Texas Divorce: Frequently Asked Questions

Breaking Up is Hard to Do — Is There “Legal Separation” in the State of Texas?

No. Even if you are physically separated from your spouse, the State of Texas still considers you married until you are declared by order to be divorced. This is significant in that it affects the designation of assets acquired during the marriage, even while the parties are physically separated, as community property, and also affects the parties regarding how certain debts (for example, tax debt) may be allocated. There may also be serious issues related to the court’s ability to separate the marital estate if you wait too long and your spouse leaves the state of Texas. It is important to fully understand the implications of a lengthy separation in the state of Texas.

What’s Mine is Mine, What’s Yours is Yours? — What is Considered Community and Separate Property in Texas?

The Texas Family Code provides that all property acquired and accumulated by either party during marriage is community property; however, parties may present evidence to establish certain property as separate property. Property owned, accumulated or obtained prior to marriage, gifts and inheritances and/or awards for personal injuries are generally considered separate property; however, it is important to consult an attorney to examine this issue. There are many subtleties contained within these designations, including issues regarding how increases on the value of certain separate property or commingling of separate property, might affect the designation of property.

Should I Stay or Should I Go — What are the Effects of Leaving the Marital Residence?

It depends. This is a very fact specific determination. If you are found to have a community property interest in a home, that designation does not change even if you move out; however, issues regarding how moving might affect child custody litigation (if it is part of the divorce), support obligations, and other matters would need to be explored thoroughly.

The Ties that Bind — Will I Get (or Will I Have to Pay) Spousal Support After the Divorce is Final?

It depends. What we hear regularly from clients is the belief that if parties were married for more than 10 years, support is automatically due. Well…not so fast. The Texas Family Code provides the bases for spousal maintenance in the State of Texas, and the reality is not as kind to those seeking support as that common misconception would suggest.

In order to be entitled to spousal maintenance in Texas, a spouse must show that she/he will lack sufficient property, including separate property, after divorce, to provide for “minimum reasonable needs” AND has either (1) been married for at least 10 years AND lacks the ability to earn sufficient income to provide for “minimum reasonable needs;” (2) is unable to earn income because of an incapacitating mental or physical disability, (3) is the custodian of a child of the marriage who requires substantial care and supervision because of a physical or mental disability that prevents earning sufficient income to provide for minimum reasonable needs; OR (4) the spouse from whom maintenance is requested was convicted or received deferred adjudication for an offense constituting family violence during the marriage against the spouse or child and the offense occurred within two years prior to the date the divorce was filed or while the divorce was pending.

If a spouse can meet these elements for entitlement to maintenance, the court examines various factors in determining the nature, amount, duration and manner of payment. It is important to discuss additional, relevant provisions of this Family Code section with your attorney.

Separation Anxiety — How Do the Bills Get Paid if Spouses Separate While the Divorce is Pending?

During the pendency of a divorce, the parties are still considered married in the eyes of the law. Because of this, the income of both parties is considered for use to pay existing bills and obligations, including attorney’s fees. We generally encourage parties to work out arrangements to maintain “status quo” during the pendency of a divorce; however, barring agreement, the court will enter what are called Temporary Orders. In determining how to allocate obligations, the court will look at the parties’ incomes, assets and obligations.

If one party, after considering income (including, if applicable, child support from the other party), still has insufficient means to meet reasonable ongoing expenses and obligations, including attorney’s fees, the court may look to the other party to contribute in sufficient amounts to meet the need. These considerations are complicated when there are insufficient assets to pay for the needs asserted by both parties, and these cases must be examined on their individual facts.

DIY Divorce — Do I Have to Hire an Attorney to Get a Divorce in Texas?

No. In fact, there are any number of websites offering free legal forms for “do it yourself” divorces, but we do urge extreme caution, and we say this not just because this is how we happen to make a living.

In divorce, particularly those involving, for example, significant assets or debt, business interests, separate property issues, real property issues, the necessity for division of retirement plans, conflict and disputes between the parties (and the list goes on), and/or if there are minor children, it's critical to make sure a final order includes everything the law requires.

Ensuring that a final order includes all of the necessary provisions and language required by statute or a particular court, and that any related orders (such as Qualified Domestic Relations Orders) are properly drafted and filed can become very complicated very quickly. The potential for presenting orders which cost you valuable rights or assets rises significantly. In the same way you probably would not undertake a transmission rebuild using a YouTube video, we urge the same caution in proceeding down what can be a very complicated road without experienced legal counsel.

Show Me the Money — Why is Texas Divorce Litigation and Child Custody Litigation so Expensive?

It just is! That may sound facetious, but the fact is that divorce litigation and child custody litigation require an attorney to spend time on your case, and that time costs money.

The amount an attorney charges for time is generally based upon experience, years of practice and considerations about amounts charged by other similarly situated attorneys in the area. As an example, even in an “agreed” divorce case with no children and a generally uncomplicated estate, an attorney must still take the following steps: draft an initial pleading; communicate with the client and opposing party or counsel to confirm the agreements made or seek to reach agreements regarding the various items which must be included in a final decree (regarding identity and value of assets and debts and disposition of same); draft and finalize a proposed final decree; discuss and make requested changes if agreed upon; file the decree; and finally appear with the client to “prove up” the decree before the judge.

If formal mediation becomes necessary, if it becomes necessary to seek temporary orders (in order to maintain the status quo while the divorce is pending), if discovery is exchanged (discovery is a process by which attorneys send questions and requests for production of documents for the other party to answer), if hearings on other issues are necessary, the expenditure of time is greatly increased even when the attorney is being as judicious as possible billing his or her time.