A divorce is one of the most stressful life events, especially when a couple has minor children. Our divorce lawyer in Austin, Texas, has the experience you need to guide you through the legal process.
This life-changing event is a difficult and painful undertaking for most people. Let Evans & Herlihy handle the legal work so you can focus on moving forward with your life. We will help with allocating joint assets and debts, determining who will stay in the family home or selling that home and distributing the sales proceeds if appropriate, and making appropriate child custody and child support arrangements.
In Texas, divorces are not made final for at least 60 days after a petition is filed, and finalization typically takes at least six months, and often over a year. The length of time and the amount of stress and aggravation (and sometimes, costs) that accompany divorce depends on factors such as the complexity of the issues, the degree of conflict between the parties, and the skill of the attorneys involved.
Why You Need a Divorce Attorney in Austin, Texas
Texas has numerous laws that govern the divorce process, and it can be difficult to know how to proceed. The outcome of your divorce can affect your well-being and that of your children for years, so this is not something you should attempt to go through on your own. A divorce attorney in Austin can help you understand the laws and what they will mean for you and your family, and help you get the best possible outcome.
Among the most important laws associated with divorce are laws that:
- Govern how the property you acquired during the marriage will be divided. Texas is a community property state, so this property is considered jointly owned by each partner and divided according to what is considered just and right.
- Determine the grounds for getting a divorce and whether a showing of fault is appropriate. While Texas is a no-fault divorce state, there are also fault-based grounds for divorce which may lead to getting a more favorable settlement or child custody situation, so your attorney should help decide what is best for you.
- Determine what will happen to the children and the legal rights and responsibilities of each parent. Unless both parents can come up with a parenting plan that is approved by the court, a judge will set forth the terms governing custody and visitation according to the best interests of the child. How will this affect your children?
- Determine child support and if applicable, spousal maintenance. Depending on the situation, there are differences in how much will be paid, who will pay, how long the payments will last, and how payments are enforced.
- Determine what will happen to debts and assets such as retirement, pensions, gifts and inheritance. Not everything can or will be split right down the middle. Often there are disagreements as to what is fair and equitable, and a reasonable settlement among the parties needs to be negotiated.
The Evans & Herlihy Law Firm understands the sensitive nature of divorce and the strain it puts on families. We work efficiently to resolve any disputes that arise during the divorce process, to ensure that the outcome is beneficial for our clients and their children. Our divorce lawyers offers free consultation to answer your questions and concerns, so you can get help right away.
For help with your divorce, call one of our experienced Austin divorce attorney at (512) 732-2727.
Our Austin Divorce Lawyer Explains Texas Divorce Issues
1. Grounds for Divorce
There are seven grounds for divorce in Texas, six of which can be granted in favor of one spouse. Texas also allows a no-fault divorce under the grounds of “insupport
ability,” where no fault is assigned to either spouse. The grounds are as follows:
- Insupportability – This is the one no-fault ground for divorce, meaning that no specific wrongful behavior or action by one spouse needs to be alleged as a basis for divorce, but rather that a couple has conflicts or discord that makes reconciliation impossible. Any party can seek, and ultimately be granted, a divorce on this ground.
- Conviction of a felony – If a spouse has been convicted of a felony and has been imprisoned for at least one year in a penitentiary, the other spouse may petition for divorce on this fault-based ground.
- Abandonment – A spouse may be granted a divorce if the other spouse left the marital home, with the intention of abandonment, and has been gone for at least one year.
- Living apart – A spouse may file for divorce when the couple has lived apart, without cohabitation, for at least three years.
- Confinement in a mental hospital – One spouse may file for divorce if the other spouse has been confined in a state mental hospital (in Texas or another state) for at least three years and is unlikely to improve.
- Cruelty. This reason is allowed if one spouse engaging in cruel treatment towards the other, and the other spouse can no longer continue in the marriage.
- Adultery. You may file for this reason if your spouse cheats and you want a divorce.
While most divorces fall into the no-fault category, the courts may look more favorably on a person who is divorcing for one of the other six reasons and may adjust a divorce ruling accordingly. The Austin divorce lawyer at Evans & Herlihy Law Firm can evaluate the facts of your situation to see which category it would be most beneficial to file under.
Call our experienced Austin divorce attorney at (512) 732-2727 for help today.
2. Division of Assets and Debts
Texas is a community property state, so property acquired during the marriage is considered jointly owned by both spouses. During a divorce, community property is often equally divided, but with certain considerations for the rights of each party and any children of the marriage, it is divided in a manner other than 50/50.
Under Texas Family Code Section 3.00, property is considered separate and is not divided if it …
- Was owned or claimed by the spouse before marriage;
- Was acquired by the spouse during marriage by gift or inheritance; or
- Was received as the recovery for personal injuries sustained by the spouse during marriage, except for recovery for loss of earning capacity during marriage.
When a couple cannot agree on how to divide their marital property and assets in a divorce, the court will make that decision for them. Judges don’t have to divide property equally – rather, their goal is to ensure that the couple’s property, assets, and debts are distributed fairly and that the distribution accounts for many factors such as the earnings and economic status of each partner. So, if one spouse earns significantly less income than the other, that person may make a claim to receive a greater share of the marital property in a divorce.
Debts in the name of both parties are often, but not always divided equally. However, unless the spouses have already reached an agreement on that matter, a judge will also decide how to divide shared debts. For example, when couples own a home and have a mortgage, the court may award the home and the mortgage to one spouse, and order that the other spouse be awarded a money judgment for his or her portion of the equity in the house, or the court may divide the spouses’ other assets and debts in such a way as to equalize the overall property division. In other cases, the marital home may need to be sold and the proceeds distributed between the parties.
In any event, it is almost always better for spouses to try to work out the distribution of their assets and debts with the help of their divorce attorneys. Leaving these decisions to the court can have unpredictable – and often unwelcome – outcomes.
3. Determining Custody and Child Support
Divorces are typically much more complicated when there are children involved. While both spouses might come to an agreement over the terms of custody (called conservatorship in Texas) of the children, it is not uncommon for custody to be a major issue in dispute in a divorce case. Generally speaking, the clearer the terms and the greater the consensus regarding the specific terms of custody in the divorce proceedings, such as the allocation of rights and duties between the parents and the visitation and possession schedules, the easier it will be for all family members going forward. Our divorce lawyer at Evans & Herlihy will explain what custody options you have available to you.
The court also determines how much the non-custodial parent should pay in child support. Custody arrangements, as well as child support, can be modified in the future, should circumstances change substantially. For example, if either parent loses their job, child support payments may need to be modified, at least temporarily.
The court’s primary objective in determining custody arrangements is making sure that the outcome is what is best for the children. A true joint custody arrangement can sometimes be difficult for children, so courts often award primary physical custody to one parent, with the other parent having visitation rights. What those visitation rights and schedules look like can vary greatly, depending on the facts and circumstances of each case. If children are old enough to have an informed opinion, the court may, in certain limited situations, ask them with whom they prefer to primarily live. Otherwise, the court often tries, when possible, to keep children in their current school and current home, to minimize disruption to their lives. Our divorce attorney will help you understand how visitation arrangements can be structured in your custody agreement.
4. Spousal Support
In certain situations, the courts may order spousal support maintenance (referred to as maintenance in Texas) as part of a divorce proceeding. The Texas Family Code lists conditions a spouse must prove in order to collect spousal maintenance, including whether:
- the marriage has been for ten years or longer and the spouse made diligent efforts to earn sufficient income or to develop necessary skills to meet minimum reasonable needs; or
- the other spouse has committed family violence; or
- the spouse has an incapacitating disability that arose during the marriage; or
- a child has a physical or mental disability that prevents the caregiving spouse from earning sufficient income.
If a spouse is eligible for spousal maintenance in a divorce, the judge will determine the amount based on factors such as:
- The earning capacity and employment history of each spouse.
- The needs and standard of living of each spouse.
- Age and health of both spouses.
- Existing debts and assets.
- Whether one spouse inappropriately spent community funds.
- Child custody arrangements.
- Whether one spouse helped the other with education or advancing their career.
- Marriage misconduct or evidence of domestic violence.
There are caps on both the amount of spousal maintenance and how long spousal maintenance lasts. Your Austin divorce attorney will help you get the best arrangement possible.
Austin Divorce Lawyer Looking Out for You
The end result of the divorce case is the divorce decree. A divorce decree is a court order – a binding legal document that orders and defines the division of property and debts, as well as obligations regarding child custody, child support, and spousal support, when applicable. Once the court issues the divorce decree, the division of property cannot be modified. So even when a divorce is amicable, each party should have their own divorce lawyer, to ensure that any agreements they enter into are fair and that their interests are adequately protected.
Contact an Experienced Austin Divorce Attorney
Texas divorce law is complicated, and making mistakes can be costly. If you are anticipating divorce, don’t agree to anything in writing with your spouse until you’ve talked to an Austin divorce lawyer. At the Evans & Herlihy Law Firm, we’ve helped our clients negotiate with their spouses and their spouses’ attorneys to achieve the best possible outcome in their divorces.
To make sure your interests are represented in a divorce, call us today at (512) 732-2727 for a free consultation with our divorce lawyer.