Divorce

Divorce is probably one of the most difficult situations that a person can find themselves in. The uncertainty and doubt alone can be crushing. Whether you have decided to file or have been given notice that your spouse has filed for divorce, many people are still left wondering, “What happens next?”

First and foremost, in order to file for divorce in the State of Texas, at least one spouse must be a resident of the State for at least six months and have resided in the county where the petition is filed for at least 90 days. You should also know that Texas has a mandatory 60 day waiting period before a divorce can be finalized.

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Community Property State
Texas is what is commonly known as a “community property” state which means that there is a presumption that all property acquired during the marriage belongs to both spouses regardless of whether the title to that property is one or both spouses names. For example, if a car is purchased after a couple gets married, but it is only in the husband’s name, that does not mean that the husband owns that vehicle or that it would be awarded to him as part of the final outcome. That property is community property and subject to division in the divorce. Texas also recognizes “separate property.” Separate property is property that is owned prior to marriage, that is received as part of an inheritance or that is a gift. A spouse claiming that an item is separate property has the responsibility to prove that claim. If you have separate property, you should bring it to our attention in your initial visit with us so that we can start obtaining evidence to prove your claim.

No Fault State
Texas is a “no fault” state which means the court may grant a divorce without regard to fault on the basis of irreconcilable differences. Most divorces, regardless of the actual cause, are filed under this provision of the Texas Family Code.

Causes for Divorce
A divorce may also be granted on the basis of cruelty, adultery, conviction of a felony, abandonment, confinement in a mental hospital, or living apart without cohabitation for at least 3 years. Of course, there are more specific requirements to each of these causes for divorce and those options should be discussed with a lawyer prior to alleging them.

The purpose of adding a ground for divorce is so that the spouse alleging the ground may request more than half of the community estate that has been created during the tenure of the marriage. Discussing your options with us is the best way to decide whether or not to elect grounds for a divorce.

Legal Separation and Temporary Orders
Texas law does not provide for a legal separation. The closest equivalent would be what is commonly known as a temporary order. A temporary order is a court order that has the full force and effect of a final order, but which may be modified or added to during the course of the divorce proceedings. A temporary order lasts the entire duration on the proceeding until the case is finalized or dismissed.

Temporary Orders do not award ownership of property on one spouse over the other, instead it provides for which spouse will have exclusive use of certain property and who will be responsible for certain bills while the case is pending. It important during this time to make a monthly budget for yourself and a list of personal property that you want to have control over.

Final Property Distribution
According to the Texas Family Code, in your final decree of divorce, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

This means that all property interests of the marriage, whether acquired in the state of Texas or not, are subject to division. This includes real estate, cars, furniture, jewelry, electronics and any and all retirement accounts, regardless of their type. Here at James & Newberry, PLLC, we have the experience and know how to make sure that all of your property rights are protected after your divorce.

Spousal Maintenance
Texas does not recognize perpetual alimony. Instead, the laws of Texas provide for “Spousal Maintenance” under certain conditions.

The court may only order maintenance if:

1. One spouse has been convicted or received deferred adjudication within two years of the suit for family violence; or

2. The parties have been married for at least 10 years and a spouse lacks the ability to meet their minimum reasonable needs for support; or

3. The spouse or a child of the marriage suffers from a physical or mental disability that would prevent the spouse from earning enough income to meet their minimum needs.

Even if the Court determines that a spouse meets one of the requirements to qualify for maintenance, the Court must determine how much additional support is reasonable and the appropriate duration. The maximum amount of support that a court can order is $5,000.00 per month. The Texas Family Code has very specific laws related to the duration of spousal maintenance based on the specific facts of each case. If you believe you may qualify for spousal maintenance, please be sure to ask our team about it. The laws are complex and should be handled by an attorney.