Nobody gets married with the intention of filing for divorce. Sometimes, though, family issues or divorce happen to those with the best of intentions. It doesn’t matter what your religious beliefs are, how you were raised, what your dreams were, or even what you want – you can still end up in the middle of a failing relationship, a bad situation, or a spouse asking for a divorce.
If you are contemplating divorce, or if you think your spouse is seeking a divorce, then it is time to ask for a free consultation with the divorce lawyers at MLF Legal. Divorce takes planning. It is stressful and emotional. You will need a professional divorce lawyer to properly plan the appropriate actions for you so that you can protect your family, your finances and your future.
MLF Legal’s family law attorneys will help you decide if divorce is right for you, the proper timing to file for divorce, and the right plan to achieve the outcomes you desire. You must plan the right moves to make before filing for divorce, know where to file, protect your children and plan for their best interests, and secure your income and financial holdings.
There is no legal distinction between a contested divorce and an uncontested divorce in Texas. Whether or not the divorce is contested, it all works the same – one party files for divorce with the proper court, and then the parties either enter into a settlement agreement that has to be approved by the court, or they have to go to trial to determine the terms of their divorce.
An uncontested divorce refers to a situation where the parties generally agree on all of the terms of the divorce, they want to sign settlement papers and get it finished without all of the usual litigation tactics like serving notice of lawsuit on a party at work, answering discovery requests, attending depositions and going through a trial. An uncontested divorce can be completed in as little as sixty days after filing the petition for divorce with the court. Because these divorces do not take as long or require as much effort, the cost is significantly lower than a contested divorce.
A contested divorce is one where the parties do not agree on the terms of the divorce and require litigation. Many contested terms of a divorce involve child custody, child support or large financial concerns. Because of the contentious nature of contested divorces, and the need to sort it all out, these cases take a lot longer than uncontested divorces.
Child custody in Texas is called a conservatorship. A conservatorship refers to the rights and obligations of the parents. The terms of a conservatorship can be made by a judge, or by the agreement of the parents.
A conservatorship resolves questions about each parent’s rights to possession and information about a child, including things like health, education and the general welfare of the child. It determines what decisions each parent can make about their child including where to live, when they can visit, what school they will go to, the role of religion, and all other matters that may be disputed.
There are two types of conservatorships in Texas. You can have either a joint managing conservatorship or a sole managing conservatorship. In a joint managing conservatorship, both parents share the rights and duties of a parent, although a judge can still decide which parent gets the final say about the child’s residence, education and welfare. Visitation and child support can be determined by agreement or by the judge. And in this arrangement, the parents could agree to split the possession of the child with no child support being paid.
In a sole managing conservatorship, only one parent will have the right to make decisions about the upbringing of the child. The other parent may have visitation rights and pay child support, but will not have the right to information and decision-making regarding medical treatment, education or the residence of the child, and may not even be able to attend school activities.
In Texas, we want parents to be involved, so we default to a joint managing conservatorship. However, a sole managing conservatorship will be awarded in situations of family violence, drug use, and other criminal activity. If there is extreme conflict between the parents over educational, medical or religious decisions, or one parent has been absent for most of the child’s life, these could also lead to a sole managing conservatorship.
In Texas, child support payments can be determined by an agreement of the parties or by a judge. Obviously, if the parents of the child can reach an agreement that a judge will approve, then there is a lot more flexibility in what those payments could be. If the judge has to make that decision, there are many factors to consider.
Child support guidelines are the largest consideration for a judge when determining child support payments. Texas uses a formula that takes a percentage of an individual’s net income to determine the child support amount.
The first part of the child support formula is figuring out the paying party’s net income. Income includes all money received by the party including wages, interest, overtime, annuities, unemployment, social security disability, retirement, rent payments, and any other income a person receives. After all of the income is calculated, you subtract out the expenses like taxes, retirement contributions that are mandatory, health insurance premiums, union dues and other expenses that are related to that income. That leaves you with the net income amount.
Once net income is figured out, the guidelines state that child support payments should be 20% of that net income for one child, 25% for two kids, 30% for three, 35% for four, and 40% for five or more children.
Only your first $8,550 per month is subject to child support under the guidelines. A judge would have to find a reason to make you pay more than the guidelines require. The flip side of that is that there are also reasons why a judge would lower your child support payments.
One of the main reasons why you might get a lower child support payment would be if you are already paying child support for another kid from a different relationship. Another big factor is the custody decision. If the parents have a 50-50 split of custody, then you might be able to avoid child support altogether!
There are many other factors that can possibly be considered in the child support question. If you want to discuss the details of your specific situation, just give us a call.
The important thing to know about dividing property, either real (like land, the homestead, etc.), personal (like vehicles, furnishings, etc.), or financial (like checking and savings accounts, IRA’s or other retirement accounts, and stocks and bonds) is that everything thing that was purchased or received or invested after the date of the marriage is considered community property, whether the property is physically in Texas (the car you drive and the house you live in) or not (stocks held in a company based in another state).
Because Texas family law holds that all property gotten after the date of the marriage is community property, the courts usually split those holdings 50/50. There may be some exceptions to this - for example if one party is disabled and cannot work, a court may order that the division of property be higher in value to the disabled party so that they are not left to depend on the state for financial assistance. Another exception would be a clear gift, like an inheritance, made to only one person in the marriage. Some people believe that their retirement accounts, especially if they are opened before the marriage, are their own personal property, but that is incorrect in the court’s view. Any money that was deposited into those accounts during the marriage are considered to be community funds, and therefore the accounts are considered to be community property.
Anything you bought (houses, cars, etc.) or money you invested (in checking and savings accounts, etc.) before the date of the marriage, is usually considered to be separate property, as are gifts of personal property (jewelry, clothes, etc.) given to only one person in the marriage. Just be careful about transferring money between an account opened before the marriage and one opened after the marriage. If you transferred money from a joint account into a personal account, courts may find that you used community money to enrich yourself and your separate account may be considered a joint account from the date of the transfer onward. Sometimes the only way to keep separate personal accounts truly separate, is to not put money into them after you have gotten married.
Texas does not have alimony in the traditional sense that most people think of it. It is not usually a lifelong payment. In Texas, spousal support (a/k/a "spousal maintenance" or "alimony") is additional money, beyond the division of marital property and/or child support, that one spouse pays to the other. It is usually ordered for only a limited time after the divorce is finalized to support the ex-spouse after the divorce until that person can support themselves. If this money is also paid before the divorce is finalized, it is called “temporary spousal support”.
In order to get spousal support under Texas law, a spouse must first prove that after the divorce there will not be enough property left to them (including separate property) to meet his or her minimum reasonable needs, which usually means the spouse’s monthly expenses. After proving that, the spouse must also prove at least one of the following:
the marriage has been for ten years or longer and the spouse made diligent efforts to either earn sufficient income or to develop necessary skills while the divorce is pending to meet his or her minimum reasonable needs; or
the other spouse has committed family violence; or
the requesting spouse has an incapacitating disability; or
a child of the marriage (of any age) has a physical or mental disability that prevents the spouse who cares for and supervises the child from earning sufficient income.
If the judge finds a spouse is eligible for court ordered spousal maintenance, the judge has to decide how much support to order and for how long. In most cases, the upper limit of the amount is the difference between the spouse’s monthly expenses and that spouse’s income. There is a cap of 20% of the paying spouses net monthly resources or $5000 max, whichever is less.
Unless the spouse being paid maintenance is disabled or is caring for a child who is disabled, support payments are temporary. The maximum length of these payments is limited to 10 years without a disability involved. By law, the judge must also consider:
each spouse’s financial resources after divorce (including separate property);
how paying child support or spousal maintenance affects both spouses’ ability to pay their bills;
one spouse’s contribution to the other’s education, training, or increased earning power;
the age, employment history, earning ability, and physical and emotional condition of the requesting spouse;
each spouse’s education and employment skills and how long it would take for the spouse asking for maintenance to get education or training;
whether either spouse inappropriately spent community funds or disposed of community property during marriage (also called “fraud on the community”);
marital misconduct of either spouse; and