Whether you are curious about divorce in Texas and are just wanting to learn more about the process or are about to start interviewing attorneys, it is wise for you to know as much as possible about divorce before you start the process. If nothing else, you need to be able to ask questions of the attorneys that you are interviewing so that you can know ahead of time that they are aware of the important aspects of Texas family law cases.
We began to have this discussion a few days ago and I would invite you to go back and read those blog posts if you have not already. We've already discussed several important topics that are likely to be very relevant to your divorce. Questions about those blog posts or the information contained with them can be directed to the attorneys with the Law Office of Bryan Fagan. We offer free of charge consultations six days a week where you can ask questions to one of our licensed family law attorneys.
If you're not working do you have to find work once your divorce begins?
Many spouses stop working once they get married in favor of staying home to raise kids, maintain the home or fulfill any number of other roles within the marriage and family. Many times the sticking point in divorces like this centers around post-divorce maintenance. This is also known as spousal support or alimony in other parts of the country. You may have been hesitant to move forward with your divorce because you were not sure how you would pay for it and then support yourself once the divorce was over with.
What you need to know about spousal maintenance in Texas
In a Texas divorce, a judge can only order spousal maintenance when one spouse will lack sufficient property to provide for their minimum basic needs. Let's break this down a little further. A court wants to see if there is any money or property that can be sold for money that will allow you to get back on your feet after the divorce. You can use community property or sell property from your separate or community estate to help you pay bills and eat until you can find a job or other way to provide for yourself.
It is only when you lack the property to do this that a judge would consider awarding spousal maintenance. Courts look to spousal maintenance as a last resort to provide for the basic needs of you or your spouse after your divorce has concluded. It will only do so after all other options have been exhausted. There are additional requirements that must also be in place, however, to have spousal maintenance awarded in your divorce.
First, your spouse must have been convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence which was committed during the marriage against you or your child. That act of violence must have also occurred within two years before the date on which your divorce was filed or must have occurred during the pendency of your divorce.
If there has not been the sort of history involving felony acts of family violence (and hopefully there has not been), then you would need to show that you are unable to earn sufficient income to provide for your minimum, reasonable needs because of an incapacitating physical or mental disability. This is pretty self- explanatory. You would need to show that you have a physical or mental impairment that has lasted for some time and is expected to last for some time into the future. The combination of those impairments must be shown to make it impossible for you to work sufficient to earn an income that can allow for you to provide a minimal standard of living for yourself and/or your child.
Next, you must have been married to your spouse for at least ten years and cannot similarly provide a sufficient income to meet your minimal, basic needs. This is one that trips up many spouses who are aspiring to collect spousal maintenance. If you have not been married to your spouse for at least ten years then your ability to receive spousal maintenance takes a big hit. The laws in Texas allow for you to receive spousal maintenance for longer lengths of time depending upon the length of your marriage.
Finally, you would qualify for spousal maintenance to awarded to you in conjunction with your divorce if you are the custodian of a child who was born of your present marriage who requires a substantial amount of care and personal supervision due to a physical or mental disability. That care and supervision must further prevent you from working and earning an income sufficient to provide for your minimal basic needs.
Will there be limits placed on your spousal maintenance award?
If you are awarded spousal maintenance in your divorce, then you need to know that a court will limit the duration of the maintenance to the shortest reasonable period that will allow you to earn sufficient income to provide for your minimal basic needs. Factors like your physical or mental disability, disabilities regarding your child, or any other relevant consideration as to why you cannot earn sufficient income to provide for your minimal needs.
In the future, a court can come back and examine your situation to determine whether or not you still qualify for spousal maintenance. Your spouse would like to request this sort of relief and have it be granted by the court. As far as limits to what your spouse can pay you, a court cannot order your spouse to pay monthly more of the lesser of $5,000 or twenty percent of your spouse's average gross monthly income.
When does the obligation for your spouse to pay you spousal maintenance end?
There are a few circumstances that could lead to your no longer being able to receive spousal maintenance from your spouse. An obvious reason why your spouse's obligation to pay support may end is if you were to pass away. If you were to remarry then the obligation of your spouse ends under those circumstances, as well.
An area that I have experience representing clients on is regarding the ending of a maintenance obligation if the court believes that you are living with a person with whom you are engaging in a romantic or dating relationship with. That relationship must see you and your partner living together in a permanent home continuously.
As you may be able to tell, it is much less straightforward for your ex-spouse to prove that you are engaged in this type of relationship versus a marriage. It is relatively easy to show that you have remarried and therefore no longer deserve to be paid spousal maintenance. On the other hand, you may be in for a tough family law case if you decide to move in with a roommate (especially a roommate of the opposite sex) after your divorce.
I had a case a few years ago that saw an ex-husband file suit against our client, wherein the opposing party tried to ask the judge to cancel his spousal maintenance obligation due to our client has moved in with another person. He was alleging that this other person was a romantic partner and that they were living in a beach house together. Our client disputed the facts alleged in the ex-husband's petition. She argued that her roommate was just that- a roommate- and there was no romantic involvement between the two. A lot of circumstantial and he said/she said gossipy evidence was thrown against the wall by the ex-husband to see if he could get out from under this maintenance obligation.
What I took away from that case is that if you need the spousal maintenance award to survive, you should not put yourself in a position where an argument can be made that your living situation comprises the obligation of your spouse to pay you maintenance. Consider your actions and think before you do things that could put that award in danger. I'm not telling you not to date after you are divorced, or to consider marriage, but if you do- just know that your spousal maintenance award will no longer be viable at that point.
Children's Issues: Possession and Support
Ultimately, if you have kids then they are the most important part of your divorce. Parents come into our office all the time with questions about how they can protect their children, see their children more and win a sufficient amount of child support to provide for their needs. With this many concerns (and lots more) to be aware of, I wanted to share with you some questions and answers related to your children and divorce.
Let's talk about child support first. You may have questions about how much child support you would be entitled to if you are awarded primary custody of your kids. Well, the first thing a judge would look to is what level of support is in the best interests of your child. Judges have a great deal of latitude when it comes to determining an appropriate level of child support. Child support typically is paid by one parent to the other until your child turns 18 or graduates from high school, whichever occurs later.
There are guideline levels of child support that are laid out in the Texas Family Code. This is usually the starting point for a court when it comes to determining child support levels in any given case. A court then can consider all additional evidence that is relevant to your case as far as deviating from those child support guidelines. It is presumed that the child support guidelines are appropriate as far as how much your spouse should be paying you in support. The net monthly resources of your spouse must first be determined to assess the proper level of child support. Your spouse's wages, salary, commissions, income from trusts/retirement, unemployment benefits or investment benefits are fair game as far as calculation of their net monthly income.
The percentages that are applied against their net monthly income are as follows: 20% for one child, 25% for two children, 30% for three children, 35% for four children and 40% for five or more children. If your spouse has children that he is responsible for that are not living in your household, then he will receive "credits" for each child. This means that the percentage of support that he has to pay will be decreased proportionately to how many other children he is responsible for providing support for.
If you suspect that your spouse is either underemployed or unemployed on purpose, then you may be onto something. It is not unheard of for mothers or fathers to leave places of employment to take a job that either pays in cash (and is more difficult to track their income, as a result) or to take reduced hours to earn less money. To me, this has always struck me as a great example of cutting off your nose to spite your face. Nonetheless, people do it all the time.
Tomorrow's blog post will begin by discussing this topic and what can be done about underemployment or unemployment that is done on purpose to avoid paying child support.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we have written about today, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to learn more about your circumstances and to receive direct feedback in response to your questions.