Firstly, the decision to file for divorce is not an easy one to make. Therefore, having an experienced legal team to guide you is crucial when you’re going through a divorce. Contact Smith Family Law immediately for assistance from our divorce lawyers in Austin on getting through the complicated process.
Additionally, dissolving a marriage can be financially and emotionally draining. It stirs up various feelings and might lead to legal disputes over child custody, asset division, and other issues. For this reason, you should not pursue a divorce case without representation. Smith Family Law can offer the advice and support you need to handle this challenging experience.
Furthermore, to learn more about what we can do for you, call us at (512) 277-3166 for a free consultation with a divorce lawyer in Austin.
Types of Cases We Handle
Smith Family Law is a firm that cares about your family and your needs. We handle all these types of cases:
- Uncontested/Agreed Divorce
- Mediation Divorce
- Child Custody
- Child Support
- Family Law Appeals
- Family Law Order Modification
- Family Law Order Enforcement
- High Asset Divorce
- Protective or Restraining Order
What Are the Requirements to Get Divorced in Texas?
In Texas, there are two requirements you must meet to file for a divorce. You or your spouse must:
- Reside in Texas for at least six months; and
- Live in the county where the divorce petition gets filed for at least 90 days.
No-Fault vs. Fault-Based Divorce
A no-fault divorce is faster and simpler than a fault-based divorce. Furthermore, when navigating through such issues, having a divorce lawyer in Austin can make a significant difference. In a no-fault divorce, neither spouse does anything significant to contribute to the end of the marriage. That means they don’t blame each other for adultery or other marital misconduct that leads to divorce.
In a no-fault divorce, you can cite insupportability as the reason for dissolving the marriage. Specifically, that means your marriage is insupportable because of a conflict of personalities or discord that destroys the marital relationship and prevents a reasonable expectation of reconciliation.
A fault-based divorce is the opposite of a no-fault divorce. One spouse does something to cause the other to file. You must claim your spouse participated in any of these forms of marital misconduct:
- At least one-year imprisonment for an unpardoned felony conviction
- Intentional and persistent mental or physical cruelty making it unbearable to live together
- Abandonment for at least one year
You can also file for a fault-based divorce after you and your spouse have lived separately for at least three years without marital relations.
Another acceptable reason for divorce isn’t necessarily a voluntary act. However, you can file for a fault-based divorce if your spouse was in a private or state mental hospital for at least three years, and adjustment is unlikely, or relapse is probable if an adjustment occurs due to the nature and degree of their mental disorder.
State Laws Related to Property Division
Since Texas is a community property state, spouses own community property equally. However, that doesn’t mean a judge will split equally owned assets down the middle. According to the Texas Family Code, the courts must divide community property in a right and just manner.
Community property is all property acquired by either spouse while married except separate property such as retirement plans, real estate, and bank accounts.
Separate property includes:
- Property either spouse claimed or owned before the marriage
- Any property acquired by a spouse by devise, gift, or descent while married
- Financial recovery for personal injury while married, except compensation for loss of earning capacity
When a judge intervenes to decide on property division during divorce proceedings, they usually review various factors to consider the appropriate division of property, such as:
- Tax issues
- The health of each spouse
- Disproportionate earning power between the spouses
- Each spouse’s future employability
- Fault contributing to the end of the marriage, if any, such as adultery
- Each spouse’s education
- Which spouse has custody, if the couple has children
- Where either spouse acquired the property
Seeking Spousal Maintenance in a Texas Divorce
Either spouse can pursue spousal maintenance. However, that doesn’t mean the court will approve the request. To determine whether to award spousal maintenance and the amount, nature, and duration of the payments, judges will evaluate factors such as:
- The earning ability, age, emotional and physical condition, and employment history of the spouse seeking maintenance
- The spouse’s contributions as a homemaker
- Each spouse’s employment skills and education, the time needed to acquire adequate training or education to allow the spouse seeking maintenance to make sufficient income, and the possibility and availability of the training or education
- The length of the marriage
- Each spouse’s ability to meet their reasonable needs based on their financial resources when the marriage ends
- One spouse’s contribution to the other’s training, education, or increased earning power
- Any pattern or history of family violence
- Either spouse’s behavior leading to abnormal or excessive destruction or expenditures, fraudulent disposition, or concealment of joint tenancy, community property, or other property held in common
- Either spouse’s marital misconduct, including cruel treatment and adultery while married
- The ability of each spouse to provide for their reasonable needs while making child support payments or maintenance periodically
- Property either spouse brought into the marriage
State law prohibits a spousal maintenance award from exceeding 20% of the supporting spouse’s average monthly income or $5,000 monthly.
Determining Child Custody and Visitation
According to Texas Family Code 153.001, the state’s public policy is to:
- Provide a safe, nonviolent, and stable environment for the child
- Guarantee the child has frequent and continuing contact with parents who exhibit an ability to act in their child’s best interest
- Encourage each parent to share in the duties and rights of raising their child after separating or dissolving the marriage
Custody and visitation are called conservatorship in Texas. There are two primary types:
- Managing conservatorship – The parent with managing conservatorship has the right to decide on the child’s education, medical needs, religious upbringing, and other important life decisions.
- Possessory conservatorship – Possessory conservatorship determines where the child will live and when a parent has time with the child.
You and your spouse can negotiate possessory conservatorship. However, the law allows significant flexibility in deciding on the terms for which parent the child will reside with and when the other parent can access them.
However, if you can’t agree to the terms of custody, the court can issue a standard possession order. The order provides a detailed outline of the specific times each parent will have their child. The schedule will depend on the distance between your home and your spouse’s home, among other factors.
Calculating Child Support in a Divorce
The terms of the possessory conservatorship often contribute to the court’s determination about which parent will pay the other child support. Furthermore, a judge can order both parents to provide financial support, but the noncustodial parent (who doesn’t primarily live with the child) is typically the one to pay.
However, a judge ordering the noncustodial parent to provide child support doesn’t necessarily mean the other parent doesn’t have to spend money on their child. The law assumes the custodial parent (the parent the child lives with primarily) will use their financial means to cover the expenses related to raising a child.
The amount of child support the noncustodial parent must pay depends on a percentage of their net monthly income. To clarify, the formula begins with calculating their gross income first. Gross income includes:
- Salary and wages, including tips, bonuses, commissions, overtime, and military pay
- Dividends and interest
- Self-employment income
- Net rental income from owned property
After determining total gross income, subtract these costs to calculate the parent’s net resources available for child support payments:
- Union dues
- Social Security taxes or mandatory contributions to a retirement plan if the parent doesn’t pay Social Security taxes
- Dental and health insurance premiums and other medical costs for the child that a judge orders the parent to pay
- State and federal income taxes based on the rate for a single individual who claims one exemption
The net monthly income gets multiplied by a percentage depending on how many children the parent must provide for. If the parent’s net income doesn’t exceed or fall below a specific threshold, these percentages apply:
- One child – 20%
- Two children – 25%
- Three children – 30%
- Four children – 35%
- Five children – 40%
- Six children or more – At least the same as the amount for five children
Child support duties end under these circumstances unless otherwise expressed in a written agreement:
- The child gets married;
- The child dies;
- The removal of the child’s disabilities;
- The court finds that the child is at least 18 or has not complied with the attendance or enrollment requirements;
- The child enlists in the United States armed forces; or
- An order ending the parent-child relationship based on testing showing the paying parent is not the genetic father.
The only time child support can continue beyond the date the child turns 18 is when:
- The child takes courses for joint high school and junior college credit in an accredited secondary school program to obtain a high school diploma or full-time in a private secondary school in a program to acquire a high school diploma; and
- Follows the minimum attendance requirements the school imposes if enrolled in a private secondary school or the minimum attendance requirements of the Texas Education Code Subchapter C, Section 25.
Contact an Experienced Divorce Lawyer in Austin Now
At Smith Family Law, we know the challenges and obstacles you can encounter while navigating the complex divorce process. Let our divorce lawyer in Austin protect your rights and create a strategy to achieve your desired outcome.