Divorce

Divorce Legal Process
Property Division
Spousal Support

Divorce Legal Process in Texas

Although some divorces are very simple and can be handled with a minimum amount of work and delay, such as when there is no significant property involved and the couple has no children, most divorces are far more difficult and can take many different courses. Below is a basic outline of the divorce process in Texas:

One spouse contacts a lawyer, who assists in the preparation of an original petition for divorce, the legal document that sets forth the reasons why the divorce should be granted and outlines the relief sought. In Texas, it is a “no fault” state, and someone can file for divorce without a reason and ask for a divorce because of “insupportability.”
The original petition is filed with the court and served on the opposing party together with a summons requesting the party’s response within a certain amount of time. Sometimes, a party includes in the petition a request for temporary orders and a temporary restraining order until either the parties agree to enter an agreed temporary order regarding the children/and or property, or until the parties attend a hearing in court and the court enters temporary orders.
The served party must respond within the time limit prescribed in the petition or it will be assumed that he or she does not contest the petition, in which case the petitioner will be granted the requested relief after a 60 day waiting period. The response from the Respondent must set forth the relief that the answering spouse requests.
The parties, through their attorney’s, engage in “discovery” during which they exchange all documents and other information relevant to deciding the issue in the divorce such as property division, spousal support, child custody and child support. Discovery may also include the deposition of the parties or other witnesses in the case.
The parties may attempt to reach a divorce settlement based on the full disclosure to each other of all the relevant information. The divorce settlement process can be initiated voluntarily or facilitated by the parties’ lawyers. In the event that informal settlement is not reached, the parties are required by all the court to attend mediation before they can present their case to a judge to resolve.
If a divorce settlement is reached, the agreement or mediated settlement agreement or Rule 11 Agreement encompassing the terms of the settlement is converted into a Final Decree of Divorce, which could include an Agreement Incident to Divorce as well. The Final Decree of Divorce is submitted to the court at a hearing and the judge will ask the parties or the party presenting the Final Decree of Divorce for approval a few basic questions and whether they understand and freely entered into the agreement. Some courts require that the parties who are parents of minor children attend a parenting class before the Final Decree of Divorce can be entered.
If there is not agreement between the parties the case will go to trial, either in front of a judge or a jury, to decide the issues that are pending. At trial, the divorce attorneys present the evidence and arguments for both sides, and the judge or jury will decide the unresolved issues, including child custody, possession and access, child and spousal support, and the division of the property of the parties, and will grant the divorce at the end of the trial.
If a party is unhappy with the Court’s decisions, they are entitled to appeal the Judge or the Jury’s decision.

The entire divorce process can take from as little as 60 days to as long as several years, depending on what court that your case lands in. The main determinant of how smoothly the process will go is the level of cooperation between the parties and their willingness to compromise.

Property Division in Texas

The parties in a divorce can agree to the division of the assets, or the judge will divide, all community and separate property owned by the parties. Texas is a Community Property state, which means that all income or assets acquired by income generated during the marriage should be community income. Generally speaking, this includes all of the property acquired during marriage, including real property, furnishing and appliances, stocks and bonds, interest in insurance policies, artwork, motor vehicles, boats, airplanes, pension plans, retirement plans, other investments,, intellectual property, privately owned companies, and any other assets or money earned during the marriage. A spouse’s professional degree is not divisible on divorce in Texas and belongs to the spouse who earned it.

Sometimes it is not easy for a spouse to identify and know the value of every asset that may be available for valuation and division, especially if the other spouse is less than forthcoming with details. Through the legal process known as discovery, the parties’ lawyers exchange documents that reveal each party’s income, assets, and liabilities. Documents such as tax returns, personal financial statements, bank account records, brokerage house records, real estate documents, loan applications and business records usually give a clear indication of each party’s financial situation. Sometimes a spouse can be deposed by the other spouse’s attorney, in which the questioned spouse can be asked questions under oath designed to gather necessary information about their income and assets and better help that spouse determine the value of the community estate. If necessary, additional witnesses which might provide helpful information about a parties’ income assets may be deposed, including employers, business partners, bankers and significant others.

Property owned prior to marriage or given to the spouse during marriage by gift, devise or descent, or is a result of a personal injury award, is that spouse’s separate property. Sometimes, especially regarding bank accounts, spouses might have a sum of money in an account, brokerage account, or retirement account that they owned prior to marriage. In these instances, the money will have to be traced to determine how much of the remaining funds are separate property and how much are community property. Sometimes it is as easy as looking at a brokerage or retirement statement, but sometimes, accounting professionals need to be retained to “trace” the funds owned by the party prior to marriage through the account to determine the separate property characteristic of the account. Real property is determined by the “inception of title” rule. When real property is purchased, the characteristic is determined by the marital status at the time of the purchase of the property. Sometimes, the real property could have a mixed characteristic of separate and community which would need to be determined by the amount of money put down on the residence by each party at the time of purchase.

In Texas there is a cause of action for reimbursement to either one spouse’s separate property or to the community estate for the funds expended by the community property or a spouse’s separate property to either reduce the debt securing the separate real property of a party or to enhance the value of one spouse’s separate property. The same principles apply in cases involving increases in the value of a family business owned by one spouse before marriage.

Spousal Support in Texas

The obligation of spouses to support each other sometimes does not end with a divorce. In Texas, if the divorce will leave one spouse with very little income and the other with enough to contribute to the low-income spouse’s support, the court may award spousal maintenance for a period of time.

Spousal support in Texas is often awarded in cases in which one spouse has put his or her education or career on hold in order to raise the parties’ children while the other party’s career advanced and achieved a higher income. In such cases, the spousal support will often be temporary, providing income for the period of time that will enable the receiving spouse to become self-supporting. This temporary spousal support enables the receiving spouse to further his or her education, re-establish himself or herself in a former career, or complete child rearing responsibilities, after which time she or he can be self-sufficient. If one spouse is unable to get a good paying job due to their health or advanced age, the spousal support may extend up to 10 years.

The amount and duration of spousal support in Texas depends on several factors, including:

the length of the marriage
the age, employment history, earning ability, and physical and emotional condition of the spouse
the value of the estate a spouse is awarded
the value of any separate property of a spouse
the education and employment skills of the spouse
the contribution by one spouse to the education, training, or increased earning power of the other spouse
the property brought to the marriage by either spouse
the contribution of a spouse as a homemaker
marital misconduct, including adultery and cruel treatment, by either spouse during the marriage
any history of family violence
each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage.

Although historically, spousal maintenance was typically awarded to homemaker wives by the working husbands, that is no longer always the case. Now either spouse may be awarded spousal maintenance if the other has the more substantial income and the recipient spouse’s income is insufficient to support him or her taking into consideration the above factors.

Alimony is support that is agreed to by the parties and in which the parties sign an agreement regarding one spouse receiving the alimony, which could include provisions regarding taking it into income of the receiving party and using it as a tax deduction for the paying party.

Cheryl Jeter, Houston family lawyer and divorce mediator services clients in the Harris and surrounding counties including Ft. Bend County, Montgomery County, and Brazoria County in Texas.

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