While no divorce is a walk in the park, there are several basic complications that many people facing divorce tend to agonize over. Your divorce will be unique to your situation, but a better understanding of some of the primary concerns that tend to trip couples up can help you better prepare for what’s to come.
If you’re facing a divorce, you shouldn’t wait to consult with an experienced Round Rock divorce attorney.
If Your Spouse Is Having an Affair
A common cause of divorce is infidelity. While most divorces in Texas are not based on fault, some are. One of the primary forms of fault in Texas is adultery, which refers to voluntarily having a sexual relationship with an adult other than one’s spouse during the course of one’s marriage – or the period leading up to the finalization of divorce.
In other words, having an affair while separated prior to divorce still qualifies as adultery in the State of Texas. In order to obtain a divorce that is based on adultery, you’ll need to prove that your spouse was engaged in a sexual relationship with the other person. This requires a standard of clear and convincing evidence, which is a high bar and isn’t always possible.
The fact is, however, that – even if your divorce is no-fault, your spouse’s affair can, in some circumstances, affect how your divorce terms are resolved.
The Division of Marital Property
If your spouse was using marital funds to conduct their affair, such as on lavish gifts, dinners, meet-ups, trips, and hotels, the court will take this into careful consideration when determining the just and right division of your marital assets. In Texas, marital property must be divided fairly, which doesn’t necessarily mean evenly.
Factors like the following can all affect this division:
Either spouse’s wrongdoing
Either spouse’s dissipation of marital assets, which can include pouring money into an affair
The contributions each spouse made to the marriage, including in the form of childcare and housekeeping
Any financial shenanigans on the part of either spouse
The terms included in a valid prenuptial or postnuptial agreement
The tax implications of the proposed asset division
The length of the marriage
Each spouse’s financial obligations
Every divorce term is determined by the circumstances involved, and whether your spouse’s infidelity will play a role will depend upon a range of factors. Working closely with a practiced divorce attorney from the start is always advised.
Child Custody Arrangements
While adultery generally won’t affect child custody orders, it can under specific circumstances. Consider the following:
If your spouse prioritized their affair over their responsibilities as a parent, the court will take this under advisement.
If the court determines that the person your spouse is having an affair with could have a negative effect on your shared children, it can also affect your spouse’s parenting time schedule.
If your spouse spends time with your children in the presence of their new romantic partner – against your express wishes – the court may take action.
The court will likely consider the new romantic partner’s background and character when making related child custody determinations. Matters such as the following can carry considerable weight regarding the court’s assessment of your cheating spouse’s judgment:
A criminal record
A history of drug or alcohol abuse
A history of domestic abuse, child endangerment, child abuse, or child neglect
If You’re Facing a Same-Sex Divorce
While the matter of same-sex divorce is relatively new, there are generally no more – and no fewer – challenges than any other divorce. Ultimately, every divorce has its own unique hurdles that are based on the involved circumstances – and whether the couple is heterosexual or same-sex has no real bearing on the matter.
Child Custody Arrangements
One important caveat, however, is the matter of child custody. When a heterosexual couple is married at the time of a child’s birth, both spouses are recognized as the child’s legal parent. The same is not true with same-sex marriages, and it can lead to complications.
One Spouse Is the Mother
When one of the spouses is the child’s birth mother, the law automatically identifies her as the child’s legal parent. The other spouse, however, must establish paternity, which identifies a child’s second parent. At this point, the second parent can establish paternity through adoption or the granting of conservatorship rights.
Without the establishment of rights for the second parent, they may have no legal standing if the marriage ends. The surest means of protecting one’s rights as a non-biological parent in a same-sex marriage is through second-parent adoption.
One Spouse Is the Biological Parent of a Child Born of Surrogacy
If your spouse is the biological parent of a child you both had with a surrogate, both of your parental rights will be established as long as you have a binding Texas gestational agreement in place.
One Spouse Is the Adoptive Parent
To adopt a child in Texas, you and your spouse – whether you are a same-sex or heterosexual couple – must adopt together. If, however, you marry someone who has already adopted a child, you can pursue a stepparent adoption, and the process is the same for heterosexual and same-sex couples.
In other words, establishing child custody rights in a same-sex marriage is often complex, and having skilled legal guidance is always in your best interest.
Same-Sex Common Law Marriage and Divorce
If you and your same-sex partner have established a common law marriage, you have the same legal rights as any other married couple in the state. While Texas didn’t recognize same-sex marriages until it was mandated by the federal government in 2015, it recognizes same-sex common law marriages that were established prior to this date.
It’s important to note that there is no expedited divorce process for those in common law marriages. Whether you are a heterosexual couple or a same-sex couple, you are married – including as a matter of common law – until you are divorced, and if you are divorcing, you’ll need to address all the same terms that every other divorcing couple does.
If You’re Seeking or Being Asked to Pay Alimony
In Texas, alimony is called spousal maintenance, and it’s reserved for situations in which one spouse experiences financial need post-divorce and the other has the financial ability to help. In Texas, alimony can take a variety of forms.
Temporary Spousal Support
Temporary spousal support refers to the temporary support one spouse may receive from the other while the divorce is pending. Often, a divorcing couple will separate while they negotiate the divorce terms, and temporary spousal support addresses matters such as paying the bills and running the home during this transition phase.
Spousal Maintenance
Spousal maintenance refers to what most people regard as classic alimony. It refers to the financial support one ex pays the other post-divorce to help them cover their own reasonable needs – in relation to the standard of living achieved during the marriage.
In Texas, court-ordered spousal maintenance is only ordered in those cases in which one of the following applies:
The marriage lasted at least ten years, and the spouse seeking alimony lacks the earning ability to provide for their own reasonable needs.
The spouse seeking alimony has a severe physical or mental disability – or cares for a child of the marriage who has a severe physical or mental disability – that precludes them from earning enough to cover their own reasonable needs.
The spouse from whom alimony is sought was convicted of family violence within two years of the divorce filing.
Guiding Factors
Alimony is generally set for an amount and a duration that allows the recipient to gain the financial independence necessary to support themself, and the factors that are taken into consideration by the court include:
Each spouse’s education, employability, and earning power
Each spouse’s age and overall mental and physical health
The length of the marriage
Each spouse’s separate estate and the overall marital estate
Whether either spouse’s wrongdoing played a role in the dissolution of the marriage
Whether either spouse hid, gave away, spent down, or otherwise dissipated marital assets prior to divorce
Each spouse’s contributions to the marriage, including in the form of homemaking
Either spouse’s contributions to the other’s career or earning power
Each spouse’s ability to provide for their own reasonable needs
The feasibility of the recipient gaining employment that leaves them financially independent
Any extenuating circumstances the court considers compelling in the case at hand
Limitations
It’s important to note that the State of Texas limits court-awarded alimony. Courts are required to limit spousal maintenance to the shortest reasonable duration. Other limitations include:
Alimony that exceeds a 10-year threshold is generally based on disability – of either the recipient or a child of the marriage they care for.
An ex-spouse can’t be required to pay alimony that exceeds 20 percent of their net income or $5,000 per month – whichever is less.
Alimony is terminated if the recipient remarries or begins cohabitating with a romantic partner or if either the recipient or the payor dies.
Contractual Spousal Maintenance
If the married couple has a legally binding prenuptial or postnuptial agreement in place at the time of their divorce, any included alimony terms will be upheld by the court.
Agreed Spousal Maintenance
A divorcing couple can also negotiate the matter of spousal maintenance between themselves, allowing them to retain decision-making authority and afford greater flexibility.
Alimony is a significant financial concern for some divorcing couples, and if you believe you may be one of them, protecting your financial rights is key – discuss the issue with a seasoned divorce attorney.
If Either of You Has Stock Options or Retirement Accounts
Many people are concerned about how a divorce affects their financial portfolio, including their retirement accounts. If you held the assets before marriage, the value at the time of your marriage is likely separate property, which means it belongs to you alone.
Any increase in the asset’s value, however, is almost certainly marital property, which means it – or its value – will need to be divided between you and your divorcing spouse fairly upon divorce.
Chopping up a financial tool and splitting it between the two of you generally isn’t the way to go, but there are other options available, including:
If you and your spouse both have financial tools of your own, you can each keep your own accounts and make up for any discrepancy by awarding additional marital assets to the appropriate spouse.
You can offset your divorcing spouse’s ownership in your accounts by awarding them more considerable marital assets in the divorce.
If you can afford it, you can buy your spouse’s ownership in your accounts out upfront.
If the account in question is a retirement plan, the court can issue a qualified domestic relations order (QDRO) that compels the retirement plan’s administrator to physically divide the account and provide the account owner’s spouse with their court-awarded share.
Financial matters like these can become very complicated very quickly, which makes having a trusted divorce attorney in your corner an excellent plan.
A Round Rock Divorce Attorney Is Standing By to Help
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Round Rock, Texas – has a wealth of experience helping clients like you successfully navigate complex divorces with their financial and parental rights intact.
The outcome of your case is important to you and your children’s future, so please don’t wait to contact or call us at 254-781-4222 and schedule your free consultation today.
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