One of the initial parts of a divorce is identifying what aspects of the case will be most integral to your lawsuit. Every divorce is different, just like every person involved in a divorce is other and unique. You may be going through a divorce right now, but it almost assuredly will be different than the divorce that your brother, neighbor, co-worker, or friend went through last year. The processes involved in a divorce are, all the same, no matter who you are. Still, the facts and circumstances will be different- in some cases significantly different- from one another. It is your job to identify those issues and provide your attorney with the information necessary to develop a strategy geared towards accomplishing your goals.
What are the areas involved in a typical divorce case with children?
Whether yours is divorce as a civilian or as a military family, the issues involved will be the same for the most part. Divorce in Texas consists of termination of the marriage, division of your Community property and debts, determining special maintenance, child custody issues as well as child support issues. While there may be other fundamental issues in your divorce, these are the issues that make up the bread and butter of a Texas divorce case with children. You should become familiar with them, at least on a general level, in hopes of identifying those issues that are most important to your case.
If you and your spouse cannot agree on how to divide up your Community property and debts, the judge in your case will apply principles regarding Community property to divide them up. This means that all property acquired during your marriage will be presumed to be a community in nature and thus subject to division. The same applies to debts. It doesn’t matter whose name appears on loan, title document, or another kind of paperwork associated with the property or debt period; so long as the debtor property was acquired during your marriage, then it will be considered to be Community property.
Absent other circumstances in the case, it is likely that your property will be divided down the middle in terms of equity. Do not expect that either you or your spouse will be receiving a disproportionate share of your community estate absent other circumstances. Other circumstances that may result in a disproportionate share of the community estate being awarded to either you or your spouse include fault in the breakup of the marriage, an extreme difference in separate property owned by you and your spouse, your specific role, and taking out certain debts as well as the necessity to have spousal maintenance after your divorce has concluded. It is my experience that a judge would instead award a disproportionate share of the community estate to you or your spouse in a divorce rather than award spousal maintenance.
Consider that the amount of separate property owned by you and your spouse will also be a factor when it comes to determining how to award Community property in a division after a trial. The critical thing to note is that Community property is divided by a judge most equitably. Many people assume that this means the property will be divided up in precisely a 5050 fashion. However, this is not true when you take it to specific circumstances regarding your spouse’s marriage. If, for example, you lack sufficient separate property to be able to help you get back on your feet financially after a divorce, then it is likely that you will be awarded property out of the community estates that can be easily liquidated and the funds used to help you pay bills or further your education. On the other hand, if you have a great deal of separate property and your spouse may be in line to receive a disproportionate share of your community estate given the nature of your other estates.
One crucial factor in debts is that you need to know whose name is ultimately listed on loan. Whoever took out the debt is liable for that debt in a legal sense. Even if a Texas family court judge awards an obligation to your spouse, but it has your name on loan, that lender or creditor is not going to honor the divorce decree if your spouse fails to pay the debt. She tells you that you and your attorney need to negotiate for some sort of protection for you in your divorce if your spouse fails to live up to their end of the divorce decree and pay the debt as ordered or agreed to.
For instance, let’s say that your spouse would like to remain in the family home after a divorce it is willing to take on those mortgage payments. There are a couple of different routes you can go to attempt to work with them to ensure payment is made Anne, the risk of harm to you is reduced as much as possible. You can insert into the divorce decree that your spouse will attempt to refinance the home load into their name within a certain amount of time after the divorce comes to an end. I would suggest that you should make this. As short as possible in order so that your spouse attempts to get moving on this at a temporary period; however, since you all have no control over whether or not your spouse will be approved for refinancing, this is not the only length you all should go to in terms of trying to protect your finances after the divorce.
A second step you should undertake would be to have your spouse sign a deed of trust to secure the assumption. This would allow you to take over payments and foreclose upon the house as a secondary creditor if your spouse cannot afford the mortgage payments on their own. Given that your mortgage was likely calculated based upon your ability to afford the mortgage along with your spouse and their income, the probability is high that your spouse will struggle to pay this mortgage on their own. They should give you a great deal of pause when it comes to negotiating the divorce case. Agreeing in mediation to allowing your spouse to take over a home loan that bears your name is a considerable risk even with these protections that I am discussing today. It would help if you came as well as in a trial.
When it comes to other debts like credit cards, a court can consider the role that each of you played in taking out that loan and, through the loan, primarily benefited. For example, let’s suppose that your spouse took out a home loan or second home loan to buy an item for their business that you were not consulted on, nor have you ever utilized personally. In that case, I could see a family court judge determining that the loan should stay with your spouse, especially since it has their name on it. On the other hand, if your spouse checks out alone for furniture used in your home, then it is possible that this loan could be divided equally between you and your spouse since both of you spent time sitting on that couch or chair. Either way, you need to get a good and complete idea about your responsibilities as far as debts. This should be done as soon as you can in your divorce so that there are no questions as far as who owns what and tips.
You may think that you have a firm idea of all the loans out there in your case, but you need to be sure of what they are before attending final orders mediation at the latest. At the beginning of a divorce, I work with clients to have them check their credit score and credit report once their case begins. This way, you can start to have a firm grasp on your debts, and you can check to see if there are any debts out there that may be a surprise to you.
For instance, I have unfortunately seen more than one occasion where a spouse used their other spouse’s identity to take out a loan or line of credit without further permission or knowledge. It is bad enough to have your identity stolen by a stranger. It is a whole different level of trust violation when your spouse does this. However, it is better to have found this out at the beginning of divorce than after divorce comes to an end. Do not let your military service use as an excuse for why you cannot look this up and verify this information before starting a divorce. In most situations, you cannot reopen a divorce if you find issues like this once the case is over with.
I recommend to people as they begin a divorce case to freeze their credit as soon as possible. It will be preferable to do this even before the divorce starts. This way, no one, including your spouse, can create liabilities for you in terms of debt during this critical phase of your life. Even if it isn’t your spouse, having your identity compromised to have a loan taken out during your divorce could be a terrible burden for you to bear. Couple that with your military service, and these are stresses that you don’t need to introduce into your life unnecessarily. Take these precautions, and you will be set up for success in this area of your divorce.
What about military retirement pay?
One of the issues that we have not discussed in all that much detail during this mini-series of articles on military divorce issues in Texas is that of the military retirement pay period; however, it certainly is a point of contention for most people who have gone through a divorce in Texas specifically those of the military families. So much of the benefit of serving your nation doesn’t lie in the pay you receive but rather the possibility of receiving favorable military benefits upon your retirement. For a military spouse who had to sacrifice a great deal to remain married, this can be a substantial part of your life both before the divorce and after. What is the status of your rights in terms of these military benefits once the case begins? Do military spouses have any right to receive benefits due to their having been married to a member of our United States military? Or, does the divorce end your right to claim these types of benefits both now and in the future?
The uniformed services former spouses protection act authorizes Texas family courts to divide military retirement pay as a part of your community estate. We can think of this federal act much like we do any civil law that pertains to the division of civilian pensions, such as a government employee. Whether you are getting divorced in Texas or not, if your marriage has lasted for ten years or more while your spouse or yourself was a member of the military on active duty, then you can become entitled to receive direct payment of your portion of the military retirements directly from the government. Otherwise, then your ex-spouse must provide you with your share of the military benefits now. This is a considerable part upper case and would be much preferable for you to receive these payments directly from the government rather than having to rely upon payments from your ex-spouse.
Texas must follow federal law when dividing the retired pay of any active duty member of the military. Full retired pay is limited to the amount of base pay of your military members’ pay grade and years of service at the time of the court order. These are all reasonably complex calculations that we don’t have the space to go over and fall here. However, the attorneys with the Law Office of Bryan Fagan are equipped to help these specific situations in preparation for your divorce. I can tell you that not every law office in Southeast Texas is prepared to do that for you, Anne you would therefore be taking a significant risk when determining what you are entitled to as a military spouse. Work with one of our family law attorneys to ensure that you get what is coming to you and are not taking a backseat to your spouse.
What about your financial concerns at this moment? Are you entitled to spousal maintenance or contractual alimony?
You may have concerns that are more immediate when it comes to your finances. For instance, you may be wondering about the ability to receive spousal maintenance or contractual alimony as the result of your divorce. You may have specific questions about what each of these benefits is. On the whole, it is entirely normal to have concerns about your short-term and long-term financial prospects due to a divorce. You may not even want to receive spousal maintenance for an extended. But may realize that you need to receive these benefits as a result of being a military spouse.
You need to know that you are not automatically granted spousal maintenance in Texas just because you need the money. Call Texas has legalized special care due to a divorce, and the state is still somewhat conservative in terms of its judges awarding this in a divorce. As I mentioned a moment ago, a family court judge would be more apt to divide your community state in such a way as to negate the need for spousal maintenance. As such, you should first determine what your specific needs are in terms of receiving spousal maintenance.
Have you presented a detailed budget to your attorney and then to the court regarding your income needs in light of your bills? Do you have an accurate understanding of what your spouse makes and their ability to pay special maintenance? Have you been married for at least ten years? The word bent the victim of a crime involving family violence over the past two years? These are the typical factors that lead to eligibility for spousal maintenance in Texas. Do not bank on receiving these benefits unless you first can confirm you are eligible.
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 discussed 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 an excellent way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.