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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 son. Unfortunately for us, that person is normally 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 bad information caused us to make a bad 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 on a regular basis. Specifically, these are topics that I believe many people in our community have been provided bad information. Let’s examine a few more of these before we move on to a different subject in tomorrow’s blog post.

Postnuptial agreements are possible to divide property between spouses

This is absolutely true. Once you and your spouse get married you can come together to agree how community property is to be divided as well as to determine what is a part of each of your separate estates. A postnuptial agreement can go into effect in the event that 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 that is currently owned by you and your spouse or any property that it is anticipated to be purchased. The agreement can even take property that would normally be considered part of the community estate and place 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 both parties were represented by an attorney during the negotiation process.

Your wages could be garnished in order 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 in order 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 in order 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 needs to be withheld by the employer on a weekly, biweekly or monthly basis. 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 end 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 allows the attorneys to draft an order that takes into account 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 fraud or duress is proven.

This means that you cannot wake up the morning after your mediation and call your attorney to tell him or her that you’ve made a huge 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. Very soon that MSA will become an order so this shouldn’t be all that surprising.

Child support does not have to be paid when an obligor loses his or her job

An obligor is a parent who is 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 you can do in the event that 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 having lost your job then 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 is underemployment or being purposefully unemployed. These are situations where you have either chosen to not work or have purposefully chosen a position that pays you less money than you might ordinarily be able to earn in order to pay less in child support. If this is found to be the case then a judge can apply the percentages associated with your earning potential and apply that to you regardless of what your current pay status is.

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

This is true. If your spouse committed an intentional act against you intended to harm you in some way (physically, financially, etc.) you can sue your spouse for the damages associated with that bad act.

The law in Texas for decades was that a spouse is immune from these type 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 just 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 when it comes to divorce. As much as we might think the internet, our friends or some other source provides the unlimited access to information and opinion that we may seek that is simply 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 give advice 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 six days a week with a licensed family law attorney.

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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