Nobody starts a marriage thinking they’re going to get a divorce, but it happens. Here are some of the basics of divorce in Texas. It seems the easiest way to think about a Texas divorce is in two sections: property and children.
The division of marital estate is the first part. With it I’ve included a short explanation of alimony, since it is based, to a large degree, on the property to be divided. There are three estates, which exist when a couple divorces. The husband’s separate estate, the wife’s separate estate and the community estate. The community estate is the only one that gets divided. Separate estates are . . . well . . . separate. The law in Texas favors the community estate. That means a spouse who wants to prove that something is his or her separate estate has the burden of proving it. In fact, they have to prove it by a standard of clear and convincing evidence. That’s more than just the normal preponderance of the evidence.
In Texas, property is not necessarily divided up 50/50. It’s divided in a just and right (or fair) manner. Almost anything you can think of can go into the idea of what is fair in the division of property and debts. Relative ages, relative health, the earning capacities of each spouse, the likely earning capacity of the future, the fault in the breakup of the marriage . . . the list goes on.
Say, for instance, that both spouses make about the same amount of money, they are about the same age and are both in good health. All things being equal, an equal property division is possible and even likely. But what if one of the spouses has been unfaithful and that infidelity has resulted in the demise of the relationship? In that circumstance, the spouse who did not cheat is more likely to get a greater percentage of the marital estate.That usually does not mean a 90/10 split, but it is not unrealistic to think toward a 55/45 or a 60/40 split.
Alimony is based, in part, on the community estate. More specifically, one of the tests for determining whether alimony will be paid is if do not exist sufficient community assets to provide for a spouse’s minimum reasonable needs. That, combined with a marriage of at least ten years and an inability of that spouse to provide for his or her own reasonable minimum needs guides the court to decide whether alimony should be paid at all.
When thinking about what needs to be decided with children in a divorce, there are three main categories: custody, visitation and child support.
Custody involves the legal parental rights that may be exercised by each parent. Texas law favors Joint Managing Conservatorship, or joint custody. That means that most, though not necessarily all, of the parental rights are shared. For instance the right to make educational decisions, medical decisions or psychological decisions for the children. If the Court finds that it is in the child’s best interest for one parent to have Sole Managing Conservatorship, then the parent with sole custody will have the exclusive right to make most of the major day-to-day decisions for the children and the other parent will have rights he or she needs to be able to visit with the children, like the right to take them to the emergency room if there is a medical emergency.
The term Joint Custody has little to do with the amount of time either parent spends with the children. Periods of possession (visitation) describes those times that the children will spend with each parent. You could be Joint Managing Conservators and one parent might have visitation pursuant to the guidelines found in the Texas Family Code or might have the children less or more than that. It all depends on the circumstances of the children and the parents. The same visitation could be ordered for parents who don’t share joint custody. In the end, visitation, like almost everything else regarding the children, is decided on the best interest of the children.
Child support is usually, though not always, determined by applying the Texas Family Code child support guidelines to the obligor’s net income. If the parties share possession equally, it is possible for no child support to be paid or for the resources of each parent to be compared so that one parent is paying the other a lesser amount of support than the guidelines would suggest.
This is just a primer course on divorce.Each of these areas can be complex and each is driven by the facts of your individual case.A confidential consultation is time well spent to go over your facts and develop a strategy that works for you.
Common Considerations During Divorce
Every year, more than 82,000 divorce Original Petitions for Divorce are filed in Texas. Even if both spouses agree that they want to get divorced, the process is ranked as the second most stressful experience on the Holmes-Rahe scale, which evaluated the stress level of 43 different life events (Death of a spouse ranked number one). Although the scale was developed more than 50 years ago, it is still used by mental health professionals in helping their clients deal with life-changing events.
Part of that stress comes from the unknown. Most people simply don’t know what to expect from the divorce process and the uncertainties of the many possible outcomes. Knowledge of how the process works, and the assistance of a skilled family law attorney, can somewhat ease the stress, so here is an overview of the Texas divorce process.
Residency Requirements and Petition Filing
One of the spouses must have lived in the state for at last six months before filing for divorce. The Original Petition for Divorce is filed in the county where at least one of the spouses has lived for 90 days. That petition will include the grounds for divorce. After the petition is filed, a copy must be served on the other party who has a twenty days, plus the Monday after the expiration of 20 days, to respond.
No-fault Grounds for Divorce
Texas provides for a no-fault divorce. That means that nobody need to be at fault for a divorce to be granted. Instead, the divorce may be based on “insupportability” when there is no “reasonable expectation of reconciliation.” Many people think of this as “irreconcilable differences”. But if there is fault, the divorce can also be granted on those grounds.
Divorce Alleging Fault
There are several grounds for divorce alleging fault:
Cruelty.Adultery.One spouse has been incarcerated for at least one year due to the commission of a felony.Abandonment when one spouse has left the other one and been gone for at least a year with no intention of returning.The couple has been living apart for at least three years. One spouse has been confined to a mental hospital for at least three years and is not expected to recover or the chances of relapse are great.
Uncontested or Agreed Upon Divorce
If the spouses agree on every aspect of the divorce and there are no issues in contention, they can put their agreements into a Final Decree and the process becomes much easier. By agreeing, you can avoid hearings, expensive discovery, mediation and a great deal of worry, fear and frustration.
Divorces are contested when the parties disagree about the resolution of any or all of the issues.Both sides present evidence to the family law Court, which resolves the issues in a way that it deems is just and fair.
Mediation is an alternative dispute resolution method. On average, cases which go to mediation settle more than eighty percent of the time. With Court dockets filled to over-capacity already, it’s little wonder that most Courts will order nearly all of their family law cases to go to mediation before a trial may be held.
Mechanically, mediation is a confidential procedure where the spouses issues are negotiated by a
third party neutral. Most of the time, you will not see your spouse the day of mediation – you will be kept in separate rooms, along with your respective attorneys. The mediator will go back and forth between the rooms, trying to close the gap between each side. Mediators do not give legal advice and their role is to guide, not instruct. If the process fails, with only a few exceptions, mediators cannot be called to court to testify.
Division of Assets and Liabilities
Texas is a community property state with all assets accumulated during the course of the marriage presumed to belong to the community estate.The court has discretion to divide the assets in an unequal manner depending on whether one party was at fault or whether an exact equal division would result in unfairness to one party. What is considered a fair division will depend on virtually anything the Court believes to go into the equation. The relative age, health, earning capacity, or future earning capacity of the parties could, for instance, be considered. Fault in the break-up of the marriage may be a factor in determining what is fair. Separate property remains separate. This includes property owned by one spouse prior to the marriage, gifts and inheritances to one party and most of a personal injury award received by an injured spouse. Debts are also evaluated as separate or community and divided accordingly.
Child Custody and Visitation
Texas encourages parents to create their own parenting plan with both parents having as much time with the children as possible. When one party is given physical custody, called conservatorship, liberal visitation (also called possession), with the other parent is encouraged. If the parents cannot agree on a plan, the Court receives evidence and makes a decision based on what it considers to be in the best interest of the children.
The state has guidelines it uses to establish a formula for child support depending on the income of each parent, number of children and their needs. The court may deviate from the guidelines when it finds special circumstances to do so.
Spousal Maintance or Alimony
Alimony is not automatic and is awarded primarily in marriages that last for a minimum of 10 years or if one spouse was convicted of family violence.
Contact Jeff Anderson Today to Schedule a Divorce
Call today or fill out an online form here on our site to schedule a consultation for Divorce today. Whether the decision to file for divorce is mutual and uncontested, or you and the other party do not agree and are facing a contested divorce battle, Jeff Anderson can help. He has extensive knowledge of family courts in Texas including Tarrant, Dallas, and Collin counties and is ready to start building your case today.