Divorce is one of the most difficult and painful events in the life of a family-for both the parents and the children.
In Texas, a divorce typically is based on insupportability of the marriage, also known as “no fault” divorce, although a divorce also can be granted on the grounds of abandonment, adultery, or cruelty. However, a divorce will not be granted until two issues are determined: conservatorship (i.e., child custody) taking into account the “best interests” of the children and division of the community property (i.e., the property acquired during the marriage, which is also known as marital property).
Initiating the Divorce Proceeding
A divorce proceeding is initiated by either or both spouses filing a petition with the court. The case will then be assigned to a specific judge who will preside over the proceeding until concluded. In Jefferson County, a divorce case will be assigned to one of two different courts that exclusively handle family law matters. In Hardin County and Orange County, a divorce case will be assigned to a court of general jurisdiction (i.e., the court will handle general civil and criminal matters in addition to family cases).
Before filing for divorce, at least one of the parties must be a Texas resident for at least six (6) months and a resident of the county where he or she files for divorce for at least the preceding ninety (90) days. A divorce cannot be granted until at least sixty (60) days after the divorce petition is filed. Neither the court, nor the lawyers, can shorten these time periods except in the event the responding party has been convicted of a crime, received deferred adjudication, or is under an emergency protective order due to a finding of family violence. In these instances, the court may grant the divorce before the sixty (60) day period runs.
Contested and Uncontested Divorces
Divorces may be contested or uncontested. An uncontested divorce is one in which the spouses agree to the divorce, agree to the child custody arrangement, agree to the division of the marital property, and agree to the division of their liabilities. In an uncontested divorce, one party files the petition to initiate the process. Then the parties wait sixty (60) days, go to court, announce that the divorce is not contested, agree on child custody and the property division, and leave the courthouse divorced.
A contested divorce, however, is a different matter. Each party typically hires an attorney. Depending upon the nature and amount of the marital property and level of acrimony, the divorce usually will take substantially longer than sixty (60) days to finalize.
In a contested divorce, securing the appropriate temporary orders is critical. Temporary orders govern all aspects of the divorce proceeding between the date the petition is filed and the date the divorce is granted, such as spousal support, custody and support of the children, living arrangements of the children, visitation of the children, payment of bills, possession and use of the marital assets–including the family home–payment of attorney’s fees and other procedural matters. In some cases, a temporary restraining order (TRO) may be warranted to prevent harassment or prevent the sale or transfer of marital property.
The Discovery Process
After the temporary orders are entered, the discovery process begins. This is the process where the parties learn facts about each other’s contentions in the divorce proceedings and the nature and extent of their marital property. Discovery is critical in a contested divorce because it affords the parties an opportunity to learn information necessary to evaluate the case. It also is important for discovering, locating, recovering, valuing and dividing marital property. The discovery process cannot be completed overnight. It takes time to thoroughly evaluate the situation and gather the necessary information.
Discovery may be in the form of written questions directed to the parties through their lawyers. It also may be in the form of requests for copies of documents, such as deeds, vehicle and boat titles, bank account records, stocks and bonds, farm and ranch records, business records, tax returns, credit card statements, telephone records and other relevant documents. Discovery also may be in the form of oral testimony in a deposition. A Sworn Inventory and Appraisement listing the value of the parties’ marital property and debts is prepared using the information collected during the discovery process.
Preparation of the Sworn Inventory and Appraisement is an important step in evaluating the parties’ marital property and liabilities. Each party prepares and submits to the other party a detailed accounting of all community property and liabilities, as well as any separate property. Each party assigns a value to the property and liabilities, and verifies the completeness and accuracy of the inventory under oath. The sworn inventory is then used to divide the community property and liabilities.
Concluding the Divorce Proceeding
Once the discovery process is completed, the divorce proceeding is resolved either by settlement or by trial. The trial may be before a jury or the judge alone. If the case is tried, the court will hear the evidence, and a jury verdict (or judge’s ruling) will be rendered that determines the custody issue and the property division. The standard for deciding the custody issue is what is in the “best interest” of the children. The standard for dividing marital property and debts is what is “just and right.” The practical application of these standards will depend on the facts and circumstances of each case.
The court will then enter the final divorce decree, which will establish custody and visitation rights, define and divide the marital property and liabilities, and assess attorney’s fees and expenses. The final divorce decree also may provide for post–divorce spousal support (alimony). If the parties have not previously reached an agreement regarding alimony, the court may award it in certain limited situations where the parties were married for more than ten (10) years. In Texas, the maximum amount of alimony that may be awarded is $5000 per month for a maximum of ten (10) years.
Like all final judgments entered by a court, a final divorce decree may be appealed. Even an agreed–upon final divorce decree may be modified if one spouse later learns that the other spouse misrepresented the nature and amount of marital property during the negotiations.
If you are contemplating divorce or your spouse has already filed for divorce, call Sonya Coffman. Sonya Coffman is a Beaumont divorce attorney dedicated to creatively resolving your divorce–related issues and securing the final decree as quickly and efficiently as possible. As a trial lawyer, however, Sonya Coffman is prepared to go to war at the courthouse if need be. Her training and experience as a Certified Public Accountant will insure that you receive your fair share of the marital property.
Alimony in the classic sense is not available in Texas. That said, a court can order one spouse to pay the other spouse “spousal maintenance” – also known as court-ordered alimony.
Spousal maintenance is a series of periodic payments from the future income of one spouse to support the other spouse. It is meant to provide an ex-spouse with temporary, limited support to cover his or her “minimum reasonable needs” (such as the mortgage or rent, property taxes, utility bills, automobile payments, insurance, gas, groceries, credit cards, medical expenses, prescriptions, clothing, and child care expenses) during the period of uncertainty immediately following a divorce. Spousal maintenance is generally paid monthly, although the court has the discretion to require payment on a more frequent schedule.
To be eligible for spousal maintenance (or court-ordered alimony), an ex-spouse also must fit within one of the following four categories described in the Texas Family Code:
- The ex-spouses were married at least 10 years and the requesting ex-spouse lacks the ability to earn “sufficient income” to cover his or her “reasonable minimum needs.”
- The ex-spouse proves (i) the other spouse committed an act of family violence against the requesting spouse and/or the requesting spouse’s child, (ii) the violent act was committed during the marriage, within two years before the divorce was filed or while the divorce was pending, and (iii) the offending spouse was convicted of, or received deferred adjudication for, the act of family violence.
- The ex-spouse is unable to earn “sufficient income” to provide for her “minimum reasonable needs” because of an incapacitating physical or mental disability.
- The ex-spouse is prevented from earning sufficient income to provide for his or her “minimum reasonable needs” because the ex-spouse is the custodian of a disabled child of the marriage.
Spousal maintenance payments terminate on the (i) death of either ex-spouse, or (ii) re-marriage of the receiving ex-spouse. The fact the requesting ex-spouse is living with another person in a romantic relationship may also be a defense to paying spousal maintenance.
Making sure that the “best interests” of the children are properly addressed and a “just and right” division of the marital property is achieved in your divorce are important because . . . family matters.