What is reality and what is myth regarding divorce in Texas?

We all have a friend, neighbor, coworker, or family member who is more than happy to give us their opinion on every subject under the sun. Unfortunately for us, that person usually is wrong more often than they are right. It’s one thing if that person is a mere annoyance; it’s another when that person’s lousy information causes us to make a wrong decision that impacts our children and ourselves.

The attorneys with the Law Office of Bryan Fagan, PLLC, would like to share with you some information regarding popular family law topics that we are asked questions about regularly. Specifically, these are topics that I believe many people in our community have been provided with lousy information. Let’s examine a few more of these before moving on to a different subject in tomorrow’s blog post.

Postnuptial agreements are possible to divide property between spouses

This is true. Once you and your spouse get married, you can agree on how community property is divided and determine what a part of each of your separate estates is. A postnuptial agreement can go into effect if you and your spouse divorce or when one of you pass away.

A postnuptial agreement must be in writing and can take into account any property currently owned by you and your spouse or any property that is anticipated to be purchased. The agreement can even take property that would usually be considered part of the community estate and place it into the column of separate property. Future income from that property can also be designated as separate property.

I would recommend that if you and your spouse want to get a postnuptial agreement that you each hire an attorney to do so. If and when that postnuptial agreement is disputed by one of you in a future divorce, the likelihood that the agreement will be upheld by a judge increases if an attorney represents both parties during the negotiation process.

Your wages could be garnished to pay your spousal maintenance obligation.

Spousal maintenance is what many people refer to as “alimony.” These are payments made to your ex-spouse after your divorce to help him, or her meet their minimal, basic living needs. In Texas, if a court orders spousal maintenance to be paid, there are limits to how much and for how long those payments are to be made.

The law in Texas is that your wages can be garnished to meet your spousal maintenance obligation. This is true whether your obligation stems from an agreement between you and your ex-spouse or through the order of a judge. This works out similarly to how child support may for other divorced persons.

A wage withholding order can be filled out stating the specific amount that must be withheld by the employer weekly, biweekly, or monthly. The money would then be taken out of your check before you have an opportunity to spend it or save it yourself.

A Mediated Settlement Agreement (MSA) can be revoked at any time, for any reason.

This is a false statement. Mediation is a formalized settlement conference between you and your attorney, your spouse and their attorney, and a licensed mediator. The mediator acts like a ping pong ball bouncing back and forth between you and your spouse, usually in the mediator’s office. Settlement offers are exchanged, and the result is typically an agreement of some sort that settles your divorce.

The end product is a Mediated Settlement Agreement. It will encapsulate all the agreements made in the mediation and allow the attorneys to draft an order that considers those agreements. In bold letting in the MSA, the mediator usually includes a line or two that notes the agreement is binding and cannot be revoked unless proven fraud or coercion.

This means that you cannot wake up the morning after your mediation and call your attorney to tell them that you’ve made a colossal mistake and that the agreement needs to be torn up. Unless you can work with your spouse on modifying the order in writing, you cannot alter its contents. This may sound harsh, but the State wants to give these MSAs the full effect that a court order would be given. That MSA will soon become an order, so this shouldn’t be all that surprising.

Child support does not have to be paid when an obligor loses their job

An obligor is a parent responsible for making child support payments out of their income. It is not true that if you lose your job, your obligation to pay child support ceases until you can find work. The fact is that you must pay child support as long as your order states that you must.

What can you do if you lose your job or your rate of pay decreases? If you find yourself in a tough spot financially, your best bet is to take steps to help your situation rather than to sit idly by and hope that things work out for you.

For example, you can contact the Office of the Attorney General and let them know that you are having problems paying your child support. Secondly, you can file a motion to modify your child support obligation based on a decrease in your income. If you are filing your modification based on your job, a court can order your child support obligation to stop as of the date you filed your petition.

One thing to note: there is such a thing as underemployment or being purposefully unemployed. These are situations where you have either chosen not to work or have purposefully chosen a position that pays you less money than you might ordinarily be able to earn to pay less in child support. If this is the case, a judge can apply the percentages associated with your earning potential and apply that to you regardless of your current payment status.

You can sue your spouse in civil court for a tort committed against you during your marriage.

This is true. Suppose your spouse committed an intentional act against you intended to harm you in some way (physically, financially, etc.). In that case, you could sue your spouse for the damages associated with that evil act.

For decades, the law in Texas was that a spouse is immune from these types of lawsuits, but that is no longer the case. An award of damages can result from one of these civil suits, or the judge may take a liability finding against your spouse when determining how to divide up the marital estate of you and your spouse.

Divorce leaves you asking a lot of questions. It’s up to you to get answers.

There is no magic tree that grows apples of knowledge regarding divorce. As much as we might think the internet, our friends, or some other source provides unlimited access to information and opinion that we may seek, that is not the case. The best thing for you to do if you have questions regarding divorce is to seek the advice of those who have experience in family law and are suited to advise with your best interests in mind.

The attorneys with the Law Office of Bryan Fagan, PLLC, stand ready to assist you and your family if you have questions regarding divorce or any other topic in family law. We offer free of charge consultations with a licensed family law attorney six days a week.

Please consider contacting us today to set up a consultation where we can answer your questions, address any issues you have, and provide you with peace of mind during a difficult time in your life. Thank you for showing an interest in the subject matter we’ve been discussing the past three days, and we hope you will return to our blog to gain information on a variety of Texas family law topics.

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