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How to handle a Texas divorce when you were married in another state

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?

Spousal Support/Maintenance

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 maintenance?

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

The 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 through a 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 contact the Law Office of Bryan Fagan, PLLC. A free of charge consultation is only a phone call away and are available six days a week.

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