When my family moved to Texas from Wisconsin I can recall a gift that we
received from one of our new neighbors down the street. The gift was a
little decorative sign that read, “I wasn’t born in Texas,
but I got here as fast as I could.” The sentiment behind that saying
could apply to many people that live here in our state, not just my family.
With as many people that have come to call Texas home that are from elsewhere
in the country or in the world, it is no surprise that many current Texans
were married elsewhere. If the spouses to a marriage wanted to file for
divorce in Texas then a review of this property must be accomplished prior to
the finalization of the divorce.
You’re not from Texas, but you’re here now (and wanting a divorce)
If you and your spouse have separated and a divorce looks like it is on
the horizon you may have questions as to what state’s laws actually
apply to the divorce. Will the state you moved from have its laws apply
or will the laws of Texas be applicable? How do our state’s laws
differ from those of other states?
In the event that you and your spouse have entered into a
premarital agreement, then the provisions of that premarital agreement (no matter if it was
agreed to in Texas or another state) would be binding upon both of you.
However, most spouses have not entered into premarital agreements and
as a result the concept of
spousal maintenance must be considered.
You may have heard of “alimony” before but Texas does not have
any laws that allow for alimony to be paid. Spousal maintenance is what
Texas has in place which allows for the payment of money from one ex spouse
to another after the marriage has been terminated by divorce. If the little
hairs on the back of your neck stood up as soon as you started reading
this section you can take some solace in the fact that spousal maintenance
is limited by the duration of your marriage as well as the amount of money
that you would actually be responsible for paying. The bottom line for
you to consider is that you will only be responsible for paying (or will
only be able to receive spousal maintenance) if your spouse (or you) are
unable to provide for your
minimal reasonable needs independent of the spousal maintenance.
The theory behind Texas not having any laws on the books as far as alimony
is concerned is due in part to our system of
community property laws. Basically the thinking is that because community property laws seek
to divide up a marital estate in a more “fair and equitable”
fashion, there is less of a need for you or your spouse to require money
payments to go on and on without end. However, what if there is not a
substantial community estate but you also don’t qualify for spousal
Community Property vs. Quasi-Community Property
In Texas, the law is that all property that you and your spouse possess
during the marriage is community property and subject to division if a
divorce is initiated. A factor that may make this cut and dry rule more
difficult to apply is if you lived during your marriage in another state
before moving to Texas. If you and your spouse fall into this category
then be aware that if you are now filing for divorce in Texas the property
acquired in another state will be looked at as community property it would
have been considered community had it been acquired here in Texas. Otherwise
known as “quasi community property” the sentence prior to this one is considered true not only when
considering property you and your spouse own in other states but in other
countries as well.
The death of a spouse during a divorce
The concept of quasi community property is only relevant in the event that
you or your spouse file for divorce. In any other context this law is
theoretical and not especially relevant to your lives. In the event that
your spouse passes away, a probate court in Texas does not take the position
that any property purchased outside of Texas is quasi community property.
In the event that your spouse passes away the property would be dealt
with under the laws of
probate in Texas.
A concern would be that if the property that is owned outside of Texas
does not become quasi community property, but remains the separate property
of your spouse it may leave you high and dry as far as not being able
to stake any claim to it upon the death of your spouse. This means that
after your spouse passes away you may not be able to take advantage financially
of the property and what it could gain for you in a real property sale.
Texas courts lack jurisdiction to divide real estate that is not located in Texas
Texas Family Code does not allow for a judge in our state to award pieces of
real property that are located in another state or country to you or your spouse in
a divorce. What will take place, however, is that the value of the property
will be considered in dividing up the marital estate. In addition to this,
a court in Texas does have jurisdiction over you and your spouse and may
therefore order either of you to convey a piece of property to the other
Special Warranty Deed or other mechanism.
New to Texas and have questions on divorce laws? Contact the Law Office
of Bryan Fagan
If you have recently moved to Texas and have questions about our Family
Code or divorce laws in general please do not hesitate to
Law Office of Bryan Fagan. A free of charge consultation is only a phone call away and are available
six days a week.