Going through a divorce is by far one of life's most traumatic experiences. The stress involved in upending your entire life and possibly moving from your home may seem unbearable. Don't add to the turmoil by arguing with your soon-to-be ex-spouse over property, debt, child custody, and support. Contact a divorce lawyer in Houston to protect your rights and act as your intermediary throughout the divorce process.
Texas is not a state where you can obtain a quick divorce. In addition to a mandatory 60-day waiting period there are conditions as to who is able to file for dissolution of marriage in the Lone Star State. In order to file for a divorce in the state of Texas:
- One party must be the petitioner (the other is the respondent).
- One of the spouses has to have resided in Texas for a six-month period prior to filing.
- One spouse must have resided in the county of filing for 90 days prior to filing. For example, if you want to file in Houston, it means either you or your current spouse must have resided in Harris, Fort Bend, or Montgomery counties.
There are several grounds for divorce in Texas: cruelty, adultery, conviction of a felony crime, abandonment, separation, and confinement to a mental institution. Although these conditions may, in fact, exist, many people opt for a no-fault divorce because it doesn't require supporting proof.
In Texas, a no-fault divorce means that neither party was primarily responsible for the reasons leading to the dissolution of marriage. The cause of the divorce will be listed as "insupportability." Texas statutes describe this as "discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation."
Texas is a community property state, meaning that with few exceptions, assets acquired during the marriage are considered to be owned by both married spouses. This concept confuses many people because the judge in a divorce is not required to make an equal division of assets. Additionally, individual assets may be awarded to one party or the other if they're offset by other assets of similar value. For instance, one spouse may retain the house, while the other keeps an automobile and some securities that equal the value of the house's equity.
- Judges are required to make a "just and right" division of the marital property, which doesn't always mean an even split. Houston-area divorce court judges may weigh a number of factors in their decision to allocate more of the property to a particular spouse, including:
- Disproportionate Fault in the Marriage - If the grounds for divorce was cruelty, adultery, or abandonment, the judge may award more to the injured party.
- Benefits of the Marriage Lost by a Spouse - This is similar to a type of alimony, designed to ease the financial burdens associated with the marriage ending.
- Disparity of Wages - If one spouse makes substantially less income, they may receive a greater portion of the assets.
- Right of Reimbursement - One of the spouses can make a claim that they are entitled to reimbursement for a cash outlay during the marriage.
- Physical or Mental Condition - One of the spouses may not be able to work due to a health condition. Age may also be a reason to divide marital assets unevenly.
- Commutation of Funds - If one of the parties was wasteful with marital assets or spent the money inappropriately, like on an extramarital affair, the courts may award the other spouse a larger portion of assets.
- Support Obligations - When one of the spouses is ordered to pay alimony or child support, the judge may make a determination to make an uneven division.
Part of your divorce attorney's job is to ensure that you receive your share of the marital assets and aren't saddled with a disproportionate amount of debt. Debt accumulated during the course of the marriage is often settled in the same way that marital assets are.
Few things concern a parent during the divorce process more than the custody of their minor children. How much time will you be able to spend with your children? How far will you have to drive to see them? Where will they attend school? Who gets to choose their doctors? These are all questions that nearly every divorcing parent wants to know.
Like most of the jurisdictions in the country, the state of Texas has moved away from the somewhat antiquated approaches to child custody that presume that mothers are better suited for child rearing. In most cases in Texas, both parents have the same rights with regard to custody of minor children, and the courts favor shared parenting schedules that the parents present themselves. Any shared parenting plan will be reviewed by the court to determine if it’s truly in the best interests of the children. If not, the court may ask the parents and their divorce lawyers to produce an amended plan.
The state of Texas refers to custody arrangements as conservatorships, which may be either joint or sole.
Most shared parenting plans fall under this sort of agreement. With a JMC, both parents spend time with the children and actively participate in important decisions, such as schools, doctors, religion, et cetera. A JMC does not necessarily mean that the children's time between the two parents is divided evenly.
In instances where one of the spouses is abusive, addicted to drugs or alcohol, mentally unstable, or considered to be an overall threat to the children, the court can determine the level of contact they have with the children. In cases, like these, the judge may award a sole managing conservatorship to the other parent.
The parent who spends the least amount of time with the children is usually required to pay child support. Support payments are based on the income of the parent who's required to pay it. Here are the factors that go into child support payments:
- How many children you have
- The time division between the two parents
- The income of the parents
- In some cases, the assets of the non-custodial parent
The courts use a formula to calculate payments, but any parent who's required to pay support may pay more if they wish. If circumstances change, such as the loss of a job or an alteration in the shared-parenting plan, your family law attorney can seek a modification through the court. In the event of non-payment, the court may use wage garnishment as a method to enforce compliance.
Alimony or spousal support refer to the transfer of assets from one spouse to the other. It’s often awarded in cases where one of the spouses relied on the other for income. Spousal support can be awarded on a temporary or permanent basis and it can be paid in a lump sum or on a monthly basis. In the case of monthly alimony payments, Texas law caps alimony payments at $5,000 or 20% of the paying spouse’s gross average monthly income, whichever is less.
A prenuptial agreement is a contract that establishes the conditions of a divorce prior to entering the marriage. Prenups, as they're sometimes called, are common in situations where one or both of the parties have significant assets or a business to protect.
A postnuptial agreement works in the same way as a prenuptial agreement, but it creates the rules for a divorce after the spouses have been married. When one of the spouses wants to form a business with partners who aren't party to the marriage, they may require a postnuptial agreement to protect the partnership from being broken up by a potential divorce.
Both prenuptial and postnuptial agreements are legally binding contracts. You should have a family law attorney review your contract before signing it.
Even under the best circumstances, filing for divorce can be an intimidating and emotionally tumultuous process. That’s why it’s important to have an advocate in your corner who can answer your questions and protect your legal rights. Houston family law and divorce attorney Scott Reiner understands the difficulty of your situation, and he prides himself on his ability to help his clients though some of the toughest points in their lives.
If you’re going through a divorce, you probably already know what you need to be able to put your life back together and move forward. The Law Office of Scott D. Reiner, PLLC can help you get it without exposing you to additional pain and emotional trauma. Contact our Houston law office for a consultation.