The whole purpose of a divorce is to obtain documents that are going to set you up for the rest of your life. Every aspect of your divorce case will be centered around getting these documents drafted and signed for your use in the later stages of your life. In today’s blog post from the law office of Brian Fagan, we’re going to discuss what those documents are and what relevance they have for your case in your post-divorce life.
The final decree of divorce
I figure we ought to start with the biggest of the mall. The final decree of divorce will contain the final orders for your divorce case. The final orders will be the orders that you agreed to in mediation or were handed down to you in a trial by the judge. The final orders will be your reference and a check on your life after the divorce is over. Everything that you work for within the divorce as far as instructions on how to live your life after the divorce are contained in this document. You are responsible for its contents from the very beginning of your case. How you proceed in the divorce and negotiate with your spouse will determine in large part what the final decree of divorce reads.
The final decree of divorce spells out orders regarding your Community property division, child custody, and possession visitation schedules. Along the way, the final decree of divorce also covers important topics like medical coverage for your children after the divorce as well as how debts in the community estate are to be paid depending upon your circumstances. For starters, the issues dealing with your children are probably the most important to you. After having worked with many families who have gone through divorce cases I can tell you that parents who go through divorce are almost single-minded in their concern for their children. Here is what is contained in the final decree of divorce when it comes to your kids.
Issues regarding conservatorships are dealt with in the final decree of divorce. Conservatorships refer to your ability to make decisions on behalf of and care for your children until they turn 18 or graduate from high school whichever occurs later. For that reason, you need to be especially aware of what your role is in the life of your children as far as these rights and duties are concerned. Keep in mind that although your relationship with your children may not change after the divorce your relationship with them from a legal perspective may be different. This begins and ends with determining who will be the primary conservator of your children.
The primary conservator of children holds two important distinctions. The first is that the primary Conservatory has the right to determine the primary residence of your kids. Your kids will live with their primary conservator during the school year and the other parent will have visitation rights. Additionally, the primary conservator also has the right to receive child support payments periodically. Otherwise, many of the rights and duties that you will encounter in a divorce about your children are fairly even and similar.
More than simply being able to have the kids live with you during the school year is the fact that the primary conservator can spend more time with the kids during the year overall. For this reason, it is very attractive to most parents who go through divorce to at least explore the possibility of being named as the primary conservator of their children. Part of taking care of the kids more than your other parent means that the costs associated with being a primary conservator are typically greater on a day-to-day basis compared to a possessory conservator. As a result, the possessory Conservatory will typically be ordered to pay child support to even out the costs of raising the kids.
Child support orders in your final decree of divorce
if you are named as the possessory Conservatory of your children and you should be prepared to only have visitation rights to your children. This does not mean that you will not be able to spend time with your kids during the year, however. You will have weekend Visitation with your children during the year and in the summertime, you will have up to a month of basically undivided possession of your kids. During this time you can enjoy your opportunities with the kids and plan for vacations another holiday fun. Speaking of which, Holidays are also shared equally and on an alternating basis with your child’s primary conservator.
the one area where rights and duties about your children will be different depending upon whether you are named as the possessory or primary conservator of your children is regarding child support. To even out the costs of raising children child support is an atypical tool used by courts to allow a possessory conservator 2 bear a more fair share of the burden of raising children. As a result, you should expect to pay child support in your divorce for your kids if you are named as the possessory conservator. Child support is calculated basically in any way you and your Co-parent wanted to be.
The Texas family code contains guidelines for child support. The guidelines state that the possessory conservator would pay a percentage of their net monthly income to the primary conservator each month. The percentage would be based on how many children you have before the court in this current case. One child would be 20% of your net monthly income. The percentage would increase by 5% for every additional child until you reached a maximum of 50% of your net monthly income going each month towards child support. Having children outside of the current case that you are financially responsible for would also decrease the amount of child support you would be responsible for paying.
The failure to adhere to the orders regarding child support is an important point to make regarding your divorce. This document is critical to your future in that you want your spouse to be responsible for violating the terms of your orders. If the orders are not clear or are impossible to follow then he or she could not be held responsible for having violated them. For this reason, it is important to make sure that a great deal of time is spent drafting and reviewing your final decree of divorce before you are ready to sign it.
Community property division
The other piece to the final decree of divorce puzzle is regarding a division of your community estate. Texas is a community property state. This means that you will see that a presumption goes into a place where all property owned by you and your spouse at the time of your divorce will be considered community property. It is up to you and your spouse to both be able to present arguments and evidence for the property being a part of either of your separate estates. Otherwise, the property in question will be subject to division in your divorce.
The great thing about Texas divorces is that plenty of opportunities is given to you and your spouse as far as how you want the property in your life to be divided. With left up to a family court judge that property will almost certainly be divided up according to the specific terms containing the Texas family code and the circumstances of your divorce. However, you and your spouse can utilize common sense and a better knowledge of your lives and a judge would have to do so.
Make sure that you understand what your responsibilities are under the terms of your final decree of divorce. If you have to pay certain types of debt, fulfill some obligation for the sale of your house or go through any other process when it comes to Community property then it is your responsibility to know what is contained in your final orders. You cannot defend yourself in a future court case for having violated your final decree of divorce by telling the judge that you are attorney did not explain the orders to you. By signing the document it is presumed that you have reviewed and understood all the terms.
Finally, there are parts of the final decree of divorce when it comes to selling a home that may require additional documents to be drafted and signed. These documents are not incorporated into the final decree of divorce but are separately filed both in the family courts and oftentimes with the district clerk in general. These documents our special warranty deeds and deeds of trust to secure assumption. As we are about to discuss these documents protect both parties whether you are the spouse who will be remaining in the family home or will be exiting the family home after your case.
Deed of trust to secure assumption and special warranty deed
Here is what many people do in divorces when it comes to selling their homes. I’m going to give you this information to show you what you should not do. Then, I am going to present you with the information for what you should do in what the attorneys with our office are trained to do to protect you and your interests moving forward once your case is completed. The details of selling a home or divesting interest in a home during a divorce require a great deal of consideration and planning.
The document that evidence is ownership in a home is called a deed. A person can own part of or a whole of a piece of property. The deed to the property will tell you how much ownership interest you have. This becomes a little trickier for married people in Texas because even if your name doesn’t appear on a deed you may still own a piece of property. This is due to the Community property laws that we have already been discussing today in our blog post. Your name does not have to appear on the title or deed to your home for you 2 be able to claim ownership in that home.
After a divorce, a husband and wife may decide to have one spouse move out of the house and to have the spouse who remains in the house paid the spouse who moves out their share of the equity in the home in exchange for having 100% ownership interest in the house. This makes perfect sense: when one spouse moves out they take their monetary interest in the home and they go their separate ways. Many people do this in a divorce especially in circumstances where the family home suits the couple well due to their living circumstances. If you have children who want to remain in the same school district or in their same friend’s circle that makes sense to stay in the same home if the home is affordable based on a single income.
Here is where people tend to make mistakes in the world of divorce. Folks do not take seriously enough the responsibility to dot their eyes and cross their T’s when it comes to completing the divorce paperwork necessary when it comes to issues regarding the family home. For instance, many people who go through a divorce will simply sign a quitclaim deed. A quick claim deed does nothing as far as making any warranties to the recipient of the deed as to have a clear title. The spouse who owns the home may run into problems when it comes to selling the house in the future as a result. Title companies are not fans of quitclaim deeds when it comes to evidencing ownership and clear title.
As far as the spouse who leaves the home that person frequently ends up with nothing other than some cash as evidence of their no longer owning the home. The quitclaim deed does a basic job of doing so but what about the mortgage? A mortgage company doesn’t care about your Texas divorce. If the spouse who is out of the home finds out that their ex-spouse failed to pay the mortgage and their name is on the note to the house then the spouse who moves out may find themselves in financial difficulties over something they had nothing to do with. What can be done to protect you and your spouse in similar situations?
The first thing I would recommend is to have drafted and signed a deed of trust to secure assumption if you are the spouse who will be moving out. The deed of trust a secure assumption allows you to be able to come back and take over ownership interest in the home by foreclosing upon your ex-spouse if he or she fails to make timely payments on the mortgage. This way you can begin to rectify those missed payments in your credit and financial interest will not be harmed as significantly as it would be if your ex-spouse were to continue to miss payments in the house ultimately gets foreclosed upon.
On the other hand, a special warranty deed is the most preferable way to transfer interest in a home as the result of a divorce. What a special warranty deed offers that a quitclaim deed does not is a warranty to a future buyer that the title to the home is clear. A clear title means that no other party can assert that they own part of the home and that the title is free and clear of any liens or any other encumbrances. If you are the spouse who will be remaining in the house then this is exactly what you want. In the future, he wants to be able to sell the home as easily as possible and a special warranty deed is a better way to do this than with a quitclaim deed from your ex-spouse.
This is where hiring an experienced family law attorney makes a great deal of sense. Many attorneys will tell you that they are capable of handling a divorce case. However, just like in your line of work there are specific bits of information and practices that only experienced practitioners are aware of. While most attorneys can file paperwork for you not many are capable of following through in offering you advice and guidance that will set you up best for your post-divorce life. It is your job during the consultation process to discern which attorney offers you the best opportunity at success both in your divorce and in your post-divorce life.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.