The Terms of Your Divorce

Divorce

Divorce amounts to the dissolution of a legal contract, which makes it a complicated legal matter, but it’s so much more than that. Divorce is an emotional journey that also directly affects your parental and financial rights, which makes allowing your divorce the careful attention and forethought it deserves paramount. While no two divorces are ever identical to one another, the terms that must be resolved in every divorce (as applicable) remain the same across the board, and better understanding these divorce terms can help you make the right decisions for yourself along the way.

The Basic Terms of Divorce

Although your divorce will follow its own unique path, the terms that you will need to resolve while following this path include the following:

  • The division of your marital assets

  • Your child custody arrangements, which are called parental responsibilities (legal custody) and parenting time (physical custody) in Texas

  • Child support

  • Alimony, which is called spousal maintenance in Texas

Let’s take a closer look.

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The Division of Your Marital Property

Before your marital assets can be distributed between the two of you with divorce, your marital property must be distinguished from your separate property.

Marital Property

Marital property refers to all those assets and debts that you acquire throughout the course of your marriage. If it came to you while you were married, it is very likely marital property, and it does not matter who made the purchase, whose name is on the title, or who took on the debt. Exceptions include:

  • Any gifts that either of you received in your name alone (and kept separate) during the course of your marriage

  • Any inheritances that either of you received in your name alone (and kept separate) during the course of your marriage

Ultimately, your complete assets will need to be assessed (as offset by your marital debts) and divided equitably between the two of you. Equitably here means fairly when you take a wide range of relevant factors into consideration, including:

  • The age of both spouses (including any material age difference that could affect the older spouse’s earning potential)

  • The overall size of the marital estate

  • The relative mental and physical health of both spouses

  • The amount of separate property owned by each spouse

  • Any properties owned by either spouse in other jurisdictions

  • Any future inheritances or significant gifts anticipated by either spouse

  • The level of education, employability, and earning potential of both spouses

  • The child custody arrangements involved in the divorce

  • The cost of the divorce litigation for each spouse

  • Whether or not either spouse spent down, disappeared, gave away, frittered away, or otherwise disposed of marital assets

  • Whether or not fault is involved in the dissolution of the marriage

  • Overall tax implications of the property division

  • The unique nature of any of the assets involved

Separate Property

Separate property refers to those assets and debts that either of you brings into the marriage with you and keeps disentangled from your marital property throughout. This separate property will remain your own property upon divorce, but keeping such assets separate over the course of a marriage can be exceptionally difficult. In other words, you can expect complications to arise in relation to whether or not a specific asset is, indeed, separate property.

To make matters that much more challenging, any increase in value of the separate property (during the course of your marriage) will likely be classified as marital property. For example, if you bring a small business into your marriage with you and you manage to carefully separate it from your marital finances over the course of your marriage, any increase in its value (which is common) will very likely be considered marital property.

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Your Child Custody Arrangements

As mentioned, Texas no longer uses the term child custody and, instead, addresses the matters of parental responsibilities and parenting time.

Parental Responsibilities

We all recognize that parenting is an immense responsibility, but what the law is referring to here is the responsibility of making decisions on behalf of your children that are in keeping with their best interests. The kinds of decisions involved include those related to all the following:

  • Your children’s schooling

  • Your children’s healthcare needs

  • Your children’s religious education

  • Your children’s extracurriculars

In Texas, the law presumes that both parents are suited to taking on these responsibilities jointly (unless there is a compelling reason for ordering otherwise). The court, however, may also award one parent tie-breaking authority (to be used only after entering into good-faith negotiations). Sometimes, one parent is awarded sole parental responsibilities, but there is also the option of dividing this decision-making power according to the kind of decision that needs to be made.

For instance, if your concerns relate to your children’s healthcare needs and their education, you may want to take on decision-making authority in these areas, while your spouse guides your children’s religious upbringing and extracurricular activities (or any other division that suits you and your ex’s individual strengths and concerns).

It’s important to point out that if an emergency healthcare decision crops up, whichever parent is available must step in. Further, those everyday parenting decisions that seem to never end are the purview of the parent who has the kids at the time.

Parenting Time

Parenting time refers to what you may think of as physical custody – or the schedule by which your children divide their time between you and their other parent. Parenting time has the potential to be one of the most hotly contested terms in any divorce. While you and your divorcing spouse can build as much flexibility into your parenting time schedule as you would like – if the court’s intervention is required – it will likely hand out one of its standard parenting time schedules. There are two basic directions that your parenting time can go in, and they include:

  • One parent becomes the primary custodial parent with whom your children live the majority of the time and who provides your children with their primary home. In this scenario, the other parent receives a parenting time schedule (and has the children for fewer overnights each year).

  • Both parents share relatively balanced parenting plans and split their overnights with the kids down the middle (or nearly so).

The court always bases divorce decisions that affect children on the best interests of those children, and it applies this same principle to determinations related to parenting time. As such, there are several important factors that can play a role in the court’s decisions regarding parenting time:

  • The past involvement of both parents

  • The level of cooperation each parent is willing to engage in to help facilitate the other’s continued relationship with the children

  • The stability of each household

  • Any abuse or other criminal matters that are involved

  • The child’s preference (if he or she is old enough and mature enough to weigh in on the matter)

  • Each parent’s preference

When other factors balance each other out, the court generally opts to maintain the status quo, which means that it is loath to make major changes in the children’s living arrangements (in an attempt to decrease the stress and uproar experienced by them).

Child Support

When parents divorce, the court is committed to ensuring that both continue to support their children financially, and child support is the tool they employ to get the job done. Child support is calculated in accordance with careful guidelines that are set by the state, and all the following factors can play a role:

  • The age and physical and mental health of each child involved

  • Each parent’s financial situation (including the payor’s ability to pay and the extent to which the payee needs the additional income)

  • Each parent’s marital and separate property (including marital and separate debts)

  • The cost of childcare if the primary custodial parent were to return to full-time work

  • The income and resources available to the payee

  • The amount of alimony involved in the divorce

  • The number of overnights each parent has with the children

  • The children’s health insurance expenses (as paid by which parent)

  • The children’s education expenses (as paid by which parent)

  • Additional expenses covered by the payor

  • Any extraordinary expenses incurred on behalf of any of the children, including tutoring, mental health counseling, extracurricular activities, and more

  • Any other factors deemed relevant by the court

Those factors that receive primary focus in the determination of child support include the number of overnights each parent has and each parent’s income. Ultimately, the parent who brings in the higher income is likely to have a child support obligation (even if parenting time is divided equally or nearly equally).

Finally, child support is generally ordered until the covered child reaches the age of 18 or graduates from high school (whichever happens later). If a child, however, suffers from physical and/or mental disabilities that require ongoing care and supervision, the child support obligation may not have an end date.

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Alimony

What you probably think of as alimony is called spousal maintenance in Texas, and while there is no guarantee that alimony will play a role in your divorce, it can be implemented to help offset any divorce-related financial discrepancies between you and your ex. Alimony is generally intended to provide a temporary leg up while the recipient attempts to gain financial independence by seeking higher education and/or job training. In certain situations, however, alimony is open-ended.

For example, after a long marriage in which one spouse devoted his or her life to raising the children and keeping the home fires burning, permanent alimony may be in order (to help address the fact that the recipient does not have enough work years left to build a career that would provide him or her with financial independence). The primary factors that go into the determination of alimony include:

  • The number of years the couple was married

  • The age and relative mental and physical health of each spouse

  • The employability, level of education, and earning potential of each spouse

  • Each spouse’s realistic ability to provide for his or her own reasonable needs

  • Each spouse’s realistic ability to meet his or her own needs while paying his or her child support obligation

  • The separate property owned by each spouse and the tax implications involved

  • The division of marital property each spouse receives and the tax implications involved

  • Whether or not either spouse disappeared, gave away, frittered away, spent down, or otherwise wasted marital assets in the leadup to the divorce

  • Whether or not the divorce is predicated on either spouse’s fault

  • Any contributions the recipient made to the marriage overall (such as via childcare and/or homemaking) and/or to the payor’s education and resulting career

  • Whether or not the issue of alimony is addressed in a valid prenuptial or postnuptial agreement

  • Any history or pattern of domestic violence involved

  • Any other factor deemed relevant by the court

Hammering out the Terms of Your Divorce

You and your divorcing spouse will need to address each of the four primary terms of the divorce that applies to your situation, and any that remain unresolved after you have exhausted your negotiation options will need the court’s intervention. Unless your divorcing spouse is invested in making your divorce as complicated as possible, finding common ground between yourselves is generally preferable. Toward this end, you have several options that include:

  • Negotiating with one another

  • Turning to your respective divorce attorneys to negotiate on behalf of each of you

  • Heading to mediation – where a professional mediator will help you explore your best options (under the guidance of your respective divorce attorneys)

Turn to an Experienced Killeen Divorce Attorney for the Professional Legal Guidance You Need

Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a distinguished divorce attorney who dedicates his impressive practice to effectively and efficiently guiding divorce cases like yours toward favorable resolutions. For more information about how we can help you, please do not wait to contact us online or call us at 254-501-4040 today.

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