Family Law FAQ
How Does A Court Split Up Property In A Divorce?
In Texas, courts must split all marital property equally between divorcing spouses. Likewise, all debts that either spouse incurs during the marriage are considered community debts and belong to both spouses equally. However, the court may order an unequal division if there are “just and right” reasons.
What Are Grounds For Divorce In Texas?
In Texas, there are seven grounds for divorce spelled out in the family code. These include both fault grounds and no-fault grounds. That’s right – you don’t have to prove fault grounds in order to get a divorce in Texas. However, the grounds on which you base your request for divorce may affect the outcome of your divorce settlement.
Sound confusing? Let’s break it down, starting with the three no-fault grounds, where neither party is at fault for the marriage breaking down but circumstances exist where the marriage is no longer viable for one or both parties. Texas no-fault grounds include the three reasons below.
These grounds are commonly referred to as irreconcilable differences. To prove insupportability, you have to show that the marriage is insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
Insupportability is one of the most common grounds that people use to file for divorce in Texas. In layman’s terms, the person has filed because either they no longer see eye-to-eye with their spouse or living with the spouse has become intolerable for some reason.
2. Living apart
If two spouses have lived apart without cohabitating for three years or more – at the time of the trial – that could support living apart grounds for divorce. In these types of cases, the court typically views the arrangement as something both parties agreed to, based on the fact that they have lived apart for so long.
Living apart grounds can play a role in the just and right division of the estate. For example, one party might claim that she hasn’t seen her spouse in over five years and she doesn’t know where to find him. The court might award her everything in her possession, provided that she meets certain conditions, such as taking steps to serve him papers, even if that means serving a notice in the newspaper.
3. Confinement to a mental hospital
People become mentally incompetent for a variety of reasons, whether it’s due to mental illness, an accident or another cause. What’s key here is that the party must have been confined for at least three years, the severity of their mental disorder is to the degree that it’s unlikely to improve and, if it does, relapse of the disorder is very likely.
While confinement may be grounds for divorce, the statute was also put in place to help protect the confined person’s interests and the just and right division of property. The court will likely appoint a guardian ad litem to represent the person who is confined. If you say, “Oh well, they’re confined, so I should get everything in the estate,” you probably won’t be granted the divorce.
What Is The Role Of Fault Grounds In A Texas Divorce?
The difference between no-fault grounds and fault grounds is pretty straightforward. With fault grounds, someone is actually found at fault for the divorce.
Again, you don’t have to prove fault grounds to get a divorce in Texas. However, if you claim certain fault grounds – like adultery – and the judge doesn’t buy your argument, they could still grant your divorce based on other no-fault grounds, like insupportability. Conversely, the judge could grant the divorce based on fault grounds that surface during the case – say, cruelty – even if you filed on no-fault grounds of insupportability.
There are four different fault grounds in Texas. Let’s break them down, starting with those below.
In Texas, the grounds for cruelty are simply defined as cruel treatment of the spouse that was of such a nature that it renders further living together insupportable. The vagueness of this definition certainly leaves it wide open for interpretation, which it has been. Cruelty is a relative term that is determined based on case-specific facts, so it’s not going to be the same for everybody. For example, a devout Christian may find some form of behavior cruel that another person may not.
Cruelty typically needs to be willful, persistent infliction of suffering and can be mental or physical. However, some cases involve one egregious incident – say, a severe beating – or an accumulation of smaller, cruel acts over time that could support cruelty grounds. An unsuccessful attempt to reconcile doesn’t bar a spouse from asserting cruelty.
Simply put, if you can prove that your spouse cheated on you, then you may have fault grounds for divorce in Texas. You don’t have to show a videotape of your spouse cheating, but you do need to provide positive proof. Adultery can be proven in a lot of circumstantial ways.
It’s also important to keep in mind that acts of adultery that occur after you file your petition and are no longer cohabitating can still support a fault-based judgment against the adulterer. You are considered married until you are divorced – there is no legal separation in Texas.
It is typically best to stay celibate and not get into relationship during a divorce. Otherwise, questions could be raised about how community funds are being used – i.e., gifts, jewelry, loans and trips for a lover – which could be subject to a reimbursement claim for fraud. This all goes to the just and right division of the marital estate, where one party may get a larger portion of the estate, a home or other assets to compensate for the other party’s misuse of community monies.
3. Felony conviction
A felony conviction can serve as fault grounds for divorce if the spouse is convicted of a felony during the marriage, serves for at least two years in a department of criminal justice or a state or federal penitentiary, and isn’t pardoned.
However, if the state’s entire case against the convicted felon was based on their spouse’s testimony, a divorce cannot be granted on felony conviction grounds. The court may still grant the divorce based on insupportability or cruelty but not due to the conviction. Family violence is another factor, and, in some cases, it may be possible to get spousal maintenance due to abuse that has occurred.
To prove abandonment, two things need to have occurred: One, the spouse must have left voluntarily, and two, they must have had the intent to abandon the spouse who filed. Intent to abandon typically means that a spouse has an intention not to return to live with their spouse.
The abandonment must also be continuous for a one-year period. So, say your spouse abandons you and comes back home for a few nights. That could disqualify the one-year period. However, if the returning spouse has no intent to continue living together with you after the brief stay, that could still be enough to support abandonment.
What Are Other Aspects Of Divorce Grounds In Texas?
With so many options for grounds for divorce, you may be wondering how often fault grounds come into play in Texas. The majority of cases in Texas are no-fault divorces. While the reasons for this vary, one may be that people don’t want their dirty laundry aired in a public forum, especially in their legal paperwork.
For people who don’t want to get divorced, it’s important for Texans to know that no-fault grounds are an option and that there’s not much you can do to stop a divorce if your spouse is determined to get one. Instead of fighting, it’s usually better to participate in the process to help ensure that the divorce and property settlement works out more favorably for you.
What Makes A Divorce Last Longer Than The Typical Minimum Time?
If you want a quick divorce but aren’t sure whether that’s feasible for you, consider the answers to the following questions:
- Do you have children?
- Is this a high-asset divorce?
- Do you think your partner will contest the divorce?
- Has your partner hired a lawyer?
- Are the courts backed up?
- Did you skip out on working with a prenup attorney?
If you answered yes to any of the above questions, then you are likely not going to be able to finalize your divorce in the “record” 61 days. For example A high net worth divorce in Houston is a prime example of a type of divorce during which some lawyers will drag their feet and potentially stall for years claiming it’s impossible to identify every asset and future earnings.
Meanwhile, complex child custody arrangements can also make it take exponentially longer to reach a resolution, specifically in instances where a child has special needs.
If you answered yes to any of the above questions, you are almost certainly going to be in a better position if you hire a qualified lawyer. Our team will not let you make any high-asset divorce mistakes, will teach you how to fight for custody of a child and will fight for your family’s best interests while keeping in mind your desires for a swift resolution.
What Is The Difference Between Legal Separation And Divorce?
In a legal separation, the marriage remains legally intact, whereas, in a divorce or dissolution, the marriage is ended. The legal separation order can be modified in certain circumstances. However, it’s important to note that there is no legal separation in Texas; you are married until your divorce is final.
Do I Have To Go To Court For An Uncontested Divorce?
Under Texas state law, uncontested divorces typically move through the system rather quickly. Most of the actual work required for both spouses to reach an agreement on their divorce terms takes place outside of the courtroom.
Usually, though, at least one spouse will have to go in front of the judge to answer questions. This is known as a “prove-up” hearing. The judge will want to know that both parties truly and fully understand the consequences of their actions. Divorce is a serious legal decision, with lasting consequences. Even in uncontested cases, it is up to the judge to grant the divorce and ensure that both parties are confident in their decision. The judge will also seek to confirm that both parties are signing the agreement voluntarily, under their own free will.
However, this hearing is mostly a formality and usually does not make or break the case. There is no need for a formal trial in an uncontested divorce. Most of the time, the judge will go ahead and grant the divorce under the agreed terms. In Texas, there is a mandatory waiting period until the divorce becomes law. This period is 60 days in most cases.
It’s important to note that since the COVID pandemic began, there is a possibility that the prove-up hearing may be virtual, involving the use of a computer or phone video. Harris, Fort Bend, Brazoria and other Texas counties have each established their own regulations. Mediations and arbitrations are also done virtually.
How Does The Court Determine Child Custody?
In Texas, child custody is decided based on the best interests of the child. In determining the custody of a child, Texas courts encourage mediation as a first step. If the parties are unable to resolve custody issues on their own, then child custody will be decided by a court (usually, a family court judge) based on the best interests of the child.
In determining the custody of a child, Texas courts may presume that parents will share parental rights and duties. The duties do not need to be shared equally. If the divorcing parents cannot agree on custody themselves or through mediation, a Texas court will make a determination.
A Texas court may use social studies or psychological evaluations to help it make a custody decision. A child who is 12 years old or older can sign an affidavit if they would prefer living with one parent, although the judge is not obligated to follow the child’s wishes.
How Are The Best Interests Of The Child Determined?
In Texas, child custody decisions will be made by a court based on the best interests of the child. A Texas court will presume that joint legal custody will be best unless one parent can prove otherwise. A court will consider many factors in deciding primary physical custody, including:
- The history of contact between the parent and child
- The relationship between each parent and the child
- The health, safety and welfare of the child
- The health of the parents
- Where the parents live
- How close the parents live to each other
- Each parent’s finances
- Any child abuse
A court may take steps to ensure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interests of the child, even if that parent does not have custody. After awarding custody of a child, Texas divorce courts encourage parents to share in the rights and duties of raising their children.
After the finalization of a Texas child custody order (and divorce order, if applicable), both parents are bound by the court order. If a parent is denied court-ordered access to their child, they may bring the issue back before the Texas court.
How Is Child Support Calculated In Texas?
To calculate your net income for child support purposes and to calculate the child support percentage, Texas law provides a number of guidelines. These include those below.
Sources of income
If you have multiple sources of income, you may need to combine these to figure out your income for child support purposes.
All income you actually receive counts toward this calculation, including:
- All salary and wage income, tips, overtime, bonuses and commissions
- Self-employment and business income
- Royalty income, interest and dividends
- Retirement benefits, Social Security and pensions
- Disability, unemployment and workers’ compensation benefits
- Annuities, trust income and capital gains
- Gifts and prizes
- Net rental income
- Child support paid for children from another marriage
However, you don’t count the following items as income for child support purposes:
- Any income or resources of a new spouse
- Accounts receivable
- Return of capital or principal
- Benefits paid from federal assistance programs
- Foster care payments
If the court decides that you are intentionally unemployed or underemployed, the court can impute a higher income to you for child support purposes. This means that the court will calculate your income based on your earning potential rather than your actual earnings.
Once the court adds all sources of income together, it will subtract the following items to calculate your net income:
- Federal and state income taxes
- Social Security taxes or non-discretionary retirement plan contributions
- Union dues
- The amount you spend on health and dental insurance and uninsured medical expenses for the children
Once it calculates your yearly net income, the court divides that number by 12 to get your monthly net income.
To illustrate, let’s say you earn $50,000 per year, pay 20% of that amount in taxes and spend $3,000 per year on your children’s medical and dental insurance and expenses. Your net income for child support purposes will be $37,000 per year, or $3,083 per month.
Calculating child support obligations
There are two ways the court may calculate child support under the guidelines, depending on whether your net income is above a certain amount. This amount changes every six years based on inflation, but it is currently $9,200 per month.
If your income is $9,200 or less, the guidelines require you to pay a percentage of your total net income based on the number of children you have:
- One child = 20% of net resources
- Two children = 25% of net resources
- Three children = 30% of net resources
- Four children = 35% of net resources
- Five children = 40% of net resources
- Six or more children = At least 40% of net resources
So, in our example above, someone with $3,083 per month in net income who has two children will pay $771 per month in child support.
If your income is more than $9,200, then your child support will be the greater of:
- The same percentage you would pay above but applied to only your first $9,200 of net income
- Up to 100% of your children’s actual needs
For example, if you have two children and you earn $20,000 per month, you would pay at least $2,300 per month (20% of $9,200). However, if your children’s actual monthly needs are $5,000 per month, the court may instead require you to pay up to $5,000 per month.
Other ways to calculate support
The guidelines are presumed to calculate a child support amount that is in the children’s best interests. However, it is possible for a court to order more or less support than provided in the guidelines.
This happens only if the court finds that the amount prescribed by the guidelines is “unjust or inappropriate under the circumstances.”
To deviate from the guidelines, the court must consider a long list of factors listed in the Texas Family Code. These factors consider whether there are unusual circumstances relating to a parent’s earning capacity, a parent’s monthly expenses or a child’s needs.
Who Can I Talk With About Child Support In Texas?
Child support is just one of the many issues you will need to resolve when you get a divorce. Our knowledgeable and compassionate Houston divorce attorneys at Bowen Law Firm, PLLC, can help.
How Do I Best Protect My Children Through Divorce?
It is possible for parents to have different ideas on what it means to protect their child during their divorce. Though every family’s situation is unique, the ways that parents can keep their kids healthy and protected during this process often look similar across the board. Get a clearer picture of what it means to protect your child during divorce by considering these tips.
Encourage time spent with each parent. When one parent leaves the picture entirely, it can lead a child to feel extremely troubled. As long as no issues are surrounding your child’s safety, children deserve to spend quality time with each of their parents and continue cultivating close relationships with them individually.
Never use your child as a messenger. The responsibility of having to send messages between homes for their parents puts a lot of pressure on a child. They can experience anxiety and stress by having to bear the burden of the messages as well as the responses to them. Find an effective way to manage your shared parenting communication between one another without putting your child in the middle of it.
Manage your shared expenses and child support payments responsibly. This may not seem evident at first, but children do suffer consequences when one or both parents are not providing them with adequate financial support. Even though your family situation has changed, it’s essential to work as a team to protect your child’s financial standing and maintain a lifestyle for them that is similar to how it was before your divorce. Be smart about how you handle shared finances, including child support payments.
Keep up with a routine. Many kids can quickly adapt to change, but it’s not always so easy when the changes carry substantial emotional weight. Preserve as much of your old routine as you possibly can, and stick to new parts of your routine as soon as you fall into them. A sense of normalcy is likely to help your child maintain a healthier emotional state throughout this process.
Bring new significant others into the picture slowly. Entering a relationship right after ending another can seem exciting but can also be emotionally draining on both you and your child. As new individuals enter your life, be slow to let them into your child’s life. Don’t rush a meeting or expect your child to fall in love with this new person right away.
Talk to your child. Regularly checking in with your child about the changes going on in your family might not always be easy to face, and there might be times when they don’t want to say much. As difficult as it might sometimes be, letting your child express their feelings to you can be a positive step toward them moving forward. Listen attentively and respond lovingly, even if what they say feels hurtful.
Work to end conflict in your co-parenting. At the onset of your divorce, the thought of having to interact with the other parent of your children can seem daunting and tiresome. This isn’t abnormal, and things can evolve. At the onset, find a way to communicate effectively, sharing the most important details related to your child’s schedule, health, schooling, etc. When parents are on the same page about the essential information about their children’s lives, they are better equipped to each offer the best support possible to their kids.
Look after yourself. As many times as you may have heard it, it’s true that you can’t always provide the best degree of love and support to someone else if you can’t find a way to love and support yourself. Take care of yourself to uphold your emotional and mental well-being. Spend time with loved ones and friends, and spend time doing things you like to do. If you feel you need extra support, don’t hesitate to reach out to a therapist or other mental health practitioner. They can offer professional guidance to help you move forward and care for yourself.
Protecting children through a divorce may look a bit different for every family, but at its heart, it means that both parents are always looking out for their children’s emotional and mental health. With your co-parent, work as a team to help your whole family move forward positively into this new life chapter.
What If I Want To Get Married Again? Does It Affect My Divorce Settlement?
When you or your ex-spouse remarry, some of the agreements from your divorce may change. After a divorce, especially one involving children, one party may have a financial duty to the other through court-ordered payments of child support or spousal maintenance. When your financial situation changes, as it does in remarriage, this could either justify a modification to your divorce settlements or the remarriage itself could stop payments altogether.
We Want To Proceed With An Uncontested Divorce. Can You Represent Both Of Us?
If the attorney who has been hired knows how to address the disputed issue and, by doing so will benefit one spouse over the other, this would place the attorney in an ethical dilemma. To avoid these ethical dilemmas, Texas law does not allow divorce attorneys to represent both spouses in a divorce. After all, what is best for one spouse is not necessarily best for the other spouse, so spouses having separate attorneys reduces conflicts of interest.
If My Ex Remarries, Does It Affect Child Support?
Child support payments will likely be unaffected by the remarriage of either parent. While spousal support payments are paid for the benefit of the divorced individual, child support payments are paid purely for the benefit of the child, not the parent who receives the support. For this reason, a remarriage does not often alter the financial responsibility either parent has for their child.
That being said, if the remarriage comes with serious financial changes, the court may consider a modification to the support payments. For example, if the paying parent is now responsible for supporting other children from another relationship, their financial situation may require an adjustment to the child support payments. A parent who makes child support payments may also wonder why payments are still necessary when the custodial parent and their new spouse are financially well-off. Even if the custodial parent is capable of taking on full financial responsibility for the child, the point of child support is to ensure that both parents take equal financial responsibility for their child. Therefore, it is in both parents’ best interests to continue making payments.
Does Remarriage Affect Child Custody?
In some cases, when a divorced parent remarries, they may wish to make adjustments to child custody. If they wish to relocate, for example, they may need to agree to a change in custody or seek permission from the child’s other parent. In other instances, the parent’s new spouse may wish to adopt the children from a previous marriage. This is not typically doable unless the noncustodial parent has relinquished all parental rights.
It is important to remember, however, that every situation is different. If you are remarrying or your ex-spouse has remarried, it is important that you seek the professional advice of a family law attorney, especially if you have any concerns about your divorce settlements. Our attorneys can go over your settlements and help you determine your next step.
What Use Is A Prenuptial Agreement If We Never Get Divorced?
It will have an effect upon death and the distribution of the estate.
What Happens If You Have A Prenup And Your Spouse Dies?
Due to the way prenuptial agreements are written, they will often be the overriding documents upon death. The main reason for this is that the prenuptial agreement has been made as a legal contract between partners, and the contract is still binding if one party of the agreement is still alive.