Divorce and Insupportability in Texas

A Texas divorce petition on the grounds of insupportability

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We tend to think about divorces in terms of being contested or uncontested and in terms of being fault based or no fault. In Texas, however, the vast majority of divorces are based on what is called insupportability. Insupportability is the term the State of Texas employs instead of irreconcilable differences, which we are all more familiar with.

If you have been served with divorce papers, are considering divorce, or have made the difficult decision that it’s time to seek a divorce, turn to an experienced Round Rock divorce attorney for the skilled legal guidance you need.

​​Your Divorce Will Very Likely Be No Fault

If you are heading toward a divorce, you should understand that it will very likely be a no-fault divorce. This pattern is generally true even when the other spouse is directly responsible for the dissolution of the marriage.

A fault-based divorce almost certainly means a contested divorce, which means you will need to give up your decision-making authority and accept the court’s intervention on highly personal matters that many divorcing couples prefer to hammer out between themselves.

Contested divorces are divorces in which one or more divorce terms are resolved in court, and they tend to take longer to resolve, to be more costly, and to be more stressful. Nevertheless, there are situations in which seeking a contested divorce is the right course of action, and this is a decision that your focused divorce attorney will help you make.

You can seek a fault-based divorce in Texas based on any of the following grounds:

  • Your spouse’s adultery

  • Your spouse’s cruelty

  • Your spouse’s incarceration

  • Your spouse’s abandonment

  • Your spouse’s confinement to a mental health institution

  • Your spouse’s felony conviction

  • Your spouse’s engagement in spousal abuse or domestic violence

​​A No-Fault Divorce Is Not Necessarily an Uncontested Divorce

No-fault divorces tend to be less arduous than fault-based divorces, but this in no way mitigates exactly how challenging they often are. This is especially true when your no-fault divorce – or your divorce that is based on insupportability – becomes contested.

Contested divorces are divorces that require the court’s intervention to resolve one or more of the divorce terms. Many divorces that are not based on fault end up in court due to the involved parties’ inability to reach mutually acceptable terms.

If your goal is streamlining your divorce to the degree possible, the best approach is finding a way to engage in fair, open negotiations with your soon-to-be ex, and a seasoned Round Rock divorce attorney can help you with that.

​​The Terms of Your Divorce

Divorce amounts to the dissolution of the marriage contract, which means that it can be as challenging legally as it is emotionally. In order to obtain a divorce that is based on insupportability, you will need to resolve each of the following divorce terms that applies to your case:

  • The division of your marital property

  • Your child custody arrangements, which include legal custody – or parental decision-making authority – and parenting time

  • Child support

  • Alimony – or spousal maintenance

Any one of these terms can turn into a serious battle, which makes having trusted legal representation on your side always advised.

Property Division

In marriages, couples tend to acquire assets, and these assets are considered marital property. In Texas, marital property isn’t necessarily divided evenly between both couples upon divorce. Instead, assets are divided fairly in relation to a wide range of relevant factors. This division can end up being close to 50/50, but it is common for judges to award a division that is more fair than equal.

Separate Property

The assets that you or your spouse bring into the marriage with you – and keep separate over the course of your marriage – are considered separate property, meaning they belong solely to the original owner. When a separate asset increases in value during a marriage, which is common for investments, businesses, real property, and retirement accounts, the increase is treated as marital property.

The line that divides marital property from separate property is not as distinct as many people believe. For example, any of the following situations can cast doubt on the separate nature of an asset:

  • When the accounting for the asset isn’t kept strictly separate from the marital accounting

  • When marital funds are used to grow, maintain, or fix up the separate asset

  • If the other spouse’s name is added to the separate asset’s title

  • When the separate asset is treated as a marital asset

Texas courts presume that all the assets in a divorce are marital, and the spouse who claims separate ownership of a specific property is responsible for proving its separate nature to the court.

The Matter of Fault

If your divorce is based on insupportability, it’s a no-fault divorce, but this doesn’t mean that your divorcing spouse’s fault in the matter won’t affect the division of your marital property. For example, if your spouse was engaged in an extramarital affair and spent a considerable amount of money in the process, it can directly affect the division of your marital property.

Further, if your spouse engaged in fraud on the community, which generally comes down to hiding assets, dissipating funds, or giving assets away in advance of divorce, the court will take this fact into careful consideration in relation to the fair division of your marital property.

The Factors Considered

When it comes to dividing marital property in a Texas divorce, the court considers factors like the following:

  • The overall size of the marital estate

  • The size of each spouse’s separate estate

  • The contributions each spouse made to the marital estate, including in terms of homemaking and childrearing

  • The length of the marriage

  • Whether fault played a role in the failure of the marriage

  • Whether either spouse engaged in fraud on the community

  • The contributions either spouse made to the other’s career

  • Any factors the court considers relevant to the case at hand

Child Custody Arrangements

Child custody arrangements in Texas include both legal custody and physical custody. Child custody arrangements are determined with the children’s best interests in mind, and whether or not the divorce is fault based generally doesn’t play a role.

However, marital fault can affect your child custody decision if your spouse’s fault affects your children’s overall well-being. For example, if your divorcing spouse is cohabitating with a romantic partner whom the court deems a bad influence on your children, it can affect the final ruling. Another prime example is if one spouse has committed acts of domestic violence.

Legal Custody – or Parental Decision-Making Authority

Parents shoulder the immense responsibility of making important decisions on behalf of their children. This decision-making authority is called legal custody. The kinds of major decisions involved include the following matters:

  • The medical care your children receive

  • Where your children attend school or daycare

  • Your children’s participation in travel and extracurriculars

  • Your children’s religious upbringing

You and your ex can share legal custody equally, one of you can be assigned sole legal custody, or one of the following arrangements can apply:

  • You and your ex make these major decisions together, but one of you has the final say in the event that you can’t negotiate a mutually acceptable decision.

  • You and your ex split the decision-making responsibility between you according to the kind of decision that needs to be made.

Those decisions that need to be made on an ongoing basis about day-to-day activities remain the responsibility of the parent who is with the kids at the time. In an emergency situation, the parent who is most readily available is called upon to make the required decisions.

Physical Custody

Physical custody determines the parenting time schedule that you and your children’s other parent will share. One of you may become the primary custodial parent, who has the children for the majority of their overnights, or you may split your time with the kids more evenly.

Parenting time decisions are based on best interest factors like the following:

  • The parents’ preferences

  • The preferences of those children who are considered mature enough to participate

  • The degree to which each parent has participated in raising the children to date

  • The relationship each parent has forged with each of the children

  • The children’s overall needs and each parent’s ability and inclination to effectively address them

  • Each parent’s commitment to maintaining open communication with the other and engaging in effective co-parenting

  • Each parent’s commitment to bolstering the other’s ongoing relationship with the children

  • Each child’s age and overall health

  • Each parent’s overall mental and physical health

Child Support

Child support is calculated according to predetermined state guidelines that don’t take fault into consideration. While a range of factors is employed in the calculation process, the parent who earns more generally becomes the obligor – or the parent who pays child support.

When there are extenuating circumstances involved, such as a child with special needs who requires additional care, the court has the discretion to order child support outside the state’s guidelines.

Alimony

Alimony is only ordered when divorce leaves one spouse unable to support himself or herself while the other has the means to help. The matter of fault can play a role in your case’s alimony determination.
For example, while your spouse’s adultery doesn’t increase your chances of obtaining alimony in the first place, which requires that highly specific conditions be met, it can affect the amount and duration of the award if you do qualify for alimony.

When a Fault-Based Divorce Is Generally Advised

Keeping one’s divorce out of court is generally advisable, but there are circumstances when the court’s intervention is required. For example, if your spouse would rather make your divorce as contentious as possible – regardless of anyone else’s best interests – it generally means that no amount of negotiation is going to help.

In such cases, resolving your divorce in court can cut your losses and help you put the whole difficult matter behind you more efficiently. If you find yourself in a situation such as this, discuss your case with a skilled Round Rock divorce attorney to determine the best path forward for you.

FAQ about Insupportability in Divorce

Are you seeking a divorce that is based on insupportability? The answers to the following frequently asked questions may help.

Does a No-Fault Divorce Mean that My Case Won’t Go to Court?

A no-fault divorce means that neither you nor your spouse is seeking a divorce that is based on the other’s fault. A no-fault divorce is based on insupportability – often called irreconcilable differences.

Whether or not your divorce is contested is up to you. If you need the court’s intervention to resolve your case, your divorce will be contested. If you are able to agree on your divorce terms together, your divorce is uncontested.

Is a No-Fault Divorce More Amicable?

Unfortunately, a no-fault divorce is not necessarily more amicable than a fault-based divorce. With a no-fault divorce, however, you have a greater chance of keeping the divorce proceedings relatively amicable.

Do I Need an Attorney for a No-Fault Divorce?

You are strongly advised to have a formidable divorce lawyer in your corner regardless of whether your case is based on insupportability or on fault. The stakes are too high to leave to chance, and your divorce attorney will help to ensure that your rights are well supported throughout the legal process.

Turn to Experienced Round Rock Divorce Lawyer’s Skilled Legal Guidance Today

Brett Pritchard at The Law Office of Brett H. Pritchard in Round Rock, Texas, is an esteemed divorce attorney who has earned a solid reputation for effectively and efficiently guiding challenging divorce cases toward beneficial resolutions that support his clients’ rights and best interests.

Your divorce terms will play a critical role in your ability to embrace your post-divorce future, and our knowledgeable legal team is standing by to help. To learn more about what we can do for you, please don’t put off reaching out and contacting us online or calling us at (254) 781-4222 to schedule your FREE consultation today.

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