Divorce

A divorce, particularly one that involves children, can be one of the most difficult, traumatic experiences that an individual can face. This article will discuss the basics of divorce that you need to know.

1. When a divorce is filed 60 days must pass before the divorce can be finalized. Once the divorce decree is signed a period of 30 days must pass before the judgment is final. This means that you cannot remarry during that period of time.
2. When children are involved, a divorce actually consists of two lawsuits. There is the divorce, which will end the marriage, and then a Suit affecting the Parent-Child Relationship. While the divorce will normally be concluded in at most 6 months the Suit Affecting Parent-Child Relationship will continue until and youngest child reaches the age of 18 and finishes high school.
3. A court is under a duty to fairly and equitably divide the property of the marriage. This is property that was acquired after the date of the marriage. Texas is a community property state and property acquired after the date of the marriage is presumed to be community property. However, property owned prior to the marriage is considered to be separate property but can acquire a community property character. An example would be if you were part of a retirement program prior to marriage the value of that program on the date of marriage is your separate property. Any further increases in the retirement account after marriage, however, are considered to be community property and will be subject to division.
   All property acquired by gift, devise or inheritance is separate property. But, for example, if you receive money as the result of an inheritance and deposit it into a joint account, it is possible that the money would be deemed community property unless you can provide evidence (known as tracing) to prove that the money is, in fact, your separate property.
4. While a court is under a duty to fairly and equitably divide property this does not mean there will be a strict 50/50 division of the property of the marriage. For example, if the husband earns considerably more than the wife the court may give the wife more assets to make up for the difference in earning power. Courts vary considerably in how they handle such situations.
5. Debt also must be divided. Credit cards, and their debt, are normally divided between the husband and wife. To be remembered, however, is that while a spouse may be assigned a credit card and debt if that spouse fails to pay the debt the credit card company may be able to ask the other spouse for payment. A divorce decree does not affect the rights of creditors. And while a motion to enforce can be filed pertaining to the failure of a spouse to pay debt assigned, a court cannot imprison an individual for failure to pay a debt.
6. A house may be one of the most difficult items of property to divide, particularly if children are involved. A typical scenario is that the spouse who is given primary custody of the children may also get the house and allowed to keep the house until the youngest child reaches the age of 18. If a child is disabled then support will continue beyond the age of 18. Then the house will be placed for sale. And such an arrangement may be preferred by both spouses. But there are two problems with such an arrangement. The first is that the spouse given the house must pay for it, unless the other spouse agrees to help with the house payment. The other problem is that, unless the house is refinanced, the name of the spouse not living in the house will remain on the house, limiting the ability of that spouse to purchase another house.
   If there are no children of the marriage then both spouses may agree to sell the house. In present circumstances, however, there may be an issue as to whether what the house will sell for will cover the debt.
7. If a spouse does not have enough money to support himself or herself temporary alimony (or maintenance) can be ordered by the court. If the marriage has lasted more than ten years then post-divorce maintenance can be ordered.
8. The amount of child support that has to be paid depends upon the net income of the spouse who does not have primary custody of the children and the number of children. The Texas Family Code contains a chart which can be used to compute child support. If there is one child then child support is 20% of net income. If there are two children, then child support is 25% of net income. Three children: 30%; 4 children, 35%; 5 children, 40%. If the payers spouse had children by a prior marriage or relationship for whom that spouse is paying support then that will reduce the amount of child support owed to the children of the current marriage.

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