"Houston, we have a problem." Your marriage has gone farther south than the Astros in the MLB rankings, and now you've decided you're ready for a divorce. Where do you go from here? This article will give you an overview of the key issues you are likely to encounter as you start the divorce process.
Grounds for Divorce
In Texas, you can file for divorce whether or not you or your spouse was at fault for the breakup of the marriage. This is called no-fault divorce, and can make starting the divorce process relatively easy. Basically, the only reason you have to give the court for wanting a divorce is that the marriage has become "insupportable."
Texas also provides fault-based grounds for divorce, each of which assigns some type of blame or wrongdoing to one of the spouses (e.g. cruelty, adultery, or abandonment). As a general rule, however, it may be easier to file for no-fault divorce in order to avoid having to prove fault in a particular case. However, keep in mind that the court can take blame into consideration when deciding a "just and right" way to divide up property -- this is why some people find it advantageous to file for divorce on fault-based grounds.
When it comes to divvying up your property, it is important to know that Texas is a community property state. Under Texas law, when you and your spouse were married, the two of you became a "community." All of the property you each had before marriage, as well as the property you acquired together during the marriage, generally will fall into one of two categories: separate property or community property. Your community property belongs equally to you and your spouse, while your separate property belongs to you -- and only you.
Texas courts use separate property as a starting point when it comes to classifying a couple's property. Texas law defines separate property as:
- Property owned by one spouse before marriage;
- Property one spouse receives as a gift or inheritance during the marriage; and
- Personal injury awards received by one spouse during the marriage.
Texas courts assume everything that is not separate property is community property. This means that this property belongs equally to both members of the community. During a divorce, the court looks to the total value of the couple's community property, and typically tries to apportion the distribution of specific community property items so that each spouse receives an equal share.
Remember, however, that courts aim to divide up the property in a "just and right" manner, and may consider other factors when distributing property, including:
- Fault for the breakup of the marriage;
- One spouse's misuse of the couple's money;
- Differences in the spouses' incomes;
- Age and physical health of each spouse; and
- Custody of the children.
In Texas, alimony or spousal support is called "spousal maintenance." If you want to request maintenance, you may want to take a moment to figure out if you're eligible. In all cases, courts start by assuming that no spousal maintenance is needed (unless the spouse paying for support is convicted of domestic violence). Therefore, in order for a court to even consider ordering support, you must show that you are unable to support yourself (take care of your "minimal reasonable needs"), AND one of the following:
- You have a physical or mental disability that interferes with your ability to be self-sufficient;
- Your child requires substantial care or supervision that interferes with your ability to be self-sufficient; OR
- Your marriage lasted for 10 years or longer.
If the court determines that you are indeed eligible for maintenance, it must address the following: how much support you should be awarded and for how long. Barring special circumstances, Texas imposes maximums on the amount and length of maintenance ($5,000/month and 10 years, respectively). In addition, the court can consider several additional factors, including:
- The length of your marriage;
- Your income, earning ability, and financial resources;
- Your education and employment skills;
- Your physical and emotional health;
- Whether you contributed to your spouse's education, training, or increased earnings; and
- Any marital misconduct on your part.
Child Custody & Support
Texas courts base child custody determinations on the "best interests" of the child. If you request custody, the court encourages you and your spouse to work together to find an arrangement that provides your child with the most stable living situation. If an arrangement cannot be made, the court may make a custody determination based on factors such as your respective parenting abilities, the stability of your home, or your child's preference.
If child support is awarded to you, the court calculates how much you will receive by applying a statewide formula (also known as the "guidelines"). The guidelines take into account your spouse's net income and the number of children requiring support. If the resulting amount seems unfair or unreasonable, the court may increase or decrease the support order to achieve a more fair result.
Get Legal Help with Your Divorce in Houston
Going through a divorce is a difficult and emotional process. A divorce can be confusing and costly, especially if you aren't familiar with your rights. That's why it's a good idea to contact a local divorce lawyer to help you identify opportunities and issues before they result in a court order.