The very first determination is, "Where do I file?" For the answer, we look to the residency of the parties. In Texas, at least one of the spouses must have been a domiciliary of Texas for the six months prior to filing the divorce, and also a resident of the county in which the divorce was filed for 90 days preceding filing of the divorce.
A divorce is a lawsuit like any other lawsuit. For that reason, the party filing the divorce files a "Petition for Divorce." In a contested divorce, the other spouse would be served with process, and then an "Answer" would be filed to the Petition. In uncontested cases, there is the possibility of the other spouse signing a waiver of service of process and signing an agreed decree of divorce. Numerous other pleadings or motions could be filed depending on the particular case.
After a divorce is filed - and sometimes even before a divorce is filed - one of the spouses may seek emergency relief from the Court. Emergency relief is very fact based and we discuss the subject enough so that you will have some idea of available remedies when you consult an attorney.There are three types of relief available:
These discovery techniques are discussed in detail in the Texas Rules of Civil Procedure and in the Texas Family Code.
Even in divorce cases where the parties initially do not agree on the terms of the divorce, usually a settlement is reached. The settlement could be reached between the parties directly, or with the involvement of their respective attorneys. But there are other, more formal dispute resolution techniques available.
Texas divorce law is found primarily, but not exclusively, in the Texas Family Code. Generally speaking, the Texas Family Code covers four areas of interest to a divorcing couple. They are: (1) how property is divided; (2) maintenance, or alimony as it sometimes is called; (3) child custody and visitation issues; and (4) calculating child support.
When a couple divorces in Texas, the divorce court must divide the couple's community property. It is very important to identify which property is community property and which property is the separate property of the spouses. A Texas divorce court has no power to award one party's separate property to the other spouse.
Community property is broadly defined as "the property, other than separate property, acquired by either spouse during marriage." Texas Family Code 3.002. So if community property is everything but separate property, what is separate property? Separate property is:
_ Property owned or claimed by a spouse prior to marriage;
_ Property acquired by a spouse during marriage by gift, devise or descent; and
_ Recovery for personal injury sustained by a spouse during marriage, except recoveryfor loss of earning capacity during marriage.
Texas Family Code 3.001.
2. The Community Property Presumption
"Property possessed by either spouse during or on dissolution of marriage is presumed to be community property." Texas Family Code 3.003(a).It is important to note that under Texas law, the name in which property is held generally makes no difference to how property is characterized. The key to determining whether property is community property is when and how the property was acquired, not whose name the property is in. For example, if a married couple bought a car while married, but the car was titled only in the name of the wife, the car would still be community property because it was acquired during marriage.
3. Proving Separate Property
"The degree of proof necessary to establish that property is separate property is clear and convincing evidence." Texas Family Code 3.003(b).Sometimes, despite the "clear and convincing proof" requirement, proving that property is separate property is relatively easy. For example, if one of the spouses owns a house prior to marriage and still owns the house on divorce, then the house can be shown to be that spouse's separate property.
But suppose that the house was sold during marriage, the proceeds transferred into a money market account that already had community property money in it, that the spouses deposited other money into the account and also spent some of it, and then part of the account balance was loaned to a friend. "Tracing" rules must be applied to determine what part, if any, of the remaining account balance or the loan is separate property.
"Tracing"
"Tracing" is the process of proving that presumptively community property is really separate property by demonstrating that the property in question is a present mutation of previously held separate property.
Tracing is a complicated process. To give you an idea of its complexity, here is a page from a Texas case that summarizes some of the tracing rules:
Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Section 5.02, TEX. FAM. CODE. The party claiming property as separate has the burden to overcome this presumption by clear and convincing evidence. Id.; Horlock v. Horlock, 614 S.W.2d 478, 480 (Tex. Civ. App. -- Houston [14th Dist.] 1981, writ ref'd n.r.e.). To discharge this burden a spouse must trace and clearly identify the property claimed as separate. Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975); McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973). If separate property and community property have been so commingled as to defy resegregation and identification, the statutory presumption prevails. Tarver v. Tarver, 394 S.W.2d 780 (Tex. 1965). However, when separate property has not been commingled or its identity as such can be traced, the statutory presumption is dispelled. Peaslee-Gaulbert Corp. v. Hill, 311 S.W.2d 461, 463 (Tex. Civ. App. -- Dallas 1958, no writ). The presumption, which is not evidence, ceases to exist upon introduction of positive evidence to the contrary and is not then to be weighed or treated as evidence. Empire Gas and Fuel Co. v. Muegge, 135 Tex. 520, 143 S.W.2d 763, 767 (1940); Roach v. Roach, 672 S.W.2d 524, 530 (Tex. App. -- Amarillo 1984, no writ); In re: Estate of Glover, 744 S.W.2d 197, 200 (Tex. App. -- Amarillo 1987, writ denied). Once determined, the character of the property is not altered by the sale, exchange or substitution of the property. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 679 (1953); Horlock v. Horlock, 533 S.W.2d 52, 60 (Tex. Civ. App. -- Houston [14th Dist.] 1975, writ dism.). Property established to be separate remains separate property regardless of the fact that it may undergo any number of mutations and changes in form. Id.
Harris v. Harris, 765 S.W.2d 798, 802 (Tex. App. - Houston [14th Dist.] 1989, writ denied).
Don't try doing your own tracing. If your situation involves tracing, and you and your spouse cannot agree on a property division, you should consult a lawyer.
4. The Division Itself
The court is charged with making a "just and right" division of the community property. This is a matter of the court's discretion. Unless the property division is extremely one-sided, judges usually approve whatever property division the parties have agreed to.
If a divorce case is tried, the court looks to a number of factors to decide how to divide the parties' community property. One of the factors, of course, is fault in the breakup of the marriage, and the most common fault is adultery.
There is no statutory "master list" of factors - one must look to the case law. The Texas Supreme Court has set out the most extensive list of factors a trial court can consider, although the Supreme Court's list is not exhaustive:
The spouses' capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. . . . Likewise, the consideration of a disparity in earning capacities or of incomes is proper . . .
Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).
A special note about retirement benefits: Retirement benefits are subject to the Employee Retirement Income Security Act ("ERISA"), a federal statute. Under the statute, for retirement benefits to be divided in a divorce, the court must sign a "Qualified Domestic Relations Order," commonly known as a "QDRO." QDRO's are technical, complex and poorly understood.
"Retirement benefits" is broadly defined. It includes pensions, retirement plans, annuities, individual retirement accounts, employee stock option plans, etc.
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Maintenance
Until 1995, Texas was the only State in the Union that had no provision in its law for alimony. Effective September 1, 1995, alimony - called "maintenance" - became available in Texas, but only under very limited circumstances.
1. Purpose
Maintenance in Texas is rehabilitative. The Texas legislature explained:
It is the intent of the legislature in this article to provide spousal maintenance primarily as a temporary rehabilitative measure for a divorced spouse whose ability for self-support is lacking or has deteriorated through the passage of time while the spouse was engaged in homemaking activities and whose capital assets are insufficient to provide support.
It is the intent of the legislature in this article that spousal support should be terminated in the shortest reasonable time, not to exceed three years, in which the former spouse is able to be employed or to acquire the necessary skills to become self-supporting. Only in circumstances in which the former spouse cannot become self-supporting by reason of incapacitating physical or mental disability should maintenance be extended beyond this period.
H.B. 1863, 10.01, Ch. 655, 74th Legis. Reg. Sess. (1995).
2. Obtaining Maintenance
Two classes of spouses are eligible for maintenance:
Family Violence Victims
Persons whose spouses were convicted of committing family violence crimes are eligible for maintenance if the crimes were committed within two years prior to the date the divorce was filed.
Long Term Marriages
Persons who have been married ten or more years but who can't get a good enough job to provide for their minimum reasonable needs or who have an incapacitating physical or mental disability.
It is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking suitable employment or developing the necessary skills to become self-supporting during separation and divorce.
3. How Much?
In a nutshell, the lesser of $2,500 per month or 20% of the paying spouse's average monthly gross income per month.
The court is supposed to provide for the "minimum reasonable needs" of the spouse receiving maintenance, considering that spouse's employment or property received in the divorce or otherwise owned that contributes to meeting the spouse's minimum reasonable needs.VA disability payments, social security, and workmen's comp are excluded from maintenance.
4. How Long?
Three years max, unless the former spouse receiving maintenance is unable to support himself because of incapacitating physical or mental disability, in which case indefinitely. Family Code 3.9605.
Maintenance terminates on the death of either party and upon the remarriage of the party receiving maintenance. Family Code 3.9607(a).Maintenance also terminates "if the party receiving maintenance cohabits with another person in a permanent place of abode on a continuing, conjugal basis." Family Code 3.9607(b).
5. Disqualifier
You can't get maintenance in a palimony case: "An order for maintenance is not authorized between unmarried cohabitants under any circumstances." Family Code 3.9611.
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Children
In Texas, there is no such thing as "custody" or "visitation." Custody is called "conservatorship," and visitation is called "possession of or access to a child." But we will sometimes refer to these concepts as "custody" and "visitation" because that is what people - including some lawyers - are used to calling them.
1. Custody
Definitions
For practical purposes, "sole managing conservatorship" really means having custody of a child. When one parent has sole managing conservatorship, the other parent has "possessory conservatorship," or in other words, visitation rights.
"Joint managing conservatorship" can be loosely translated as joint custody. Note that "joint custody," used in this sense, means what rights the parents have over the children - such as where they will go to school, what doctor they will see, and so forth. "Joint custody" does not necessarily refer where the children will live, or when they will see the other parent. These are matters of "possession of or access to the children," commonly called "visitation."
Presumption
A legal presumption exists "that the appointment of the parents of a child as joint managing conservators is in the best interest of the child." Family Code 153.131(b).
More Information
Conservatorship is a complex subject because it really concerns the parent's legal rights and duties with respect to the children, and not when the parents get to see the children. For some insight into what it means, see the following sections identifying the rights of parents at all times, the rights of a sole managing conservator and the rights of joint managing conservators:
Rights of parents at all times
Sole Managing Conservatorship
Joint Managing Conservatorship
2. Visitation
Visitation is governed by the Standard Possession Order. The Standard Possession Order states that unless the former spouses agree otherwise, the visitation provisions in the Standard Possession Order will apply.
Standard Possession Order
The Standard Possession Order is a very detailed schedule governing which parent will have the kids absent agreement otherwise.
Summary
In general terms, the Standard Possession Order provides that the children live with one parent, but the other parent gets the kids on the first, third and (if there is one) the fifth weekends of each month during the school year, as well as every Wednesday evening during the school year. In addition, the non-custodial parent gets the kids for several weeks in the summer, on Mother's/Father's Day, and for part of each child's birthday. Major holidays (such as Thanksgiving and Winter and Spring breaks), are either split or alternated each year.
Changing the Standard Possession Order
Texas law presumes that the Standard Possession Order shall apply, but parties are able to make agreements that vary the Standard Possession Order, and a court may alter the Standard Possession Order as well.
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Child Support
Child support is set by guidelines in Texas. The guidelines are presumed to be applicable in the absence of evidence otherwise. The fact that the guidelines are precise (at least to a point) assists the parties, the lawyers and the courts in setting child support - one less thing to argue about!
1. Calculating Child Support
Child support is calculated based on the "net resources" of the one paying child support, who is called the "obligor."
"Net Resources"
Generally speaking, net resources is take-home pay. Basically, state and federal taxes are subtracted from the obligor's salary, and then a percentage is applied to the figure reached.
The same sort of system is applied to persons who are self-employed, but additional taxes are subtracted because self-employed persons must pay both employer's and employee's share of social security taxes.
The Percentages
The percentage applied depends on how many children there are from this marriage, as well as how many other kids there are that the obligor must support - in other words, children from a prior marriage or born out of wedlock.By way of example, here are the percentages for varying numbers of children of the marriage:
1 child 20%
2 children 25%
3 children 30%
4 children 30%
5 children 40%
6+ children 40% +
2. How Long Does It Last?
Generally speaking, child support is payable until a child reaches 18 years of age or, if a regularly enrolled student, graduates from high school. When there is more than one child, child support "stair-steps" down as each child reaches 18 or graduates from high school.
There is no requirement that child support continue through college or be available to pay college tuition.
3. Medical Insurance
The obligation to pay child support carries with it the obligation to provide medical insurance for the children, or if that insurance is not readily available through employment, to reimburse the ex-spouse for the cost of carrying the children on the ex-spouse's insurance. If the ex-spouse has no insurance or cannot carry the child on the insurance available, then ultimately the obligor must go out and purchase medical insurance for the children. The cost of the medical insurance is not offset against child support although it may be taken into account in determining child support.
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