When a spouse has dedicated years of their life to being a home caretaker or a stay at home parent, the process of divorce can become especially difficult because they have been removed from the work force, and will have trouble receiving the same level of salary as was provided to them in their previous lifestyle. This is especially true when children are involved. Someone who is worried about being able to support themselves following a divorce should talk to an attorney in order to determine what legal options are available to them, especially pertaining to alimony and spousal maintenance. There are two limited scenarios where alimony will be awarded in Texas.

The two different circumstances that would be qualified for a judge to order spousal maintenance or alimony in a divorce are:

• If a spouse has been convicted of committing family violence,
• If the marriage has lasted for a period of ten years or more.

If family violence has been accused, then the date for the divorce petition must have occurred within the period of two years. Only in these two circumstances will there be any consideration for alimony. The spouse that is seeking the spousal maintenance support has to be capable of showing that he or she does not possess a sufficient enough level of resources that they can live within a reasonable parameter.

If there are children, and any child in the family has a disability that prevents the spouse from employment since they have to provide constant care, then alimony can definitely be sought. Spouses that are capable of showing their inability to earn an adequate living should also be able to receive alimony payments. Even in a situation where a judge orders that alimony be paid, there are still a number of limitations regarding what people can receive as well as what timeframe they would be able to receive the alimony payments for.

In the state of Texas, alimony payments are not allowed to exceed a period of three years unless there are physical disabilities or mental disabilities in place that prevent the spouse from being self supporting. The most money that a judge can order to be paid for the purpose of alimony is either 20% of the payer’s average monthly income, gross, or $2500, depending on which amount is the lesser amount. Alimony statutes in Texas pose a number of challenges that need to be overcome, meaning that working with an attorney is often the best way to have your spousal maintenance needs met.

There are two terms you need to become familiar with, in order to understand the Standard Possession Order. The first term is “primary conservator.” The primary conservator is the person with the right to determine the residence of the child. This person also has the right to receive (and give receipt for) child support. The “nonprimary conservator” is the person who does not have the right to establish the primary residence of the child, or receive child support. Let’s look at some of the key provisions of the order.

The first provision is that the non-primary conservator shall have possession of the child on the first, third, and fifth weekend per month. The possession shall begin at this person’s option either (a) immediately upon release from school or (b) at 6:00 p.m. The possession shall end either at (a) 6:00 p.m. Sunday or (b) at the time school begins on Monday. The weekend possession can also be extended by holiday.

The second provision says that the nonprimary conservator shall have possession of the child on each Thursday of the month during the school year. The nonprimary conservator has the choice of picking up the child from school, or picking up the child at 6:00 p.m. He also has the choice to return the child at 8:00 p.m. on Thursday night, or return the child to school on Friday morning. Holidays – are split equally (in a 50-50 fashion) between conservators of the child, rotating years.

Spring Break is also split between parents (alternating years), unless the nonprimary lives 100 miles or greater away from the primary. In that situation, the nonprimary gets every Spring Break. The nonprimary conservator gets 30 days of child custody in the summer, unless he lives greater than 100 miles away from the primary. In that case, the nonprimary gets 42 days of child custody during summer vacation.

Community property includes all property, debt, and assets that were acquired from the date of the marriage until the marriage cut-off date. After both spouses have agreed upon how property will be divided, both parties must sign the Marital Settlement Agreement. In a small number of cases, the property award is ordered and decreed by the District Court in the Decree of Divorce. Property division does not necessarily mean a physical division. Instead, you can award each spouse a percentage of the total value of the property. Each spouse will receive items that add up to his total percentage. During the divorce process, neither spouse is allowed to hide assets in order to protect them from property division. Hiding assets is illegal and can have serious consequences.

It’s important to understand the difference between community and separate property. Community property includes all earnings during the marriage and all property acquired from those earnings. All debts acquired during the marriage are also considered community property. Separate property, on the other hand, includes gifts and inheritances given to only one spouse. It also includes funds from a pension that vested before the marriage, and personal injury awards. A business owned by one spouse before the marriage remains separate property – unless the business increased in value during the marriage, or both spouses worked for the business. In practice, separate property mixed together with community property usually becomes community property.

Community property includes dividends from stocks and mutual funds, income from employee benefits acquired during the marriage (pension, 401K funds), and funds from secondary property (i.e. income from a rental house). It also includes crops grown on separate property, livestock born during the marriage, medical bills, disability payments, and workers’ compensation benefits.

Texas’ Community Property Rules

Texas (along nine other states) follows the “community property” method. This means that all marital property will be split equally (in a 50-50 fashion) among both spouses – unless otherwise agreed to by both parties. If both parties agree to split property in a different ratio, that’s perfectly fine. However, if you are unable to reach an agreement with your spouse, then all property will be divided equally by the District Court. Most spouses choose to divide property themselves, rather than letting the judge decide.

When it comes to property division, one of the biggest areas of disagreement is who gets to own the family house. If children are present, the primary care giver typically gets to keep the family home. If you don’t have any children and the house is the separate property of one spouse, then the spouse who owns the house can ask the other spouse to leave. If you don’t have any children and both spouses own the home, then neither spouse has the legal right to evict the other. Of course, you can ask your spouse to leave, but he doesn’t have to move. If the home is jointly owned, then the only way to evict your spouse (until the divorce is finalized) is if a judge grants a restraining order in response to domestic violence.

How Texas Divides Marital Debts

Another commonly asked question is, “How are debts divided?” Courts divide community debts on a “just and right” basis. Your divorce decree cannot re-structure your mortgage obligations or change loan agreements. However, the courts will attempt to equitably divide any outstanding debt obligations among both spouses. Each spouse will file a “Sworn Inventory and Appraisement” that lists all property and debts (both community property, and separate property). Typically, the two inventories do not agree, but they will be used by the judge to decide the property division. If your case goes to trial, evidence will be submitted about the items included in the Sworn Inventory & Appraisement document. If there are disputes over the value of community property, you can always hire an appraiser to determine value.