What am I or My Spouse Entitled to During a Texas Divorce?

Any person who is entering into the divorce process has questions regarding their rights and how they can best be enforced. The attorneys with the Law Office of Bryan Fagan are experienced in assisting clients with these sort of questions as they pertain to their children, their money and support from their spouse during the divorce.

A divorce doesn't just mean dissolving the relationship with your spouse. While it certainly does mean this, there are many, many other considerations and wrinkles to a divorce that the attorneys with the Law Office of Bryan Fagan have come to expect and prepare for on behalf of our clients.

You are entitled to anything you can negotiate

Asking what their spouse can get, or is entitled to in a divorce is a tough question for an attorney to answer. This author's answer would be- you're entitled to whatever your attorney and you are able to negotiate for. Divorces typically center on a few major subjects:

  1. Children
  2. debts and
  3. property

Children are Important

When it comes to a client's children, our attorneys will always advise a client that above all else their children need to be treated as being the most important aspect of any divorce. This is usually not an issue as divorcing spouses understand this to be the case, but unfortunately what happens to the children ends up looking similar in a final decree of divorce when compared to a house, car or retirement account.

The state of Texas' public policy is that absent extreme circumstances, both parents have a right and the state will encourage parties to allow one another to have active, important roles in their children's lives. No parent is entitled to anything more than the other, but obviously their individual circumstances play a huge role in determining issues such as- where the children live, who gets to see them when and which parent has the final say so in making education and medical decisions.

Whichever parent does not have the children living primarily with them has an obligation to pay child support- unless the parties agree otherwise. This is fairly self explanatory- the theory is that even if one parent can't directly contribute to day to day costs associated with child rearing, they can do so indirectly by providing support to the custodial parent. The Texas Family Code provides for a percentage of the obligor's income to be paid depending upon how many children are at issue in a divorce.

What is the Property and Debts?

In a Texas divorce, another major issue is the division of the spouses’ debts and marital property. The first step in this process is to identify the property and debts. In order to aid in this process your divorce lawyer will ask you to complete a document called an inventory and appraisement which lists all of the assets and debts.

Once the property and debts are identified in the inventory and appraisement, the next step figure out the character of property. Texas is a “community” property state.

Community Property and Separate Property

Community property in Texas is all property acquired during marriage except for property:

  1. acquired by gift
  2. inheritance or
  3. owned prior to the marriage

It is important to identify whether marital property is community property or separate property because a Texas divorce court can divide the community property between the spouses but cannot divide the separate property.

Just and Right Division

In regard to financial aspects of a divorce, income earned during a marriage is considered to be "community property". This means that each spouse has a claim to a fair and equitable percentage of the money earned by both spouses- whether that money comes from a job, an investment or other source. There are exceptions to this general rule, but it is common to have spouses divide money in bank accounts, 401Ks and other sources. Everything in a divorce is negotiable, however, and being in a position to negotiate for more can be the difference between getting a bare minimum and getting what you're fully entitled to.

Either parties can negotiate a division of the property and debts or a court will make a “Just and Right Division” for the spouses. In Texas, all community assets and debts are subject to a just and right division.

A court bases a just and right division on the facts of each case. Many people have heard that Texas is a 50/50 state, however a just and right division is not necessarily a 50/50 split. In fact, disproportionate divisions may be what a court determines is just and right.

Some things a Texas divorce court may consider includes:

  • fault in the breakup of the marriage
  • the parties’ abilities to support themselves
  • the financial costs incurred by a party while the divorce is pending, and
  • length of the marriage.

Marital Debts

Marital debts are another common question clients have when it comes to what they are entitled to, or in this case entitled to avoid, in a divorce. A typical arrangement will have both parties taking with them any debts that are in their name only and splitting debts that share both names. However, it's crucial to keep in mind that people are not entitled to getting this sort of equitable result.

Divorce negotiations center on a lot of horse trading over any and all issues pertinent to the separating couple. In order to receive the maximum benefit possible and ensure you are not left holding the metaphorical bag on your communal debts an experienced family law attorney is a crucial advocate for your interests. A family law attorney, such as those with the Law Office of Bryan Fagan, are able to help position you to take on no more debt than is equitable while protecting your credit and minimizing your liabilities moving forward.

Marital Property

The issue of marital property and what a client stands to receive in a divorce is a common question encountered by our lawyers. Again, no spouse is entitled to keeping the house or being able to remain living there. However, unlike the children there are some objective truths apparent when considering who can actually afford to pay the mortgage on a single income or who is actually going to keep the kids and needs the space to do raise them properly.

If, for example, mom is awarded primary custody of the kids (she gets to choose the residence of them) but she cannot afford to pay the mortgage on her current income it would not make sense for her to remain in the home. In this type of situation, the newly single dad will typically not need the extra space the house affords and the parties will agree to sell the home and divide the equity. In this scenario, a seasoned family law attorney for mom can do her a great service by negotiating a greater than fifty percent share of that equity to perhaps use as a down payment for a smaller but fully functional home for her and the kids to start a new life in.

The aforementioned scenarios are just the tip of the iceberg for parties and their lawyers to encounter in a divorce. The attorneys at the Law Office of Bryan Fagan understand what sort of difficulties are inherent in the divorce process and work hard for each client to ensure that they receive whatever the individual believes they are entitled to. Please contact us today for a family law consultation- free of charge.

Alimony or Spousal Support

A lot of our clients will ask us at an initial consultation (note- all family law consultations with the Law Office of Bryan Fagan are free of charge) whether or not they are entitled to spousal maintenance/support. Known widely as "alimony", courts in Texas are hesitant to award spousal maintenance as an award for a spouse in final orders, temporary spousal support can be awarded. This often occurs in cases where one spouse does not work and agrees to leave the marital home.

As part of the division of property and debts a Texas divorce court can consider a request for alimony. A spouse in Texas can be awarded alimony or spousal maintenance under the Texas Family Code only if one of two factors exists.

  1. The other spouse was convicted of a crime involving family violence within the two years prior to the filing of the divorce suit or
  2. The spouses have been married for 10 years

Family Violence

In this scenario, the family violence can include class C misdemeanor convictions if the allegation involved family violence. Family violence also includes occasions where the defendant received deferred adjudication in exchange for a plea of guilty.

10 Year Marriage

If a spouse is seeking alimony after a 10 year marriage they will need to show:

  1. They lack sufficient property to provide for their minimum reasonable needs.
  2. Then the requesting party in most case needs to demonstrate they are unable to earn sufficient income to meet their minimal needs
  3. And they must demonstrate they have made a diligent effort to earn sufficient income or develop skills to do so

Ebook

If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. Can I sue my spouse's mistress in Texas?
  2. Can I Sue My Spouse for Mental Abuse in My Texas Divorce?
  3. Spousal Support, Spousal Maintenance, and Alimony in Spring and Houston Texas and when is it available?
  4. His, Hers and Ours - Texas Divorce

Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The attorneys with the Law Office of Bryan Fagan are experienced in negotiating for clients outside the courtroom and advocating for them inside the courtroom. Selecting an attorney that you are comfortable with, you can trust and confide in are important considerations to make. Our attorneys take the responsibility given to us by each client extremely seriously. Contact us today to learn how we can use our experience to benefit you in your divorce.

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Law Office of Bryan Fagan
Spring Divorce Attorney
Located at: 3707 F.M. 1960 W,
Suite 400,

Houston, TX 77068
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