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Things you didn't know about divorce in Texas

Have you ever misunderstood something but never bothered to ask for a clarification? Or have you ever been said something by a friend or relative that you knew in your heart wasn't right but didn't try to disprove? Both of these scenarios play out in divorces all the time in Texas. The attorneys with the Law Office of Bryan Fagan, PLLC, have a front-row seat when speaking with the community members considering divorce and want to know more about the process. Often, these folks will come in to talk with us and tell us certain things they think they know about family law. Unfortunately, a lifetime of hearing misstatements, untruths, and divorce rumors have left an indelible image on their mind of what divorce is.

What if I told you that by reading the following few paragraphs from the Law Office of Bryan Fagan that you could avoid developing the bad habits and lousy knowledge that so many of your neighbors have about divorce? What if I told you that the price of learning these things was only the time it takes to sit and read a brief blog post? What if I told you that I would stop asking these questions and provide that free knowledge?

Retirement benefits are precious- guard them in your divorce.

Of all the ways I could have started off the content portion of this blog post, I led off with retirement benefits. I have chosen this "dull" topic to begin our talk for that reason. Retirement benefits are something that nobody wants to talk about because the topic is dull, dry, and everything in between. When you start a new job, even the HR people seem like they are about to keel over from boredom just by mentioning the words "401(k)" and "Roth IRA."

However, because something is boring does not mean it is essential. The money you have saved through wise decisions, discipline, and wise investments has grown through the magic that is compound interest. Suppose you are not aware of how retirement benefits can impact a divorce. In that case, you are more readily able to lose those benefits and miss out on further growth that should have been available for you to benefit from when you are nearing retirement age.

Retirement benefits are divided into divorces through a Qualified Domestic Relations Order (QDRO) vehicle. This document orders a plan administrator of retirement to divide up the retirement account in question based on the orders of the family court judge. Whichever spouse stands to receive a portion of the saver's benefits (known as an alternate payee in lawyer-speak) will be named as such in the document. A slice of the retirement benefits in that plan or account must then be paid to the alternate payee.

But, wait! You're only (insert age here)- how can you receive retirement benefits under a 401(k), IRA, or another plan before you reach age 59.5 or 55? Won't you be taxed and penalized?? Thankfully the answer to this question is "no." A QDRO will ensure that you can receive your portion of your spouse's retirement benefits even if you are not ready to withdraw them or are otherwise not of retirement age. This is no matter the age of either spouse.

Any retirement benefits you or your spouse earned before your marriage are considered the separate property of that spouse and are not subject to division in your divorce. Any retirement contributions (and their growth) that have come during your marriage are considered community property and subject to a judge's just and equitable division. Most people dealing with sizeable retirement accounts will seek the guidance of a financial professional to value the account properly. At the very least, you need to be able to turn over whatever documents your attorney requests regarding retirement so that they can work with you to determine what portion, if any, of your retirement benefits are subject to division in your divorce.

Do you suspect your spouse of having an affair? Be careful how you collect evidence of it.

I can't tell you how many people have (sadly) come into our office to speak to me about a divorce and have confided that the primary reason for wanting to file is due to their spouse having an extramarital affair. Sometimes the affair has been going on a long time, and the person speaking with me has just now worked up the courage to come and speak to a family law attorney. Other times, the person had come across text messages that morning that indicated an affair.

Regardless, the next thing I will be told is that they have proof of the affair. Many of these folks will take out their cell phone to show me texts, photos, or various sorts of evidence that corroborate their accusations. My brain will immediately jump to how they got what they are showing me.

If you have read through your spouse's emails, installed spyware on your computer, or recorded phone calls between your spouse and their paramour, you may have violated both federal and Texas privacy laws. You (and your attorney) are susceptible to criminal penalties if you attempt to use that evidence in a trial or hearing. A more rudimentary, yet still illegal, method of tracking your spouse's movements would be to install a tracking device on their vehicle. We've seen this done in movies and on television, but the penalties can be pretty severe if you attempt to do so in real life.

On the other hand, the law permits you to record phone calls and other communications between yourself and another person. The basis is that at least one person involved in the conversation must consent to the recording. It is not worthwhile for you to obtain information and evidence illegally. Your spouse and their attorney will have their antennae up to look for this kind of behavior as well. At the very least, a judge in your case will not deem the evidence as permissible, and your efforts to have the evidence included as a part of your hearing or trial will all be for naught.

So what can you do to avoid a situation where you have potentially exposed yourself and your attorney to liability for violating privacy laws? First and foremost, you should check with your attorney before you undertake any method of collecting potential evidence against your spouse. They will guide you best regarding what you can and what you cannot do. You should keep tabs and be aware of the activities of your spouse. However, there is a fine line between keeping tabs and breaking the law. Your attorney is in a better position than you decide what is and what is not appropriate.

More questions about divorce? Stay tuned tomorrow to read more about information that can help.

In your divorce, both you and your spouse will be looking for every legal/moral/ethical advantage that you can find that is legal/moral/ethical. We hope that the information provided to you all today has gone to help you further your information collecting efforts. Tomorrow's blog post will continue that effort when discussing additional tips and tricks for a person going through a divorce.

In the meantime, if you have questions about divorce or need clarification on anything that you've read today, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys. In one of our consultations, you can ask questions and have issues addressed in a comfortable and pressure-free environment.


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