, many divorce settlement agreements do not contemplate and address the tax implications of the property divisions they propose. At Capps Law Firm, PLLC, we are highly conscientious about incorporating tax liability into your property settlements to maximize the property settlement benefit. We work directly with CPAs and other tax professionals as necessary to assist our clients in getting and keeping a great deal. We recognize that being knowledgeable about divorce tax is critical to providing full service to our clients.
By not addressing tax issues at the time of your divorce directly, and presuming that taxes are something a good accountant can clean up later, you can end up agreeing to terms where the real value of the property awarded may be significantly different than what one or both parties are expecting. Tax consequences can be significant in a divorce and should be addressed in the context of the overall settlement.
Beyond the above, the cost of any capital gains taxes incurred during and after a divorce could be changing in the near future. As of September 2021, there is a proposal to raise capital gains to 28.8% for some households, which could take effect as soon as 2022. It’s important to seek guidance from your attorney and an accountant on how to anticipate and stay abreast of these changes.
While many people entering the divorce process are focused on the division of assets, it is equally important to understand how debts are divided during divorce. If one or both spouses accumulate debts during the marriage, those debts are most often considered marital. Generally, the debts will be divided equitably, along with the assets.
Business Skill, Tax Experience and a Love Of Math Add up to Success
From a young age, attorney Kelly J. Capps had an affinity for numbers. She holds an undergraduate degree in business administration. In addition to being a business owner, she has considerable experience with the tax implications of dividing pensions and retirement benefits in a divorce. Our team is comfortable with the sophisticated mathematics involved in many divorce cases. This is an important skill to look for in your divorce attorney.
Capps Law Firm, PLLC offers 28+ years of experience in protecting the rights of our clients going through a divorce involving complex property valuation and equitable distribution of significant assets. Our goal is to provide you with the necessary information to make the best decisions possible for your specific financial circumstance during a divorce.
I do not represent that either I, or any employee of Capps Law Firm, PLLC, are experts in the fields of bankruptcy, tax law, real estate law, property appraisals, or other areas of valuation. If necessary, bankruptcy, tax advice, real estate advice, or appraisals are sought from experts in those respective fields.
This article does not create an attorney-client relationship. Its purpose is to educate the public about the topic of the divorce process. This article should not be seen as legal advice. You should consult with an attorney before you rely on this information.