Originally published by The Law Office of Bryan Fagan, PLLC Blog.
How long you are married to your spouse can impact your divorce in multiple ways. Primarily, the length of your marriage tends to play more of a role in relation to the property division within your divorce rather than with children. This is logical given that if you and your spouse have been married for many, many years then you probably do not have any children that are under the age of 18 and subject to the jurisdiction of the family court. So, when we talk about the length of your marriage and the impact on a divorce settlement, we should focus our attention on issues related to property division.
What exactly do we mean by property division? Well, I think we first of all need to point out that Texas is a community property state. Community property refers to the laws that Texas has on its books which govern how property is treated in relation marriage and divorce. There is a presumption in Texas that all property acquired during the course of your marriage is community property. Community property is divisible in the event that you and your spouse get divorced. Separate property is any property that you owned prior to your marriage or acquired during your marriage either by gift or inheritance.
The longer that you and your spouse have been married, the more community property that you are likely to have acquired. Your martial home, the lion’s share of your retirement savings, the savings in your bank account, non-retirement investments, your personal property and other miscellaneous property would be what I am referencing here. If you have been married a long time then you would have theoretically had a longer amount of time to acquire property that can be divided in a divorce.
Dividing community property in a divorce settlement
Now that we have discussed what community property is and how it can impact your divorce, let’s talk about an important word that is included in today’s blog post title. I am referring to the word, “settlement.” Most people who begin a divorce case assume that their divorce will wind up inside of a courtroom with a judge deciding who gets what. Movies and television have caused us to believe that every legal matter is drama filled and decided by a judge. We may even have friends and family that have led us to believe the same.
The reality is pretty far from this hyped-up scenario that movies, television and other folks have led us to believe. In actuality, the vast majority of Texas divorces are settled prior to a trial. In fact, you are likely to either never have to go to court at all or have only to spend a very short amount of time in court at the very end of your case. Either way, do not fret about having to spend a lot of time or money inside the courthouse as a result of having to file for divorce.
Your divorce is likely to settle before a trial. Settlement could occur in informal negotiations with your ex-spouse and their attorney or in mediation. Mediation is a process where you and your spouse would agree to allow a third party, family law attorney to work with you all in an attempt to settle your case. Most mediations occur at the mediator’s office. You and your lawyer would be in one room at the office with your spouse and their attorney being in another. The mediator would act like a ping pong ball bouncing back and forth in between the rooms communicating settlement offers and helping the two sides negotiate with one another.
Mediation allows you and your spouse wield a great deal of power when it comes to deciding how to split up your property. After all, if you and your spouse have been married for a long time then you all are more likely to be able to split your property up fairly than a judge would. The judge will need to divide up your community estate in a just and right manner. Just what exactly just and right means is pretty much up to every judge. He or she will have a series of factors to consider, but a lot of the ultimate decision will be left up to the discretion of the judge.
In mediation, you and your spouse do not have to put any particular emphasis on how long you were married. However, if you were a stay at home parent/homemaker for thirty years and your spouse is a physician then you will likely need greater than half of your community estate in any division. The reason for this that your age, your employment prospects and education all work against you in relation to being able to land on your feet after the divorce. Your spouse would be in a better position to be able to recover from a divorce than you would.
Spousal maintenance and contractual alimony in relation to the length of your marriage
One area of your divorce that we have not talked about that explicitly is related to the length of your marriage is that of spousal maintenance. You may have heard of spousal maintenance referred to either as alimony, contractual alimony or spousal maintenance. Texas actually allows for both spousal maintenance and contractual alimony. We will discuss what each of these is how they may relate to you and your divorce.
Spousal support generally speaking is actually not something that is related to your community property division. It is not part of the community estate and it is not related to child support that you either pay or receive. Spousal support are money payment independent of these other areas of your divorce. The payments can occur both during your divorce (temporary spousal support) and after your divorce (spousal maintenance contractual alimony).
These payments can end up being a very important part of your divorce settlement. Your ability to pay bills, obtain a college degree, afford your mortgage and do other financial things may be possible only through the payment of spousal support. Keep in mind that if you have been home for many years while your spouse worked, your ability to use spousal maintenance to pay for college or vocational training could determine your quality of life as a divorced person.
Spousal maintenance and contractual alimony, explained
The two types of spousal support that we need to concern ourselves with are spousal maintenance and contractual alimony. How you can be awarded one, how much money you can be paid and how long they last vary so it would make sense for us to differentiate between the two before we go any further in today’s blog post.
Basically, we can look at contractual alimony as a form of spousal support that your spouse agrees to pay you in the divorce decree. The judge in your case will need to approve the alimony arrangement but what you agree to is likely to be approved. A lot of the time your spousal maintenance potential will impact how much your spouse is willing to offer you in contractual alimony.
It is not easy to convince a judge to award you spousal maintenance. It is only in the past twenty-five years or so that spousal maintenance could even be awarded to you or your spouse in a Texas divorce. Additionally, the idea that you will never have to work again because you are paid spousal maintenance is not probable. The reason for this is that the laws in Texas limit how much you can be paid as well as the duration that the spousal maintenance can be paid to you.
The reason why courts limit the amount of spousal maintenance that can be paid to you is due to Texas being a community property state. The thought behind limiting spousal maintenance relates to how courts are likely to be more generous in more equitably (fairly) awarding property in a community property state divorce than in states that do not adhere to community property principles. If you do not receive as much spousal maintenance in Texas as you could have in another state, the thought is that the property you receive in the division would stand to offset the smaller amount of maintenance paid.
Additionally, it should come as no surprise to you that the state of Texas is not a fan of grown people not working who are physically and mentally able to do so. By awarding large and long lasting spousal maintenance awards in divorce it would theoretically increase the likelihood that recipients of these awards would be less motivated to work. Spousal maintenance is intended to be a minimal payment that helps you get on your feet in the immediate time period after your divorce. It is not intended to represent payments commensurate with your “service” in the marriage. Nor is it intended to represent a “just and right” apportioning of your value to your spouse.
Here is where length of marriage impacts your divorce settlement, re: spousal support
About ten years ago the state legislature changed how a person may be eligible for an award of spousal maintenance. Now you must be able to show a court that you will not be able to support yourself after the divorce in order to be awarded court ordered spousal maintenance. This analysis will review your separate property as well as what property was awarded to you in the division of the community estate.
There are other factors that must also be proven in order to be eligible to receive an award of spousal maintenance. First, you must have been married to your spouse for at least ten years at the time of your divorce. During that marriage you must not have been able to develop skills or earn an income sufficient to care for yourself and your minimal needs after your divorce. Relatedly, a court will also look to whether or not you are disabled and unable to work or if you have a child who is disabled and requires you to care for him or her on a consistent enough basis where you would be unable to work. Finally, the existence of family violence in the marriage would also be a factor that could encourage a judge to award you spousal maintenance.
There are limits to how long you can be awarded spousal maintenance
There are very limited circumstances in which you can receive an indefinite award of spousal maintenance. In the event that you are disabled or your child is disabled you can receive an indefinite award of spousal maintenance. In fact, you don’t even need to be married for at least ten years to be eligible to receive spousal maintenance. Additionally, you can be married for less than ten years and still be eligible to receive spousal maintenance if you suffered family violence, though the award cannot last longer than five years.
Otherwise, for marriages that lasted between ten and twenty years you would also be eligible for up to five years of spousal maintenance. A marriage that lasted between twenty and thirty years would make you eligible to receive an award that lasted for longer than seven years, Finally, you would be eligible to receive up to ten years of spousal maintenance if you were married to your spouse for any length of time longer than thirty years.
Do you have additional questions about divorce in Texas? Contact the Law Office of Bryan Fagan
If you have any additional questions related to divorce in Texas, then I recommend that you contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and provide you with individualized feedback about your specific circumstances. We serve clients in our community across the family courts of southeast Texas. We thank you for your interest in our office and look forward to the opportunity to serve you and your family in the future.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today https://ift.tt/3ltNbgo
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