At the outset, you should be absolutely sure that your marriage is beyond saving. If you are uncertain, you should encourage your spouse to join you in marriage counseling with a qualified counselor acceptable to both of you.
Caution: Some people hope that filing for a divorce will shock their spouse into reality and, therefore, save the marriage. While filing for a divorce sometimes saves the marriage, this is a rarity. Usually, it causes the other spouse to become more hostile. Therefore, the filing of a divorce should be filed with the realization that if you are asking for a divorce, that is what you will get.
A divorce may be granted on one or more “fault” or “no-fault” grounds expressly set out in the Texas Family Code. Most divorces are founded on the no-fault ground of “insupportability” (i.e. incompatibility) , which can be granted to either spouse if that spouse feels that the marriage has become insupportable because of discord or conflict in personalities which makes any reasonable expectation of reconciliation impossible.
“Fault” grounds for divorce include adultery or cruel treatment. In that a court may consider “fault” in the breakup of a marriage as a factor in deciding how to divide the property and debts, a party may also choose to plead a “fault” ground for divorce.
All property which exists in whole or in part in the name of either spouse at the time of divorce is presumed by law to be community property. This is referred to as the “community property presumption”. Therefore, if you have any separate property, or if you are in possession of property which does not belong to either you or your spouse, you must point this out to your attorney. Unlike separate property, a court has the authority to divide community property in any manner that it deems to be “just and right” (as discussed in more detail below).
Debts and liabilities incurred before marriage, if still in existence at the time of divorce, shall remain the debt of liability of the party who incurred it. Debts incurred during marriage will be divided by the court between the parties at the time of divorce. One spouse may be required to assume a debt incurred solely by another spouse during marriage. Although not an absolute rule, the general rule of thumb is that, following the filing of the divorce petition, courts are usually going to award a debt to the spouse who incurred the debt during separation. Decisions will also need be made regarding contingent liabilities, such as past income tax liabilities which may arise in the future if the parties are audited, as well as tax liabilities for the year of divorce.
The parties, by settlement or a court after trial, will divide all existing property and debts. While the parties may by agreement make any type of division that they want (e.g., give to husband certain of wife’s separate property, agree to alimony, etc.), a court during litigation does not have such flexibility but is bound by the rules of law set out above with reference to property and debts. Also, these rules serve as the primary basis to guide the parties and their attorneys in reaching a settlement.
If there are minor children of the parties, all divorce decrees and settlements will contain orders governing the custody, possession and support of the children after the divorce. A “child” is any who was born or adopted by the parties. Once a child turns eighteen, the court’s minor jurisdiction over the adult child ends.
The non-custodial parent (e.g., possessory conservator) is generally required to pay financial child support to the primary custodial parent for the benefit of the children. Although this can take many forms, child support usually consists of periodic (e.g., monthly) payments to the custodial parent.
The legislature by statute has adopted Child Support Guidelines. Basically, the amount of child support under the Guidelines will be based upon percentages (based on the number of children) of the support payor’s “net resources” (as defined in the Guidelines). For example, the guidelines require the payor to pay 20% of his “net resources” for one child, 25% for two children, etc. Most courts generally follow the guidelines in the usual case, absent unusual circumstances.
We understand the confusion that can stem from the uncertainty of a divorce. We therefore encourage you to make your first step a phone call to the Law Office of Arthur J. White III, P.C. While we cannot guarantee results, we can promise that should you work with the Law Office of Arthur J. White III, P.C., we will work hard for you.