Divorce can be a complicated and emotionally charged process and it is essential for anyone going through a divorce in Texas to have accurate information and a clear understanding of the process. Unfortunately, several common misconceptions about divorce in Texas can lead to problems and misunderstandings. By addressing these misconceptions and providing accurate information, individuals can better navigate the divorce process and achieve the best possible outcome.
This article will explore the five most common misconceptions about divorce in Texas and provide detailed explanations to help individuals going through a divorce understand their rights and options. From misconceptions about property division to child custody and support, we will cover everything you need to know to navigate the divorce process in Texas.
Misconception #1: Texas is a 50/50 state.
One of the most common misconceptions about divorce in Texas is that the state follows a 50/50 split of marital property. While Texas is a community property state, which means that property acquired during the marriage is generally considered community property and subject to division, the division of marital property is not always split equally.
In Texas, the court will divide the marital property in a manner that it deems just and right, considering various factors such as the parties’ earning capacities, education and health. This means the division of property may not be an equal 50/50 split.
Additionally, it is important to note not all property is considered community property. Property one spouse owned prior to the marriage, or property that was inherited or received as a gift during the marriage, is generally considered separate property and not subject to division in a divorce.
However, it is important to note separate property can become community property if it is commingled with community property. For example, if a spouse owned a home prior to the marriage but then used community funds to pay the mortgage or make improvements to the home during the marriage, the home could become community property subject to division.
Another important factor to consider in the division of property is debt. In Texas, debt incurred during the marriage is generally considered community debt and subject to division. This means the court may divide not only the assets but also the debts of the marriage between the parties.
Ultimately, the court’s decision regarding the division of property will be based on the specific facts of the case and what is just and right. It is important for anyone going through a divorce in Texas to consult with an experienced Texas divorce attorney who can help them understand the factors the court will consider in dividing the marital property and develop a strategy for achieving their desired outcome.
Misconception #2: The mother always gets custody of the children.
Another common misconception about divorce in Texas is, the mother always gets custody of the children. While it is true that in the past, mothers were often favored in custody disputes, this is no longer the case in Texas.
Today, Texas law ensures the child’s best interests are the primary consideration in determining custody arrangements. The court will consider a variety of factors, including the child’s relationship with each parent, each parent’s ability to provide for the child’s needs and the child’s preferences, if the child is of a sufficient age and maturity level to express a preference.
Texas law does not presume one parent is better suited for custody than the other based on gender or any other factor. Instead, the court will make a determination based on the case’s specific facts.
In fact, in Texas, joint custody is often favored as a way to ensure both parents are involved in the child’s life and have a say in important decisions affecting their child.
It is important to note, however, there are situations where one parent may be more suited for custody than the other. For example, suppose one parent has a history of domestic violence or substance abuse. In that case, the court would determine that awarding that parent custody is not in the child’s best interests.
Ultimately, the court’s decision regarding custody will be based on the specific facts of the case and what is in the child’s best interests. It is important for parents going through a divorce in Texas to work with an experienced Texas divorce attorney who can help them understand the factors the court will consider in determining custody and develop a strategy for achieving their desired outcome.
Misconception #3: Adultery always affects property division.
Many people believe if one spouse commits adultery, it will automatically affect the property division in a Texas divorce. While adultery is one of the grounds for divorce in Texas, it does not necessarily directly impact property division.
Texas is a community property state, which means any property acquired by either spouse during the marriage is generally considered community property and subject to division in a divorce. In a Texas divorce, the court will divide the community property in a manner that it deems just and right, considering various factors such as the parties’ earning capacities, education and health.
While adultery might not directly impact property division in Texas, it can be relevant to the court’s determination of what is just and right. For example, if one spouse spent a significant amount of community property on an extramarital affair, the court might take that into consideration when dividing the property.
Suppose a spouse’s adultery resulted in the depletion of community assets. In that case, the court could award a greater share of the remaining assets to the other spouse to compensate for the loss.
It is also important to note adultery can indirectly impact property division in Texas. If the adultery led to the breakdown of the marriage, it can have a significant impact on the parties’ ability to negotiate a settlement agreement. Suppose the parties are unable to reach a settlement agreement and the divorce goes to trial. In that case, the court could consider the parties’ conduct during the marriage, including any adultery, in determining what is just and right.
Misconception #4: Divorce is always a long and expensive process.
Another common misconception about divorce in Texas is, it is always a long and expensive process. While it is true divorce can be a complex and time-consuming process, it does not have to be unnecessarily long or expensive.
There are several factors that can impact the length and cost of a divorce in Texas; including the complexity of the issues involved, the level of conflict between the parties and the willingness of the parties to negotiate and reach a settlement agreement.
Suppose the parties can reach an agreement on all of the divorce terms, including property division, child custody and spousal support. In that case, the divorce can typically be finalized relatively quickly and at a lower cost than a contested divorce. In fact, many divorces in Texas are resolved through mediation, which is a cost-effective and efficient way to reach a settlement agreement.
However, if the parties are unable to reach an agreement, the divorce may become more complex and time-consuming. In cases where there is significant conflict between the parties, the divorce might require multiple court appearances and could take several months or even years to resolve.
In addition, the cost of a divorce can vary widely depending on the complexity of the issues involved and the level of conflict between the parties. Some divorces can be resolved relatively inexpensively, while others might require significant attorney fees and court costs.
It is important to note there are steps parties can take to minimize the cost and length of a divorce in Texas. For example, working with an experienced Texas divorce attorney can help ensure you understand the process and can navigate any challenges that arise along the way. Parties can try to negotiate a settlement agreement early in the process to avoid unnecessary court appearances and attorney fees.
Misconception #5: You don’t need an attorney for a divorce.
Many people believe they do not need an attorney to get a divorce in Texas. While it is true you are not legally required to have an attorney to file for divorce in Texas, it is often in your best interest to have an experienced attorney represent you throughout the divorce process.
One of the reasons people believe they don’t need an attorney for a divorce is because they believe the process will be simple and straightforward. However, even in the most amicable of divorces; many complex legal and financial issues, such as property division, spousal support, child custody and child support, need to be addressed. An experienced Texas Divorce Attorney can help you navigate these issues and ensure your rights and interests are protected.
Another reason people believe they don’t need an attorney is to save money. While it is true hiring an attorney can be expensive, not having an attorney can be even more costly in the long run. Without an attorney, you might miss important legal deadlines or overlook critical issues that can significantly impact your life after the divorce. This can result in costly mistakes that could have been avoided with the help of an experienced attorney.
Having an attorney can help you avoid unnecessary stress and conflict during the divorce process. An attorney can handle communication with your spouse or their attorney, reducing the likelihood of misunderstandings and heated arguments. This can help you maintain a more amicable relationship with your spouse and reduce the emotional toll of the divorce process.
An attorney can ultimately help you achieve a fair and equitable outcome in your divorce. An experienced Texas Divorce Attorney can help you negotiate a settlement agreement that meets your needs and protects your rights. If a settlement cannot be reached, an attorney can represent you in court and advocate for your interests in front of a judge.
In conclusion, while you may not be legally required to have an attorney for a divorce in Texas, it is often in your best interest to do so. An experienced Texas Divorce Attorney can help you navigate the complex legal and financial issues involved in a divorce, avoid costly mistakes, reduce stress and conflict and achieve a fair and equitable outcome.
Bonus Misconception: You can finalize a divorce in Texas in just 60 days.
Another common misconception about divorce in Texas is that it can be finalized in just 60 days. While it’s true Texas has a minimum 60-day waiting period before a divorce can be finalized, this does not mean all divorces in Texas will be finalized in 60 days.
The 60-day waiting period begins on the date the divorce petition is filed, but the length of time it takes to finalize a divorce can vary depending on a number of factors, including the complexity of the issues involved and whether the parties are able to reach an agreement on all the terms of the divorce.
Suppose the parties can reach an agreement on all the divorce terms, including property division, child custody and spousal support. In that case, the divorce can typically be finalized relatively quickly after the 60-day waiting period has expired. However, if the parties are unable to reach an agreement on all the terms, then the divorce could take much longer to finalize.
In cases where the parties cannot reach an agreement, the court will schedule a trial to hear evidence and decide on any outstanding issues. This process can be time-consuming and may involve multiple court appearances. In addition, if there are complex issues involved, such as business valuations, forensic accounting or international assets, the divorce will take even longer to finalize.
This misconception can lead to problems in the divorce process because it can cause one or both parties to believe their divorce will be finalized quickly and easily, even if complex issues need to be resolved. This can lead to unrealistic expectations and can cause one or both parties to feel frustrated or disappointed with the process.
It’s essential for anyone considering a divorce in Texas to understand the length of time it takes to finalize a divorce can vary widely depending on the circumstances. While some divorces can be finalized relatively quickly, others may take much longer to resolve. Working with an experienced Texas divorce attorney can help ensure that you understand the process and can navigate any challenges that arise along the way.
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Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.