Off With Their Heads: 5 Myths about Texas Divorces
Has your divorce case spiraled into the underhanded and ugly? Do you loathe your ex? Do you ever think to yourself, “they cannot possibly act any more crazy”? Let me tell you, they can.
In January of 2020, an Iowa man named David Ostrom requested that the judge presiding over his divorce case enter an order allowing Ostrom and his ex-wife to settle their disputes over custody and child support utilizing “trial by combat.” Ostrom’s core argument was that since trial by combat has never actually been outlawed, it is technically still legal. Also notable is Ostrom’s offer that his ex-wife, rather than fighting herself, may choose a champion to fight in her stead. Ostrom suggested that she choose her attorney as her proxy.
This is the part where the family law attorney does a double take of his fee agreement and Walt Disney rolls over in his grave.
Along with the motion, Ostrom asked the Court for twelve weeks of time prior to the battle in order to forge his swords. Never mind that trial by combat was originally a Germanic practice and samurai swords would be anachronistic. Cue Texans across the state rolling their eyes at such absurdity because we, of course, already have our weapons pre-forged.
Before you despair that the Iowa public school and mental health systems have completely failed their citizens, rest assured that Ostrom conducted methodical and relevant research. First, he watched Game of Thrones. Second, he read about an 1818 murder case resolved with trial by combat in a British court and offered it as binding precedent. Third, he completely ignored the fact that nineteenth century murder cases in England have no bearing on twenty-first century American divorce cases.
Let’s bring this discussion back to reality and talk about people who can discern where HBO stops and the real world begins.
It is no secret that divorce is a battle. In his divorce battle, Ostrom relied on his own (mis)understanding of the law, and the myths he believed prejudiced his case. Below are five myths people typically believe about divorce in Texas, and why they will not get you any farther than asking to cut your ex’s head off with a sword:
5 Myths about Texas Divorces
- “I don’t need temporary orders because we are separated.”
Texas does not recognize legal separation. In Texas, you are either divorced or married – there is no gray area and there are no rights accorded for being “separated.”
- “I can get divorced using the forms I printed off the Internet.”
Many people wish to save money by printing divorce forms off online law libraries, filling them out, and filing them pro se rather than hiring an attorney. These online forms have a series of checkboxes for each piece of information, with cramped lines to write in short explanations. While this seems like an easily solution, steer far away from the check boxes. The information on the form is not intended to constitute legal advice, and puts you at risk of putting erroneous information into a document the judge will review. If you fail to check a box that should be checked in a petition, you may be denied relief because you did not properly plead for it. A divorce decree that does not accurately divide all marital property will have to be modified at a later date. Furthermore, the cookie cutter form does not allow room for you to petition the Court according to your unique circumstances. Families are not all the same, and neither should divorce pleadings be.
When warned against this practice by attorneys, the advice is brushed off because lawyers “just want to make money.” Yes, attorneys want to make money. However, they would rather make money doing a divorce correctly the first time, rather than having to untangle a legal mess created by confusing paperwork years after the fact.
- “I read about a court case that seemed similar to mine, so mine will turn out the same way.”
David Ostrom, in his argument that he should be allowed trial by combat, cited a case from England in 1818 that he expected the judge to follow. Legal precedent is the doctrine by which courts follow what previous courts have decided. If a higher court rules a certain way on a certain set of facts, the lower court should rule the same way on a similar set of facts. There are limits. For example, a Denton County court will follow precedent set by the Texas Supreme Court, but will generally ignore the rulings of a California court. Ostrom’s 1818 English case had no controlling authority over his 2020 Iowa case. It had even less bearing because different laws and procedures are applicable to murder cases versus divorce cases. Similarly, if you read about a case in the news or online and it feels similar to your case, don’t assume that the judge will rule the same way. Cases can be distinguished from one another on minute details. Attorneys have access to legal databases that include the most up to date case law, and are able to discern when a case will likely apply or not. A previous case applying or not applying is often the deciding factor in a judge’s ruling and therefore can have a huge impact on your divorce.
- “Because my ex is responsible for this break-up, they will have to pay for everything.”
Divorce clients often ask if their spouse will be responsible for paying their attorney’s fees, especially if that spouse is the bad actor in the marriage. There is no automatic provision regarding this in Texas. Attorney’s fees are usually paid from the community estate, and how much each party has paid will be considered by in the ultimate division of that community estate. The process is to ask in your pleadings and then prove to the court why you are entitled to reimbursement from your spouse.
- “I can get a divorce as soon as I ask for one.”
Divorce is not a quick process in Texas. Once a divorce is filed, there is a minimum 60- day waiting period. That is, the soonest you can get divorced is the 61st day after you file. This is also a good time to mention that after the divorce is finalized, you must wait at least 30 days to get remarried.
Unless you are Henry VIII, you will probably not be allowed to end your marriage by slicing off your spouse’s head. Whether you are considering filing for divorce or have already filed, speak to one of our experienced attorneys so we can guide you through the process. We will fight in your stead (just not with a sword).