Since you’re here, I assume you’re considering consulting with an experienced divorce attorney. If that’s true, there are a few things you should know about me and my Firm:
- I am an experienced family law attorney and an Austin native. I litigate all aspects of family law, including divorce, child custody, child support, property division, modifications, spousal support, and marital agreements.
- I am poised to settle, but I am prepared to go to trial. My client’s goal always comes first. You can learn more about my philosophy and my experience here.
- Many of my clients have significant assets to protect. I do not shy away from a fight and have substantial experience representing high-net-worth individuals.
- Unlike some attorneys, family law is all I do. I have dedicated my career to helping people get through one of the toughest times. Family law is my calling, and my client’s goals are my goals.
- When you hire me, you get me. I don’t pass my clients off to paralegals or associate attorneys. I limit my caseload in order to provide the best possible experience to each and every client.
- The testimonials from my past clients are a great source of pride. I encourage you to read my client testimonials and Google Reviews.
Not quite ready to talk? No problem. Keep reading to learn more about what you can expect from this process and how an experienced divorce lawyer could help.
The Divorce Process
My name is Ben Carrasco. I am an experienced divorce attorney in Austin, TX, and the founder of the Law Office of Ben Carrasco. It is essential that you hire the right lawyer to help you successfully navigate this process with sound legal advice. Let’s talk about the marriage dissolution process and how I can help you with your divorce.
VIDEO: Divorce Attorney Ben Carrasco Explains the Divorce Process
Step 1: Initiating a Divorce Suit
In Texas, this process begins when one spouse files a petition for divorce. The spouse filing the petition is referred to as the petitioner, and the opposing spouse is referred to as the respondent.
Certain residency requirements must be satisfied to maintain a divorce suit in Texas. When the divorce suit is filed by your lawyer, either the petitioner or the respondent must have been a Texas resident for the preceding six months. Additionally, either party must have been a county resident in which the suit is filed for the preceding 90 days.
Once the respondent is served with the petition, he or she will have approximately 20 days to file a written answer to the petition. These suits must be on file for at least 60 days before the court may grant a divorce.
Step 2: Determining Grounds For Divorce
Texas is a “no-fault” divorce state. This means that a divorce may be granted without regard to which spouse caused the breakdown of the marriage.
There are several no-fault grounds that can be alleged in a divorce action. The most common no-fault ground is insupportability.
To assert this ground, a party simply needs to allege that the “marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”
In addition to no-fault grounds, a petitioner (or the respondent if he or she files a counter-petition) may seek a divorce on fault grounds. Available fault grounds include cruelty, adultery, abandonment, and felony conviction and imprisonment of a spouse.
Fault and no-fault grounds can be alleged together in the same petition. Proving a fault ground can impact how the court decides other issues in the divorce, including child custody and property division. For example, if you can prove that your spouse committed adultery or abused you during the marriage, the court can award you a larger share of the community property.
I am frequently asked whether a spouse’s conduct during a period of “separation” is relevant once a party files for divorce. The answer is “yes.” Texas does not recognize legal separation. You and your spouse are married until a final decree of divorce is entered by a court. This means, for example, that being romantically involved with someone other than your spouse while “separated” constitutes adultery under Texas law and can be used against you in a future proceeding.
Step 3: Temporary Orders
Once the petition and answer are filed, the next stage in the process is the entry of temporary orders. Temporary orders can happen relatively quickly—within a week of filing the divorce petition.
Temporary orders in family law litigation are orders issued by the court following a hearing that governs custody and support of the children, the preservation and protection of the parties’ property, and the parties’ interaction with each other while the divorce is pending.
Why Temporary Orders Are Important
Marriage dissolution litigation can last for months, if not years, so this is a critical phase in the divorce process.
For example, temporary orders can prohibit the parties from hiding or selling assets, raiding the checking account, shutting off the utilities, or removing the children from the county where the divorce is pending. If you’re the less-monied spouse—perhaps a stay-at-home mom—and don’t have access to your spouse’s assets to pay an attorney, the court can order the monied spouse to pay your reasonable attorney fees while the divorce is pending.
As any good lawyer will tell you, temporary orders are important because temporary orders tend to become final orders, meaning that the court’s final orders concerning property, child support, child custody, and other issues often mirror the temporary orders.
Temporary Orders Hearings
A temporary order hearing is not necessary in every case. However, because of the gravity of the stakes in a temporary order hearing— the results of which can impact the entire trajectory of your case— hiring the best lawyer with strong courtroom skills is vital.
Surprisingly, many attorneys fear the courtroom and try desperately to avoid it. Oftentimes, marriage dissolution attorneys will push you to reach a negotiated settlement on the eve of your hearing on terms that might not be in your best interest.
Aside from being intimidated by the courtroom, some marriage dissolution lawyers run high-volume, assembly-line practices and are incentivized to finalize your case quickly. As a result, they don’t have the time or inclination to properly prepare for contested hearings where they might be required to make arguments, present evidence, and cross-examine witnesses.
I do not run that kind of practice. I approach every case with the expectation that it will involve a contested hearing and prepare accordingly.
Relief issued by a court at a temporary orders hearing can include the following:
- Requiring a sworn inventory and appraisal of all real and personal property owned or claimed by the parties-, and a list of all debts and liabilities owed by the parties;
- Requiring temporary support of either spouse;
- Requiring the payment of lawyer fees and expenses;
- Awarding one spouse exclusive occupancy of the residence during the pendency of the case;
- Prohibiting one or both parties from spending funds beyond what the court determines to be for reasonable and necessary living expenses;
- Awarding one spouse exclusive control of a party’s usual business or occupation;
- Restraining the parties from destroying their tangible property;
- Restraining the parties from communicating by telephone or in writing in a profane manner; and
- Restraining the parties from making threats of bodily injury.
If child custody is an issue in the divorce, the court will enter temporary orders regarding custody of the children, child support, and visitation during the pendency of the case.
The above list of potential orders is not exclusive. The court has broad discretion to enter any order necessary to protect the parties, property, and children during the litigation.
A temporary order hearing is like a mini-trial. Each party will be permitted to testify and put on evidence, including witnesses, regarding the matters at issue.
For example, in a child custody case, a party may call family members, friends, neighbors, teachers, etc., to testify regarding a party’s parenting abilities and relationship with the children. The key distinction between a temporary orders hearing and a final trial is the element of surprise.
Because a temporary order hearing can occur within days after the divorce petition is filed, the parties haven’t had an opportunity to conduct discovery and determine what evidence exists to support the other side’s case.
As a result, a temporary order hearing can be a trial by ambush. You don’t know what witnesses your spouse will bring to the hearing, much less what these people might say about your character and fitness as a parent. You don’t know what text messages, e-mails, or other evidence might be used to impeach your credibility.
Step 4: Discovery
After the initial divorce petition and answer are filed, discovery is the next important stage in the litigation process. Discovery is the process whereby both sides gather and exchange relevant information about the case using various discovery tools such as document requests and depositions.
In a divorce case, particularly if children are involved, just about everything about your life is relevant —phone records, e-mails, text messages, sexual history, drug use, photographs, and social media postings (Facebook, Twitter) are all fair game.
Discovery is also used to identify the parties’ assets and liabilities—tax returns and bank records are obvious discovery targets.
Conducting proper discovery is invasive and costly. However it is essential to gather the information necessary to properly evaluate the merits of the parties’ respective claims and defenses. This minimizes the potential for surprises at trial and helps determine whether settlement is appropriate.
When used strategically, discovery can help a party achieve critical bargaining leverage and bring about a quick settlement. I have seen parties capitulate and settle early on in a case rather than submit to the cost and inconvenience of producing reams of sensitive documents or sitting for a six-hour deposition.
Step 5: Settlement, Mediation, and Final Trial
During the litigation, the parties will typically explore the possibility of settlement. The vast majority of divorce cases are settled before a final trial. If the parties can reach an agreement on the issues, the divorce attorneys can prepare a written settlement agreement that is presented to the court for incorporation in the final divorce decree.
The parties may also elect to participate in mediation to resolve their case. Mediation is a forum in which an impartial person—the mediator—assists the parties in coming to an agreement that resolves some or all of the issues in dispute. In some Texas counties, including Travis County, mediation is mandatory before a final trial.
If the parties cannot resolve their issues through mediation, the next step is a final trial before a judge or jury. In a divorce suit, either party may demand a jury trial.
A jury can decide custody of the children and the characterization and valuation of the property. Whether a jury trial is preferable to a bench trial (where the judge decides the outcome) necessarily depends on the facts of your case and the amount of money you’re willing to spend.
How Do I Know if It’s Time to Get a Divorce?
There is no one-size-fits-all reason for getting a divorce. Relationships are complicated for everyone, and what may be a complete deal-breaker for one couple could be tolerable for another.
If you’re considering ending your marriage, you should seriously analyze the main reasons prompting your divorce.
While every situation is full of unique variables, these questions will help you know if getting a divorce could be right for you and, if so, when you should do it.
Is This Just a Rough Patch or Something More?
Do you feel like you can’t get along? Do you feel you’ve fallen out of love and don’t enjoy being together anymore?
Every relationship has its ups and downs, so before you rush to get a divorce, ask yourself if this is a temporary struggle that may change soon. Can you see your relationship moving past this point? Could the two of you improve things with counseling? Or are you stuck in a downward spiral with no chance of recovering?
What Are the Consequences of Staying?
Ask yourself if staying in the relationship would have more negative consequences than leaving. You may be experiencing physical, emotional, or financial abuse. This likely won’t change.
Staying in the relationship could leave you and your children with worse consequences than leaving the relationship. Everyone deserves respect and kindness, and if you aren’t getting that in your marriage, the long-term consequences of staying may be unacceptable.
This isn’t always easy to see, and you may have to listen to an outside perspective to help you understand you deserve more.
Why Are You Staying Together?
Have you stayed together because you still have hope for a better marriage in the future when circumstances have changed? Or are you only staying together for the kids? If you have kids, you have thought about how splitting up may affect their lives.
However, the fear of what will happen to your kids if you divorce should not be the only thing guiding your decision. Kids understand when their parents aren’t happy, and they may already be suffering in various ways with the two of you staying together.
Both you and your spouse deserve to be happy, and your children deserve to see and feel that happiness.
Can Marriage Counseling Prevent a Divorce?
Couples who want to save their marriage should at least give marriage counseling or couples therapy a shot, including trying new couples therapy counselors if one isn’t a good fit.
If you give marriage counseling a solid effort and there is still no improvement in your marriage, it may be a sign that you should consider divorce.
Where Are You Emotionally?
If you’re considering dissolving your marriage, your emotions are probably in a rough place. A divorce will only make your emotions worse. However, that doesn’t mean you shouldn’t go through with it if you’ve determined it’s the right choice.
To make it through a divorce, you will have to do it when you’re emotionally ready. Can you handle the upcoming important decisions related to child support and child custody? If not, work with a counselor to get yourself in a more emotionally stable place.
Do You Understand the Divorce Process?
Being caught unaware of this process can cost you. Do your homework to understand the different avenues you can pursue in your divorce.
Should you try mediation? Should you hire a divorce attorney? Understand this process so you can know the best path to follow.
Are You Prepared for Post-Divorce Life?
If you’ve determined a divorce is the right path for you, proceed with your eyes wide open. Know that you’ll have disagreements and battles, and know that if you have kids, the post-divorce life will continue indefinitely. You’ll still see each other and talk to each other and may have to even make decisions together.
Make sure you’re emotionally ready for this and proceed when you feel you’ve considered everything the end of your marriage will bring.
How to Find the Best Divorce Lawyer for You
1. Your Lawyer Should Be Experienced in Family Law
This seems obvious, but it’s worth mentioning. The title of lawyer does not imply expertise in all things law. You need a lawyer who focuses on family law and has significant experience in this specific area. This will ensure your lawyer is up to date on changes in the law and well-qualified to handle your case.
2. Your Divorce Lawyer Should Have Resources in the Local Community
These cases can be full of complicated problems, such as complex financial issues when dividing property. As a result, your divorce lawyer should be well-connected in the community and have the resources to hire experts when needed. Some of my resources in the Austin community include:
- The Austin Bar Association, Civil Litigation, and Family Law Sections
- The Austin Young Lawyer’s Association
- Leadership Austin
To get the best legal counsel for you, make sure that the lawyer is well-connected in our community with plenty of resources.
3. You Need to Trust Your Divorce Attorney
You need to feel like your attorney has your best interest in mind. Condescending talk or behavior, a rushed demeanor, and anything else unsettling should be red flags.
Find a lawyer who explains things in plain English, who won’t agree to unreasonable demands (especially for child custody), and with whom you generally feel comfortable. Remember, you’ll need to share personal details with your lawyer, so make sure your lawyer is someone you can trust.
4. You and Your Attorney Should Have Compatible Personalities
It is important to hire an attorney who has a personality compatible with your own. In a divorce proceeding, you may be working closely with your local attorney for a long time.
It is important to make sure that you like your attorney, feel like they are working for you, and protect your best interests. Personality is a key but overlooked trait in finding the best legal counsel for you.
5. Get a Reference from a Family Member or Friend
Getting a reference from a family member or friend will help you get the best lawyer. Because divorce is so common, you might know someone who went through it and worked with a great attorney.
If you struggle to find the right attorney for you, ask a friend or family member for a referral. That simple question can be a key step in leading you to a good attorney.
6. Check Your Lawyer’s History
Whether your divorce goes to trial or not, it’s normally a good idea to hire an attorney who has successful experience in the courtroom. You want someone who can successfully negotiate for you in a settlement with your spouse’s lawyer or the courtroom.
In addition, ask your attorney if he or she is familiar with the family law judges in your jurisdiction. This knowledge will help your lawyer adapt the strategy of your case for the greatest chance of success.
7. Search Divorce Attorneys on Trusted Online Sources
There, you can view different lawyers’ education, certifications, reviews, and even the languages they speak. Diligently researching attorneys before selecting will help you get the right legal counsel for you.
8. Don’t Rush Your Decision
Once you realize the divorce will happen, start researching divorce lawyers. Otherwise, you may end up in a high-pressure situation when you are served papers and have no idea where to begin.
9. Read Reviews from Past Clients
You should spend time reading online reviews about the attorney you’re considering. You’ll get a good feel for the attorney’s experience and background as well as strengths and weaknesses, and you’ll be able to determine how those strengths will work in your favor. A client’s satisfaction is the best way to measure whether the lawyer is successful.
10. Start with a Consultation
Starting with a consultation is a good way to get the best divorce lawyer for you. Just talking to an attorney in person or over the phone about your case is a great way to get a sense of whether a particular lawyer is the right fit for you.
When talking to a lawyer, be honest about your situation, the services you require, and your expectations for the way your case should be handled. In return, the lawyer should be honest and transparent with you.
My approach as a marriage dissolution lawyer is to under-promise and over-deliver. I always discuss both good and bad issues with a client. I tend to be overly pessimistic because I don’t want my client’s expectations to be too high.
11. Ask the Right Questions
It’s more than acceptable to ask questions before you hire a divorce attorney. In fact, you shouldn’t hire an attorney without getting sufficient answers to your most important questions. Some questions to consider include:
- What percentage of cases do you settle?
- How do you approach settlements?
- Who in your firm will work on my case?
- What is your success rate in court?
- How do you communicate with your clients?
Consider how the lawyer responds to your questions. Did he or she brush off any questions? Did he or she seem interested and attentive? Were you happy with the answers?
You should feel satisfied with the lawyer’s answers to your questions before hiring him or her. Asking questions and assessing the lawyer’s responses is an important step when finding legal counsel.
12. Your Lawyer Should Understand What Is at Stake
Typically, parties to a divorce proceeding have a lot on the line. If your case is not settled in your favor or if you don’t win at trial, you could lose:
- Valuable property like your home or car;
- Future earnings from the property such as interest and dividends;
- Spousal maintenance payments;
- Child support payments; and
- Child custody rights.
Your lawyer must understand the importance of these things to you and the fact that you could lose one or more of them. The ability of your lawyer to empathize with your situation and reduce your stress is a key consideration when choosing the best divorce attorney for you.
Why You Should Contact Divorce Lawyer Ben Carrasco
If you believe it is time to file for a divorce, you should contact me at the Law Office of Ben Carrasco. I am an experienced Austin divorce lawyer. I chose to open my own family law practice because it gives me the ability to make a significant difference in people’s lives.
Unlike other lawyers, I am prepared to go to trial but have the poise to settle. I believe that developing every case with the expectation of going to trial increases the chances of entering into a favorable settlement agreement.
I will be handling your case at every step of the process. Unlike large law firms, I do not pass on the day-to-day tasks to a less experienced attorney.
As a result, I will be better prepared to fight for you at a critical deposition or hearing. Finally, I will be clear about the strengths and weaknesses of your case, and I will always make time to talk to you. Contact me today to schedule your consultation.