Divorce Basics

Separate vs. Community Property

Texas law provides that a spouse's separate property consists of:

1. the property owned or claimed by the spouse before marriage;
2. the property acquired by the spouse during marriage by gift, devise, or descent
3. the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

The law provides that community property is all property acquired during marriage that is not separate property. In a divorce, the court can divide only community property.

Burden of Proving Existence of Separate Property

In a divorce trial, all property of the parties is initially presumed to be community property. Everyone has heard the adage that in a court of law, one is innocent until proven guilty. Similarly, in a Texas divorce, all property is community until proven separate. When a party claims property is separate property, that party has the burden of proving the separate nature of the property by clear and convincing evidence. If that party falls short of convincing the court that the property is separate property, the court will treat the property as community property.

Traceable Mutations

While most property acquired during marriage is characterized as separate property, this is not always the case. An asset acquired in exchange for separate property remains separate property. For example, if a party comes into a marriage with 500 shares of publicly traded stock, sells those shares, and with the proceeds purchases a car, that car remains separate property. However, in a subsequent divorce, the party claiming the car is his or her separate property has the burden of tracing the purchase money back to his or her separate property.

How Property is Divided

A common misconception regarding the division of community property is that the property must be divided equally. This is not the case. The judge in a Texas divorce is charged with rendering a "just and right" division of the community estate, having due regard for the rights of each party and any children of the marriage. In most cases, the court finds that a just and right division is indeed a 50/50 division of the community estate, but there are a number of factors that the court can consider in determining whether to award a disproportionate share to one party. Some of the more commonly cited factors are fault in the breakup of the marriage, disparate earning capacity of the parties, the custody award if children are involved, the health of the parties, whether a party wasted community assets, and the relative size of the parties' separate estates.

Conservatorship

In the vast majority of cases, each party is given a title that purports to generally describe the party's relationship with the child. This title will be one of the following: joint managing conservator, sole managing conservator, or possessory conservator. These titles are not very descriptive, and, in most cases, the titles in and of themselves are meaningless. For example, Texas law provides that there is a presumption that both parties will be named joint managing conservators. However, the law does not provide that the right to make decisions regarding the child, the terms of visitation, or the obligation to pay child support is in any way affected by the fact that a party is a joint managing conservator. In some cases, instead of naming the parties joint managing conservators, the court may name the custodial parent the sole managing conservator and the noncustodial parent the possessory conservator. Frequently, this happens when court finds that there is a history of violence between the parties or when a party has demonstrated that he or she is not likely to act in the best interest of the child.

Possession of and Access to the Children

The Texas Family Code provides guidelines for the possession of and access to the children. Those guidelines are set forth in what is known as the Standard Possession Order. Basically, the Standard Possession Order provides that the noncustodial parent shall have possession of the children as follows:

1. on the first, third, and fifth weekends of each month
2. on Thursday of each week during the school year
3. thirty days in the summer
4. one-half of the holidays including spring break, Christmas, Thanksgiving
5. Mother's Day or Father's Day weekend, as applicable.

The guidelines are not binding on the court, and in many cases, the court will deviate from the guidelines. Frequently, deviations from the Standard Possession Order result in the parties having more or less equal time with the children when both parties have demonstrated an ability to serve in the children’s best interest. Conversely, when a party has demonstrated an inability to act in the children’s best interest, the court may restrict his or her right to possession of the children.

Child Support

Texas child support laws contain guidelines for the award of child support. There is a presumption that the noncustodial parent will be responsible to pay child support in accordance with those guidelines. However, the Family Code provides that the court must consider various factors in determining whether to deviate from those guidelines. Those factors include, but are not limited to, the following: the age and needs of the child; the ability of the parents to contribute to the support of the child; any financial resources available for the support of the child; the amount of time of possession of and access to a child; child care expenses incurred by either party in order to maintain gainful employment; whether either party has the managing conservatorship or actual physical custody of another child; the amount of alimony or spousal maintenance actually and currently being paid or received by a party; the expenses for a child's education beyond secondary school; special or extraordinary educational, health care, or other expenses of the parties or of the child; and the cost of travel in order to exercise possession of and access to a child.

Medical Support

In addition to child support, the court will generally order the child support payor to provide health insurance for the children. As for uninsured health care expenses, the court will order that each party shall be responsible for a portion of such expenses.

Geographic Restriction

The Texas Family Code provides that it is the public policy of the State of Texas that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the children. In support of this policy, most courts in Tarrant, Dallas, Denton, and Collin Counties will impose a geographic restriction regarding the children. Usually, the terms of such a restriction provide that as long the noncustodial parent resides in a specific county or the surrounding counties, then the primary residence of the children shall also remain in that same area.

Spousal Maintenance (Alimony)

Many divorce litigants begin the process with the mistaken belief that Texas law does not allow for spousal maintenance. Texas was the last state in the United States to provide for a continuing measure of spousal support after a divorce has been granted. The availability and amount of maintenance depends on the length of the parties’ marriage, the ability of the parties’ to meet their own reasonable needs after the divorce, and the earnings of the parties.

Investigation

Once you have decided that you are going to file suit, or, if the other side has filed first, it is helpful to gather as much relevant information as you can as early as you can. Before a lawsuit intensifies, the other party’s defenses are more likely to be down, which sometimes makes this period the most fruitful for gathering financial records, gathering electronic data, recording conversations, or collecting other pieces of probative evidence. Keep in mind that not all methods of gathering evidence (particularly electronic evidence) are legal. If the evidence you gather is illegally obtained, it may very well be inadmissible, and worse, you could face criminal prosecution and/or significant civil penalties.

Filing

All lawsuits are initiated with the filing of a petition. This document tells the court who a party is and the relief he or she seeks. In the divorce context, the petition will say that you want a divorce, it will identify the grounds on which you want to be divorced, and it will request that the court make orders as to child custody, spousal support, division of your marital assets, or whatever may be applicable in your particular circumstances. The person who files first is known as the petitioner, and the other party is known as the respondent. Usually, the petition is personally served upon the respondent, but there are instances in which service can be waived. The respondent can respond to the lawsuit with the filing of an answer and a counterpetition, if appropriate. The answer is filed in order to dispute the allegations set forth in the petition, and the counterpetition is used to assert any affirmative requests that the respondent may have.

Temporary Restraining Orders/ Standing Orders

Historically, once a lawsuit was filed, it was not uncommon for the petitioner to seek a temporary restraining order against the other party as a precaution to prevent emptying of bank accounts, hiding children, disconnecting utilities, disposing of assets, and the like. However, Dallas, Collin, Denton, Ellis and Rockwall Counties (among many others) have all but eliminated the need for temporary restraining orders by promulgating what are known as “standing orders.” The standing orders apply to both parties in all cases filed in those counties, and the orders contain the basic terms of a typical temporary restraining order. However, some counties have not issued standing orders, and, even in the counties that have issued such orders, some parties have issues that are not covered by the standing orders. In those cases, a temporary restraining order may be necessary to prevent imminent injury. Temporary Restraining Orders are effective for up to fourteen days, at most. As such, the Court will require that a hearing be held on or before the fourteenth day from issuance. At the hearing, the Court will determine whether to render a temporary injunction, which prohibits the same behavior as the restraining order, but it lasts until further order of the court.

Temporary Orders

Once a petition has been filed as described above, parties may need orders in place to govern child custody, child support, visitation, temporary use of property, spousal support, attorney’s fees, or a number of other issues. Either party may request temporary orders, and a temporary orders hearing is usually held within a few weeks of the filing of the original petition. As circumstances can change during the pendency of the suit, it is sometimes necessary to have multiple temporary orders hearings throughout the pendency of the case. This hearing is usually conducted as if it is a trial, but it is usually much shorter than a full-length trial.

Discovery

Discovery is the formal process of gathering information from the other side and third parties through the use of various requests to which the other side or appropriate third party must respond. The forms of discovery can include written questions, requests for documents, depositions, among others. The discovery process can be tedious, time-consuming, and expensive. Whether to seek and the extent to which one seeks formal discovery depends on the issues involved and will be determined on a case by case basis.

Settlement

Cases are ultimately resolved in one of two ways—either the parties agree on the terms and settle the case, or the case goes to trial. The majority of cases settle without the necessity of trial. Once each has investigated the case, understands the issues, and knows the strengths and weaknesses of both sides of the case, each side will begin to negotiate a final settlement. If successful and the parties strike a deal, the terms of the agreement will be incorporated into an agreed order and the case will be finalized on those terms. Some settlements are reached through a process known as mediation. Mediations are simply settlement conferences aided by a neutral mediator whose job it is to help the parties see the dispute more objectively. Regardless of whether you wish to mediate your particular case, most courts will order the case to mediation at some point.

Trial

If your case does not settle, it will be set for trial before a judge or jury. Most cases are tried before judges, but in some cases, it may be beneficial to submit certain issues to a jury. If a trial is necessary, our attorneys are experienced trial lawyers, and we take our duty to zealously represent our clients very seriously. However, even when we are standing outside the courtroom doors, we frequently admonish our clients to make a last ditch effort to settle the case without the necessity of trial. When you settle a case, you maintain some level of control over the outcome, and you decide what you are willing to concede. When a case goes to trial, two parties tell a story to a judge or jury, all of whom are strangers, and that judge or jury makes a decision that will have a profound effect on your life. It is critical to have a solid understanding of what can be gained or lost before choosing to let strangers make decisions that affect your family and future.

Final Decree

Regardless of whether your case settles or goes to trial, the court will sign a final decree of divorce. It is imperative that the terms of the final decree accurately represent the terms of your settlement or the court’s judgment, because this order will define your rights and duties for years to come, if not forever. The signing of the final decree is technically the end of the case unless a party files a post-trial motion or pursues an appeal. The outcome of the entire case will be encapsulated in the decree.

Closing Documents

In many cases, there are a number of orders to be signed that are ancillary to the final decree. These orders may serve to divide retirement benefits or to withhold child or spousal support from the payor’s wages. Additionally, there may be a number of closing documents that the parties may have to sign such as deeds to real estate, letters of instruction to financial institutions, or title documents for motor vehicles. Often the signing of these documents is vital to secure the rights set forth in the final order.

Post-Trial Motions

In Texas, both parties have thirty days after the signing of a final order to file certain post-trial motions. These motions usually come in the form of a motion for new trial or a motion to correct or reform the final decree. Sometimes, such motions are a precursor to an appeal.

Appeal

After the final order has been signed, both parties have the right to appeal the terms of the final order. This is usually done after the case has been disposed of by a trial. The purpose of the appeal is to instruct the court of appeals that the trial court erred in some way that either requires a reversal of the trial court’s decision or a remand for a new trial.

Enforcement

When a court signs an order, occasionally, a party will not adhere to the directives in the order. In such cases, the other party’s remedy is to file a motion to enforce the decree. The most effective tool the courts have to enforce their orders is contempt. Most courts take their orders very seriously and are willing to enforce its orders with jail time for the offending party, if necessary.

Modification

If your case involves minor children, your child-related disputes may not be over when the court signs a final decree of divorce. A court typically retains jurisdiction over the custody of a child until the child is eighteen years of age. Further, a court usually has jurisdiction over child support related issues until a child is eighteen or out of high school, whichever occurs later. As such, issues such as custody, visitation, and child support are frequently litigated numerous times until such time that all children of the suit reach the age of majority.