ISSUES IN DIVORCE

This section covers the basic issues involved in a typical divorce case. If you have no children, you can skip the section below regarding children. Remember that in Texas, the court cannot grant a divorce without dividing up the marital property. Additionally, if children were born or adopted during the marriage, the Court will have to make orders about child custody and support at the same time.

  1. GROUNDS FOR DIVORCE

    A divorce may be granted on one or more "fault" grounds or the "no fault" ground expressly set out in the Texas Family Code. Most divorces are granted on the no-fault ground of "insupportability." This is the ground to use if either spouse feels that the marriage has become insupportable because of a conflict in personalities which makes any reasonable expectation of reconciliation impossible. In English, that essentially means you just don’t like each other anymore, and cannot stand to live together as husband and wife.

    "Fault" grounds for divorce include: adultery, cruel treatment, conviction of a felony, abandonment, living separate and apart for three years, or confinement in a mental hospital. A court may (but does not have to) consider "fault" in the breakup of a marriage as a factor in deciding how to divide the property and debts. For this reason, a spouse may choose to plead a "fault" ground for divorce.

  2. DOMICILE AND RESIDENCE

    At least one spouse must have been "domiciled" in Texas for six months, and a "resident" of the county where the suit is filed for ninety days, before the petition may be filed. The terms "domicile" and "residence" have different legal meanings. To be domiciled in a state you have to live there with the intent to remain indefinitely. To reside in a county simply means you live there. To illustrate, say you went to college in Louisiana, but you knew you wanted to move back to Texas as soon as you graduated. For those four (or more?) years you were in college, you resided in Louisiana, but your domicile was still Texas. Why? Because your domicile does not change when you move, only when you move with the intention of making the new place your home for the foreseeable future.

  3. PROPERTY AND DEBTS

    Here are some basic rules underlying Texas marital property law.

    1. Types of Property

      In the context of divorce law in Texas, all property, both real estate and personal property, falls into one of two categories of property; (1) "separate property" and (2) "community property".

      1. Separate Property

        "Separate property" is property either (1) owned or acquired by a spouse before marriage or (2) acquired by a spouse during marriage by either (a) gift or (b) inheritance. It is the date you got the property and the source of the property that controls, not how it is eventually paid for. For example, if one spouse owned a house or car before marriage, at the time of divorce it will be that spouse’s separate property, even if it was paid off in whole or in part during marriage.

        A gift includes any Christmas or birthday gifts from one spouse to another during marriage (even if purchased with community funds). If a gift is given to both spouses (e.g., wedding gifts), then each spouse has an undivided fifty percent interest in that one piece of separate property. So you each own half of that toaster from Aunt Marge.

        Separate property can change forms without changing its character as separate property (this is often referred to as a "mutation"). For example, if wife has $4,000 in cash which is her separate property and uses that $4,000 cash alone to purchase outright a $4,000 boat, then the boat would be her separate property.

        A court has no authority to take a spouse’s separate property from him or her at the time of divorce.

        CAUTION: Any property owned by either spouse at the time of divorce is, by law, presumed to be "community property" unless otherwise proven to be separate. Therefore, you must (1) specifically plead and (2) prove by clear and convincing evidence each item of real estate or personal property you claim is your separate property.

      2. Community Property

        "Community property" is any property acquired by either or both spouses during marriage by other than gift or inheritance. This includes virtually everything purchased during marriage. It is important to remember that a marriage legally still exists even after are separated (whether before or after the divorce petition has been filed) so any property obtained after separation will be still be community property. This is true even if the property is not physically received until after the final decree of divorce. For example, if the day before the divorce is granted a wife contracts to purchase a new home (with closing set off for one month later), or husband enters into a partnership agreement, this will be characterized as community property. Moral: be careful and be patient.

        All property which exists in whole or in part in the name of either spouse at the time of the divorce is presumed by law to be community property. This is referred to as the "community property presumption". So we start out with everything being community. If you have any separate property, or if you are in the possession of property which does not belong to either you or your spouse, you must point this out to your attorney, who will in turn, point to out to the Court.

        In Texas, earnings from separate property are community property. For example, if husband has $1,000 in the bank account at the date of marriage, the $1,000 remains his separate property, but all interest earned on the $1,000 becomes community property.

        Unlike separate property, a court has the authority to divide community property in any manner that it deems to be "just and right". Texas is not a "50/50" state. The court will apply many factors, such as age, education, earning potential, and fault in the marriage, to determine how the community property will be divided. But remember, you and your ex-to-be have the right to divide up the property yourselves. It is always best if both parties can reach an agreement regarding the division of property.

      3. Mixed Title to Property

        Title to property can be both separate property and community property in character. For example, suppose a car is bought during marriage for a total of $10,000 in cash; $7,000 of that was from husband’s separate property account which he had prior to marriage, while $3,000 of it was from a bank account established during marriage and contained the community property earnings of the parties. In such event, the car would be sixty percent husband’s separate property and forty percent community property.

    2. Debts and Liabilities: Taxes

      If you get into a debt before your marriage, and if that debt still hasn’t been paid off at the time of divorce, that debt stays with you. If you get into a debt during your marriage, it will be divided by the court between you and your spouse at the time of divorce. One spouse may be required to assume a debt incurred solely by the other spouse during marriage. The general rule of thumb is that, following the filing of the divorce petition, courts are usually going to award a debt to the spouse who incurred the debt during separation. The Court or the parties will have to make decisions regarding "contingent liabilities,quot; ones that may or may not ever arise, such as past income tax liabilities which will only come up if the parties get audited, as well as tax liabilities for the year of divorce.

      CAUTION: The Court’s division of debts between divorcing spouses is only good between those spouses. The division is not binding upon the creditors who are not parties to the divorce suit. This is unavoidable unless every creditor (MasterCard, Visa, etc.) is actually made a party to your divorce (no one does this). The only protection is by way of indemnification. For example, if Husband is obligated to pay a bill, but does not do so and the creditor goes after Wife, then Wife has the right to sue Husband to recoup those funds. Not a very good solution, but it is the only practical one available.

    3. Reimbursement

      So under the community/separate property rules, there are three different "estates" at the time of divorce: (1) husband’s separate property estate, (2) wife’s separate property estate, and (3) the community estate. Each of these estates may have a claim for "reimbursement" against one or both of the other estates. For example, if Husband owned a car, as well as a note on that car, before marriage, then at the time of the divorce the car will belong to husband’s separate estate, but the community estate would have the right to ask a court to order the husband (i.e., his separate estate) to "reimburse" the community estate for community money used to pay off his separate property car.

      Since reimbursement is an ‘equitable’ doctrine, a court is not required to order reimbursement, but may choose to do so if the court considers it equitable under all of the circumstances of the case. It should be noted, however, that to prove reimbursement, it often requires a great deal of time, accounting, "tracing" of funds (discussed below) and expense to prove the claim. Whether reimbursement should be sought is a decision you and your attorney will make after weighing all of the factors. Texas has a new doctrine called economic contribution so be sure to ask your attorney if this applies to your case.

      Side Note: "Equitable" and "Equity" are legal terms that roughly mean "fairness". Equity hates a jerk, so don’t try to ask for equitable help from the Court to correct your spouse’s wrongdoing if you have done some wrong of your own.

    4. Tracing

      To determine if property is separate property and/or community property, and to determine rights to reimbursement between the different estates, an accounting method referred to as "tracing" is often employed in divorce cases. For example, one bank account may contain funds which consist of both separate property and community property. Or, community property funds may be used to pay off the balance of a separate property debt. Tracing is employed to determine the title to property or the amount of reimbursement. You will almost certainly need either immaculate records or a financial professional to help with this.

      Doctrine of Commingling: If an account contains both separate property funds and community property funds and these funds have been so mixed up together that they cannot be traced, then the entire account will be characterized as community property ("community property presumption" remember). This is referred to as the doctrine of "commingling".

    5. Division of Property and Debt

      The parties will divide all existing property and debts either by settlement or order of the court. While the parties may agree to make any type of division that they want (e.g., giving the husband some of the wife’s separate property, agreeing to spousal support, etc.), a court during litigation does not have such flexibility and is bound by the rules of law.

      Basically, a court may give each party his separate property and separate debts, then divide the community property and debts in a manner that the court deems to be "just and right". This may be an approximate 50/50 division of the net community estate, or a division which gives one of the spouses a disproportionately larger share of the community property (e.g., 60% to Spouse A, 40% to Spouse B).

      The division of property refers to the net community estate (i.e., all community property minus debts equals net community estate). For example, suppose that the community estate consists of one home (with a mortgage), three cars (two with liens), two retirement accounts, miscellaneous personal property (e.g., furniture), and five bank accounts. All together, this amounts to $100,000 in assets, and $75,000 in debts, for a net community estate of $25,000. The court may give husband 70% of all of the assets ($70,000) and 80% of all the debts (-$60,000) for a net award to husband of $10,000 (which amounts to only 40% of the total net community estate). Simultaneously, the wife would receive only 30% of the assets ($30,000), but only 20% of the debts (-$15,000), for a net to wife of $15,000 (which equals 60% of the total net community estate). Remember we are going for "equitable" division here, not necessarily "equal.". Courts may enter almost any kind of order to effectuate what the court finds to be a just and right division, such as requiring the parties to sell the marital home and divide the proceeds in a certain manner, award certain community property to be held by both parties (and let them decide later to sell it or not to sell it), etc.

      As a general rule of thumb, in order to reach a "just and right" division of the community estate, the court generally begins by presuming that a 50/50 division would be equitable, then varies from there based upon a number of factors, especially the length of the marriage, a difference in the earning capacity of the parties caused by the marriage (e.g., husband worked for 25 years while wife did not), whether there are minor or adult children being taken care of by a spouse, "fault" in the breakup of the marriage, etc. The varied nature of divorce cases makes it difficult to predict in advance with any degree of certainty exactly how a given court will divide the property in a given case on a given day.

  4. SPOUSAL SUPPORT

    "Alimony" does not exist in Texas; rather, Texas has spousal support; that is, funds paid by one spouse for the support of the other spouse. Texas was the only state in the nation in which a court had no authority to order alimony to be paid after the final divorce. However, in 1997, the Texas legislation made provisions for very limited "alimony" which requires extensive proof of an inability to support oneself. It is best to talk with your attorney about the availability of spousal support in your case, as each case differs greatly. Also, the parties may, by agreement (i.e., contract), provide for alimony to be paid after the final decree of divorce is entered. The party paying alimony may deduct these payments from that party’s income to gain a tax benefit, while the alimony recipient must declare these payments as income. Be sure to talk to your lawyer about this option.

  5. CHILDREN

    If you and your spouse have children together, the divorce decree and settlement MUST contain orders governing the custody, possession and support of the children after the divorce. A "child" is any minor who was born or adopted by the parties. Once a child turns eighteen, the Court’s jurisdiction over this adult child ends. There are several exceptions regarding child support, but we’ll discuss that in a bit.

    1. Conservatorship

      The Texas Family Code speaks in terms of post-divorce "conservatorship" of children. This is the legal relationship between the children and their parents after the divorce. Conservatorship relates to controlling the children’s lives, having possession of and access to the children, and supporting the children.

      The Family Code expressly sets out a non-exclusive list of the rights, privileges, duties and powers of the parents. In a nutshell, these rights and duties may be put into three categories: (1) the right to make major decisions regarding the children; (2) the right to have physical possession of the children; and (3) the duty to financially support the children. Conservatorship orders divide these various rights and duties among the parents after divorce.

      Conservators: The Code refers to two types of conservators: (1) the managing conservator(s) and (2) the possessory conservator. These terms are confusing, because the "managing" conservator is, generally speaking, the parent with primary custody of the children, while the "possessory" conservator is not. It helps to think of it as the "possessory" conservator merely has some possessory rights to the children, while the "managing" conservator gets to manage the children’s lives.

      1. Managing Conservator(s)

        A "managing conservator" is generally given all the rights, privileges, duties and powers of a parent, to the exclusion of all other people, including the other parent, except as otherwise ordered by the court. In short, the managing conservator is the primary custodian of the children, and (1) has the right to make most of the major decisions governing the children’s lives, (2) has the primary physical possession of the children (custody) and (3) has the right to receive child support on behalf of the children. As discussed below, there are now two types of managing conservators, "sole managing conservatorship" and "joint managing conservatorship".

      2. Possessory Conservator

        A "possessory conservator" is generally given (1) only a handful of rights and duties to make decisions for the children which can be exercised only when the children are actually in his/her physical possession, (2) the right to certain limited times of possession of the children (often referred to "visitation rights"), and (3) the duty to pay the managing conservator child support for the benefit of the children.

    2. Types of Managing Conservatorship

      A managing conservatorship can be either a "sole managing conservator" or a "joint managing conservatorship" Unless very extreme circumstances exist, a parent will be appointed the managing conservator of the children. A non-parent managing conservator (e.g., grandparent) can only be appointed if the appointment of a parent would create an extreme danger to the child, or unless the parents agree.

      1. Sole Managing Conservatorship

        A "sole managing conservatorship" exists when one parent alone is appointed the managing conservator of the child and given virtually all of the rights, privileges, duties and powers of a parent to the exclusion of the other parent. In such event, the other parent will be the "possessory conservator".

      2. Joint Managing Conservatorship

        The law presumes that it is in the best interest of the child that both parents are to be "joint managing conservators" of the children. This is true, whether or not the parties agree to the joint appointment. Thus, both parents are managing conservators, and neither is a possessory conservator. Joint managing conservatorship is often agreed to by both parents. While a court is not required to appoint joint managing conservatorship, even when the parties request it, the party who does not want a joint managing conservatorship must prove to the court why a joint managing conservatorship is not the child’s best interest

        .

        It should be noted, however, that joint managing conservatorships vary. A joint managing conservatorship order may be either a "pure" or "real" joint managing conservator, or a joint managing conservatorship in name only, or any combination thereof. A "pure" joint managing conservatorship authorizes both parents to equally exercise all of the rights, privileges, duties and powers of a parent. On the other hand, under joint managing conservatorship which exist in name only, while both parents are given the title of joint managing conservator, one parent is in reality, by the detailed terms of the court order, treated like a possessory conservator. There are advantages and disadvantages to going either route, which you should talk about with your attorney.

    3. Possession of and Access to the Child (e.g., Visitation)

      Whatever the conservatorship arrangement, the parents will be given certain exact times of possession of and access to the children. Usually, one parent is considered to be the "primary parent" or the parent with primary possession of the child and has the child at all times except for those times of possession given to the other parent. The other parent (e.g.,possessory conservator) is given certain court-ordered times of possession of and access to the children This is usually called the parent’s "visitation rights".

      The legislature has by statue adopted what is referred to as a "Standard Possession Order". Basically, the Standard Possession Order sets visitation with the children on every other first, third and fifth weekend (Friday through Sunday), every Thursday evening during the school term, and one-half of all holidays. Excluding the time that the children are asleep or in school, the schedule gives the non-primary parent about 47% of the quality time with the children. Judges rarely vary from this Standard Possession Order and only do so under unusual circumstances (e.g., child is under three years of age).

      1. Child Support

        The parent who does not have primary possession of the children or who has less time with physical possession of the children than the other parent is generally required to pay financial child support to the primary parent for the benefit of the children. Although this can take many forms, child support usually consists of monthly or bi-monthly payments to the custodial parent.

        The legislature, by statute, has adopted Child Support Guidelines. Basically, child support under the Guidelines will be a percentage of the support payor’s "net resources" as defined in the Guidelines, based on the number of children. For example, the guidelines require the payor to pay 20% of his "net resources" for one child, 25% for two children, etc. The maximum percentage any parent will pay is 40% and the maximum net resources that can be used to determine the actual child support amount is $7,500. Most courts generally follow the guidelines unless there are unusual circumstances.

        Also, the Family Code requires that, if the support payor is an hourly or salaried employee, the payor’s child support is to be withheld from his wages by his employer and paid directly to the custodial parent. Although this can be waived, it rarely is. At present, the child support from a wage withholding order are first being sent through the State Disbursement Unit in San Antonio and then forwarded to the person entitled to receive child support.

        Child support is ordered to be paid through the State Disbursement Unit in San Antonio which is charged with recording child support payments. This agency then keeps a record of all payments received and forwards the payments to the child support recipient. A major reason this is done is that, if the support obligor fails to pay support as ordered, the Office of the Texas Attorney General has attorneys who represent the State of Texas to collect the child support that is owed. Remember that the Office of the Attorney General represents the State and not the person paying child support or the person receiving child support.

        Other "child support" is also required in the form of health insurance for the children, orders requiring the payment of non-covered medical expenses, etc.

        Child support is due until the child turns eighteen or thereafter, until the end of the school year in which the child graduates from high school.

        IMPORTANT: If a child is mentally or physically impaired to the extent of requiring continuous care, child support may be ordered to be paid indefinitely past the child’s 18th birthday. If this is the case with any of your children, be sure to inform your attorney.

      2. Tax Considerations

        Generally, the primary custodial parent gets the tax exemption for the child, unless otherwise agreed by the parties. Also, certain child care deductions are available. Talk about these with your attorney or tax advisor. You can also look at IRS form 8332 regarding making the designation of who can claim the dependency exemption.

  6. OTHER ISSUES

    There are a number of other issues which may not directly relate to the divorce itself, but which are available to you at the time of your divorce. Please note as a general rule, these issues must be raised at the time of divorce or you lose them forever. These issues do not arise in the typical case but may be applicable to yours.

    1. Causes of Action Against Spouse

      Besides suing your spouse for divorce, you may have a cause of action against your spouse for acts or omissions which may directly relate to the ending of the marriage. These included, for example, a civil action for assault (e.g., one spouse hits the other); false imprisonment (e.g., one spouse locks the other up); intentionally defrauding the other spouse of their separate property; one spouse takes the other’s separate property and gives it to another person, etc.. There also may be a cause of action for mental anguish against a spouse. If anything like these examples seems to apply to your case, discuss it with your attorney.

    2. Causes of Action Against Third Persons

      There are also certain causes of action which one spouse may have against third persons which may be joined with the divorce. For example, your ex sold your car so you wouldn’t get it in the property division. You can include a claim against the guy who bought it to request that the guy gives the car back. If any of these or similar matters exist in your case, let your attorney know.

      Note: The action known as “alienation of affection” which allowed a spouse to sue the lover of the other spouse, no longer exists in Texas.

  7. ATTORNEY’S FEES, COSTS & EXPENSES

    Attorney’s fees, costs, and expenses related to litigation are treated as any other debt or liability of the parties and will be divided by the court in a manner that the court deems “just and right.” The court can sometimes order one spouse to pay the other spouse’s fees, costs, and expenses either in whole or in part. An order to pay these fees and expenses is within the discretion of the judge. There is no automatic right to the award of these fees and expenses.

    One reason a judge might require a spouse to pay the fees of the other is if that spouse has been uncooperative and has not followed the law and the rules in the divorce proceeding, so behave yourself.

    Typically, the judge in a divorce or family law case will make either party pay their own lawyer fees.

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