Texas fancies itself as a state that goes its own way, and divorce is a prime example. There are many aspects of a Texas divorce that are either markedly different than in other states or that are worded differently enough to make things confusing.
If you’re facing a divorce in Texas, you need a solid understanding of the legal process, and one of the most important steps you can take toward this end is consulting with an experienced Round Rock divorce attorney sooner rather than later.
Texas Offers No Legal Separation Option
In many states, married couples can obtain a legal separation, which serves a purpose similar to divorce except that – because the couple remains officially married – neither party can remarry. The State of Texas, however, does not afford this option. In Texas, you are married until you divorce, and there is no in-between.
Consequences Attach
The fact that Texas doesn’t have a legal separation process can lead to serious consequences if you do go on to divorce. For example, the assets and debts that either of you acquired while you were separated will be identified as marital assets, which will need to be addressed upon divorce.
For Example
This means that, if you go on to generate a considerable amount of revenue while you are separated, it will belong to both you and the spouse you’re separated from – regardless of how long you’ve been separated. Conversely, if your spouse goes on to incur an immense amount of debt while you’re living separately, you will share financial liability for it upon divorce.
Another point to make is that, if you have a sexual relationship with someone other than your spouse while you are separated in Texas, it qualifies as adultery. And if your spouse pursues a divorce that’s based on your adultery, they could walk away with financial terms that favor them.
In Texas, You Can Get a Divorce that Is Based on Fault
Many states no longer offer the option of a fault-based divorce, but Texas is not among them.
In Texas, you can get a divorce that is based on your spouse’s wrongdoing, such as adultery, cruelty, or abandonment, and it can lead to better terms for you. Fault-based divorces, however, are contested divorces. This means they go to trial and are generally more expensive, more time-consuming, and more hotly contested.
To obtain a divorce that’s based on fault, you must prove your divorcing spouse’s wrongdoing, which tends to be challenging in and of itself. If you’re able to convince the court, however, it could lead to you receiving a bigger share of the marital assets and could bolster your chances of receiving alimony.
A fault-based divorce, however, is unlikely to affect your child custody arrangements unless the nature of your spouse’s wrongdoing poses a threat of some kind to your children’s well-being.
Another important point to make here is that – under the right circumstances – wrongdoing can also play a role in the outcome of a no-fault. For example, if your spouse wasted a considerable amount of money in the course of having an affair, it could support you in receiving a larger share of the marital assets.
To learn how factors like these could impact your case, reach out to a knowledgeable Round Rock divorce attorney today.
Texas Is a Community Property State – but with a Twist
Texas is identified as a community property state. This means that everything that either spouse – or both spouses together – came to own during the marriage is community property that belongs to both equally.
In most other community property states, marital assets are divided evenly between the divorcing spouses, but Texas calls for a just and right division. This means that the marital assets – as offset by the marital debt – must be divided in a manner that is considered fair given the unique circumstances that apply.
The Circumstances Taken into Consideration
The kinds of circumstances that Texas courts consider when determining the just and right division of marital assets include all the following:
The length of the marriage
The size of the marital estate and of each spouse’s separate estate
The contributions each spouse made to the marriage, including in the form of providing childcare and caring for the home
Each spouse’s age and overall mental and physical health
Each spouse’s income and the extent of any discrepancy between their incomes
Each spouse’s earning power and marketability
Whether domestic violence is a relevant concern
Any dissipation of marital assets by either spouse, such as spending down marital funds as a means of keeping more for oneself
Separate Property
In Texas, anything that either of you owned before you married and kept separate from your marital assets while you were married is considered separate property. It’s important to note that Texas begins with the presumption that all assets are marital, and this means that, if you claim something belongs to you alone, you’ll need to prove that it qualifies as separate property.
Some assets qualify as both marital and separate. For example, if your spouse owned a property prior to marriage and kept it strictly separate while you were married, the property is their separate asset. The amount that it increased in value over the course of your marriage, however, is a marital asset that will need to be split between the two of you.
The Marital Classification Applies until Your Divorce Is Finalized
In many states, the date of separation – in the buildup to divorce – marks the point when the new assets and debts accumulated by either spouse are classified as separate. In Texas, however, this doesn’t happen until the divorce is finalized.
This means that if your divorce takes two years to resolve, which isn’t especially uncommon for cases involving complex financials or challenging child custody concerns, all the assets and debts attached to either of you during this time will be considered marital and will need to be addressed in the divorce.
Protect your financial future—contact a skilled Round Rock divorce attorney to help you navigate every stage of the process.
Texas Complicates the Terms When It Comes to Child Custody Arrangements
We are all familiar with the term child custody arrangements, but Texas has also veered from the norm on this one. Texas uses the term conservatorship instead of child custody, and visitation is referred to as possession and access. To make things more complicated still, Texas also throws around the more familiar term of parenting time schedule. Let’s take a closer look.
Conservators and Conservatorships
While most other states refer to parents as custodians of their children, Texas calls them conservators, and this makes child custody a conservatorship. This addresses what most people think of as legal custody, and it bestows parents the right to make primary decisions on their children’s behalf, including in each of the following categories:
The children’s healthcare
The children’s education
The children’s religious upbringing and cultural experience
Conservatorship also grants parents the right to obtain information about their children’s schooling, medical care, and well-being and to access their official records.
Conservatorship can be joint or sole, but Texas courts base all child custody determinations on the best interests of the children. This generally translates to both parents continuing to play a primary role in their lives, and—as such—conservatorship is often shared.
Possession and Access
Possession and access, on the other hand, refer to physical custody—or when the children are with one parent or the other. In most states, this is called visitation, and the term is also used in Texas—but generally not in an official capacity. The parenting time schedule refers to the schedule by which parents address visitation with their children.
Because Texas is committed to upholding children’s best interests by ensuring that they spend ample time with both parents, most child custody cases involve joint managing conservatorship. This means that both parents receive parenting time and share the decision-making authority bestowed by conservatorship – although one parent may have the right to break a tie.
In many Texas cases, one parent is also assigned the role of custodial parent. This means that they have more overnights with their children and that they have the right to determine where their kids make their primary residence – within the geographic parameters set by the court.
If you're navigating custody concerns, consult a trusted Round Rock divorce attorney to help protect your parental rights and your child's best interests.
Best Interest Factors
In order to make child custody rulings that honor the involved children’s best interests, Texas courts turn to best interest factors like the following:
Each child’s age, developmental stage, overall physical and mental health, and needs – including any special needs
Each parent’s commitment and ability to effectively address each child’s needs
Each parent’s level of involvement in the children’s lives so far
The depth of the relationship that each parent has forged with each of the children
The preferences of those children who are considered mature enough to participate in the process
Each parent’s commitment to effective co-parenting and to supporting the other’s close and ongoing relationship with the kids
The degree to which the children’s current living situation, which is called the status quo, supports their well-being in relation to home, school, and community
Texas Has Some of the Most Restrictive Alimony Laws in the Nation
In a Texas divorce, you shouldn’t assume that you will receive alimony. In fact, the requirements are quite restrictive.
Alimony is reserved for those situations in which the recipient is left without the means to cover their own reasonable needs, but reasonable needs in this context aren’t clearly defined. Finally, the other spouse must have the financial ability to pay alimony.
Proving Need
Texas begins with the presumption that alimony isn’t required – unless proven otherwise. This means that if you believe you’re entitled to alimony, the responsibility of proving that you qualify falls to you.
The Alimony Cap
Texas also places a relatively low cap on alimony payments, which is 20 percent of the paying spouse’s gross income or $5,000, whichever is less. This means that someone who grosses $100,000 a month – for example – can’t be required to pay any more alimony than someone who grosses $25,000 a month.
The Duration of Alimony
Alimony is set for an amount of time that is intended to support the recipient in their quest to become more financially independent, such as through education or job training. The specific amount of time is generally based on the length of the marriage, and it breaks down like this:
If the marriage lasted from 10 to 20 years, alimony can be ordered for up to 5 years.
If the marriage lasted from 20 to 30 years, alimony can be ordered for up to 7 years.
If the marriage lasted more than 30 years, alimony can be ordered for up to 10 years.
FAQ
The answers to the following frequently asked questions may help you with your own.
Does a legal separation serve the same purpose as a divorce?
No, the state of Texas does not recognize legal separations. This means that you’re married up to the point that your divorce is finalized, which can directly affect your divorce terms.
How can I protect my rights in a Texas divorce?
The surest means of protecting your rights in a Texas divorce is working closely with a resourceful Round Rock divorce lawyer from the outset.
Contact an Experienced Round Rock Divorce Lawyer Today
Brett Pritchard at The Law Office of Brett H. Pritchard is a trusted Round Rock divorce attorney with decades of experience successfully handling complex cases. He brings that same commitment and skill to every client he represents—and he’s here for you, too.
Learn more about what we can do to help by contacting or calling us at 254-781-4222 and scheduling a free consultation today.