A common concern from divorce clients and people looking for information about divorce comes in the form of, “my husband is threatening to…” or “my wife is threatening to…” with something about taking away the kids or all the property. 99.9% of the time those threats have zero basis in the law and are never going to happen. They have less to do with the law and more to do with psychological warfare. As a Texas divorce lawyer, I see these concerns all the time.
Under the Texas Family Code, divorces are just not that sinister. Usually these threats arise before filing the divorce petition or shortly afterwards. It is common to see the spouse who does not want the divorce threatening to “take the kids and you’ll never see them” or “take everything and leave you with nothing” to scare you away from filing for divorce and staying in a bad situation. After the divorce petition is filed and the spouse has been served, these threats are tossed around to torment you.
Avoid your spouse scaring you away from filing for divorce in Texas by hiring a divorce lawyer. Knowledge is power. So today’s post will address some of those common threats and how the law really works.
What is duress under Texas law?
Under Texas law, duress requires unlawful conduct or the threat of unlawful conduct of such a character as to destroy the other party’s exercise of free will and judgment. Dallas County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 878-79 (Tex. 2005). Where a threat is made, the threat must be imminent and the party must have no present means of protection from the threat. The “unlawful conduct” in that description can include a wide range of conduct that would involve fraud or force. Typically this includes conduct like physical violence, imminent threats of physical violence against you or somebody close to you, damage to your property or threats of damage to your property, and so on.
The conduct must be severe enough that it prevents you from exercising free will to agree or not agree to the terms of the document put in front of you. That means vague threats about telling people you did X during the marriage, discussions about the challenges and expense of litigation, threats that the other spouse will get X in the divorce or take away the kids and similar statements will not meet the legal definition for duress.
Is it duress to sign a divorce decree based on the judge’s ruling if you do not agree with it?
No. Once the judge rules on your divorce, or some part of it, you must prepare a written order for the judge to sign. You do not *have* to sign the decree or order; but your lack of signature does not change the judge’s ruling or the enforcement of it. The judge’s signature is the only one that really matters since it is his or her order. Your unwillingness to sign off on the decree typically means you will have to go before the judge and explain why the terms of the written order or divorce decree do not match the judge’s ruling.
If the written order or decree truly does not match the ruling then that would be a good reason to oppose the particular document; but all that means is that new language needs drafting. You cannot prevent the judge from signing a written order by withholding your signature.
Is it duress to sign an agreed divorce decree or settlement agreement if I do not agree with it?
Not unless duress is actually present at the time you sign. If you do not agree then you should not sign the document unless you are agreeing to avoid further litigation. In that case, you decided to gain the benefit of avoiding trial by giving up things you do not want.
That is not duress; that is usually how a negotiation occurs. It is rare for anybody to get everything they want and not give up anything in a settlement. Sometimes people sign a divorce decree or mediated settlement agreement because they felt pressured by the mediator or their lawyer. Getting a hard sell to reach an agreement is not duress. It’s just a hard sell. You might feel pressured to sign but that isn’t duress under the law. Buyer’s remorse about an agreement you signed is not evidence of duress. It just means you have second thoughts about what you agreed to.
Spousal threats in a Texas divorce
Exchanging threats is a common part of many divorces in Texas. People are frustrated, upset and likely have been for some time. These negative emotions come out during the divorce, especially when the spouses disagree about important issues like child custody or what to do with the home. Often these frustrations become threats to do or not do something in the divorce. As the process unfolds these threats often prove empty.
Sometimes the threats are more malicious. Spouses sometimes make hurtful or dangerous threats to influence the outcome of the divorce. These threats may be empty or credible. Even if the substance of the threat is not something your spouse will act on or can accomplish under Texas law, these threats should not be casually disregarded.
If your spouse makes threats, like the most common ones discussed below, then you need to have an attorney on your side. Your attorney can help address and combat these threats including:
- Advising you of the legal probabilities of accomplishing the threat;
- Assessing the seriousness of your spouse’s threats;
- Advising you how to avoid the consequences of the threat;
- Taking steps to neutralize your spouse’s threats;
- Whether there are opportunities to use the threats against your spouse.
Below are some of the most common threats exchanged in divorces and how the Texas Family Code addresses them.
I’ll take the kids and you’ll never see them
Probably not, especially with representation by a divorce attorney. The Texas Family Code approaches child issues from the focus on what is in the best interests of your children, not whichever parent is more of an ass. The Texas Family Code presumes that both parents’ involvement in the decision-making for the children and spending time with the them is best. To eliminate one parent’s decision-making authority, the other parent must prove the children would be at a clear risk of harm by letting that parent have decision-making authority over the children. It is a very high standard and the evidence must prove that point by clear and convincing evidence, which is almost as strict of an evidentiary burden as a criminal court’s “beyond all reasonable doubt” standard.
Even if you can prove one parent should not have decision-making authority, that parent may still receive visitation. Many parents receive the standard visitation schedule. Visitation can be more limited by agreement or judicial order. It can even be supervised visitation, in which the parent only sees the child for a few hours a week under the supervision of police officers, counselors, or other individuals empowered to supervise visitation.
Unless there is ongoing domestic violence or a substantial risk of future domestic violence, it is almost impossible for a Texas Family Court to deny at least supervised visitation. Even having your visitation period be reduced to supervised visitation requires a high level of evidence that you are unable to care for the children or present a risk of harm to the children. The 0.1% of the divorces that result in one parent receiving a court order that he or she cannot have any contact with the children typically relate to cases with ongoing domestic violence, drug use, or a long felony records.
A variant of this threat is that one parent will take the children to another state after the divorce so it is impractical for you to see them or find them. It is possible for that to happen if you do not structure the divorce decree appropriately to prevent that from happening. Most divorce decrees will establish geographic restrictions on where the parent with primary custody can live to prevent that from happening. Of course, if you don’t know to include that language then you have set yourself up for your own demise. As I said, these issues are common in Texas divorces.
I’m going to take everything and you will end up with nothing
Again, probably not and rarely in situations where Texas divorce lawyers represent the parties. Texas is a community property state, which means most property and income obtained during the marriage belongs equally to both parties. The only way you are going to end up with nothing is if you stupidly agree to that. Ok, so don’t do that. The Texas Family Code begins with the presumption that everything the spouses own is community property. That means you start off with the presumption that you own half of everything both of you own. Some property is not community property and both spouses can prove some or all of the property is their separate property. Anything owned before the marriage is separate property. So is anything obtained by gift or inheritance (whether there is a will or not).
Anything that isn’t separate property is community property and that is subject to a “just and right division”.
The Texas Family Code mandates a “just and right division” of community property. That doesn’t necessarily mean a 50/50 split. If the court has to divide property it will usually get very close to a 50/50 split. The judge (or jury) can award a different split if there is a good reason to award a larger share to one spouse. That typically occurs, in the rare instance that the court is left with the responsibility of dividing property and decides a larger share is due to one of the spouses, in cases with domestic violence, abandonment and other very serious offenses to the marriage. Even in those cases the court will not award everything to one spouse.
Infidelity may not even make a difference; but if it does it will not make a substantial difference in the property division. Sometimes divorce attorneys can make these arguments stick, but rarely.
I am going to sell/hide our property
This is actually a genuine concern in a divorce, where one of the spouses has threatened to (or secretly has decided to) take physical property or financial assets and hide them from you or sell them to keep you from getting them in the divorce. It’s a genuine threat because the spouse probably can sell or hide the property.
However, there are options to prevent your spouse from selling or hiding them. When you file for divorce you can request a temporary restraining order to prevent both spouses from liquidating accounts. If there is even a fear that your spouse might get shifty then you should request the TRO. If your spouse violates the TRO you can receive other assets for what disappeared, plus costs to enforce the TRO. It will also make it more likely the judge will give you a larger share of community property.
Either spouse can also suffer legal consequences by hiding or disposing assets during a divorce. The divorce process gives us a lot of methods to uncover assets and track them down. If either spouse lies about the existence of assets and it is uncovered anyway, the court can penalize that spouse. If assets are found after the divorce, options exist to go back to court and divide those assets. Most people who try to hide assets are not as clever as they think. Financial records are easier to locate than most people think. However, once the money disappears it is hard for even a Fort Worth divorce lawyer to bring it back.
I am going to hurt you/the kids/the pets if you file for divorce
This is another genuine threat; but the spouse making the threats probably does not realize it is not easy to get away with those things. Just as with the property above, when you file for divorce you can request a TRO or protective order. If domestic violence is a concern with your divorce, you definitely need to include a request for a protective order and you should definitely talk to a Texas divorce lawyer.
You also need to speak with a domestic violence organization about safety planning. The reality is that no court order will absolutely protect you if your spouse is willing to suffer the consequences. However, the protective order will allow you to call the police. The police can remove him or her from your property and arrest him or her. That can result in jail time, which is the only way to force your spouse to stay away from you.
Hire Texas divorce attorneys to combat your spouse’s threats
Generally the goal of making these types of threats is to force your hand to accept an outcome in your divorce that is unfair to you and potentially your kids. Do not let your spouse continue to dictate your life after the end of your marriage. An experienced divorce attorney has heard these threats and knows how to address them. Get the help you deserve in your divorce and hire a family law attorney to advocate for your interests.