Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Premarital and Marital Property Agreements are contracts between you and your spouse or spouse-to-be that can have a great deal of importance. A signed, written agreement between the two of you that allocates debts and property into either the community or separate property column will determine how each piece of property is treated in the event that your marriage ends in a divorce. We hear about premarital agreements or “prenuptial” agreements all the time in the media when rich, famous people get married. However, these sort of agreements are not just for the uber-wealthy.
A premarital agreement will go into effect the day that your marriage begins. Most people that enter into these agreements do so to limit the amount of property or debt the community estate will accumulate over the course of their marriage. On the other hand, if you and your spouse were to enter into a similar agreement during the course of your marriage it would be known as a marital property agreement. Essentially both documents are the same, it is just a matter of when the agreement comes into being- before or after the marriage has started.
How a premarital or marital property agreement works in the context of a divorce is that whichever spouse files for the divorce will reference the property agreement within the Original Petition for Divorce. When it comes time for the final orders of your divorce to be filed at the conclusion of your case, a copy of the agreement will typically be attached to those orders as an exhibit for reference purposes.
How is community property divided in a divorce?
If you and your spouse have not entered into a premarital or marital property agreement, then it is the responsibility of the judge to divide your community property and debts. That is, the judge must divide the property in the event that you and your spouse cannot agree to do so in mediation or in an informal negotiation settlement conversation. Keep in mind that although Texas is a community property state, debt and property does not have to be divided 50/50 between you and your spouse. Factors like the size of each of your separate estates, fault in the breakup of the marriage as well as your income will weigh on a judge if he or she must divide your community estate.
In many cases, the community property that you and your spouse own cannot be divided straight down the middle. Let’s consider the most commonly divided large item of property that you and your spouse could have: the marital house. The easiest route that you and your spouse could go would be to sell the house and split up the equity that you would get after the mortgage and other costs of the sale are taken care of. There is relatively little hassle in doing this and allows both you and your spouse to wipe your hands clean of this asset and move on.
However, that is all true when you take the sale of the house in a vacuum. Consider what could change if you and your spouse have a child together. In many cases, a judge will award the family house to whichever parent is named the primary caretaker of your child. Obviously, it would have to be shown that this parent can afford the mortgage payments on their own. The reason a judge would order this would be to allow your child to have some degree of stability and consistency by remaining in the family home after the divorce concludes.
If you are the parent who is not awarded the right to be the primary caretaker of your child then you may be wondering where this leaves you. Would a judge really order you to leave the house, not award you primary responsibility for your child and then not allow you to gain any monetary benefit from the house? The answer to that question is, no.
Many times what a judge will order is that the house should be sold as soon as your child turns 18 and the sale proceeds will be split between you and your ex-spouse at that time. Or, you may be able to exchange any equity in the house for another piece of property in the community estate that could equal the value. For example, if there is a classic car that was purchased during the marriage that roughly equals your equity position in the home, that vehicle could be awarded to you.
The thing to keep in mind is that while a judge will do their best to divide the community estate in an equitable fashion, no judge is perfect. It is an impossible task to ask a judge to learn your family dynamics well enough over the course of a one or two day trial to do a perfect job of dividing the community estate. This is why we encourage people like yourself to do everything that you can to attempt to settle your case in mediation rather than to leave the decision up to a judge.
Will you have to pay spousal maintenance in your divorce?
Simply put, spousal maintenance is a payment that is ordered by a judge to be made from your future income to support your ex-spouse after your divorce has concluded. Although it is not a term that is officially used in Texas, many people know of this relationship as “alimony.” You and your spouse can agree to some degree of spousal maintenance in mediation, so don’t think that you have to go see a judge if you want to push for spousal maintenance payments.
Spousal maintenance is typically ordered towards the benefit of spouses that lack sufficient property to provide for their minimum basic needs. The key is that you and your spouse need to have been married for at least ten years in most cases for a judge to be able to order that you receive spousal maintenance. Other circumstances that could lead a judge to order that you should receive spousal maintenance is if your spouse has engaged in acts of family violence against you in the two year period prior to your divorce or you or your child have a disability that negates your ability to work outside of your home.
How much spousal maintenance can be awarded in your divorce?
A judge has limits to how much in spousal maintenance can be awarded in your case. Additionally, a judge can only order that spousal maintenance payments be paid for certain periods of time depending upon the length of your marriage. Your judge will need to determine how much money you would need to meet those minimum, basic needs that we just finished discussing. Either way, a judge cannot order that you receive more than $5,000 per month or 20% of your spouse’s gross monthly income in spousal maintenance. Your spousal maintenance award will be limited to certain periods of time unless you can present evidence that shows due to an incapacitating injury or physical impairment that you would be unable to earn an income to support yourself.
How issues related to your child can impact your divorce
Your Final Decree of Divorce will be the final orders issued in your divorce case. These are the marching orders that you and your ex-spouse will need to follow until you come back and have those orders changed/modified, if you do that at all. Part of those final orders will be a section that covers a Parenting plan for you, your ex-spouse and your children. The conservatorship designation of both you and your ex-spouse, a visitation schedule, child support, medical support and any other issues relevant to your family will be detailed in this section.
The reason why so much detail is put into a parenting plan is to, in theory, minimize the risk that you and your ex-spouse have as far as disagreements and animosity that surrounds co-parenting in your post-divorce life. Of course, this may not be the case for you and your ex-spouse but the intention is to lay out a clear cut path for your parenting to take in hopes to creating some sense of post-divorce harmony. If issues arise in the midst of that post-divorce life there are steps you can take to correct those issues- more on that in a later blog post.
How long does the parenting plan/child support plan go into effect for?
A family court in Texas has the ability to enforce orders regarding your child until that child graduates from high school or turns 18- whichever occurs later in time. In the event that your child has a physical or mental disability that requires that he or she remain in the home for a longer period of time, the court will likely continue in its authority to enforce child support, custody and visitation orders until a later date.
When we talk about custody of a child in Texas, we are really talking about who is able to get physical possession of your child and on what basis. The word “custody” actually does not come up in the Texas Family Code, but it is a term that is used so much in our society everyone involved uses it with regularity. For the most part, you and your spouse will share in custody rights and duties associated with your child.
If it comes down a trial, the judge will need to make decisions in relation to custody of your child that are in that child’s best interests. A joint managing conservatorship is one where you and your spouse share in the rights and duties of raising your child on an even basis. The only rights that will differ significantly are the rights to determine the primary residence of your child as well as the right to receive child support. Only one of your can do those things associated with raising your child.
In rare instances, either your or your ex-spouse may be named as a sole managing conservator of your child. If there is a history within your family of family violence, child abuse/neglect or a protective order has been issued against either of you, then the sole managing conservator designation would be appropriate. Basically, the sole managing conservator is able to be in physical possession of your child much more and also holds more of the rights and duties associated with parenting your child on a daily basis.
A court would also look to whether or not you or your spouse have been absent for long stretches of time from your child’s life or if there has been a great deal of conflict in your relationship with your child and/or your spouse. The parent who is not designated the sole managing conservator of your child does not lose all of their rights, but their rights are curtailed because it is believed that doing so is in the best interests of your child. The sole managing conservator specifically has superior rights when it comes to making decisions for your child in regard to educational and medical issues.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
We were able to cover a lot of information about divorce in Texas today. If you would like to ask us any questions or need us to clarify any of the points that we made please do not hesitate to contact the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week with our licensed family law attorneys. These consultations are a great opportunity to ask questions and receive feedback about subjects that are important to you and your family.
Our attorneys and staff take a great deal of pride in being able to work with clients from across our area in the courtrooms of southeast Texas. We aim to always provide excellent represesntation of our clients while maintaining a strong sense of integrity and customer service. Contact us today in order to find out more about how we can assist you in your family law case.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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