Divorce is never easy. Our attorneys understand how even the most amicable of divorces can take an emotional toll on the divorcing spouses. When a divorce is highly contentious, it can be even more difficult. We are committed to helping each of our divorce clients go through this transition with compassion.
The first thing to know is that divorces inevitably take time. Texas law requires a 60-day waiting period starting with the initial filing of the petition until the entering of the divorce decree that finalizes the divorce. During this time, the spouses can prepare for the divorce by identifying all property and debts that must be divided by the court and trying to determine a schedule for child custody, if they have children. The parties should also enter into temporary orders that will control access to property and set temporary child custody and support arrangements. The court may also have to enter a temporary restraining order to prevent one spouse from accessing property or spending money if waste or fraud is likely to be an issue.
If the terms of the divorce are agreed by both spouses, the judge may enter a decree in accordance with the divorcing spouses’ agreement. If there are any contested issues in the divorce, these issues must be resolved by the parties (often at mediation) or they may be tried to a judge or jury. Issues that must be resolved by agreement or by a trial include: property division, debt division, spousal support, and any issues involved if the divorcing couple has children, such as conservatorship as well as possession and access.
Although Texas is a “community property state,” marital property is rarely divided 50/50 between the spouses. Several factors will be taken into consideration including: the amount of separate property each spouse has; the earning power of each spouse; fault in the decay of the marriage; which spouse will be the primary conservator of any children; plus other factors that are relevant to the specific case. Generally, however, the community property division must be “just and right.”
It is up to each spouse to prove what property is actually his or her separate property. Separate property includes any property owned by a spouse before the marriage as well as any property that a spouse is given or inherits during the marriage. All other property is presumed under law to be community property, even if one spouse was the primary manager of that property. All community property may be divided by the court, but the court cannot divest either spouse of his or her separate property.
In addition to dividing up the assets of the marriage between the spouses, the divorce court must also apportion the debts. Sometimes one spouse can prove that certain debts were incurred on the credit of the other spouse. This may influence the division of debt. Ability to pay by either spouse may also influence the division of debt.