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Divorce Lawyer in Austin, TX

Our Austin Divorce Lawyer Provides Compassionate and Experienced Counsel to Guide You

Sad. Angry. Frustrated. Concerned. These are just a few of the emotions you may be feeling if you are considering, or in the midst of, a divorce. Let’s face it, a divorce is one of the most stressful life events you will ever encounter, especially if you have minor children. Simply making it through your day-to-day routine can be challenging. Understanding the ins and outs of the associated legal process can seem overwhelming. Our divorce lawyer in Austin, Texas, has the experience you need to guide you during this demanding time.

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 necessary, and making appropriate child custody and child support arrangements.

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. Contact our Austin divorce attorney today at (512) 732-2727 and learn exactly how we can help you.

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. A skilled divorce attorney is your best asset during this time.

Why You Need a Divorce Attorney in Austin, TX

State Laws Regarding Divorce Are Complex

You are likely concerned about your life and your future. Understanding how the law will affect you may not be top of mind but is important. 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. Divorce attorneys 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 those that focus on:

  • Property: How the property you acquired during your marriage will be divided is determined by law. Did you know that Texas is a community property state? This means that property is considered jointly owned by each partner and divided according to what is considered just and right.
  • Grounds for Divorce: While Texas is a no-fault divorce state, there are also fault-based grounds for divorce which may lead to a more favorable settlement or child custody situation. Ask your divorce attorney to explain the specifics of this. He or she will be able to decide which approach is best for your individual situation.
  • Children: A critical part of the divorce process is the determination of 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?
  • Support: Both child support and spousal maintenance (when appropriate) are important components of a divorce settlement. Depending on the situation, there are differences in how much will be paid, who will pay, how long the payments will last, and how the obligation is enforced.
  • Finances: Determining what will happen to debts and assets such as retirement, pensions, gifts, and inheritance is critical. 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.

Our Austin divorce attorney at 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. We are proud of our reputation and grateful for our clients, some of whom have shared their experiences. Our divorce lawyers offer a free consultation to answer your questions and concerns, so you can get help right away.

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 “insupportability,” where no fault is assigned to either spouse. The grounds are as follows:

  • Insupportability: This is the one no-fault ground for divorce. Basically, it means 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 ground might be used when one spouse is engaging in cruel treatment toward the other such that he or she 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 six other 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 under which to file.

2. Division of Assets and Debts

Texas is a community property state, so property acquired during a marriage is considered jointly owned by both spouses. During a divorce, community property is often equally divided. However, if it is divided in a manner other than 50/50 it is done so to account for considerations for the rights of each party and any children of the marriage,

Under Texas Family Code Section 3.00, the property is considered separate and is not divided if it was …

  1. owned or claimed by the spouse before marriage;
  2. acquired by the spouse during marriage by gift or inheritance; or
  3. received as the recovery for personal injuries sustained by the spouse during marriage, except for recovery for loss of earning capacity during marriage.

Unfortunately, the division of marital assets is not always an easy task. 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 granted 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. Should your circumstances substantially change, custody arrangements, as well as child support, can be modified. For example, if either parent loses their job, child support payments may need to be modified, at least temporarily.

In short, 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 upon 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 simply 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 in effect 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
  • existence of marital 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.

Frequently Asked Questions About Divorce in Texas

Our Evans & Herlihy Divorce Lawyers Provide Answers

Marriage and divorce are among the most personal and emotional events for couples. While getting married is a time of happiness and joy, divorce is upsetting and frustrating. Divorce and how it is handled is incredibly personal and specific to the individuals involved, and no two cases are exactly alike. Those considering or in the midst of this legal separation often have many questions. Below, our Austin, TX, divorce attorney has addressed some of those that arise most often.

There is no simple answer to this question. The timing for a divorce to be complete depends upon your personal situation.  Uncontested divorces between couples with no minor children tend to be less complicated and move more quickly than those with other mitigating factors. That said, the quickest a divorce can be granted is 61 days from the date you file your divorce petition. Texas law provides for a right of rescission, also known as a “cooling-off period,” in case you have a change of heart. In general, however, divorce in Texas takes about 6 months to a year, and longer if your case is more complicated.

Not always. If you and your spouse agree on all terms and you file for an uncontested divorce, you do not need to appear before a judge. This situation is more likely when you do not have children.

Yes, there are. According to Texas Law, residency requirements are twofold. First, either you or your spouse must have declared residency in Texas and lived in the state for at least six months. Additionally, one of you must also have lived for a minimum of three months in the county in which you are filing.

An uncontested divorce is possible when both spouses are in agreement that there was no-fault and they agree regarding all terms of the divorce. In Texas, Family Code Chapter 6.001-6.201 states the requirements for an uncontested divorce:

  • No minor children together
  • No joint ownership of property
  • No joint retirement benefits
  • Neither party is looking to receive alimony
  • There are no bankruptcy cases in process
  • Both agree to end the marriage.

In Texas, all property a couple acquires together, once they are married, is deemed community property. It is important to note that the name the property is in is irrelevant. Property purchased or received, by either spouse. prior to marriage is NOT community property.

Legally, you do not need to engage a divorce attorney in Austin, TX. However, in many cases, having the advice and counsel of an experienced professional is incredibly valuable. You want to do everything you can to protect your future, and a divorce lawyer can help you do just that. Working with a professional who understands the state laws and is not emotionally involved can benefit you during this difficult and often confusing time.

Of course, these are just some of the most common issues that arise. Divorce is personal and complex, questions are commonplace.

Our Austin Divorce Lawyer Looks Out for You

What Is a Divorce Decree?

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. It is the final decision.

Why You Need Your Own Attorney

This decree is the result of the information provided during the divorce, i.e., the case your divorce attorney presented. It is clear how important it is to have a professional advocate for you. Understanding this, even when a divorce is amicable, each party should have their own divorce lawyer. This helps to ensure that any agreements they enter into are fair and that their interests are adequately protected.

Contact Our Experienced Divorce Lawyer in Austin, TX

Evans & Herlihy is Ready to Help You Today

Texas divorce law is complicated, and making mistakes can be costly. If you are anticipating a 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 Austin divorce lawyer.

Attorney Scott Herlihy

Attorney Scott HerlihyScott handles a wide range of family law matters, both contested and uncontested, including divorces involving both large and complex estates as well as more modest asset and property divisions, modifications of Texas and out-of-state orders, custody disputes, establishment and enforcement of child support, prenuptial and postnuptial agreements, paternity cases, and grandparents’ rights matters. [ Attorney Bio ]

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