Divorce

The break-up of your marriage will be one of the most stressful periods of your life. From determining what’s best for your children to dividing assets and debts, you’ll have a lot to

Can we just get a legal separation?
We already agree on everything. How do we get it done?
I just got served. What do I do?
We don't agree on anything. Who will the children live with?
What kind of visitation will I get with my kids?
What if my spouse won't let me see my k ids?
What does "joint custody" mean?
How much will I have to pay in child support?
What if I don't think my spouse can properly care for my kids?
Is the house mine or ours?
What is community property?
Is my spouse entitled to a percentage of my 401(k)?
What if my spouse ran up a lot of credit card debt that I didn't know about?
Who is responsible for income taxes the year of our divorce?

A good family law attorney can help you find the answers to most of these questions, and guide you through the sometimes complicated, often emotional divorce process. Feel free to contact one of our family law attorneys at our office and we’ll discuss your issues over the phone, and provide you with helpful advice at no charge to you. If you decide you want to pursue your case with us, we’ll get together and get started. In the meantime, the following is some information you might find helpful.

Basics

After you sign a contract with our firm, our first move will be to draft an Original Petition for Divorce and file it with the Court in the county you live in. We routinely handle divorces in Williamson, Travis, Caldwell, Hays, Bastrop, Milam, and Burnet counties. Be aware: under the Texas Family Code, you must have been a resident of Texas for at least six months and a resident of your county for at least 90 days before you can file for divorce. The Original Petition will set forth basic facts, as well as the grounds for divorce, which can include adultery, cruel treatment, abandonment, and, most commonly, insupportability (think irreconcilable differences).

If you’ve already been served with a petition for divorce, we’ll draft an Original Answer and make sure that it is filed with the Court before any legal deadlines. We may also file a Counterpetition for Divorce, if we feel that it is in you best interests.

Once a petition for divorce has been filed, there is a mandatory 60-day waiting period before the Court can actually grant the divorce. Obviously, 60 days is a long time, especially when you’re dealing with complex property and custody issues. So what can you do in the interim? If there is a need to have temporary arrangements made with regard to child support, spousal support, or property, we will file a Motion for Temporary Orders and set a Temporary Orders hearing. At this hearing, a judge will make temporary orders that will govern how everything goes until the divorce can be finalized. This is very important in many situations, and almost essential if there are kids involved. If you are worried about your spouse withdrawing sums from your accounts without your permission, or preventing you from seeing your kids, or harassing or abusing you, or if any of these things are happening now, we will also request that a judge grant a Temporary Restraining Order, or, in cases of domestic violence, a Protective Order. If either a Temporary Restraining Order or Protective Order is granted, a Temporary Orders hearing will be set within two weeks. Contact us to find out if a Temporary Restraining Order or Protective Order would be helpful in your situation.

Common-Law Marriage

In Texas, you don’t have to be officially married or married in a ceremony to be considered “married.” A man and woman will likely be considered informally married if they meet three criteria: 1) they agree to be married; 2) they live in Texas as “husband and wife”; 3) they hold themselves out as married to others (for example, they file a Federal Income Tax return using “married” status). Those who have entered into a common-law marriage must still go through the same steps as a couple that were formally married.

Uncontested Divorce

Many of our clients approach us having already basically settled everything with their spouses. They’ve drawn up lists as to who gets what, and if there are kids, they know what they want to do about custody, visitation, and child support. Ethically and legally, we can only represent one party in a divorce. However, if you are in this sort of situation, we can draft all of the necessary paperwork, including an Agreed Final Decree of Divorce, and submit it to your spouse (whether or not he or she hires an attorney). If he or she suggests changes and you agree, we will edit the Decree accordingly. You and your spouse will sign the Decree and we will go with you to do a simple “prove-up” in front of the judge (a 5-minute process) as early as the 61st day after the original petition is filed.

Child-Related Issues

If you and your spouse have kids, our primary goal in helping you through your divorce is looking out for your children’s best interest. We care about children and are truly interested in doing what’s best for them. In fact, we encourage all of our clients to abide by “The Children’s Bill of Rights”, which is a list of 30 or so recommendations you should keep in mind when helping your kids through this difficult time. Contact us for a free copy.

Luckily, Texas is one of the best states to be in when you’re divorcing with children. The laws in this state are gender-neutral and centered upon the “children’s best interest” standard, which means judges are bound to make decisions that put children first.

Parental Rights

The default in Texas for custody is “Joint Managing Conservatorship” (JMC). What does this mean? Basically, as Joint Managing Conservators, both parents have basic equal rights and duties regarding their children. Both parents, by default, have the right of access to their kids’ medical, educational, psychological, and legal information, the right to attend school activities, and the right to consent to medical treatment in an emergency. Both parents, by default, have the duty to protect, provide for, care for, and reasonably discipline their children when they are in their possession. The rights to consent to invasive medical treatment, to psychiatric or psychological care, as well as the rights to represent one’s child in legal action or to make important decisions concerning the child’s education, are a bit different. One parent may have the exclusive right to do any of these things. Or both parents may have the right to do so, subject to the agreement of the other parent. Finally, both parents may have the independent right to act after reasonable consultation (not permission) with the other parent. Based on the facts of the case, a judge will determine what is most appropriate, or, you and your spouse can agree on any allotment of these rights.

The other arrangement for custody in Texas is where one parent, the Sole Managing Conservator, has the exclusive right to do all of the above. The other parent, the Possessory Conservator, has basic rights of access and basic duties to care for their child, but they do not have the right to make any major decisions. The Sole Managing Conservator/Possessory Conservator arrangement is the standard in cases where one parent has committed domestic violence or in other serious cases of neglect or abuse.

Residence

One parent will also have the exclusive right to designate the child’s primary residence, and is often called the “residential parent.” This means the child will live most of the time with that parent. Generally, this right is given to the parent who has been the child’s primary caretaker. Most of the time, a Court will order that the child’s residence be restricted to the current county and surrounding counties – so as to encourage the development and maintenance of a healthy relationship between the child and both parents.

Child Support

The non-residential parent will have the duty to provide child support, unless both parents agree otherwise. The Texas Family Code sets forth guidelines for the calculation of child support, which is a percentage of the parent’s monthly net income, starting at 20 percent for one child. If the obligor parent has the duty to support other children from another relationship, this percentage will be reduced accordingly. The guidelines apply in all but exceptional cases. Call to find out what you might pay in child support.

Similarly, one parent will also be obligated to provide health insurance coverage for the child. If the residential parent has health insurance on the child, the other parent will generally be required to reimburse him or her for the actual cost of maintaining the insurance. Parents will be equally responsible for most uninsured medical expenses (like co-pays).

Visitation

Under the Texas Family Code, the non-residential parent will almost always have visitation with their child pursuant to the Standard Possession Order (except in unusual cases). This is the “default.” This means that the non-residential parent is entitled to possession of the child every Thursday evening from 6:00 p.m. to 8:00 p.m., during the 1st, 3rd, and 5th weekends of every month beginning on Friday and ending on Sunday, a period of at least 30 consecutive days in the summer, and alternating holidays and spring breaks. A parent could also request expanded standard visitation, which means visits would begin when the child is released from school and end when the child goes back to school.

Sometimes, there is a need for visitation to be supervised. Examples of when a Court might order or a party might request supervised visitation include cases involving domestic violence, neglect, or drug/alcohol abuse by the parent. If this is ordered, a family friend, relative, counselor, therapist, or even a service such as Kids Exchange might supervise visitation.

If the non-residential parent lives far away, a Final Decree of Divorce will probably contain Long-Distance Travel provisions. Such provisions set guidelines for scheduling flights for children and delegate responsibility for costs associated with travel.

Property Division

Generally speaking, a Court will effect a property division that results in each party being awarded a roughly equal share (50/50 split) of community assets and debts. A Court may award a greater percentage of the property to one spouse if doing so would be in the best interest of the parties’ children, or if the other spouse is guilty of fault in the break-up of the marriage (for example, he or she has had an affair or committed domestic violence). A couple can always agree to divide property as they wish, whether this results in a 50/50 split or even a 100/0 split, in an Agreed Final Decree of Divorce.

Community Property

In Texas, only “community property” is subject to division by the Court in a divorce. To understand the concept of community property, it is perhaps easier to first understand what is NOT community property – what’s called “separate property.” Separate property falls into four categories: 1) property received by one spouse as a gift; 2) property received by one spouse via inheritance; 3) property obtained by one spouse prior to marriage; and 4) certain portions of funds received by one spouse in a personal injury settlement. Anything that does not fall into these categories – for example, income earned during the marriage by either spouse, property obtained during the marriage, a gift to BOTH parties during the marriage, etc. – is community property, regardless of whose name is on the title or account. Of course, your specific circumstances may be a bit more complicated. For example, if, before you marry, you have a bank account with $10,000 in it, that’s your separate property, and a Court can’t award any of it to your spouse upon divorce. However, if you put community funds, such as income earned by either spouse, into that same account while you’re married, you’ve “commingled” funds and that bank account is no longer entirely your separate property. Contact our office for professional advice regarding property characterization.

The same community/separate characterization applies to debts as well. A Court cannot make one party pay another party’s separate debts as part of a property division. It is important to remember that if a debt is incurred during the marriage, it is most likely a community debt, regardless of whom it was incurred by.

Retirement Accounts

Portions of retirement funds and accounts (IRAs, 401(k)s, etc.) accumulated during a marriage are subject to division by a Court. This usually requires that we draft what is called a Qualified Domestic Relations Order to split the account. We can guide you through this sometimes confusing process.

Real Estate Appraisal

Real estate purchased during the marriage with community funds is subject to division by a Court. Of course, you cannot literally divide a house into two. So what happens? Generally, one spouse will be awarded the house as well as any debt on the house. Depending on whether or not there is any equity in the property, the other spouse may be awarded a larger share of some other item of property. For example, a couple might own a house that has $20,000 in equity, as well as a retirement account with a balance of $20,000. If the wife is awarded the house, the husband could be awarded the entirety of the retirement account to balance the division of property. When valuing property such as real estate, often we will hire a qualified third-party real estate appraiser to appraise the property.

A Court could also order that real estate be sold and the proceeds/losses be distributed equally to the spouses.

Even if real estate is not a part of the community estate – for example, one spouse owned the house before the parties were married – it is likely that the community estate will have a claim for reimbursement against the residence due to mortgage paid down on the separate property by community funds during the marriage. The property division can be adjusted accordingly. Or, a spouse might use separate funds (say, from an inheritance) to remodel or otherwise improve the community-property marital residence. That spouse’s separate estate would then possibly have a claim for economic contribution. Again, all of these factors are taken into consideration by the Court in dividing property. Contact our office for professional advice concerning these complicated matters.

Businesses

Many of our divorcing clients have owned businesses, which were started during their marriages, and have been concerned about whether their spouse will be able to “take the business” upon divorce. The quick answer is that if the business was launched during the marriage with community funds, it is considered community property and is therefore subject to division. Just like any other item of community property, a business must be looked at as having a value. Assigning a “value” to a business may seem like an impossible task. Moreover, it can be difficult to determine how much of a business’s value is attributable to its assets and inventory (which may be divisible) versus how much is attributable simply to goodwill associated with its owner (which is generally not divisible). Our attorneys are experienced in these matters, so please contact us if you have any questions about this issue.

Federal Income Taxes

Generally, when a Final Decree of Divorce is signed, the parties will remain equally liable for any tax penalties and equally entitled to any tax refunds through December 31 of the year preceding the divorce. It is also standard for the Decree to contain a provision stating that the parties will file individual returns for the year of the divorce.

When there are children involved, the party who is given the right to establish the primary residence of the children will also be granted the tax exemptions for the kids for all future years, unless the parties agree otherwise and document this agreement by filing a form with the IRS.

These are only a few of the many issues that may come up in a divorce. If you are concerned about the possibility of a divorce or are currently in the middle of a divorce, it’s important that you know and understand your legal rights. Please call our firm, if you are or may soon be dealing with a divorce, so we can help.

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Serving Central Texas

  • Including counties of:
  • Travis County
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