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While each divorce case may be unique, the following issues and questions are relevant to most of them.

  • How is the amount of spousal maintenance or alimony decided?

    The amount of spousal maintenance depends on factors such as

    • the spouse’s ability to provide for minimum reasonable needs
    • the duration of the marriage
    • whether the spouse seeking maintenance has contributed as a homemaker
    • marital misconduct

    The Texas Family Code places limitations on the amount and duration of spousal support. Generally, 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 also considers the length of the marriage and the basis for the award.

  • Will I be able to get spousal maintenance or alimony?

    Spousal maintenance after the dissolution of the marriage is limited to narrow circumstances. Typically, there are four bases in which a person may receive spousal maintenance:

    • the 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 cannot provide for his or her reasonable needs. In Texas, the court will not award contractual alimony, unless it’s an agreement between the parties.

  • What will happen to my retirement benefits upon 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. If they are separate property, they will remain the earning spouse’s separate property. Because of this, characterizing your retirement benefits as either community or separate property is essential.

    The characterization of your benefits will depend on such factors as:

    • whether your retirement plan is a defined-benefit plan or a defined-contribution plan
    • when your benefits accrued
    • whether your benefits are fully matured

    The characterization of stock options and restricted stock plans 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.

  • If my spouse and I have debts and other liabilities, what happens to them during and after a divorce?

    Like assets, debts can be considered as community or separate debts. All debt(s) must be characterized as one or the other.

    A debt incurred before the marriage is considered separate and is not subject to division. A debt incurred during the marriage is presumed to be a community debt and must be divided between the spouses in a “just and right manner.”

    In the case of community debts, how the liability is assigned 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.

    However, there is an important caveat: even if one spouse is assigned liability, creditors are 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. To discharge you from a liability not assigned to you, further action must be taken such as refinancing the debt or seeking an agreement with the creditor that holds only one spouse responsible for repayment.

  • How do I know what is separate property and what is community property?

    Typically, separate property is property that is:

    • acquired by either spouse before marriage
    • acquired by either spouse by gift, devise, or descent
    • recovered for personal injury

    Upon divorce, courts cannot award one spouse’s separate property to the other spouse. However, it will be your burden to prove by “clear and convincing evidence” that anything you claim as separate property is indeed separate. The Texas Family Code presumes all property possessed by either spouse during the marriage is community property, unless it can be shown to be separate property.

  • How is the amount paid for child support decided, and do amounts ever go above the guidelines?

    The Texas Family Code sets forth the standards that govern child support. The child support obligor is required to pay a percentage of his or her “net resources” rather than net income — which is an important differentiation. Net resources include (but are not limited to) wage and salary income, retirement pay, net rental income, capital gains, trust distributions and annuity income. From there, the percentage is based on the number of children. For example, if there is one child, the amount of child support is 20% of the obligor’s net resources. The percentage increases by 5% for each additional child, but does not exceed 40%.

    These percentages only apply to the first $8,550 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 can consider items like educational expenses beyond secondary school, the amount of time each party has with the child, and the travel costs for exercising possession/access to the child.

  • 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. Your attorney can ask the court to issue a temporary order requiring your spouse to pay your attorney fees and expenses.

  • My children do not want to see my ex-spouse. They throw a fit every time he/she comes to pick them up during their right of possession. Can I refuse to allow my ex-spouse access to my children?

    Probably not. The failure to follow an order of possession or access could subject you to criminal contempt, civil contempt or both. Plus, you may have to pay for your ex-spouse’s attorney fees and costs. However, depending on you and your children’s reasons, you may be able to seek a protective order and/or a modification of the possession order.

  • I inherited $50,000 from my great aunt. Is my soon-to-be ex-spouse entitled to a portion of it?

    Possibly. When property is acquired during marriage through an inheritance, it 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. For example, if you deposit the $50,000 into a shared checking or investment account, and the account fluctuates, how can you differentiate between what is yours and what is community property?

    What you do with the property after you receive it can have serious consequences on its status in a divorce. If you inherit or are gifted a sum of any substance, it is vital that you hire a law firm with the experience to protect your assets.

  • 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. In the eyes of the state, you are still viewed as married during the period of separation. So, your winning lottery ticket could be characterized as community property, as well as other assets you accumulate. A new partner could be considered adultery. And the award of a civil judgment against your spouse could affect property in your possession. While separation may change your living arrangements, it doesn’t change your legal responsibilities. Failing to understand the implications of a prolonged separation can be devastating.

  • Should I consider a pre-marital agreement prior to getting married or post-marital agreement after marriage?

    We would compare a pre-marital or post-marital agreement to a will. Without a will, the state mandates how your property will be distributed upon your death, rather than you or your family. Pre and post-marital agreements operate in a similar manner. Without one, Texas law mandates how any property held by the spouses is distributed upon divorce. If you are concerned about a property division, in the event of a divorce, you should strongly consider a pre-marital or post-marital agreement.

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