Information on Travis County Divorce

Published January 21, 2013 | By

traviscourtAustin is located in Travis County, Texas.  Where to file for divorce in Texas is determined by county, specifically it must be a county where one of the parties has resided for at least the past 90 days at the time of filing.  This is in addition to the requirement that one of the parties must be a domiciliary of the State of Texas for the past six months at the time of filing.

Location and Phone Number for Travis County District Clerk

For residents of Travis County, Texas, divorce petitions (this is the document that begins a divorce case) are filed with the Travis County District Clerk’s office.  Their office is located at 1000 Guadalupe Street, Austin, Texas 78701.  Their phone number is (512) 854-9457.

Filing Fees for Travis County Divorce Cases without Children

The filing fee for a divorce case in Travis County varies depending on certain factors, including whether or not there are children of the marriage.  As of the date of this post (January 21, 2013) the filing fee for a waiver divorce (one in which the Respondent executes a Waiver of Service) if there are no children is $259.00.  In divorces without children where your spouse won’t execute a Waiver (in other words, they will be served by a process server), the filing fee is $258.00. Don’t get too excited about the $1.00 savings because a non-waiver case will require additional expenses in the form of a fee for the preparation of the citation document and then a fee for the process server to serve the Respondent with the pleading.

Filing Fees for Travis County Divorce Cases with Children

In Travis County divorce cases with children, the filing fee is $274.00 for a Waiver divorce and $273.00 for a non-waiver divorce.  In cases with children there are additional fees that may apply.   With all of the fees, if you are filing your own divorce case I would recommend that you physically go to the Travis County District Clerk’s office and file your divorce case in person.  They will then calculate your filing fee and you can pay it there. This way you will be certain to pay the correct amount and not have a problem later on.

If You Need an Attorney

If you need to hire an attorney to assist you in your divorce feel free to call us (512-551-0807) or fill out the contact form on the right side of the page.  We will schedule a consultation and learn all the details of your situations and discuss the available options.  Unless there are no children of the marriage and there are no assets or liabilities to divide (almost everyone has some assets and/or debt to divide) then I strongly recommend you have an attorney handle your case.  Here is a video on how to select the right divorce lawyer for your case.  Divorce can be scary and complicated so you want to get good advice and representation.  Mistakes in your divorce case can cause you a lot of unforeseeable problems in the future.

image credit: photobucket

Posted in Divorce

Austin Divorce Lawyer Reviews

Published December 28, 2012 | By

courtroomEveryone plans on it being forever when they say “I do” but the reality is that it doesn’t always work out that way.  When it becomes apparent to you that this is your situation, then you want to make sure your divorce is handled appropriately.  The disintegration of something that you thought was permanent is always disappointing but that does not mean that you have to allow yourself to be treated unfairly as you go your separate ways.

Make Sure Your Rights Are Protected

The best way to ensure that you get a fair result and that your rights are protected is to hire an experienced quality family law attorney.  The best way to determine who is good and who is not so good is to hear from those who have been in your situation before and who have been represented by that attorney before.  If you don’t have personal recommendations to go on, the next best thing are reliable online reviews of attorneys.

Look at the Morgan Law Firm Divorce Lawyer Reviews

At the Morgan Law Firm we have always prided ourselves on having clients who were satisfied with our work and were happy to tell others about their personal experience.  For years we have kept a client testimonials page where they could post about their experience with our firm.

In recent years the internet has caught on to the usefulness of online reviews and our firm has had many reviews posted on a variety of websites.  Here are links to some of the websites that have Austin divorce lawyer reviews:

If you are at the point where you need some guidance about your situation feel free to contact our office to schedule a consultation by calling (512) 551-0807.  We can review your situation in detail and let you know your options. The sooner you start to get answers the sooner you will begin moving towards the future.

 

 

photo credit: ChristopherTitzer via photopin cc

Posted in Divorce

How to Deal with a House in a Divorce

Published October 19, 2012 | By

A common issue in most divorce cases is what to do with the marital residence.  If the parties rent their residence this is not a big issue, but in most divorce cases there will be owned real estate that must be dealt with.

Two Most Common Ways to Handle

While every case is different and there are many unique and unusual sets of circumstances, for most cases there are only two realistic divorce outcomes when it comes to the house. Either the house gets sold and the proceeds from the sale split (usually on some percentage basis) or either the husband or the wife is awarded the house along with the debt attached to the house.

What About the Equity?

When one spouse is awarded a house that has significant equity the other spouse will want an offset from some other asset.  As a simple example, let’s say a couple has a house with $100,000 in equity and their only other asset is a 401k account in husband’s name worth $100,000.  If wife was awarded the house and husband was awarded the entire 401k account, it would be a 50/50 division.  If instead neither party wanted the house and they put it on the market they could then split the net proceeds from the sale of the house 50/50 and also split the 401k 50/50. That would also be a 50/50 division.

What Real Estate Documents are Used to Transfer the House?

If instead of selling one spouse is awarded the house then in a typical case this requires just two real estate transfer documents. These should normally be done at the time of divorce along with the Divorce Decree and other transfer documents.  The first document is a “Special Warranty Deed.” This document is signed by the spouse who is not getting the house and in effect it says that the other spouse is now the 100% owner of the house (subject to the debt secured by the house).

The second document is a “Deed of Trust to Secure Assumption.”  This document is signed by the spouse who is getting the house and in effect it is that party’s promise to pay the existing mortgage in a timely fashion.  If the party who receives the house falls behind on the mortgage payments or in any way defaults on the mortgage, the Deed of Trust to Secure Assumption gives the other party certain recourse against them.  The details of that potential recourse are spelled out in the language of the Deed of Trust to Secure Assumption.

Divorce Transfer Does Not Remove Name from Mortgage

One important issue that is often misunderstood concerns the existing mortgage.  In the scenario described above, the mortgage that is held in both parties names stays in both parties’ names, even after divorce.  Parties sometimes assume that because they have agreed for one party to solely assume responsibility for the mortgage that this agreement is binding on the lender and all they need to do is call the mortgage company to get the name changed on the account.  Not so. The lender will always refuse to do so.

The only way the other party will be relieved of that liability is if the mortage is paid off, either by refinancing it or by selling the property.   In other words, the debt will remain on the credit report of the non-owning spouse until the debt is paid off. If the owning spouse goes into foreclosure then that will impact the credit of not only the owning spouse but also the non-owning spouse.

The bottom line is that if your spouse is being awarded the house in your divorce case, it is very much preferable if at all possible to have them refinance the property in their own name.  Usually the refinancing can happen prior to divorce (or at least pre-approval obtained prior to divorce) or within a set deadline that is included as a term of the Decree.

I hope this helps clarify the issues surrounding how to deal with a house in a divorce case.  If you have questions or comments please feel free to share them below.

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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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My Thoughts on Top 10 Tips for Great Divorce

Published October 12, 2012 | By

I came across a thought-provoking article by Pamela Cytrynbaum on psychologytoday.com, entitled Top 10 Tips for a Great Divorce. It gives her suggestions on how to turn an amicable separation into an amicable divorce. I mostly agree with what she suggests, although I have different thoughts on a few of the issues. I encourage you to check out the article. Here are my thoughts on some of her tips that I took issue with:

Her Tip #2 – Lawyers Prepare for the Worst. Mediators Bring out Your Best.

The author encourages people to not hire lawyers but instead go to a neutral mediator to settle their case. This is an issue that I have been asked about from time to time. The motivation behind this idea is a good one, that is to try and resolve the divorce without ugliness. The problem is that the issues are simply too complicated to address without legal advice. If you are the spouse who has less information about the finances (or simply are missing financial information about accounts and your spouse’s name), then following this advice could lead to a disastrous result for you.

MY ADVICE – Hire a good lawyer with the instruction that they try to resolve the case fairly but in the early stages if at all possible.

Her Tips #5 – Agree on How to Disagree and #6 – Timeouts: Outline Clear and Effective Consequences

On these two tips the author recommends that the agreement be clear on how to handle issues that might arise in the future (she gives as examples if one party relocates or remarries) and what the consequences are for violating the agreement. Again, in principle these are great ideas. However, unless you have the experience of a good family law attorney in your jurisdiction who knows the law on these particular issues and can draft the language so that it is enforceable, it is very unlikely you’re going to be able to effectively deal with these issues.

MY ADVICE – Again, you need a good attorney to assist you with the key issues in the case and to put the agreement in a language that courts will enforce later if necessary.

Most of the rest of Ms.Cytrynbaum’s tips are great and people would do well to follow them. For example, she encourages the parties to occasionally get together with the children and have dinner as a family. I think this is a wonderful idea and when this is possible it would be a very positive thing for your children to experience.

She also discourages people from introducing any new boyfriends or girlfriends to the children until long after the divorce is final. I agree that this can be a damaging and traumatic thing for children if it happens too soon after the divorce.

Overall, it was a very interesting read and I think a lot of people could benefit from following her advice, except for the tips described above that I have issue with. Take a look at the article and let me know your thoughts in the comments section below. I’ll be interested to hear your thoughts.

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Visitation – What is the Texas Standard Possession Order?

Published October 11, 2012 | By

The Standard Possession Order (SPO) is a default visitation schedule defined by the Texas Family Code that is used in the vast majority of Texas divorce cases involving children. It is extremely detailed and lengthy and is one of the main reasons that divorce decrees in cases with children are usually 30 to 40 pages long. The Standard Possession Order statute is Texas Family Code Section 153.3101 through 153.317.

Every order has its own particular provisions, so please refer to the specifics of your own order for guidance if you have one. Also note that all of the terms are subject to alteration, either by negotiation or court order. This article is designed to give a brief overview of the statute and how its key provisions work when the standard language is used without tweaking. Here are some of the key provisions of the Standard Possession Order, as applied to parents who live within 100 miles of each other (the statute is somewhat different for those that live more than 100 miles apart).

Weekend Visitation

The non-primary parent has weekend periods of possession beginning on the first, third, and fifth Fridays of each month. Note that not every month has a fifth Friday, but for those that do it means that the non-primary parent will have possession for two consecutive weekends (a fifth Friday in a month will always be followed by a first Friday on the following month).

The beginning time of the weekend period can either by 6:00 p.m. or when school is dismissed. The ending time of the weekend period can either be 6:00 p.m. on Sunday or Monday morning when school resumes, depending on which election is made by the non-primary parent. If the period begins when school ends on Friday the non-primary parent is responsible for picking the child up from school and if the period ends on Monday morning the non-primary parent is responsible for delivering the child to school.

Thursday Visitation

The statute provides for the non-primary to have visitation every Thursday during the school year. The standard visitation is just a dinner period, from 6:00 p.m. on Thursday until 8:00 p.m. that same day. However, the non-primary parent can elect to extend that visitation to begin as early as school dismissal on Thursday and to end at school resumption on Friday morning. In effect, this gives the non-primary parent the option to have at least one overnight per week and avoids going the extended period of time between weekend visitation periods without having the child overnight.

Holiday Visitation

I recommend you check the language in your order if you have one for all specific provisions that apply to your situation, or the language of the statute if you do not, and this is especially true for holiday visitation. Holiday periods are probably modified more than any other area of the Standard Possession Order schedule because every family is different and has different holiday traditions. Also, please note that the holiday periods trump the weekend and Thursday visitation periods. In other words, if there is a conflict the holiday schedule applies, not the weekend or Thursday schedules.

Summer – Generally, the non-primary parent gets 30 days in the summer. There are a number of ways this period can be scheduled under the SPO, with certain restrictions. The 30 days can be exercised in either one or two periods of at least ten days each. The non-primary parent is required to notify the other parent in writing of the summer schedule by April 1. If no notice is given then the default period is July 1 through July 31. There are a number of restrictions and details that are too lengthy to discuss in this post so see your order for the specific requirements in your case.

Christmas – In alternating years each parent gets either the first half or the second half of the Christmas break.The Christmas break is defined as beginning at either 6:00 p.m. on the day school is dismissed for the break or at the time of school dismissal, depending on whether the extension election is made. The break ends either at 6:00 p.m. the day before school resumes or at the time school reconvenes. The exchange time (the break between the two halves) is noon on December 28th. The non-primary parent gets the first half of Christmas during even-numbered years and the second half during odd-numbered years.

Thanksgiving – In odd-numbered years the non-primary parent has possession during the Thanksgiving break. In even-numbered years Thanksgiving goes to the primary parent.

Spring Break – In even-numbered years the non-primary parent has possession during Spring Break. In odd-numbered years this period goes to the primary parent.

Mother’s & Father’s Day weekends – Moms get possession of the child during the Mother’s Day weekend and dads get possession of the child during the Father’s day weekend.

Child’s Birthday – For the parent that does not have regularly scheduled possession of the child on the child’s birthday, that parent gets possession from 6:00 p.m. to 8:00 p.m. on that day.

So that is a somewhat brief overview of the Texas Standard Possession Order language. Again, please refer to your order and the language of the actual statute (and get advice from a lawyer) if you have specific questions regarding your situation.

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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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What Effect Does Adultery Have on a Texas Divorce Case

Published October 3, 2012 | By

This post will discuss the legal and practical implications of extramarital affairs on a Texas divorce case.

Adultery is a Statutory Grounds for Divorce in Texas

The Texas Family Code has long held that adultery is a grounds for divorce. See Section 6.003 of the Texas Family Code. Its use as a grounds for divorce has become far less significant since Texas became a no-fault divorce state many years ago. Nonetheless, it is frequently pled as a grounds for divorce and a judge can find that the grounds for divorce was adultery, not the much more commonly used irreconcilable differences.

Adultery Can Have an Impact on Property Division in a Texas Divorce

The Texas Family Code also provides that the court can consider fault in the divorce in dividing property. See Section 7.001 of the Texas Family Code. This gives the court the authority to make a disproportionate division if it believes that one side was more to blame for the divorce than the other party. Consequently, adultery can be a factor that leads to one spouse being awarded more property in the divorce case. How much of an impact it makes in any given case is highly dependent on the specific facts of the case and the predilections of the judge. To some judges affairs are a significant factor in a divorce case, to others they are more a symptom of an unhealthy marriage.

Adultery Generally Does Not Impact Custody or Access to Children

While affairs can have an impact on property division, they generally have no impact on custody or access issues. The court’s determination of custody and other access provisions are still governed by the overriding principle of “best interests of the children” as well as a number of specific statutes in the Family Code.

Thus, adultery is typically a non-issue in a custody case with one major exception. If the affair occurred or is ongoing in some way that the court deems to be harmful to the children, this can have a major impact. An example of this would be having the children in the presence of the paramore (boyfriend or girlfriend) prior to the divorce being finalized.

Adultery Can Complicate a Divorce and Create Hostility

So far we have discussed the specific legal issues in detail, but in my experience the practical implications of affairs on a divorce case are often much more impactful. I personally have seen many cases that initially appeared to be relatively calm, civil divorce cases that look like they would be resolved amicably turn into contentious, ugly battles after one spouse learned of an affair. This is especially true when that spouse believes that their marriage was “broken up by this homewrecker” and that there was nothing wrong with their marriage until the affair occurred. Situations like this can cause a divorce to turn into a lengthy, expensive nightmare of a battle.

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Austin Divorce Attorney Debunks The Biggest Misconception in Texas Family Law

Published August 17, 2012 | By

As a Texas family law attorney for my entire career I have seen client after client be surprised by how the Texas Family Code requires that property be divided in Texas divorces. Most clients have heard that Texas is a community property state. While this is correct most people misunderstand what that means.

Texas Family Code Gives Court Broad Discretion in Property Division

Clients will say that they already know that since Texas is a community property state the property will be divided 50/50. The reality is that while Texas is a community property state, unlike many other community states the community property is not automatically divided evenly between the parties. The Family Code requires the trial court to divide the property in a “fair and just” manner. If you ask a qualified Austin family law attorney what this means they will tell you that a separate statute gives the court a list of factors that it can consider in making a disproportionate division (meaning that one side gets more than the other, such as 55/45).

The factors are many but the one that factors in most often is disparity of earning capacity. When one spouse makes significantly more than the other the court will often give the spouse with the lower earning capacity a larger share of the community property. The reasoning is that if the court were to make an equal division at the time of divorce it wouldn’t be equal for very long, due to one spouse greatly out earning the other spouse for a few years after the divorce.

Other factors courts can consider in dividing community property in a divorce include (but are not limited to) needs of the custodial parent, amount of separate property a spouse has, and fault.

Most Common Factor in Disproportionate Division: Income Disparity

A very common scenario that occurs in divorces is for the couple to consist of a primary breadwinner (frequently but not always the husband) and a spouse who works part time or not at all and is primarily responsible for taking care of young children. In this situation a court is likely to consider a disproportionate division in favor of the custodial parent. Part of the reasoning behind this is that being primarily responsible for raising children is likely to reduce one’s ability to advance their career and earn a high income.

Another Factor in Property Division: Amount of Separate Property

Another factor that courts can consider in deciding whether to make a disproportionate division is how much separate property a spouse has. Let’s use as an example a couple who got married at the time of marriage one of the spouses had a million dollars of separate property while the other spouse has no separate property. The marriage then created $200,000 of net community property for the court to divide at divorce. The court may very well consider making a disproportionate division in favor of the spouse who has no separate property.

Fault Can Also Play a Role

Lastly, the court can consider fault as a factor in making a disproportionate division. While fault does have an impact in some cases, it is far less frequently a significant factor in a disproportionate division than disparity of earning capacity or some of the other more commonly applied factors.

The main point here is that while Texas is a community property state that does not mean that the community property will be divided 50/50 in a divorce and there are a lot of variables that need to be considered. This is just another in the long list of reasons why everyone going through a divorce needs to be represented by a knowledgeable Austin family law attorney.

Posted in Divorce, Property Division, Separate Property | Taged , , , ,