A divorce is a legal action involving the division of all assets and liabilities of the married couple, whether owned or incurred jointly or separately, and all matters regarding any children of the marriage. Below are my efforts to answer some of the most common questions concerning divorce.
My spouse and I are separated. Do we still need a divorce?
Unfortunately, the state of Texas does not recognize any form of legal separation. You are either married or divorced – nothing in between. Therefore, you must examine how you may still be considered responsible for the actions of your spouse and whether you continue to have a duty to support him or her. In addition, such separation may cause conflict and anxiety where there is no defined responsibilities or schedule for parents to maintain. Once you have examined the risks and benefits regarding a divorce suit, you will be better prepared to make the decision. You may want to also consider seeking non-legal counseling, such as from a therapist or religious leader.
Is there any advantage to filing first?
Often there is a tactical advantage to filing first. I often suggest to my clients to gather certain information first, prior to filing. This is information that would require more time and effort of all involved to obtain after the divorce is filed. If you end up being the spouse who is filed against, you are often playing catch in order to get in the right mind frame to proceed and properly prepare for the decisions ahead. In situations involving domestic violence or child neglect, filing first can provide immediate protection for you and/or your children by filing a petition that simultaneously requests a restraining order be put into place against the other spouse.
How long do I have to wait to get the divorce finalized?
The time it takes for your divorce to be finalized, meaning the judge has granted the divorce, can be accomplished any time after the 60-day “cooling off” period has passed. How long your divorce takes beyond this 60-day period depends upon the level of conflict between the parties, whether one or more of the parties is represented by a lawyer, and the sheer amount of issues to be decided. In my experience, I have found that a divorce progresses much more slowly when one or both of the parties is not represented by an attorney. It also very common for a divorce action to have started out as an agreed divorce and then later become hotly contested, and vice versa.
I have heard that Texas is a community property state. Does that mean we have to split everything 50/50?
No. The division of real and personal property is balanced against the liabilities or debts awarded and/or assumed by each party and then further examined in light of what is fair and equitable. For a fair and equitable division to occur, the court examines the total circumstances of the couple – what property did they bring to the marriage, what property was acquired or increased in value during the marriage, which debts will each party be responsible for, what obligations will each party have after the divorce, and many other aspects are considered. Essentially, a 50/50 split is not automatic, but it can happen.
What do you mean by community property?
Community property is a legal label applied to any property obtained during the course of the marriage or the increase in value of property obtained even prior to the marriage and such property is not otherwise considered separate property.
What is separate property?
Separate property is that which is owned solely by the individual and to which the other spouse has no claim or interest. Examples of separate property are gifts (even gifts from one spouse to another), inheritances, items owned prior to marriage that never changed their character as separate property, and any award or settlement that was the result of a spouse being part of a personal injury lawsuit. When lawyers talk about the character of the property in question, they are discussing whether the property is separate or community in nature. When we talk about a presumption of community property, we mean that all property will be assumed as community property until proven otherwise. Much the presumption of innocent until proven guilty.
If I bought a car after we got married but it is only in my name, does that make it separate property?
No, it does not. Traditionally, community property was a concept developed to allow the wife to have a claim to property, which was typically placed only in the husband’s name. When determining whether property is community or separate, the person whose name is on the title is taken into consideration, but is not sufficient alone to overcome the presumption of community property. However, you must remember just because an item may be considered community property does not mean you will not be awarded the item. It simply means that your award of the car would be balanced by either greater debt assumed by you or a like award of an asset to your spouse. Think of the common “scales of justice”. Everything placed on one side for the husband must be balanced by what is placed on the side for the wife.
My spouse was awarded responsibility for a credit card account in both of our names. Does that mean I do not need to worry about it any more?
No, not at all. In fact, this is one of the issues that is often most difficult for the divorcing party to understand. Because the credit card account is subject to the contractual agreement that the applicant made at the time of the issuance of the credit, such a legal obligation supersedes any determination by the divorce court. In other words, your legal obligation regarding the debt remains regardless of what the court as to who should pay on the account.
How can I protect myself then from the creditors?
The best way to protect yourself from the creditors in the instance your ex-spouse does not follow the court order is to arrange for the debt to become the sole responsibility of your ex-spouse. For example, a creditor can agree to make the joint account an individual account, as long as the remaining party responsible for the debt is still considered “qualified” under the creditor’s own standards. Changing a joint account to an individual account often involves re-financing of debt in instances such as mortgages and car loans. There are other less direct ways you can protect yourself as well regarding these debts, and you should ask your attorney about these.