Texas Divorce: Frequently Asked Questions
All divorce cases are unique, however, there are some questions that remain consistent.
- Should I Consider a Premarital Agreement prior to Getting Married or Postmarital Agreement after Marriage?
Possibly. Think about a premarital or postmarital agreement in terms of a will or testament. Without a will or testament, the State of Texas mandates the manner in which your property will be distributed upon your death; neither you or your family get to choose who gets what, Texas does. Thus, many Texans instead choose to execute a will in order to “opt out” of Texas law and personally decide the manner in which their property is distributed upon their death.
A premarital or postmarital agreement operates in a similar manner. Without a premarital or postmarital agreement, Texas law mandates the manner in which all property held by the spouses is to be characterized and distributed upon divorce as well as the allocation of all rights and duties related to child possession and access, child support, postmarital maintenance (also referred to as alimony), and many other rights, responsibilities, and duties.
- My spouse and I have separated. How does that affect our marital status?
Generally, it doesn’t. Texas does not recognize legal separation as a marital status. Spouses who are separated but not legally divorced continued to be treated as married during the period of separation. Thus, your winning lottery ticket could be characterized as community property; a new partner could be grounds for adultery; or the award of a civil judgment against your spouse could affect property in your possession. Failing to understand the implications of a prolonged separation can be devastating.
- I inherited $50,000 from my great aunt, and now my soon-to-be ex-spouse claims to be entitled to a portion of my inheritance. Is that right?
Possibly. When property is acquired during marriage through an inheritance, the property is considered the separate property of the recipient spouse. However, you must be able to prove that you did in fact inherit the property and that can be a complex and complicated task. Further, what you did with the property after you received it can have serious consequences on your ability to retain it upon divorce. Thus, it is vital that you hire a law firm with the experience to best protect this asset.
- My children do not want to see my ex-spouse and throw a fit every time he/she comes to pick them up during their right of possession. I hate to see them like this (almost as much as I hate my ex-spouse). Can I refuse to allow my ex-spouse access to my children?
Most likely you cannot. The failure to follow an order of possession or access could subject you to criminal contempt, civil contempt, or both, as well as the obligation to pay for your ex-spouse’s attorney fees and costs. Depending on you and your children’s reasoning for their unwillingness to visit your ex-spouse, though, you may be able to seek a protective order and/or a modification of the possession order that limits or prevents their access to the children.
- I would like to hire your firm, but my spouse controls our finances and/or I do not believe that I have enough money in my possession to pay your fees. Is it possible to make my spouse pay your fees?
Yes. During a suit for divorce, your attorney can ask the court to issue a temporary order requiring your spouse to pay your attorney fees and expenses.
- Above Guideline Child Support
The Texas Family Code sets forth the standards that determine the amount of child support a parent is to pay. The Family Code requires the child support obligor to pay a percentage of his or her “net resources.” Among other things, net resources includes: wage & salary income, retirement pay, net rental income, capital gains, trust distributions, and annuity income. From there, the percentage to be paid is based on the number of children for which child support obligation is owed. For example, if there is one child, the amount of child support paid will be 20% of the obligor’s net resources. The percentage increases by 5% for each additional child, not to exceed 40%.
These percentages only apply to the first $8550 of the obligor’s net resources. However, if the child’s needs are proven to be greater than the amount set forth in the guidelines, courts will allow a deviation upwards. In making that determination, courts will consider factors such as: educational expenses of the child beyond secondary school, the amount of time each party’s has with the child, and the travel costs for exercising possession and access to the child.
- How do I know what is my separate property and what is community property?
Based on the Texas Family Code, all property that is possessed by either spouse during the marriage is presumed to be community property. Community property is property other than separate property that is acquired by either spouse during marriage. Separate property is property that is acquired by either spouse before marriage; property acquired by either spouse by gift, devise, or descent; and property recovered for personal injury. Upon divorce courts are prohibited from awarding a spouse’s separate property to the other spouse. However, if a spouse is claiming that certain property is their separate property, it will be their burden to prove by “clear and convincing evidence” that it is their separate property.
- My spouse and I have debts and other liabilities, what is going to happen to them on divorce?
Before a debt or liability can be divided it must first be characterized as either community or separate. Debt incurred before the marriage is considered the liability of the debtor spouse’s separate estate and is not subject to division upon divorce. However, if a debt is incurred during the marriage, it is presumed to be a community debt and must be divided between the spouses in a “just and right manner.”
How the liability will be assigned upon divorce depends on many factors. For example, the court may consider a spouse’s ability to pay, which spouse was awarded the property securing the liability, or which spouse created the liability. Even if one spouse is assigned the liability, the creditor is not automatically precluded from proceeding against the other spouse for payment or from foreclosing on community property that was awarded to the other spouse on divorce. In order to discharge a spouse from a liability not assigned to them, further action must be taken such as refinancing the debt or by seeking an agreement with the creditor that it will look only to one spouse for repayment.
- I have earned retirement benefits, what will happen to them on divorce?
As with other property, retirement benefits can either be community or separate property. If the benefits are community property they will be subject to a “just and right” division on divorce and if they are separate property, they will remain the earning spouse’s. Accordingly, characterizing your retirement benefits as either community or separate property is essential.
There is a multiple step process to determine how your benefits will be characterized. For example, characterization will depend on whether your retirement plan is a defined-benefit plan or a defined-contribution plan, when your benefits accrued, and whether your benefits are fully matured. Additionally, regarding stock options and restricted stock plans, the characterization depends on whether they were granted before or during marriage and whether you have to work during or after the marriage to exercise your right in the options or plan.
- Will I be able to get spousal maintenance or alimony?
It is possible to get spousal maintenance after the dissolution of the marriage but it is limited to narrow circumstances. For example, there are four bases in which a person may receive spousal maintenance: marriage was at least ten years, there has been family violence, the person seeking maintenance has an incapacitating physical or mental disability, or the person seeking maintenance is the custodian of a child of the marriage who is disabled. In addition to one of the four bases, it must be established that the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs.
The amount of spousal maintenance depends on factors such as the spouse’s ability to provide for minimum reasonable needs, duration of the marriage, whether the spouse seeking maintenance has contributed as a homemaker, and marital misconduct. The Texas Family Code places limitations on the amount that can be ordered.
Spousal support is limited in duration as well. As a general rule, spousal maintenance is limited to the shortest reasonable time that allows the spouse seeking maintenance to earn sufficient income to provide for his or her minimum reasonable needs. Before September of 2011, this was largely limited to three years; however, the Texas legislature has implemented a system that sets the duration based duration of the marriage and on the basis for the award.