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What to believe (and not believe) about family law cases in Texas

Yesterday we posted a blog that introduced the topic of some commonly held beliefs about Texas family law cases that may not be exactly true.

Today we will continue with this subject and hopefully increase your base-level of knowledge so you can move forward with greater confidence to achieve whatever goals you hold for yourself and your family.

If you are awarded alimony then you get it for the rest of your life after divorce

There are only limited instances in a which spouse can be awarded spousal maintenance (the Texas term for alimony). You must first have been married to a person for ten years or more. Next, you must be able to show a judge that you are unable to provide for your minimum, basic needs on your own. The other option is to show a court that you are the parent of a child who requires constant supervision due to their being disabled either physically or mentally.

After reading the previous paragraph you should realize that it not as easy to win spousal maintenance. The next thing I believe you need to know is that you may also be awarded spousal maintenance in the event that your spouse has been convicted of spousal violence charges in criminal court. Obviously, this is not the way that you want to earn the right to receive spousal maintenance but it is available to you if you have had the misfortunate of being the victim of domestic abuse.

Here is the part that addresses the length of spousal maintenance awards in Texas. If you qualify for spousal maintenance then the term is limited based on how many years you have been married to your spouse. Furthermore, the spousal maintenance you receive cannot exceed 20 percent of your spouse’s gross monthly income. Finally, the amount of spousal maintenance that you are awarded can always be adjusted if you or your ex-spouse experience a material and substantial change in your circumstances.

In short, yes, you can be awarded spousal maintenance in a Texas divorce. In somewhat more detailed language, no, that spousal maintenance award cannot be indefinite (unless you and your spouse agree to your own arrangement in mediation).

If you and your spouse mix your separate property with community property then your separate property becomes part of the community estate

This is not true. Separate property is the property that you owned prior to your marriage or acquired during the marriage by gift or inheritance. If you own separate property it will remain separate property no matter what happens to it after that. An exception to this rule would be if you gift that property to your spouse. In all other circumstances, your separate property will remain separate.

An example of commingling of separate and community property occurs in situations where you and your spouse combine incomes. If you have $50,000 cash and deposit that cash into a community bank account owned by you and your spouse that $50,000 will remain separate property no matter what happens after that. Now, you may have to hire a forensic accountant to prove that the property is separate but that’s an entirely different topic.

Keep in mind that the law in Texas is that all property owned by you and your spouse is presumed to be community property absent evidence to the contrary. If you own separate property it is your responsibility to prove that the property is separate and not part of the community estate. Be prepared to present title to property or the source of a sum of money in order to do so.

Finally, there is no such thing in Texas as legal separation

I mention that because I have been asked by some folks in the past whether or not they are moving out of the home with no intention of returning means that they are legally separated and able to acquire property as a separate individual. With no ability to be legally separated there would, therefore, be no ability to acquire property on a separate basis from your marriage other than by the methods we discussed above. Your income and most forms of property acquired after leaving your marital home are still considered community property until you and your spouse are legally divorced.

If you purchase property in your name only during your marriage it is considered separate property. This too is a false statement. Know that no matter how you name property, or how you position the property in your “portfolio” of assets if you acquired the property during your marriage it is presumed to be community property until proven otherwise. Opening up a bank account in your name only and depositing only your paychecks in there does not make the bank account your separate property. Buying a home and titling the home in your name does not make it separate property if you do so while you are married.

Debts and assets are always divided 50/50 in a divorce

Despite what you may have heard about how community property works in Texas, this statement is also not true. Yes, your property and debts may be split pretty much 50/50 in your divorce. However, this is not the law and your case may not work out this way.

A “just and right” division of community property will occur in your divorce which means a judge will take into the circumstances and facts of your case and divide the property in your community estate up according to his or her findings. The debts and property incurred by you and your spouse will be considered. If your spouse took out a great deal of debt during the marriage that primarily benefitted him then it is unlikely that you will be asked to pay a portion of that debt. A majority of divorces see the debts in your name awarded to you and likewise the debts awarded in your spouse’s name awarded to him or her.

Child Support will be paid until your child graduates from college or reaches age 21

This is not a true statement. The vast majority of child custody or divorce orders in Texas have a provision included that orders child support to no longer be paid after the graduation of your child from high school or their eighteenth birthday, whichever comes later in time. You and your child’s other parent could have agreed to something different so I would recommend that you pay close attention to this when you arrive at that stage in your case.

You or your spouse can ask a court to allow for child support to be paid beyond the child’s 18th birthday or their graduation from high school if it is shown that your child cannot be expected to provide for himself after this time due to a disability of some sort.

If you find yourself in a situation where it is necessary to ask the court for this type of assistance make sure your attorney requests it not only in your trial but also in your petition for divorce or in the Suit Affecting Parent-Child Relationship if yours is a child custody case. It must be raised early in your case or you will not be eligible to receive additional child support.

In most situations, if you are the primary conservator of a child who will require assistance beyond their high school years you and your child’s other parent will agree on a set amount of child support to be paid after this stage. If there is no agreement in place you may need to present an expert witness (a doctor, for instance) who can testify about the anticipated need for future support and how long the support will likely need to be paid.

The conclusion of our series of blog posts on commonly held family law beliefs will be posted tomorrow

Please return to our website tomorrow to read more about popular topics in family law and whether or not what you believe about them is actually true. In the meantime, if you have questions on these or any other topics in family law please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week to people in our community with questions for our attorneys. It would be our honor to address your concerns and answer your questions.

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