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Texas Family Law

Dallas Divorce Law Firm

2010

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Texas Divorce

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Q: What is a divorce?

A: A divorce, sometimes called a “decree of dissolution of marriage,” is a court order terminating a marriage. After a divorce, the marriage no longer exists. Unlike an annulment, which states that the marriage was never valid or never existed, a divorce is the termination of a valid marriage. The outcome of the divorce should seek to resolve all issues between the parties, such as the division of property, child custody and visitation, and spousal and child support.

Q: What is an annulment?

A: An annulment is a court order declaring that a marriage is not valid and was never valid. The most common ground for annulment is fraud-- when one spouse never disclosed to the other spouse important information  such as a previous marriage, a criminal record, an infectious disease, the inability to have children, or the desire not to have children. In addition, an annulment might be granted because one party is already married, the parties are too closely related (i.e. incest has been committed), or one party is underage and did not obtain appropriate parental consent.  An experienced attorney can help you determine if an annulment is appropriate in your case.

Q: What is mediation?

A: Mediation is an informal process where you and your soon-to-be ex-spouse meet with a neutral third party, called a “mediator,” and you try to negotiate an agreement in regards to your divorce.  The goal is to reach an agreement on things like property distribution, child support and custody, and alimony without going to court. Some mediators prefer to meet with both of you at the same time, while others prefer to meet with each of you separately and act as a "go between."  You and your soon-to-be ex-spouse should discuss your preferences as to how you want the mediation to be run and make sure that the mediator you select will accommodate your preferences. Mediation is most successful in cases where there are not many contested issues and the parties on relatively good terms.

Q: I want to divorce my spouse—what is the first step I should take?

A: There are many complex legal issues when it comes to divorce—from the division of property and debts, to child custody and visitation rights.  You should seek a qualified attorney before beginning the process of divorce. 

If you have been married only a short time, have no children and little property, it may seem financially advantageous to “do it yourself.”  However, timing can often be crucial in getting a divorce, and an attorney can best advise you when it will make the most sense in terms of insurance and taxes. A skilled attorney can help you avoid personal and/or property matters that may cost you money down the road, and will represent your best interests in resolving any financial complications that may arise. An attorney also can help avoid the possibility of one party claiming that he or she was taken advantage of because all facts were not disclosed.  An attorney can also help you determine if  mediation or a collaborative approach is appropriate in your case.

Q: Can my spouse and I share one divorce attorney?

A:  When a couple thinks they agree on all issues involved in a divorce, it may seem logical to save money and use one attorney to just “handle the paperwork.” This is almost always a  bad idea because as opposing parties, your interests will never be aligned. Lawyers recognize the possibility of conflict of interest, in which it is impossible to represent both sides fairly. Most lawyers would advise against using a shared attorney. However, some states allow a lawyer to represent clients with opposing interests if the lawyer has informed both clients of the conflict in writing and the clients have agreed in writing to the dual representation. When an attorney does represent both sides, it may open the door to malpractice claims if you were harmed by the lawyer's dual representation.

Using separate lawyers does not have to lead to creating conflict where none existed; it may be invaluable, however, in making it clear that parties have not considered every potential issue, and have disregarded something that may come back to haunt them later.  An attorney can also help you to mediate or use collaborative law to terminate the marriage. 

Q: Do I need to give a  reason to get divorced?

A:  Every divorce case that is filed in the state of Texas must declare the grounds in which the divorce is to be granted. The grounds for divorce must be substantiated with evidence or testimony otherwise the court may dismiss the case. When you are petitioning the court for a divorce, or agreeing to a divorce, make sure that you completely understand the grounds and any potential legal repercussions.

Q: What are grounds for divorce? What does fault/no fault mean?

A: In Texas, grounds for divorce may be either fault or no-fault based.  It is important to have an experienced divorce attorney because there can be different consequences for pleading fault or no-fault grounds for divorce.

No-Fault Based Grounds:

Texas permits No-Fault divorce when 1) "the marriage has become insupportable because of conflict of personalities that has destroyed the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation" or 2) when the parties live "separate and apart without cohabitation of three years."

Fault Based Grounds:

Texas also permits Fault divorce on grounds of 1) adultery, 2) abandonment, 3) confinement for incurable insanity for over three years, 4) conviction of a felony and imprisonment for over one year, 5) cruel and inhuman treatment. The marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

Q: What if I want a divorce and my spouse does not?

A:  Divorce can be entered unilaterally, meaning that as long as one party seeks a divorce, the marriage can be ended.  That being said, the divorce process goes much more smoothly and quickly if both parties agree upon getting divorced and one party is not trying to impede the process, which can be accomplished by various means of contesting the divorce, hiding assets, etc.  

Q: What does contested/uncontested divorce mean?

A: A contested divorce is one where the couple have one or more issues, usually custody and property, that they cannot settle and are not resolved.  An uncontested divorce is one without unresolved issues and when a final judgment can be entered without a trial. When there are no contested issues in the divorce, it may appropriate to try mediation or a collaborative law approach.

Q: What is a separation?

A: A separation occurs when a married couple decides they no longer want to live together, and to live apart for a while, though they are still married. In Texas, living apart for a 3-year period can constitute no-fault grounds for divorce or abandonment-- a fault-based grounds for divorce. 

Q: Is there any requirement that I physically live apart from my spouse while I file for divorce?

A: There is no requirement that you live apart, unless you  are proceeding on no-fault grounds of separation or abandonment. It is important to keep track of when you began living apart from a spouse for the purpose of accounting for community property and debts incurred after that date, as it would be considered separate property after the date of separation. In addition, Texas has a 60 day waiting period between the time when a divorce petition is filed and when the court can issue a judgment of divorce. 

Q: How will our property be divided in a divorce?

A: How property is divided depends upon the laws of the state where you are filing for divorce.  Texas is one of nine “community property states” meaning that these states generally consider all property that has been acquired during the marriage to be community property, with the exception of property acquired through a gift or inheritance.  

Property includes personal property, cars, real estate, shared savings and checking accounts, stocks, bonds, shares or interest in a business, and insurance policies.  You might think property is something with value, but in fact even things that you might think have "no value" can be classified as property. For example: debt (loans, credit cards) goodwill, business name, professional degree or license, trade mark, copyright etc.  Even if one spouse has earned all the money or a greater portion of the money to acquire the property, all the property is considered community property.  In community property jurisdictions, spouses equally own all community property (fifty percent owned by the husband and fifty percent owned by the wife), and it is then split equally by the District Court if the spouses are unable to reach an agreement.

Q: What about separate property?

A: Separate property is property that is not part of the marriage as a whole, but rather belongs exclusively to either the husband or the wife. Any property that can be "alienated" (disposed of, sold, given away, left in a will) by one partner without requiring the permission of the other partner is separate property. Common examples are property acquired through gift or an inheritance, or one spouse's interest in property acquired before marriage.

Separate property is not divided during the divorce, but rather is retained by the spouse who owned it during the marriage, while the marital property will be divided in a 50/50 split, unless otherwise agreed upon by the spouses.

Q: What about our debts-- how will those be divided?

A: In addition to the property acquired during the marriage, the debts incurred during the marriage are divided upon divorce. Dividing the debt upon divorce determines who is responsible to repay the debt.

If both spouses co-signed for a debt, both spouses will probably be held to "joint and several liability" for the debt. "Joint and several liability" means that each spouse is responsible for the entire debt, but also the spouses are jointly responsible for the debt. When a joint and several liability is divided, the debt is attributed to both spouses. Often, however, one spouse is made responsible for the entire amount of the debt. This is generally offset by an "equalization" payment; that is, the spouse who pays the debt receives more property in the settlement than the spouse who is left free from the debt.

In Texas, debts that were incurred for the benefit of the family are joint and several liabilities of both spouses. For example, housing, furniture, furnishings for the home, child care and children's doctor expenses would be considered as being incurred for the benefit of the family. Since both spouses benefited from these family expenses, both spouses would be responsible for the repayment of these debts.

Typically, the debts that one spouse brings into the marriage (separate or non-marital debt) remain the responsibility of that spouse. In special circumstances (in community property states), both spouses can be held responsible for separate (non-marital) debt.

When a joint tax return is filed, the Internal Revenue Service holds both spouses to joint and several liability for the tax.

Q: What about my pension or retirement fund?

A: In Texas, pensions and retirement funds accrued during the time of marriage are considered part of the community/marital property that is to be divided among the parties in a divorce. If the pension is already being paid, the pension plan administrator can usually pay your portion directly to you. 

Q: What is alimony?

A: Today, alimony is more commonly termed “spousal support” or “spousal maintenance,” referring to payments or transfers of money or assets from one spouse to another after a divorce. Spousal support laws throughout the United States seek to prevent a divorced spouse from suffering from a decrease in his or her standard of living. Often times after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult, if not impossible, for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married. 

Q:  What factors determine whether I will receive alimony/spousal support?

A: In Texas, courts will consider the following factors to determine whether a spouse is eligible to receive maintenance, as well as the nature, amount, duration and manner of frequency of the payments: 

(1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;

(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;

(3) the duration of the marriage;

(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

(5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;

(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

(7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;

(8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

(9) the property brought to the marriage by either spouse;

(10) the contribution of a spouse as homemaker;

(11) marital misconduct of the spouse seeking maintenance; and

(12) the efforts of the spouse seeking maintenance to pursue available employment counseling.

Q: Do all divorces involve a spousal support settlement?

A: No, this is a common misconception. Only about ten to fifteen percent of all divorces or separations have any sort of spousal support as part of the final divorce judgment or decree.

Q: What is rehabilitative alimony?

A: Rehabilitative alimony is financial support that is provided for a short period of time; to allow the receiving spouse time to get adjusted, establish him or herself, financially. This type of alimony will allow the divorced spouse time to "rehabilitate" him or herself and become completely self-supporting.

Q: Are spousal support payments considered expenses for tax purposes?

A: Yes, in general, spousal support payments are counted as deductible expenses for the spouse making the payments, and considered taxable income for the spouse receiving the payments.

Q: What is child custody?

A: Child custody laws throughout the United States seek to provide some sense of order to the disruption of divorce and separation in efforts to smooth over this transition from a unified, nuclear family to a two-household family, with the spouses/parents living separate and apart.

One parent, generally termed the "custodial parent," will receive custody of the child(ren) from the court. The child(ren) will live for the most part with this custodial parent and visit with the "noncustodial parent" for short periods of time (hours or days). One exception to this rule is the "joint physical custody" arrangement.

Under joint physical custody, the time is divided more evenly or equitably (not always the same thing, so ask your attorney what may happen in your particular case). The child will spend significant amounts of time with each parent, often weeks at a time.

In Texas, the court will do everything it can to promote a mutual agreement between the parents regarding custody and visitation. The parties will be encouraged to enter into a written agreement, and if the court believes what is set forth is in the best interest of the children, the court will order custody according to the agreement. If the court finds the agreement is not in the child’s best interest, the court may request the parties to submit a revised agreement or the court may render an order for the conservatorship and possession of the child. If a child is 12 years or older, the court may consider his or her wishes.

Q: What is joint legal custody?

A: Joint legal custody, which is much more common than joint physical custody, means that both parents make decisions regarding the child’s health, education, welfare, etc. Joint physical custody means that the children spend a significant amount of time with each parent (multiple overnights in a row on a consistent basis). This does not necessarily mean that the time with the children is divided evenly between the parents.

Q: How is child custody determined?

A: Courts use the standard of the “best interests of the children” in determining child custody arrangements. What you  or your spouse wants is not really relevant until the court says it is. Many parents go to custody hearings not realizing that they must portray themselves as the best custodial parent rather pleading to the court that they simply deserve the children. The court would much prefer the parents to decide who should have custody, but if they can’t, the court will do it for them. The “best interests of the children” standard gives a good deal of power to the judge and is typically the most influential factor for the judge in making a custody decisions.

Q: What is visitation?

A: When one parent is granted primary custody of the child or children, that parent is termed the "custodial parent." The "noncustodial parent" is granted visitation rights. Through visitation, the state and the judge are attempting to provide a system whereby the parent can maintain a healthy relationship with his or her child.

Q: Do all parents have the right to visitation? What if I don't want my parents to visit with my ex-spouse?

A: Typically, the spouse who does not have physical custody of the child has the legal right to visitation. These rights can be withheld if evidence can be brought forth proving that it is in the best interest of the child not to see the spouse (examples: excessive use of alcohol, physical or verbal abusiveness). The amount and schedule of visitation is stated in the final agreement and can vary according to each family’s situation, lifestyle and circumstance, and may be quite small or quite substantial.

Q: What is child support?

A: Each state, including Texas, has laws requiring parents to support their children. It doesn’t matter if the parents are married, or if they are living together. The responsibility of child support is that of the parents as individuals or as a unit. Indeed, it doesn’t matter if the parents have not had no continued contact after the conception of the child. All parents are legally responsible for child support. The term "child support" covers all the economic necessities of life required by a child. These necessities include, but are not limited to, food, clothing, shelter, education, medical care, and other day-to-day expenses.

Q: How is child support determined?

A: Each state has its own child support guidelines and formulas. Texas child support guidelines uses the Percentage of Income Formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support. The court may also consider the following factors:

(1) the age and needs of the child;

(2) the ability of the parents to contribute to the support of the child;

(3) any financial resources available for the support of the child;

(4) the amount of possession and access to the child;

(5) the net resources of the parent to pay support, including the earning potential of the parent to pay support if the actual income of that parent is significantly less than what that parent could earn, if intentionally unemployed or underemployed; (6) any childcare expenses necessary for the employment of either parent;

(7) whether a parent has custody of another child and any child support expenses being paid or received for the care of another child;

(8) the amount of alimony being currently paid or received;

(9) provisions for health care;

(10) any educational or health care needs of the child, including college expenses; (11) any benefits a parent receives from an employer;

(12) any debts or obligations of a parent;

(13) any wage or salary deductions of the parents;

(14) the cost of traveling to visit the child;

 (15) any positive or negative cash flow from any assets, including a business or investments;

(16) any provisions for health care or insurance;

 (17) any special or extraordinary educational, health care, or other expenses of the parents or the child;

(18) whether either parent has a car or housing furnished by an employer or other person or business; and

(19) any other relevant factor.  

The court may order health insurance coverage to be provided for the child. In addition, the court may order income withholding to secure the payment of child support.

Q: What if my child's financial needs change—is it possible to modify the child support agreement?

A: A child support award is an order of the court, and as such it exists outside another agreement. If you find that your circumstances have changed, and the existing child support award does not apply to these new circumstances, you can petition the court for a "modification" of the award. Be prepared to explain to the judge’s complete satisfaction your reasons for requesting a modification. Typical reasons include: the child is now  living with the other parent, the non-custodial parent has more/less overnight visitation with the child, either parent has a substantial increase or decrease in annual income, child needs special care or healthcare, substantial increases or decreases in the child's expenses, or a change in the the child support guidelines of your state.  

Q: Can I deduct my child support payments as an expense for tax purposes?

A: Child support payments are not deductible by the parent paying the child support. Similarly, child support payments are not considered income by the parent receiving the child support. The paying parent in child support may conclude that paying a lower child support and a higher spousal support will benefit them when tax time comes around. Tax consequences are often given heavy consideration in all negotiations regarding a divorce settlement.

Q: What will happen to our health insurance for my dependent children and I after I divorce my spouse?

A: Your spouse may keep the children on his or her policy. However, as you are no longer married you are no longer eligible for coverage on his policy. However most plans offer a conversion package to individual coverage under COBRA, a federal law. The cost of insurance is usually the responsibility of the separate parties after a divorce. However, coverage for the children may be available.  

Q: Once the divorce is finalized, is there any way to change it?

A: Unless there is a provision in the separation agreement to do so, they cannot. However, there is a provision in the law to amend spousal or child support based upon a change of circumstances.

The only other provision reasonably available is fraud. If a party commits fraud in the negotiation of an agreement, it may allow for a change in the agreement to correct it.

There is also a provision in the law to correct mistakes in drafting. However, usually the mistake must not be unilateral, that is, only one party believes that the language is in error.

Q: How much will it cost me to hire a divorce attorney?

A: It is difficult to determine how much a divorce will cost. However, after reviewing the likely issues, a lawyer may be able to give you a range of expected expenses. Controlling the expenses in a divorce, however, is no easy task. Many of the factors contributing to legal costs are outside of your lawyer’s control. The ability of the parties to cooperate and communicate may also have a significant impact.

Your attorney is required to provide you with a written retainer agreement identifying the costs and hourly fees that will apply to your case. It is important that you read this document carefully and ask questions regarding any unclear issues. Once you have signed the retainer agreement, it is a legally binding and enforceable contract.

An attorney may also agree to charge a flat fee for handling your divorce. Fees charged by lawyers can vary from state to state and county to county. You may find a lawyer who charges a fixed flat fee for motions after a divorce or for uncontested proceedings where the parties have reached an agreement. In such instances, the amount of work which must be performed by the lawyer can be easily determined. This is a favorable payment method since you will know at the outset the total cost of the proceeding which will allow you to budget accordingly.

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