Divorce Attorney

Divorce is confusing and messy. Before even looking at the money, property, children and house issues, it is important to understand how someone goes about even qualifying to get a divorce.

Need to know how to get divorced?
If you are facing a divorce in Arlington, Texas there are few important things everyone should know. In order to get divorced in Texas, two residency requirements must be met by either one of the parties. The first requires that one of the spouses have been a resident of Texas for a continuous six-month period. The second requires that one of the spouses be a resident of the county where the divorce is filed for at least 90 days.

If the residency requirement is met, one spouse may file an Original Petition for Divorce with the court. The Original Petition for Divorce will include information regarding the grounds for divorce, if there are any children of the marriage, division of community or separate property, request for a protective order, and a request for a name change.

The spouse filing the Original Petition for Divorce (Petitioner) must give notice to the other spouse (Respondent). Examples of giving notice include personally serving the Respondent, the Respondent signing a Waiver of Citation, or service by mail. It is important to note that there are time deadlines with notice of service.

Once the Respondent receives his or her service, he or she may either not contest or contest the divorce. An uncontested divorce is when both spouses agree with to the terms of the divorce. They are also substantially less costly. A contested divorced is when there is no agreement between the spouses and a judge will decide the issues. These range in cost but can be very expensive.

Is Texas a community property state?
Yes; Texas is a community property state. All property earned or acquired by either spouse during the marriage is equally owned by the spouses. During the divorce, the community property will be equally divided between the two spouses. Examples of community property include real estate, pension plans, debts, money earned at work, or money put in a joint checking account. In order for property not to be equally divided between the two spouses, a spouse must show that the property is separate property. Separate property is property or debts acquired only by one spouse or by gift or inheritance. However, if the spouses make an agreement on how their property is to be divided, the court will approve the agreement and not divide the assets according to community and separate property.

Do I need a reason to get a divorce in Dallas County or Tarrant County?
Texas allows for “no-fault” divorces. A “no-fault” divorce means that the spouse is notrequired to prove that the other spouse did anything wrong. If one party is at fault for the divorce, the Petitioner may state the reason in the Original Petition for Divorce and the court may that the reason into consideration in dividing the assets and debts. The statutory grounds for fault divorce include adultery, cruel treatment, abandonment, and long-term incarceration, confinement to a mental hospital or living apart for at least three years. “No-fault” divorce also makes it to where a spouse cannot be held in a marriage if the other spouse does not or refuses to participate in the divorce process.

How long does it take to finalize a divorce?
Texas has a 60 day “cooling off” period. A divorced cannot be finalized until the 61st day after the Original Petition of Divorce is filed. Once both spouses have entered into a Marital Settlement Agreement, the Petitioner will draft and file the Final Decree for the judge to sign and finalize the divorce. The Final Decree may include the division of assets and debts, if either spouse receives support, or establishes child custody, child support and visitation rights. If there is a Marital Settlement Agreement, the divorce will be finalized as soon as the judge pronounces it so in open court and signs the decree. If there is not a Marital Settlement Agreement, the process may take anywhere from six months to one year or longer.

What is spousal maintenance in Texas?
Spousal maintenance may be granted by court order once a divorce is finalized. Once a divorce is finalized a spouse may be entitled to spousal maintenance if (1) the paying spouse has been convicted of or received deferred adjudication for an act of family violence defined by Texas law during the marriage or while the divorce was pending; or (2)the marriage lasted 10 years or longer and the spouse seeking maintenance is unable to earn sufficient income provided for her minimum reasonable needs. If the spouse seeking maintenance meets one of the two requirements, the maximum payment she or he shall receive is $5,000 a month or 20% of the spouse’s average gross income. However, the court has discretion on awarding spousal support even if she or he qualifies. The court also has discretion on the amount that will be awarded. If the court does award spousal maintenance, the payments are limited in duration depending on the length of the marriage.

What is the difference between spousal maintenance and alimony?
On the other hand, alimony is negotiated and agreed upon by the parties. One common reason for alimony payments is that the payments are in lieu of dividing assets. For example, a husband wants to keep the house worth $500,000 but has to pay the wife $250,000 in alimony to offset her loss in the house. Alimony may be tax deductible to the paying party and may be included as income by the receiving party. However, you should always ask your attorney or CPA regarding your situation to determine the tax consequences of alimony payments.

What does an annulment mean in Texas?
An annulment in Texas means that the marriage is declared void and the marriage was invalid at its conception. An annulment differs from a divorce because a divorce ends a valid marriage. Grounds for annulment include incest, bigamy, underage marriage, intoxication, impotence, fraud, duress, or force, mental incapacity, marriage too soon after divorce or marriage too soon after obtaining a marriage license. When the court declares the marriage void, it will be like the marriage never happened. However, the judge may treat the annulment similarly to a divorce when dividing up property, child custody, child support, and visitation, etc.

What is a premarital agreement?
A premarital agreement is an agreement between prospective spouses regarding the terms of the marriage and property. They are enforceable in Texas and become effective when the prospective spouses become married. After marriage, a premarital agreement is not enforceable if the party against whom enforcement is request shows that he or she did not sign the agreement voluntarily or the agreement was unconscionable. Premarital agreements are beneficial because it will help separate acquired property or debts incurred during the marriage in case of divorce. Common reasons for entering into a premarital agreement are if one spouse has a high gross income, one spouse owns a business or one spouse has children from a prior marriage.