Law Office of Michael G. Diaz, P.C.
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Providing Personalized Counsel for a Positive Future
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In Texas, all marital property is characterized as separate, community, or mixed. If a couple is going through a divorce all of the property must be characterized as one of those three to determine how to divide the community property and what property is a spouse’s separate property.
Generally, separate property is property that was acquired or created apart from the marriage. It is property that does not exist because of or as a consequence of the marriage.
For example, property bought or acquired before the marriage is separate property. Also, property acquired as inheritance for one spouse, or property acquired as a third party gift to one spouse would all be separate property. Other examples of separate property would include property that was bought with separate property and money recovered as part of a personal injury claim.
In a divorce case, the court is prohibited from awarding one spouse’s separate party to the other spouse. The court must award all separate property to that same spouse. So it is very important that you and your attorney make a correct determination as to what is separate and what is community property. Only after you have made that determination can you decide what really needs to be negotiated between the spouses.
Under Texas Family Code Section 6.702, in most cases, a court can’t grant a divorce before 60 days have passed since the divorce petition was filed. So if you had an agreed divorce it is possible to divorced on the 61st day after filing the divorce petition.
However, in actuality, a divorce typically takes anywhere between 6 months and 1 year. Since all assets and liabilities have to be divided, it takes time to inventory the community estate. You want to make sure you have a complete listing and accurate valuation of the estate. This is typically done through what’s called discovery which can involve gathering financial documents and taking depositions.
Once a complete inventory is done, the estate then has to be divided between the parties. The parties can informally negotiate a division, go to a mediator to facilitate an agreed division, or, if no agreement can be reached, have the court decide how the estate will be divided.
Going to trial will result in the longest divorce cases. Trials require more preparation and you will have to rely on when the court will have time to hear your case. In some courts, if you request a court date the first available date can be 4-6 months in the future.
So in most cases, the length of the divorce will depend on the parties. Are the parties able to reach agreements between themselves or will the case have to be tried? Will multiple court hearings be needed or will the parties be able to reach a complete inventory of property relatively easily? Most people want their divorce completed as soon as possible, but you have to keep in mind how important the divorce and property division will be and plan accordingly.
One area that often causes confusion for people considering divorce is spousal maintenance. Spousal maintenance or what’s often referred to as alimony is a set of payments from one spouse to the other spouse after a divorce.
In Texas, spousal maintenance is intended to provide limited support to the other spouse for a specific period of time after the divorce. The Texas Family Code sets forth 3 parts that must be shown for a spouse to be eligible for spousal maintenance- (1) they must be married, (2) the spouse seeking support must show he or she can’t provide for his or her minimum reasonable needs, (3) the spouse must meet one of 4 conditions (either a ten year marriage, family violence, a disabled spouse, or a disabled child).
The minimum reasonable needs are considered on a case by case basis. Generally, courts will consider a spouse’s ability to make mortgage/rent payments, property taxes, utility bills, car payments, insurance, groceries, medical expenses, child care, and clothing costs.
Then court will then consider what property that spouse has along with that spouse’s monthly income. Generally, the court will compare that spouse’s projected income with his or her projected expenses. If the spouse’s income is less than the spouse’s expenses then the second condition may be met.
Finally, after the first two conditions are met the spouse still has to show that there has been a marriage of at least 10 years, family violence, a disabled spouse, or a disabled child.
Once it is determined that spousal maintenance is possible the amount and length has to be determined. The Family Code sets out factors to be considered such as earning power, separate property, duration of the marriage, spouse’s education and employment skills, homemaker contributions, marital misconduct, and family violence. These factors along with the spouse’s minimum reasonable needs will help the court set forth the length and amount of the maintenance. However, Texas Family Code §8.054 does set forth caps on the length of the maintenance based on the length of the marriage and special circumstances.
Eligibility and appropriateness of spousal maintenance can be an important factor in determining the proper resolution of a divorce case. It is important that clients and their attorneys discuss the ways maintenance may come into play in a divorce.
Michael Diaz is a Divorce and Family Law attorney in McKinney, Texas.
Providing effective and efficient solutions to Divorce, Custody, and Family Law clients in McKinney, Frisco, Allen, Plano, Melissa, Princeton, Prosper, Fairview, Celina and throughout Collin County.
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