Community Property Issues in Texas Family Law Cases

Premarital and marital property agreements are crucial contracts between spouses or future spouses, especially concerning community property issues. These agreements, once signed and documented, categorize debts and assets as either community or separate property. This classification is pivotal in defining the distribution of assets should the marriage conclude in divorce. While premarital agreements, often referred to as “prenuptial” agreements, frequently make headlines in the context of wealthy celebrities, their utility extends far beyond the affluent.

A premarital agreement will go into effect the day that your marriage begins. Most people who enter into these agreements do so to limit the amount of property or debt the community estate will accumulate throughout their marriage. If you and your spouse enter into a similar agreement during your marriage, you will refer to it as a marital property agreement. Essentially both documents are the same; it is just a matter of when the contract comes into being- before or after the marriage has started.

How a premarital or marital property agreement works in the context of a divorce is that whichever spouse files for the divorce will reference the property agreement within the Original Petition for Divorce. When you file the final divorce orders, you will typically attach a copy of the agreement as an exhibit for reference.

How is community property divided in a divorce?

If you and your spouse have not entered into a premarital or marital property agreement, then it is the judge’s responsibility to divide your community property and debts. That is, the judge must divide the property if you and your spouse cannot agree to do so in mediation or an informal negotiation settlement conversation. Remember that while Texas is a community property state, you and your spouse do not have to divide debt and property equally. Factors like the size of each of your separate estates, fault in the breakup of the marriage as well as your income will weigh on a judge if they must divide your community estate.

Division of the marital house in divorce

In many cases, you and your spouse cannot divide the community property straight down the middle. Let’s consider the most commonly divided large item of property that you and your spouse could have: the marital house. The easiest route for you and your spouse is to sell the house and split the equity after covering the mortgage and other sale costs. There is relatively little hassle in doing this, and it allows both you and your spouse to wipe your hands clean of this asset and move on.

However, that is all true when you take the sale of the house in a vacuum. Consider what could change if you and your spouse have a child together. In many cases, a judge awards the family house to the parent designated as the primary caretaker of the child. The court requires evidence that this parent can afford the mortgage payments independently. The reason a judge would order this would be to allow your child to have some degree of stability and consistency by remaining in the family home after the divorce concludes.

Parental rights, property, and divorce

If you are the parent who does not receive the right to be the primary caretaker of your child, you may wonder what this means for your situation. Would a judge order you to leave the house, not award you primary responsibility for your child, and then not allow you to gain any monetary benefit from the house? The answer to that question is no.

A judge often orders the sale of the house when your child turns 18, and you and your ex-spouse will split the sale proceeds at that time. Or, you may be able to exchange any equity in the house for another piece of property in the community estate that could equal the value. For example, if you purchased a classic car during the marriage that roughly matches your equity position in the home, the court might award that vehicle to you.

Remember that while a judge will do their best to divide the community estate equitably, no judge is perfect. It is an impossible task to ask a judge to learn your family dynamics well enough throughout a one or two-day trial to do an excellent job of dividing the community estate. This is why we encourage people like yourself to do everything they can to attempt to settle your case in mediation rather than leave the decision up to a judge.

Will you have to pay spousal maintenance in your divorce?

Simply put, spousal maintenance is a court-ordered payment made from your future income to support your ex-spouse after the divorce concludes. Although Texas does not officially use the term “alimony,” many people recognize it as a common name for spousal support. You and your spouse can agree to some degree of spousal maintenance in mediation, so don’t think you have to see a judge if you want to push for spousal maintenance payments.

Judges typically order spousal maintenance to support spouses who lack sufficient property to meet their minimum basic needs. In most cases, you and your spouse must have been married for at least ten years for a judge to grant spousal maintenance. Other circumstances that could lead a judge to request that you receive spousal maintenance are if your spouse has engaged in acts of family violence against you in the two years before your divorce or if you or your child have a disability that negates your ability to work outside of your home.

How much can spousal maintenance be awarded in your divorce?

A judge has limits to how much spousal maintenance can be awarded in your case. Additionally, a judge can order spousal maintenance payments for specific periods based on the length of your marriage. Your judge will need to determine how much money you would need to meet those minimum, basic needs that we just finished discussing. Either way, a judge cannot order that you receive more than $5,000 per month or 20% of your spouse’s gross monthly income in spousal maintenance. Your spousal maintenance award will be limited to specific periods unless you can provide evidence of an incapacitating injury or physical impairment that prevents you from earning an income to support yourself.

How issues related to your child can impact your divorce

The Final Decree of Divorce will serve as the last order issued in your divorce case. These are the marching orders that you and your ex-spouse will need to follow until you come back and have those orders changed/modified if you do that at all. Part of those final orders will be a section covering a Parenting plan for you, your ex-spouse, and your children. This section will detail the conservatorship designation for you and your ex-spouse, the visitation schedule, child support, medical support, and any other relevant family issues.

The detailed nature of a parenting plan aims to minimize the risk of disagreements and animosity between you and your ex-spouse regarding co-parenting in your post-divorce life. Of course, this may not be the case for you and your ex-spouse, but the intention is to lay out a clear-cut path for your parenting to take in hopes of creating some sense of post-divorce harmony. If issues arise amid that post-divorce life, you can take steps to correct those issues- more on that in a later blog post.

How long does the parenting plan/child support plan go into effect?

In Texas, a family court can enforce orders regarding your child until that child graduates from high school or turns 18- whichever occurs later. Suppose your child has a physical or mental disability that requires that they remain in the home for a more extended period. In that case, the court will likely continue in its authority to enforce child support, custody, and visitation orders until a later date.

When we talk about custody of a child in Texas, we talk about who can get physical possession of your child and on what basis. The word “custody” actually does not come up in the Texas Family Code. Despite its complexity, this term appears frequently in our society, and everyone involved uses it regularly. For the most part, you and your spouse will share custody rights and duties associated with your child.

Custody decisions: understanding joint and sole managing conservatorships

If it comes down to a trial, the judge will need to decide about custody of your child that is in that child’s best interests. A joint managing conservatorship is one where you and your spouse share the rights and duties of raising your child consistently. The only rights that will differ significantly are the rights to determine your child’s primary residence and the right to receive child support. Only one of you can do those things associated with raising your child.

In rare instances, either you or your ex-spouse may become the sole managing conservator of your child. If either party has a history of family violence, child abuse, or neglect, or if someone issues a protective order against one of them, the court may designate that parent as the sole managing conservator. The sole managing conservator can be in physical possession of your child much more and holds more of the rights and duties associated with parenting your child daily.

Parental rights and responsibilities in custody cases

A court will also look into whether or not you or your spouse have been absent for long periods from your child’s life or if there has been a great deal of conflict in your relationship with your child and your spouse. The parent who is not designated as the sole managing conservator does not lose all their rights. However, the court will curtail those rights, believing that this approach serves the best interests of the child. The sole managing conservator has explicitly special rights when making decisions for your child concerning educational and medical issues.

In conclusion, premarital and marital property agreements play a vital role in addressing community property issues, offering spouses a clear framework for managing assets and debts in the event of divorce. While often associated with the wealthy, these agreements provide essential protections and clarity for couples of all financial backgrounds, ensuring fair and equitable distribution of property during marital dissolution.

Questions about divorce in Texas? Contact the Law Office of Bryan Fagan

We were able to cover a lot of information about divorce in Texas today. If you would like to ask us any questions or need us to clarify any of the points we made, please do not hesitate to contact the Law Office of Bryan Fagan today. We offer free-of-charge consultations six days a week with our licensed family law attorneys. These consultations are an excellent opportunity to ask questions and receive feedback about important subjects to you and your family.

Our attorneys and staff take a great deal of pride in working with clients from across our area in the courtrooms of southeast Texas. We aim to provide an excellent representation of our clients while maintaining a strong sense of integrity and customer service. Contact us today to find out more about how we can assist you in your family law case.

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Other Articles you may be interested in regarding Houston Court Local Rules:

1. Community Property in a Divorce vs Community Property in Probate
2. Community Property Survivorship Agreement vs a Will (Estate of Lovell)
3. Community Property in Texas: What You Need to Know Before You Get Divorced
4. Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
5. What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
6. Texas Divorce Property Division Enforcement
7. Separate Property in a Texas Divorce?
8. Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
9. Is Social Security Considered Separate Property in a Texas Divorce
10. Distinguishing between Community and Separate Property in Texas divorces