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Guy Rodgers is Board Certified in Family Law by the
Texas Board of Legal Specialization.
Family Law Resources:
Marriage
& Divorce in Texas
Who
Gets What in the Divorce
Child
Custody
WHO
GETS WHAT IN THE DIVORCE ?
What
is Community Property?
All property
acquired by parties during the marriage is community property.
What is Separate Property?
Property
owned by a spouse prior to marriage or acquired by a spouse
during marriage by gift or inheritance is separate property.
How
is property divided?
The Judge
divides the community property and liabilities in a "just
and right"
manner. In some circumstances, the Judge may award more of
the community property and/or liabilities to one of the spouses.
Who
decides the value of the property?
Each party
provides the Judge with an inventory of the property. The
inventory lists the values of the community property, liabilities
of the parties, and each party’s separate property.
This inventory is the judge's "road-map" to the
parties’ property. The Judge decides the value of the
property, based on the evidence, when there is a dispute.
Does
the Judge divide community property and separate property
at the time of the divorce?
No. The
Judge can divide only the parties’ community property.
The Judge cannot take away a spouse’s separate property.
Can
my spouse get my retirement if we divorce?
Yes. If
you have made contributions to your retirement plan during
your marriage, the Court considers that as deferred income.
Under community property laws, your spouse will be entitled
to ½ of the contributions made during the marriage
and any growth on that contribution.
What
does the Judge consider when dividing the property and liabilities?
In making
a division, the Judge may consider several factors, including:
* Fault in the break-up of the marriage
* Earning capacities and educational differences of the parties
* Age of the parties
* Health of the parties
* Any special needs of the children
* Separate property of either spouse
What
is alimony?
Alimony
is periodic payments from one former spouse for the support
of the other former spouse.
Does
the State of Texas have court-ordered alimony?
Yes, but
it is called by different names. There are three basic kinds
of "alimony:"
-- Temporary Spousal Support – ordered while a divorce
is pending
-- Maintenance – court-ordered in a divorce decree
-- Contractual Alimony – agreed upon by the parties
as part of the terms of a final court order
Under what circumstances would the Judge order maintenance
in a divorce order?
If either
one of the following two circumstances exist:
1. A spouse
is convicted of a crime or received deferred adjudication
for a crime
that also
constitutes domestic violence within 2 years of the filing
of the suit, or while the divorce is pending; OR
2. The
spouses have been married for at least 10 years, and the financial
resources
of the
spouse seeking maintenance are limited; AND The spouse seeking
maintenance:
-- is unable to be self-supporting due to an incapacitating
physical or mental disability; OR -- has custody of a child
who requires substantial and continuous care, making it impractical
and inappropriate for that spouse to work outside the home;
OR
-- clearly
lacks the ability to earn a living which would meet that spouse’s
minimum reasonable needs.
How
long can court-ordered maintenance last?
The Judge
shall set a period of time, not to exceed three years, unless
the former spouse cannot become self-supporting due to an
incapacitation physical or mental disability.
How
does the Judge determine the amount of maintenance to be ordered?
The most
a Judge can order is:
1. $2,500.00 a month, OR
2. 20% of the paying spouse’s average monthly gross
income, whichever is less.
NOTE: Court-ordered maintenance is a law which went into effect
in Texas in 1995.
This information
is adapted from the Family Law Handbook, a publication of
the Family Law Section of the Houston Bar Association
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