Divorce Information
Basics
It is important to understand that your divorce will not happen overnight. Texas law states you must wait a minimum of 60 days to get divorced. The clock starts after the divorce process is initiated.
Various factors determine how long your divorce will take, including whether you and the other party agree on the terms of the divorce or not. These same factors determine the costs of your divorce as well. The scope of a divorce includes property division, child custody, child support, and/or spousal support.
For specific questions regarding aspects of a divorce see the below topics, the related pages, or call and schedule a consolation today.
Asset Division
All property, whether real or personal, is considered an asset. Texas is a "community property" state. During a divorce parties have to determine whether specific property is categorized as separate property or community property.
Community Property is the presumption in Texas. Texas Family Code section 3.003 states all property that either spouse possesses during the marriage or at its dissolution is presumed to be community property. Unless a party to the marriage is able to prove an asset is separate property, the court will assume it is community property and will divide the asset in a just manner.
During a divorce in Texas, the marital property (community property) is generally to be divided in a fair and equitable manner, according to a variety of factors. This means even if only one spouse was employed for the duration of the marriage, the presumption is the husband and wife own all money earned and property obtained (assets) equally. Equal ownership extends to debts in community property states as well, making both spouses equally liable for debts—even when one spouse was unaware of those debts.
Generally, assets (property) brought into the marriage by one party are considered separate property. Upon a divorce, separate property generally goes back to the party who brought the asset into the marriage. There are factors like martial agreements, comingling, or other factors that may alter these general assumptions.
Under Texas law (Texas Family Code section 3.001), separate property belongs exclusively to one party in the marriage, and falls into four (4) main categories:
- any property owned or claimed by a spouse before the marriage,
- property acquired by one spouse during the marriage as a gift,
- property received through inheritance, or
- an award for a personal injury.
In the event of a personal injury award that compensates for the loss of earning capacity during the marriage, that award amount is considered community property. This distinction ensures that compensation for lost wages is shared.
There are many factors which can determine the eventual property award during a divorce; however, having a knowledgeable divorce lawyer by your side during the entire process could be the single most important thing you can do for your future. Contact Rob Rhyne Law to schedule a consultation with a divorce lawyer.
Child Custody
In a child custody case, it is critical to show the court it is in the "best interest of the child" to be in your care and control. The "best interest of the child" is a legal standard in Texas that states courts must consider what is in the best interest of the child when determining conservatorship (custody), visitation, and support. Courts also have discretion to look at other factors in considering what is in the best interest of the child.
Custody arrangements in Texas are called Conservatorships. When a court awards custody of a child, they use terms like Joint Managing Conservator, Sole Managing Conservator, and Possessory Conservator.
For detailed information on these custody arrangements and factors courts use to determine the "best interest of the child," see our Child Custody page.
Child Support
To determine the amount of child support and who is obligated to pay child support, Texas courts use a variety of factors. Support can include not only basic support needs but also medical and dental insurance. The standard for support is based on the paying party's net income and must be made to the Texas Support Disbursement Unit (SDU), or if paid outside the SDU, could be considered a gift.
For detailed information, see our Child Support page.
Modification to agreements
Basics
Modifications to final divorce decrees, custody agreements, or support orders may be needed for a variety of reasons. The court that heard the original case resulting in the final orders you want modified maintains the right to hear your modification case. Modifications can be for a number of reasons including support, custody, safety, health issues, job changes, or any other variety of factors. Modifications to an order generally cannot be made until after one year from the date the order is put in place.
In considering the modification the court is still obligated to evaluate the situation using the best interest of the child standard (see our Child Custody page).
In order for a court to modify these orders, the court must find there has been (1) a material and substantial change in circumstances of the child or a party, (2) a child over the age of 12 has requested to speak to the court and express a preference on which parent they want to live, or (3) a parent has voluntarily given up their rights to the child for six-months or longer.
A "material and substantial change" is not specifically defined in the Texas Family Code. Historic cases have shown that child abuse and/or family violence definitely count as a material and substantial change.
Other situations that may apply are:
- a conservator relocates despite a court order restricting a relocation,
- the change in residence of a conservator that substantially increased the expense of access to a child,
- a conservator tries to harm the relationship with the other conservator,
- addition of stepparents or siblings,
- an unstable home situation, or
- a conservator passes away.
When a child over the age of 12 wishes to express a preference to the court on which parent the child would like to live with, the judge may interview the child in chambers to ascertain the child's wishes. The judge is under no obligation to grant the child's request as the judge is still held to the "best interest of the child" standard. Additionally, courts can use an amicus attorney to review the child's wishes and report back to the court on their opinion.
On petition, courts can modify existing orders if a parent with primary custody has given up custody of a child for six-months or more. This includes letting the child live with another person (or the other parent) for the six-month period. There are exceptions for common situations like a military deployment.
Whether your modification is needed to change custody arrangements, alter child support obligations, issue a protective order, or any other reason, we can assist.
Marital Agreements
Basics
Martial agreements are a flexible way for two parties to agree, either before the marriage or after, on how assets will be divided in the event the marriage ends in divorce. Absent a marital agreement, parties to a divorce will be faced with difficult discussions about dividing their assets or be forced to let the court decide who gets their property. A marital agreement puts you in control of your asset's vs allowing the judge to make a determination on what is fair or equitable. Marital agreements can include property division, real or personal, among other things but child support cannot be included in these types of agreements.
There are different types of marital agreements. Pre-nuptial agreements, which most people have heard about, are agreements signed and agreed upon prior to a marriage. Post-nuptial agreements are agreements signed and agreed upon after parties are married. Whether before you are married or after, marital agreements have benefits that can protect your interests.
Prenuptial agreements are entered into BEFORE marriage allowing the parties to enter into marriage protecting their interest in certain assets and knowing how those assets will be distributed upon a divorce. These agreements can also include how debts will be divided. Considering a prenuptial agreement fosters the communication between parties about things like credit, debt, savings, retirement, staying at home with children or working, saving for kid's college, and home ownership before entering into the marriage. It is recommended that premarital agreements be occasionally reviewed for relevance, ideally around every 5 years. Prenuptial agreements can be revoked by the written agreement of both parties. Additionally, these agreements can potentially reduce the cost of a divorce if one is necessary in the future.
Postnuptial agreements are entered into AFTER marriage and allow the parties have tough conversation before the marriage relationship gets strained. What happens if parties entered into a marriage without many assets but have started to gain assets since they have been married? What happens if those assets are because one parties career took off? Like prenuptial agreements, postnuptial agreements foster the communication between parties about things like credit, debt, savings, retirement, staying at home with children or working, saving for kid's college, and home ownership, and are critical to determine what the parties feel is fair and reasonable in the event they divorce. Typically, these types of agreements are created a few years into a marriage.
If you are need of a marital agreement, Rob Rhyne Law can help.
