Texas Divorce: Frequently Asked Questions

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.

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.

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.

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.

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.