How long you are married to your spouse can impact your divorce in multiple ways. Primarily, the length of your marriage tends to play more of a role with the property division within your divorce rather than with children. This is logical given that if you and your spouse have been married for many, many years, you probably do not have any children under the age of 18 and subject to the family court's jurisdiction. So, when we talk about the length of your marriage and the impact on a divorce settlement, we should focus our attention on property division issues.
What exactly do we mean by property division? I think we first need to point out that Texas is a community property state. Community property refers to Texas's laws on its books that govern how property is treated concerning marriage and divorce. There is a presumption in Texas that all property acquired during your wedding is community property. Community property is divisible if you and your spouse get divorced. Separate property is any property you owned before or acquired during your marriage, either by gift or inheritance.
The longer you and your spouse have been married, the more community property you are likely to have acquired. Your marital home, the lion's share of your retirement savings, the savings in your bank account, non-retirement investments, your personal property, and other miscellaneous property would be what I am referencing here. If you have been married a long time, you would have theoretically had a more extended amount of time to acquire property that can be divided into a divorce.
Dividing community property in a divorce settlement
Now that we have discussed what community property is and how it can impact your divorce, let's talk about an important word included in today's blog post title. I am referring to the term "settlement." Most people who begin a divorce case assume that their divorce will wind up inside a courtroom with a judge deciding who gets what. Movies and television have caused us to believe that every legal matter is drama-filled and selected by a judge. We may even have friends and family that have led us to feel the same.
The reality is pretty far from this hyped-up scenario that movies, television, and other folks have led us to believe. In actuality, the vast majority of Texas divorces are settled before a trial. You are likely to either never have to go to court at all or have only to spend a concise amount of time in court at the very end of your case. Either way, do not fret about having to spend a lot of time or money inside the courthouse due to having to file for divorce.
Your divorce is likely to settle before a trial. A settlement could occur in informal negotiations with your ex-spouse and their attorney or mediation. Mediation is a process where you and your spouse would agree to allow a third party, a family law attorney, to work with you all in an attempt to settle your case. Most mediations occur at the mediator's office. You and your lawyer would be in one room at the office with your spouse and their attorney in another. The mediator would act like a ping pong ball bouncing back and forth between the rooms, communicating settlement offers and helping the two sides negotiate.
Mediation allows you and your spouse to wield a great deal of power when it comes to deciding how to split up your property. After all, if you and your spouse have been married for a long time, you all are more likely to split your property up relatively than a judge would. The judge will need to divide up your community estate in a just and correct manner. Just what exactly and proper means is pretty much up to every judge. They will have a series of factors to consider, but a lot of the ultimate decision will be left up to the judge's discretion.
In mediation, you and your spouse do not have to put any particular emphasis on how long you were married. However, if you were a stay-at-home parent/homemaker for thirty years and your spouse is a physician, then you will likely need greater than half of your community estate in any division. The reason for this is that your age, employment prospects, and education all work against you with land on your feet after the divorce. Your spouse would be in a better position to recover from a divorce than you would.
Spousal maintenance and contractual alimony to the length of your marriage
One area of your divorce that we have not talked about that explicitly is related to the length of your marriage is that of spousal maintenance. You may have heard of spousal maintenance referred to either as alimony, contractual alimony, or spousal maintenance. Texas allows for both spousal maintenance and contractual alimony. We will discuss each of these is how they may relate to you and your divorce.
Spousal support, generally speaking, is actually not something related to your community property division. It is not part of the community estate, and it is not related to child support that you either pay or receive. Spousal support is money payment independent of these other areas of your divorce. The fees can occur during your divorce (temporary spousal support) and after (spousal maintenance contractual alimony).
These payments can end up being a vital part of your divorce settlement. Your ability to pay bills, obtain a college degree, afford your mortgage, and do other financial things may be possible only through the payment of spousal support. Keep in mind that if you have been home for many years while your spouse worked, your ability to use spousal maintenance to pay for college or vocational training could determine your quality of life as a divorced person.
Spousal maintenance and contractual alimony explained.
The two types of spousal support we need to concern ourselves with are spousal maintenance and contractual alimony. How you can be awarded one, how much money you can be paid, and how long they last vary, so it would make sense to differentiate between the two before going any further in today's blog post.
We can look at contractual alimony as a form of spousal support that your spouse agrees to pay you in the divorce decree. The judge in your case will need to approve the alimony arrangement but what you decide to is likely to be approved. Often, your spousal maintenance potential will impact how much your spouse is willing to offer you in contractual alimony.
It is not easy to convince a judge to award you spousal maintenance. It is only in the past twenty-five years or so that spousal maintenance could even be granted to you or your spouse in a Texas divorce. Additionally, the idea that you will never have to work again because you are paid spousal maintenance is not probable. The reason for this is that the laws in Texas limit how much you can be paid and the duration that the spousal maintenance can be delivered to you.
The reason why courts limit the amount of spousal maintenance paid to you is that Texas is a community property state. The thought behind limiting spousal maintenance relates to how courts are likely to be more generous in more equitably (fairly) awarding property in a community property state divorce than in states that do not adhere to community property principles. If you do not receive as much spousal maintenance in Texas as you could have in another state, the thought is that the property you receive in the division would stand to offset the smaller amount of maintenance paid.
Additionally, it should come as no surprise to you that the state of Texas is not a fan of grown people not working who are physically and mentally able to do so. Awarding significant and long-lasting spousal maintenance awards in divorce would theoretically increase the likelihood that recipients of these awards would be less motivated to work. Spousal maintenance is intended to be a minimum payment that helps you get on your feet in the immediate time after your divorce. It is not intended to represent payments commensurate with your "service" in the marriage. Nor is it intended to represent a "just and right" apportioning your value to your spouse.
Here is where the length of marriage impacts your divorce settlement, re: spousal support
About ten years ago, the state legislature changed how a person may be eligible for an award of spousal maintenance. Now you must show a court that you will not be able to support yourself after the divorce to be awarded court-ordered spousal maintenance. This analysis will review your separate property and what property was granted to you in the division of the community estate.
Other factors must also be proven to be eligible to receive an award for spousal maintenance. First, you must have been married to your spouse for at least ten years at the time of your divorce. You must not have developed skills during that marriage or earn an income sufficient to care for yourself and your minimal needs after your divorce. Relatedly, a court will also look to whether or not you are disabled and unable to work or if you have a child who is disabled and requires you to care for them on a consistent enough basis where you would be unable to work. Finally, family violence in the marriage would also be a factor that could encourage a judge to award you spousal maintenance.
There are limits to how long you can be awarded spousal maintenance.
There are minimal circumstances in which you can receive an indefinite award of spousal maintenance. If you are disabled or your child is disabled, you can receive an unlimited award for spousal maintenance. You don't even need to be married for at least ten years to be eligible to receive spousal maintenance. Additionally, you can be married for less than ten years and still be eligible to receive spousal maintenance if you suffer family violence. However, the award cannot last longer than five years.
Otherwise, for marriages that lasted between ten and twenty years, you would also be eligible for up to five years of spousal maintenance. A marriage that lasted between twenty and thirty years would make you eligible to receive an award that lasted for longer than seven years; finally, you would be eligible to receive up to ten years of spousal maintenance if you were married to your spouse for any length of time longer than thirty years.
Do you have additional questions about divorce in Texas? Contact the Law Office of Bryan Fagan
If you have any additional questions about divorce in Texas, I recommend that you contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and provide you with individualized feedback about your specific circumstances. We serve clients in our community across the family courts of southeast Texas. We thank you for your interest in our office and look forward to the opportunity to help you and your family in the future.