Making the life-altering decision that you need a divorce is never easy, but if you have come to the very difficult decision that divorce is the right choice for you, better understanding the divorce process and moving forward with purpose is well advised. It’s a new year, and if you are planning to seek a divorce, the most important first step you can take is reaching out to an experienced Killeen divorce attorney for the legal guidance you need.
Getting a Handle on the Changes Ahead
Divorce is not only a serious challenge but is also a major transition that you are well-advised to prepare yourself for. The terms of your divorce will directly affect both your parental rights and your finances, and protecting yourself from the outset is in your best interest. While divorce is hard on everyone, children can have the most difficult time with it, and keeping your divorce as amicable as possible for the sake of your children is a worthy goal. This does not mean you should sacrifice your rights in order to obtain a friendly divorce, but there are things you can do to help turn down the heat, including:
Know your divorce priorities and let them guide you (not every divorce matter carries the same weight for you personally, and when you recognize which issues take precedence, you will be in a far better position to negotiate effectively).
If your divorce is too emotionally painful for you and your divorcing spouse to negotiate with one another effectively, allow your respective divorce attorneys to do so on behalf of each of you.
If you and your divorcing spouse hit a snag and cannot move negotiations forward, remember that there are alternative dispute resolution (ADR) options, including mediation, available to you.
Base your divorce decisions on the facts involved – instead of on your emotional reactions. Your divorce attorney will help you make the right decisions for you.
It’s important to note here that if your soon-to-be-ex chooses to make your divorce as contentious as he or she possibly can, fair and effective negotiations are very likely out of the question, and proceeding to court might be your best option.
Most Divorces Are Settled out of Court
If you are concerned about whether or not your divorce will go to trial, it may help to know that the vast majority of divorces are based on what the state calls insupportability. Insupportability amounts to what you likely think of as irreconcilable differences – and neither spouse is deemed at fault in the matter. When Texas divorces are predicated on fault, they typically do go to trial, and the fault grounds in the State of Texas include the following:
Fault-based divorces are typically more time consuming and more costly than no-fault divorces, and it is important to know that the spouse who charges the other with fault must have evidence to back his or her claims up (the burden is on the spouse who charges the other with being at fault). A final note is that, even if your divorce is no-fault, your spouse’s misconduct can still affect the outcome of your case.
Emotions run high during divorce, but the basics involve negotiating the following divorce terms:
The division of marital property
Child custody arrangements
While your divorce terms will be unique to you and your situation, these basic categories will guide your negotiations.
The Court’s Role
If you and your divorcing spouse are able to negotiate each of the divorce terms that apply to you, the court is very likely to incorporate these terms into your final divorce decree. If there are one or more terms that you and are unable to resolve between the two of you – after exhausting your negotiation options – the court will make the necessary determinations on your behalf. There are a variety of reasons why couples generally prefer to settle their divorces out of court, including:
If your divorce goes to court, it becomes a matter of public record, which means you will have little privacy regarding the matter.
If you go to court, you abdicate your decision-making power on primary matters such as your parental and financial rights, which generally makes negotiating terms between yourselves favorable.
While the court bases every decision that relates to children on the best interests of those children, the judge in your case cannot possibly know your children and their unique needs as well as you and your divorcing spouse do.
Going to court – because you are at the mercy of the court’s clogged docket – is almost certain to be more time-consuming, and you can count on it also being more costly.
In general, you are better off if you can settle your divorce terms between yourselves – with the skilled legal guidance of your respective divorce attorneys.
The Division of Your Marital Property
One of the primary factors of every divorce is the division of your marital property, which refers to those assets that you and your spouse acquired while you were a married couple (regardless of who did the purchasing and/or whose name is on the deed). The two exceptions to this include:
Any gifts that either of you received in your own name
Any inheritances that either of you received in your own name
Those assets that were yours prior to marriage will remain your separate property (if you were able to keep them separate throughout the course of your marriage, which can be a tall order). In Texas, marital property is divided equitably rather than necessarily equally, and this means that it is divided fairly in the context of all relevant factors, including:
You and your divorcing spouse’s overall health and well-being
Any disparity between you and your divorcing spouse’s earning potential
Any significant age difference between you and your divorcing spouse
The size of your marital estate and the amount of separate property owned by each of you
Whether either of you spent down, gave away, got rid of, or otherwise wasted marital assets
Any future inheritances anticipated by either of you
The tax considerations of a proposed division of assets
Whether fault played a role in the breakdown of your marriage
Any child support or spousal support (alimony) obligations either of you has
The legal fees involved in your divorce
Any other factors the judge presiding over your case deems relevant
Child Custody Arrangements
In Texas, child custody is addressed in terms of both legal custody and physical custody. Legal custody relates to how you and your divorcing spouse will address the matter of making important parenting decisions on behalf of your children as you move forward. The kinds of decisions involved include:
Those related to your children’s schooling
Those related to your children’s health care
Those related to your children’s primary residence
Those related to your children’s extracurricular activities, travel, and vacations
Those related to your children’s religious upbringing
You and your ex can make these decisions together, but you can also divide them according to the kind of decisions that are being made. Further, one of you can take on sole legal custody, or – if shared – one of you may be awarded tie-breaking authority (for those decisions in which you find yourselves deadlocked). An important point to make here is that the workaday decisions that parents are required to make on a regular basis remain the responsibility of the parent who has the children at the time they come up.
Physical custody refers to when your kids are with you and when they are with their other parent. While you and your divorcing spouse can negotiate an elaborate parenting schedule that suits your family’s unique needs, all such schedules fall into two basic categories, including:
You and your ex split your parenting time relatively equally.
One of you takes on the role of the primary custodial parent (with whom your children spend the majority of their time).
If you need the court’s intervention on the matter, you can expect to receive one of its standard parenting time schedules.
As mentioned, the court bases decisions about child custody arrangements on the best interests of the children, which involve factors such as the following:
Each child’s unique physical and emotional needs
Each parent’s level of stability
Each parent’s overall involvement with each child
Each parent’s ability to ensure that the children maintain a healthy relationship with the other parent
Each child’s level of adjustment to his or her current living situation, school, and community
Each child’s preference (if he or she has reached an age and level of maturity that leaves him or her capable of weighing in meaningfully)
Each parent’s preference
Any factors that could endanger the children
Any factors the judge deems relevant in the case at hand
Child support is generally calculated by plugging specific variables into the state’s child support guidelines. While there are a wide range of factors that can play a role, the primary concerns include each parent’s income and the amount of time each parent has the children with him or her. Very generally, the parent who is the higher earner typically pays child support – even if you split your time with the kids down the middle.
The child support calculation process involves several primary steps.
Determining Gross Income
The gross income for the parent who will be paying child support (generally the parent who is the non-custodial parent) is calculated. This involves tallying all of his or her income, including:
All wages, salaries, commissions, and/or military pay
Any overtime and/or bonuses
Any gifts, prizes, and/or alimony
Even if the parent who shoulders the child support responsibility does not work, all income in the form of severance, unemployment benefits, retirement, social security, or workers’ compensation is included in the tally of gross income. It’s important to point out that the state does not take kindly to parents who purposefully engage in underemployment or unemployment in an effort to get out of paying child support.
Calculating Net Income
Once a parent’s gross income is established, calculating his or her net income amounts to subtracting expenses such as the following:
Social security taxes and/or any mandatory contributions to a retirement plan
Federal income taxes that are based on the rate for a single person who claims one exemption
Any union dues
Any payments related to health insurance premiums for the children in question (if ordered to carry this coverage by the court)
This net yearly income is divided by twelve to produce the parent’s monthly net income, and from here, the amount of the payor’s child support payments is determined.
Calculating Child Support
The amount of child support that the payor is required to pay is determined by the number of children involved. Consider the following:
If you share one child, the amount of child support is 20 percent of the payor’s net monthly income.
If you share two children, the amount of child support is 25 percent of the payor’s net monthly income.
If you share three children, the amount of child support is 30 percent of the payor’s net monthly income.
If you share four children, the amount of child support is 35 percent of the payor’s net monthly income.
If you share five children, the amount of child support is 40 percent of the payor’s net monthly income.
If you share six or more children, the amount of child support must at least reach the level that would be paid for five children.
Alimony only plays a role in Texas divorces when one spouse is left with a financial disadvantage, and the other has the means to help.