Texas Post-Divorce Alimony

Published October 15, 2012 | By

In this article I will explain the key points in Texas posts-divorce alimony. Please note that alimony is a particularly complicated area and you should consult with a qualified family law attorney about the specifics of your case if you believe you may be entitled to receive or possibly obligated to pay alimony. Also, this post addresses only post-divorce alimony, not temporary alimony.

Contractual Alimony or Spousal Maintenance under Texas Family Code Chapter 8

Texas divorce decrees frequently include provisions for periodic post-divorce payments from one spouse to the other, aside from the more common child-support payments. In general, these payments are based upon the needs of one spouse and the ability to pay of the other. Alimony agreements or orders generally come in one of two forms, either agreed contractual alimony or court ordered spousal maintenance under Texas Family Code Chapter 8.

Contractual Alimony

When the parties reach an agreement for post-divorce alimony payments it is typically structured as contractual alimony. Since this form of alimony is based on an agreement and not a statute there are no restrictions on the amount of the support or the duration, other than those agreed to by the parties. However, the statutory maximums on amount and duration are normally factors considered in the negotiations.

Court Ordered Spousal Maintenance

Chapter 8 of the Texas Family Code provides the court with the authority to order post-divorce spousal maintenance when the marriage has lasted at least 10 years and other requirements are met. Additionally, there is the possibility of spousal maintenance in a marriage shorter than 10 years in certain cases involving family violence. Unless there is a disability of either the party or a child of the parties, the spouse seeking maintenance must prove that he/she is unable to “provide for the spouses minimum reasonable needs.”

Maximum Amount of Maintenance under Statute

Section 8.055 provides that the amount of maintenance the court may order is the lesser of a) $5000/month or b) 20% of the monthly payor’ gross monthly income. Again, it is possible for the parties to agree to an amount higher than the statutory cap but this rarely happens because the caps are factored into the negotiations. In other words, parties rarely agree to what would be worse than there worst-case scenario. It should be noted that the current maximum amount since the 2011 statutory amendment is double the previous maximum of $2500 per month under the old statute.

Duration of Spousal Maintenance under Statute

Section 8.054 provides details on the duration of the spousal maintenance order. For marriages that lasted more than 10 years but less than 20 the maximum duration is five years. If the marriage lasted more than 20 years but less than 30, the maximum is seven years. For marriages lasting more than 30 years, the maximum is 10 years. For cases involving a disability, there is no maximum duration under the statute.

Conclusion

In high net worth or high income divorce cases, alimony is a potential consideration. If this may be an issue in your case, you should definitely consult with a qualified family law attorney about the issue. If you have questions or comments about contractual alimony or post-divorce alimony in Texas please leave your comments below.

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What is a Financial Information Statement?

Published October 13, 2012 | By

A Financial Information Statement is a court-required document for nearly all temporary orders hearings and final trials in Texas divorce cases.  Here is a sample Financial Information Statement so you have an idea of what they look like.  The names and details used are all fictional, although the facts used are relatively typical of the issues dealt with in a Texas divorce. The sample document is based on a husband who expects to move out of the residence and pay child support.  In a real case both sides prepare and submit a Financial Information Statement to the court prior to a temporary orders hearing.

What is the Purpose of a Financial Information Statement in a Divorce?

Essentially this document shows to the court the gross and net income of each party as well as a list of the necessary expenses of the party preparing the Financial Information Statement. When I sit down with a client to prepare this document it is often the first time they have given much thought to what their resources are and what they will need post-separation. Obviously, the financial and cash flow issues in a divorce case are extremely important and need to be evaluated early on in the case.

The Financial Information Statement document is extremely important for helping the court (as well as your lawyer) evaluate the financial issues in the case. Assuming there are not large discrepancies between the numbers on each party’s Financial Information Statement, the decisions in a temporary orders hearing are largely decided by the evidence in each party’s Financial Information Statement.

What are the Pitfalls in Preparing Your Financial Information Statement?

In preparing the Financial Information Statement clients sometimes tend to underestimate their expenditures and give “low ball” expense numbers. Maybe this is because they are embarrassed and they give what they think the number should be, rather than what it actually is. It is important that you give accurate numbers in order to get the result you need. For example, if you typically spend $1000 per month for groceries based on your actual past history, then this is the number you should use for the Financial Information Statement. If instead you put $400 because that seems like a more reasonable number, you’re very likely to have financial trouble as the case progresses because you underestimated your actual expenses and don’t have enough coming in to cover everything. So try to be as accurate as possible in preparing your Financial Information Statement.

Of course the specifics of each individual case are unique and you should discuss with your attorney the preparation and use of the Financial Information Statement.

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Austin Family Law Attorney Explains Written Discovery

Published October 6, 2012 | By

Not every case is a simple one and it is very common for lawyers to have to conduct and/or respond to written discovery requests.  Usually clients are confused by the process and what it involves so in this post I am going to lay out a basic explanation of the kinds of written discovery requests that typically get made in a Texas divorce case, the purpose of each,  and how difficult and time-consuming each is to respond to. While there are forms of discovery other than written discovery (the most common being the deposition), this post will discuss only written discovery.

What Gives Attorneys the Right to Send Discovery?

The Texas Rules of Civil Procedure are what provides the authority for lawyers in Texas cases (including divorce and other family law cases) to conduct written discovery.  In general, the purpose of written discovery is to gain information about the case in order to help you evaluate the case for settlement purposes as well as to prepare for trial.  If you have done an effective job in obtaining discovery from the other side then you should be fully prepared to negotiate a settlement of the case if possible, or try the case if necessary.

Interrogatories

Interrogatories are basically questions that you get to ask the other side.  While each case has its own nuances and facts, there are basic interrogatories that most lawyers ask in every divorce case.  These might include who the party knows that may testify in the case (basically, a potential witness list), what assets exist, what liabilities exist, what a party’s income is and information about their employment history, and details about that party’s contentions in the case.  Depending on the issues in the case there are likely to be questions about other issues like child support, proposed conservatorship and visitation issues, spousal support, reimbursement, etc.

Frequently one side will not like some of the answers given by their spouse.  I have often been asked by clients what we can do about some claim made by the other spouse, in other words how can we make them retract that statement.  Generally, the answer is that we cannot do anything about it.  They are allowed to take whatever position in the case they care to.  Our job is to prove to the court that our position is the proper and correct position.

Depending on what is asked the Interrogatories can be fairly complicated and time-consuming to answer.  Your attorney should help you in answering the questions and making any objections that are necessary and appropriate.

Request for Disclosure

These are somewhat similar in nature to Interrogatories, but they are very limited.  The rule that allows for Requests for Disclosure limit the questions asked in the Request to only questions that are explicitly laid out in the rule.  Neither party is entitled to ask additional questions or to modify the questions.  They are basic questions that should get asked in every case, such as identity of individuals with knowledge of relevant facts, identity of any expert witnesses, and contentions about the various issues in the case.

Answering Requests for Disclosure is relatively straight forward and one of the simpler discovery documents to respond to.  No objections are permitted so you and your lawyer simply answer the questions.

Request for Production

A Request for Production is a request to produce written records of various kinds. The person responding to the request is required to compile all the responsive documents and “produce” them.  Depending on the issues in the case, the amount of records that might be at issue can be huge.  Sometimes this is necessary because an issue in the case requires a great deal of documentation to evaluate and to prepare for trial.  However, this is one of the more abused areas in the discovery process, as it is sometimes used simply to force the other side to do a lot of work and incur a lot of expense on the case.

Your lawyer should give you significant guidance in terms of what documents to compile and also what requests should be objected to, either entirely or in part.  Responding to the Request for Production is one of the more time-consuming issues in discovery and can add significantly to your overall attorneys fees expense in the case.

Request for Admission

A Request for Admissions is essentially one party asking the other to answer a series of yes/no questions.  The idea behind sending a Request for Admissions is to get the other side to admit to certain facts that will help you limit the issues and thus reduce the number of things that you are required to prove.

For example, if you were seeking a court finding that a piece of real estate was your separate property because it was given to you as a gift by your parents your lawyer might send a Request for Admission asking the other party to “admit or deny that the 101 Jackson Street property was given to husband by his parents.”  Requests for Admission are not typically done in divorce cases but they sometimes are an effective tool and are used occasionally.  Due to the yes/no nature of the Request for Admission they are not usually very time-consuming to answer.

Conclusion

Those are the key areas of written discovery.  If you getting divorced and are fortunate enough to be certain that you have all the necessary information already readily available to you and your spouse, then discovery may not be necessary.  However, if you are in the position of not knowing exactly what assets or liabilities are involved or information about any other issue in the case, then written discovery can be a very effective way to get information and documents to help you analyze the case.

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A Tale of Two Divorce Clients

Published August 15, 2012 | By

Please note that the clients and lawyers referenced in the video and transcript are purely hypothetical and not based on actual people.  If you prefer reading to watching, please see the transcript below:

TRANSCRIPT:
Deciding whether your marriage is over and you need a divorce is a gut wrenching, emotionally-draining experience. For those who conclude that it is the appropriate course of action, reaching that point is often a relief because you’ve made a decision. It feels like it’ll be over soon and you can begin rebuilding your life. But far too often the divorce case begins and you discover that things are far from over.

Selecting a lawyer who is going to effectively handle your divorce is extremely important, but most people have no idea how to pick the right lawyer for their case. 

What you need is a divorce firm that specializes in divorce and that has a track record of satisfied and happy clients. A firm that focuses on what should be the main objective in every divorce case: getting the client a fair result as early in the process as possible.

Lets do a hypothetical comparison of two men who have decided to get divorced. 

One, lets call him Bill, mentions to a co-worker that he and his wife have separated and that he’ll be getting divorced. His co-worker enthusiasticly tells him about his lawyer nephew who handles divorces. Bill, thinking his case will be simple and his spouse will agree, ends up hiring the nephew even though he is primarily criminal lawyer. Bill thinks to himself, ‘how hard can a divorce be, right?’ 12 months later, a frustrated Bill is still not close to being divorced.

Lets compare Bill’s situation to Steve’s. Steve had heard plenty of nightmare stories from his divorced friends and knew that he didn’t want to take any chances. He wanted an excellent divorce lawyer. Steve asked these same friends for recommendations, but none of them gave what you would describe as a “ringing endorsement” of their attorney.

So Steve went online looking for the right divorce lawyer for his case. He was looking for experience, a focus on family law, and a firm that had a track record of satisfied clients. When he found a firm that fit this description he scheduled an initial consultation to meet with the lawyer and see if his experience in person would match what he found online. When it did, he hired that firm. Even though his case involved children and some complex assets, four months later Steve was divorced and very satisfied with the result. 

Why were these two outcomes so different? Let’s examine what happened.

Bill’s attorney, not having much experience in divorce cases, was never entirely sure how to proceed. He was frequently hesitant to push forward on the case because he was afraid that he might miss something. He spent a lot of time on issues that turned out to be not that important, while he neglected to focus on issues of extreme importance. He just never was confident that he was handling the case correctly, so he moved very slowly and indecisively.

In contrast, Steve’s attorney knew from experience exactly what needed to be done. He focused on the steps that needed to be taken to get a fair result for Steve as soon as possible. The steps required vary depending on the particulars of each case, but what is crucial here is that Steve’s attorney remained focused throughout the case on the primary overriding objective: get Steve a fair result as soon as possible.

These two men had very different experiences. One had a divorce case filled with frustration, delay, and unnecessary expense. The other experienced a smooth, efficient process handled by a true professional.

While divorce is always an emotionally difficult and painful situation, it shouldn’t be made more difficult by having an attorney who is not qualified or experienced enough to get you an excellent result in a reasonable amount of time. 

If you’re interested in working with a divorce firm that knows exactly what it takes to get a fair result in the minimum time required, then feel free to call the Morgan Law Firm. We would be happy to schedule a consultation to discuss your situation in detail along with your options. Just fill out the form below and we will review it and get back to you to schedule a consultation. If you prefer, just call our office and you can schedule a consultation right away. We look forward to helping you in any way we can.

Posted in Alimony, Child Support, Divorce, Parent-Child Issues, Property Division, Separate Property, Videos | Taged , ,

What is Separate Property in Texas?

Published July 8, 2012 | By

This video explains the basics of separate property in Texas.  If you prefer, you can read the transcript below:

TRANSCRIPT

My name is Scott Morgan, I am a board certified family law attorney. In this video I am going to give an overview of separate property in Texas.

Texas is a community property state. In a Texas divorce case all property owned by either spouse is presumed to be community property. The court is required to divide the community property in a fair and just manner.

However, you can rebut this presumption if you can prove that an asset meets the definition of separate property. In that case the asset is confirmed as your separate property and not factored into the community property division. The court has no authority to award one parties separate property to the other spouse.

Under the right circumstances this can make a huge difference in the overall outcome of a property division.

So what is separate property? There are three types. First, certain types of personal injury recoveries are separate property, but this is quite rare. Second, gifts and inheritances are separate property. Finally, property that was owned by a spouse prior to marriage is that parties separate property.

A common complication is that separate property is not always easy to prove.

You must prove that an asset is your separate property by clear and convincing evidence. This evidentiary standard is significantly higher than the usual preponderance of evidence standard.

Additionally tracing the asset back to its origin can also be challenging.This is especially true with financial assets that have mutated and grown and moved into different accounts during the marriage.

The bottom line is that if you’re getting divorced and have significant assets that you believe might be separate property, you should get a very good family law attorney to help you prove those claims.

I hope this video has been helpful and informative. If you have any questions comments or suggestions for future videos please feel free to comment below.

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