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Who pays who in a divorce?

This is a classic question that family law attorneys, like those with the Law Office of Bryan Fagan, receive with great frequency. The situation usually goes something like this. You are upset that you are even having to go through a divorce in the first place and believe that it is only fair to have your soon to be ex-spouse pay for your attorney fees. After all- you didn’t want to be here in the first place. Maybe your spouse has cheated on you repeatedly and therefore you are filing for divorce as a response to that. Or, maybe you are having to Answer a divorce petition filed by your wife and you don’t even want to get divorced. Whatever your circumstances, I don’t think you would be disappointed if your spouse ended up paying for your attorney- and more. 

While the immediate shock of having to pay an attorney to represent you in a divorce may take your breath away, there is a lot more in a divorce than paying an attorney from a financial perspective. Divorce recovery therapists and people who work in this space will tell you that once a divorce is filed the emotion should leave the room and the process should become a business transaction. While it may not be reasonable to expect that you can remove all the emotion from your divorce, you should understand that your formerly romantic, productive and possibly even happy marriage will not really be discussed. Rather, the events that have led to the breakup of your marriage will be much more relevant. 

Those events will have an impact on who ends up paying who. Attorney’s fees and the division of your community estate are really where the rubber hits the road as far as issues related to money are concerned. We can talk about child support as well, and we will, but we should start off by discussing what it means for Texas to be one of a few community property states. Our laws on property division upon divorce can have a pretty consequential impact on your divorce and you need to know what the ramifications for your divorce can be as a result. 

Community property and its impact on who pays who 

Community property in Texas comes down to a legal presumption that all property that you have acquired during the course of your marriage is owned both by you and your spouse. That doesn’t mean that you own 50% of your house and your spouse owns 50%. That doesn’t mean that if your car is titled only in your name, despite it being purchased during your marriage, it only belongs to you. That also doesn’t mean that all the income you earn from your high paying job is yours just because you earn it and deposit it into a bank account with only your name on it. Rather, if money comes into your household, if property is purchased and if real estate is acquired during the course your marriage in the state of Texas it is just as much your spouse’s as it is yours. 

Of course, there are a few exceptions to this rule. Inherited property, property that is gifted to one of you specifically (as from a relative) or items that become your property via the passing away of a person with a will are all considered to be separate property. As is all property acquired by either you or your spouse prior to your marriage. Otherwise, all the property that is in your house, on your investment logs and inside your bank accounts is considered to be community property. This can have a dramatic impact on your divorce. 

Consider your situation if you were, as I alluded to a moment ago, the spouse who goes out into the world and makes the bacon for your family. You are a doctor, an investment banker, an engineer, a plumber, etc. You make a nice living for your family. It’s due to your high income that your family lives in a spacious home, has two vehicles, the kids have braces and your spouse gets to go twice a week for full body massages. You feel pretty good that you are the provider for your family. 

Community property may prove your assumptions incorrect as far as who pays who 

Cut then to your spouse serving you with divorce papers. That’s fine, you may think at first. You’ll split custody of the kids and since you earn all the money in your relationship then you will end up keeping most of the property that you own. All in all, a pretty good result considering the marriage had been on the rocks for about a year. You may have even been surprised that your spouse would be the one to file for divorce. Why was he so willing to walk away from all that you are providing him with?

The reality is that in most states your assumptions would be correct. The spouse who earns more would stand to keep more property in the divorce. Your spouse, as it were, would end up paying you in the divorce. All that property inside your house would likely end up going to your new home with you. Since your spouse didn’t contribute much of anything from a financial standpoint over the years, that is how much he would end up getting paid- not much of anything. 

In Texas, as you have seen already in this blog post, that is not the case. Both members of the marriage have equal footing when it comes to getting paid in the divorce. If you and your spouse cannot agree in mediation or other settings how to split that community estate up then you will leave it up to a judge. Remember that the judge starts off with the presumption that all property owned by you and your spouse at the time of your divorce is community property and can be divided. 

At that point, it would be up to you and your spouse to present evidence to prove that certain pieces of property are owned by either of you as separate property. Assuming that you are able to do that, the property left in the community estate would be divided between you by the judge. Keep in mind that if your spouse has not worked in some time and doesn’t have much education he could be awarded more than 50% of the community property in order to sustain him until he finds work. 

In the battle of who pays who in the divorce, you may end up paying more to your spouse if you are the party who earns more money. Just as importantly, the court would look to your future ability to earn an income for yourself. If you have a great job, an advanced degree and a history of earning a very good living for yourself that could end up costing you in the form of spousal support. 

Spousal support is a direct form of you paying your ex-spouse money 

Who pays who? Well, if your spouse hasn’t worked in years, has only a high school degree and would need some time after the divorce to get their feet on the ground from a financial perspective, then you may end up having to pay him various forms of spousal support. The state of Texas has to balance their desire for all able bodied Texans to go out there and work with the reality that if your spouse has been a stay at home parent or home maker for a long time it probably isn’t feasible to expect that he can go out and immediately begin taking care of himself.

If there isn’t sufficient community property to do so and if your spouse has very little in the way of separate property then you may be on the hook to pay him spousal support. For starters, unless there is family violence in the home, your spouse is disabled and unable to work or your spouse cares for a child who is disabled, you will need to have been married to your spouse for at least ten years to be eligible to have to pay spousal support. Otherwise, even if your spouse needs the support, you cannot be ordered to pay.

Spousal support basically takes on two forms in Texas. The first is spousal maintenance. This is the form of support that would be ordered through a trial, by a judge. Basically, these would be payments that would be against your will but ordered by the court. The longer your marriage the longer you can expect to have to pay spousal maintenance but keep in mind that most awards are limited to lasting no more than seven years in duration. Couple that with a limit to your having to pay no more than 20% of your gross monthly income in support and you don’t have to worry (most likely) about paying your spouse all of your salary for decades. 

The other variety of spousal support that Texas has available to spouses going through divorce is called contractual alimony. Alimony is a term that you may have heard before given that other states have alimony. Movies and television shows reference alimony with some frequency, as well. Basically, you and your spouse in mediation can agree to whatever kind of structure for spousal support that you believe is fair. Courts cannot enforce contractual alimony awards as easily as a spousal maintenance award but if you and your spouse want to go this direction that is up to you. 

What you should take away from this discussion on spousal support is that it is mainly marriages that have been on the books for at least ten years where spousal maintenance can be ordered. Beyond that, most judges do not favor awarding spousal maintenance at all. If your spouse has a comparable education and job prospects as you do, even if you were married for ten years or longer it is possible that the judge wouldn’t even consider awarding spousal maintenance to your spouse who has not been working. 

What about attorney’s fees? Could you end up having to pay for your spouse’s lawyer?

Your spouse has the right to ask you to pay for his attorney’s fees. By the same token, you too can ask the judge to order that your spouse pay your attorney’s fees. Depending on the lawyer, the type of case and your location in our state these fees can end up being pretty significant. Your spouse may not be able to afford to pay for an attorney which means that you are likely to have to pay for his lawyer in that situation. Your spouse would just file a motion through whatever attorney he is able to hire at the time in order to get that done. 

If a judge believes that your family’s financial outlook is so unbalanced as to be unfair to have your spouse pay an attorney, then you may end up being ordered to pay attorney’s fees. However, most families do not have a wide disparity in income where this is necessary. What you should take away from this discussion on attorney’s fees is that while your spouse may be asking you to pay their attorney’s fees, it is unlikely that you will ever have to do so. 

Questions about finances in Texas divorces? Contact the Law Office of Bryan Fagan

If you have any questions about the material that we discussed 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 where you can ask questions and receive direct feedback about your specific circumstances. We appreciate the ability to serve our community and do so on a daily basis in courtrooms throughout southeast Texas. We would be honored to speak to you about how we can best serve you and your family. 

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