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What Am I Entitled to in a Divorce in Texas?

Wife And Husband Splitting House And Car During Divorce Process

Getting a divorce in Texas will impact nearly every aspect of your life. You will have to account for all of the property you own, and all of your debts. If you have children, there must be provisions for child support, child custody, and visitation. If you will be paying child support or spousal maintenance, your employer may have to deduct the amounts you owe from your paycheck. If you and your spouse cannot come to an agreement on all of the issues in their case, a judge or a jury may make those decisions for you. A Houston divorce attorney is there to fight for their clients’ rights and interests both in and out of court. Before a lawyer can do that effectively, they must know what their client hopes to get from their divorce, and the client must understand what results they can reasonably expect.

What Am I Not Entitled to in a Divorce?

Before discussing what a person can expect to obtain in a divorce in Texas, it is worth addressing what they should not expect to achieve. The goal of a divorce, put simply, is to dissolve a marriage, and to address any issues that are legally bound to the marriage relationship.

A divorce is not about punishing or taking revenge on one’s spouse. Marital misconduct is a factor that a court may consider in deciding issues related to property division and spousal maintenance, but it is far from the only factor. With regard to child custody and support, the only factor that matters to a court is the best interests of the child or children. If a court awards greater parenting rights to one parent, it should do so because that is best for the child, and not as a way of penalizing the other parent.

What Am I Entitled to in a Divorce in Texas?

A party to a divorce case can expect the court to address questions related to property division, maintenance and support, child custody and visitation, and name changes if requested earlier in the case.

A “Just and Right” Division of Property

Under Texas law, all property owned by spouses is either separate or community property. Anything owned by a spouse prior to the marriage, or acquired during the marriage as a gift or through inheritance, is considered separate property. All other property acquired during the marriage is community property. Courts will presume that anything owned by the spouses during a divorce case is community property, unless a spouse can prove by clear and convincing evidence that it is not.

The Texas Family Code does not provide extensive instruction to courts on how to divide community property. It only directs them to divide it “in a manner that the court deems just and right,” taking two factors into account:

  1. “[T]he rights of each party”; and
  2. “[A]ny children of the marriage.”

A court may consider whether either spouse was at fault in the breakup of the marriage. This often only applies, however, if someone has claimed one or more grounds for divorce based on fault, such as adultery, abandonment, or cruel treatment. If the parties are only claiming insupportability, also known as a no-fault divorce, a court may be less willing to consider whether misconduct in the marriage should affect the distribution of property.

Aside from fault, a court may consider factors like each spouse’s earning capacity and potential, which spouse has custody of the children, and the amount of separate property available to each spouse. Texas law does not require a 50/50 split of community property if a court decides that would not be “just and right.”

Spousal Maintenance

The purpose of spousal maintenance, known as alimony in some jurisdictions, is to provide for a spouse who relied on the other spouse for support during a marriage lasting ten years or longer. Without the other spouse’s income, the spouse receiving maintenance (the “obligee”) would not have the resources to support themselves. Texas law limits the duration of a spousal maintenance obligation to a maximum of five to ten years in most cases.

A spouse who has been convicted of an offense involving family violence could also be ordered to pay spousal maintenance in a divorce for up to five years. In this situation, spousal maintenance could be seen as a punishment.

The Family Code identifies factors that a court may consider when determining the duration and amount of spousal maintenance, including each spouse’s education and earning potential, and misconduct aside from — or in addition to — domestic violence convictions. A Houston divorce attorney can help you determine how these laws impact your case.

Child Support

An obligation to pay child support is based solely on the income of the parent obligated to pay (the “obligor”) and the number of minor children. A court cannot increase the amount of child support because of misconduct by an obligor, nor may it decrease the amount based on misconduct by an obligee. The best interest of the child is the only factor that matters to the court during a divorce in Texas.

Child Custody and Visitation

It is the public policy of the State of Texas to provide children with “frequent and continuing contact with parents who have shown the ability to act in [their] best interest.” A court will presume that it is in a child’s best interest to have visitation with both parents, unless there are reasons not to do so. Visitation and access does not have to be split 50/50 between the parents.

Restrictions on custody or visitation may result from domestic violence or abuse, but not as a punishment for such acts. Rather, the purpose of restricting access to a child in such a situation is to protect the child’s interests. Other marital misconduct is less likely to be a factor in custody decisions.

Child support and custody and entirely separate matters under Texas law. Neither a court nor an obligee may restrict custody or visitation rights because of non-payment of child support. Similarly, an obligor may not withhold child support because the obligee has withheld visitation.

Name Change

A party to a divorce case may request a name change in their petition or counterpetition for divorce. This is limited to “a prior used name.” It most commonly occurs when a woman wants to go back to her maiden name, or an earlier married name. A court is not obligated to grant a name change in a divorce in Texas, but it must state a reason for its denial.

Stacey Valdez is a board-certified Houston divorce attorney who represents people during profoundly difficult ordeals. At Stacey Valdez & Associates, our clients and their families are always our top priority. We are dedicated to advocating for our clients with dignity and compassion. Please contact us today online, or give us a call at (713) 294-7072 to schedule a confidential consultation to see how we can help you. Your first meeting with us is free in most situations.