No-fault divorce is a term we are hearing about in our local conservative politics. If you’re unsure about what no-fault divorce means, you might be like many others. We spoke to respected attorney Kate Bihm to learn what the legal term implies. She explained what every Texan should know about the basics of no-fault divorce. As an attorney, her perspective could prove worth its weight in gold. Her background in Texas law has proven her capable and accomplished in many arenas.
Trusted, Skilled Counsel
Bihm was already an aggressive, successful assistant district attorney in Montgomery County when a juror’s comment prompted her to consider representing individuals. For good reason, the juror said that if they or a loved one were in trouble, they’d want Bihm on her side. The solid cases and sound judgment Bihm conveyed were memorable and persuasive. Now a well-known figure in the county legal community, Bihm has applied those same honed skills to earn her reputation as a compassionate and skilled family and divorce trial attorney.
We took the opportunity to ask Bihm about a few other matters in family law. Since diverse public personalities such as Melania Trump, Kourtney Kardashian, and Meredith Marks from “The Real Housewives of Salt Lake City” have discussed — or been reported to have — post-nuptial agreements, we were keen for Bihm to illuminate these topics. Bihm’s answers were enlightening.
No-Fault Divorce
Put simply, Texas courts do not need to find one party at fault to grant a divorce. That’s what no-fault divorce means. In a fault divorce, one party must prove a “crime” upon the marriage by the other, such as adultery or fraud. No-fault divorce, however, has absolutely no bearing on the division of assets.
“Many people think that under no-fault divorce the court has to do a 50-50 division of the assets, and that is not true,” said Bihm. “Even under no-fault, the court has an enormous amount of discretion to award one party a disproportionate share of the marital assets.”
Bihm explained that in no-fault divorce, it is common for a stay-at-home spouse to be awarded more of the marital assets than a high-wage-earning spouse, even if the spouse earning high wages has done nothing wrong. Charged with “just and right division of assets,” said Bihm, the court considers dozens of factors.
Uncontested Divorce
It’s not a simple ask. While many believe an uncontested divorce means that spouses have agreed to legally separate, the reality is much more technical. “To , that means you have agreed 100% on every issue related to property division, right down to who gets the sofa and forks, down to children and dollar amounts that child support is going to be,” said Bihm.
In her practice, fewer than one in every 10 couples who walk in believing they have an uncontested divorce are correct in that belief. The reasons can be as varied as the ways someone can fall in love.
“For a divorce to be truly uncontested, parties have to agree not just on what percent division of their property is going to be, but on the value of the property itself,” added Bihm. The devil is truly in the details, she explained. Besides appraising property to uniformly determine its value, other particulars such as overtime pay can easily stumble those who consider themselves highly attentive to detail. One spouse may want overtime pay considered in child support, while another may not.
“What we try to do for our clients is help them prioritize in their decision making which issues they should be willing to contest, and which are not worth the value that they will get out of going to court rather than coming to an agreement,” said Bihm. “Our job is to help our clients prioritize their goals so that they can spend their legal budget where it really matters.”
Prenuptials, Post Nuptials
The most galvanizing argument we’ve heard in favor of prenuptial agreements was made, unsurprisingly, by Bihm. “A prenup is designed to help come to agreements on how things should be done when they are at their most in love, and they’re most likely to treat each other fairly, so that when they do come to the end of a relationship, the decision is made from a loving place rather than one of resentment and fear.”
Even framed in terms evoking love and fairness, the particulars may not be easy. Bihm continued, “I tell clients when they come in for consultations for prenuptial agreements, ‘This is going to be the most difficult conversation you have had in your relationship, because it presumes that the two of you don’t work out.’”
If marriage is a financial partnership, especially in the eyes of the law, the prenup is that partnership’s operating agreement. Similarly, a postnuptial agreement is made when married parties decide, for whatever reason, to formalize or change that operating agreement. Whatever the rules of that agreement, Bihm gave us a warning about how they would be viewed in court.
“It’s critically important for all Texans to understand that they’re very difficult to challenge in court and very rarely thrown out as being unfair to one party or another,” she said. This is due to the strong Texan tradition of permitting people to make decisions on their own behalf, even if they’re to their detriment.
“By hiring an attorney who is not just experienced but also very skilled in the field of family law and how the court handles divorce cases, you will also be hiring an attorney who is going to advise you about how a court would be likely to make those decisions unless you contract for them to be made otherwise,” said Bihm. Bankable advice on financial agreements never rang so clearly.
This article does not create an attorney/client relationship, nor does it constitute legal advice. It is for informational purposes only.
“By hiring an attorney who is not just experienced but also very skilled in the field of family law and how the court handles divorce cases, you will also be hiring an attorney who is going to advise you about how a court would be likely to make those decisions unless you contract for them to be made otherwise.”
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