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Divorce 101

Posted by Ian Michael Kuecker | May 28, 2021 | 0 Comments

If your determination to be happy has triggered the painful decision to divorce your spouse, you need a resourceful, responsive legal representation in your corner that removes your misgivings — and guides you to a brighter future.

At Law Office of Ian Michael Kuecker, PLLC we understand your concerns about the potential negative impact of divorce on your children. We address contentious child custody issues — and parental relocations that can affect them — as promptly and efficiently as we problem-solve for alimony matters, division of marital assets and property, and specific dilemmas unique to the conclusions of high-asset marriages.

When families separate, individuals need to be able to adjust and function separately. This can require dividing assets and debts that have been accumulated during a marriage, establishing parental rights regarding conservatorship (decision making abilities), possession and access, and support, and can even involve addressing allegations/concerns of family violence.

Filing for Divorce:

Generally, in order to file for divorce in Texas, either spouse must have been a resident of the state for at least six months prior to the date of filing and must have resided in the county where the Petitioner is filed for at least ninety days immediately prior to the date of filing. If only one spouse has resided in Texas for the past six months and the other spouse resides in a different state or country, then either spouse is permitted to file for divorce in the county in which the Texas spouse resides.

Additionally, there are some special circumstances that expand the residency requirements for filing for divorce in Texas to a broader group; including: 1) having more than one county of residence, 2) military or public service done by a Texas domiciliary (or a spouse accompanying a Texas domiciliary servicemember) outside the state or county of residence while in the service of the armed forces, 3) military or public service done by an non-Texas domiciliary (or a spouse accompanying a non-Texas domiciliary servicemember) at a military instillation within Texas for the last six months and a Texas county for the last ninety days, 4) Non-U.S. Citizens, and 5) Texas inmates. These general rules and exceptions can have a significant impact, not only on determining whether or not the divorce can be filed in Texas, but also in determining what county the divorce should be filed in.  

Grounds for Divorce:

To obtain a divorce in Texas, a party must plead and prove that there is at least one ground for the Court to grant the requested divorce. There are seven statutory grounds for divorce in Texas which are generally considered in two different groups; "fault" grounds and "no-fault" grounds. 

Fault grounds for divorce are pleadings/findings that a spouse is at fault for the breakup of the marriage. They are not only a ground upon which the Court may grant a divorce, but fault grounds are also used to argue for a greater share of the community estate or for the court to consider in determining duration, manner, and amount of any spousal maintenance payments that may be awarded due to such conduct. The recognized fault grounds in Texas include Cruelty, Adultery, Felony Conviction, and Abandonment. 

No-fault grounds for divorce are pleadings/findings upon which a divorce can be granted without finding that either spouse is at fault for the breakup of the marriage. The Legislature instituted these grounds as a means to avoid unnecessary hostile litigation in order to simply grant a divorce. The recognized no-fault grounds in Texas include Insupportability, Living Apart, Confinement in Mental Hospital.

Insupportability can be established if the marriage has become insupportable because of discord or conflict between the spouses which destroys the legitimate ends of the marriage relationship and that there is no reasonable expectation of reconciliation; and is most common ground upon which divorce is granted. 

Property Division:

Divorce is oftentimes a very contentious matter that requires skilled legal counsel to keep things from escalating. Part of the process that turns couples against each other is property division. Texas is a community property state. When dividing property, the assets are split into two different categories: community and separate.

Property must be characterized as separate or community property before the court can divide the estate, as the court can only divide the parties' community property. The court lacks the jurisdiction to award the separate property of one spouse to the other.

If you are contemplating divorce and you are unsure of the characterization of your property, you should seek assistance from a board-certified family lawyer.  If you believe your spouse will contest what is in question, what is to be divided, or what each party's, we would highly recommend you contact our team of legal experts at Law Office of Ian Michael Kuecker , PLLC as soon as possible.

Separate property is defined by the Texas Family Code as:  The property owned or claimed by the spouse before marriage; (2) The property acquired by the spouse during marriage by gift, devise or descent; and (3) The recovery for personal injuries sustained by the spouse during marriage, except for any recovery for loss of earning capacity during marriage.

Community property is defined in the Family Code as: Property, other than separate property, acquired by either spouse during their marriage. It is also further defined, by case law, as any property or rights acquired by one of the spouses after marriage by toil, talent, industry or another productive faculty, and as property acquired during marriage other than by gift, devise or descent that is the product of the unique, joint endeavor undertaken by the spouses.

Very often, there are disagreements in a divorce. It is uncommon all parties involved are on the same page regarding whose is whose, and how to divide the marital assets and debts. An understanding and compassionate divorce expert will be able to correctly identify what is rightfully yours, ease the tension of any misunderstandings, and protect you during this stressful period.

Division of Debt:

Property purchased on credit during a marriage is community property, unless there exists an express agreement on the part of the lender to look solely to the separate estate of the purchasing spouse for satisfaction of the indebtednessDebts undertaken during marriage are presumed to be debts for which the community estate is responsible, but this presumption may be rebutted by proof that the lender agreed to look only to the separate property of the borrowing spouse for repayment.

The community property presumption applies not only to assets but to liabilities. Therefore, a debt which arises before marriage should be treated as the incurring spouse's separate debt and cannot be assigned to the non-incurring spouse. Basically, if you or the other party has debt or liabilities before you are married, those are considered separate property, which cannot be divided by the court. If these are disagreed upon, it is the responsibility of the party claiming otherwise to provide proof with clear and convincing evidence to the contrary.

Alimony, Temporary Spousal Support, & Spousal Maintenance:

In the state of Texas, what is commonly known as alimony is officially referred to as “spousal maintenance,” which is a recurring payment made from one spouse to the other following a divorce. In the court's eyes, spousal maintenance is not a presumed requirement. Rather, their default assumption is that spousal maintenance is not appropriate. To determine whether you are eligible to receive, or if you must pay, spousal maintenance, speak with Law Office of Ian Michael Kuecker, PLLC for help.

Temporary Spousal Support - While a suit for dissolution of marriage is pending, and on the motion of a party, or on the court's own motion, after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of property and protection of the parties as deemed necessary and equitable, which may include an order directing one or both parties to make payments for the support of either spouse. 

Temporary support should be awarded based on considerations of both the degree to which the applicant is destitute of means to pay for his or her necessities during the pendency of the suit, and the ability of the requested spouse to pay.  Either spouse may move for temporary orders, either in their petition for divorce, or in a separately filed motion, requesting temporary spousal support. The purpose of temporary spousal maintenance is to protect the welfare of a financially dependent spouse or to maintain the status quo of the family until the final hearing in the divorce. There must be sufficient evidence presented by the requesting spouse to support the award that the requesting spouse lacks the means and the requested spouse had the ability to pay. 

Spousal Maintenance is a recurring payment from one spouse to the other spouse to assist the receiving spouse in paying living expenses. The court may order maintenance if the spouse seeking maintenance will lack sufficient property, on dissolution of the marriage, to provide for the spouse's minimum reasonable needs. If the spouse from whom maintenance is sought was convicted of or received deferred adjudication for a criminal offense that constitutes an act of family violence within 2 years of the date of filing of the petition, spousal maintenance may be awarded by the Court. If a spouse seeking maintenance is unable to earn sufficient income to provide for that spouse's minimum reasonable needs because of an incapacitating physical or mental disability or is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to mean the spouse' minimum reasonable needs, spousal maintenance may be awarded. 

In order to be entitled to post divorce spousal maintenance, it must be properly pled. You have to ask for it. Spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in (1) earning sufficient income to provide for the spouse's minimum reasonable needs; or (2) developing the necessary skills to provide for the spouse's minimum reasonable needs during a period of separation and during the time the suit for dissolution of marriage is pending.

The amount of spousal maintenance can be agreed upon by the spouses or determined by court order. If left to the court to decide, the presiding judge can consider a litany of factors.

Texas has determined that spousal maintenance cannot last for a duration longer than 10 years unless the receiving spouse is disabled — or is caring for a disabled child. In general, five years is the maximum duration for marriages lasting less than 20 years; seven years is the maximum duration for marriages lasting between 20 and 30 years; and 10 years is the maximum duration for marriages lasting more than 30 years. 

An order for spousal maintenance is subject to periodic review and the receiving spouse has the burden to establish they have continued incapacitating physical disability and their disability prevented them from earning sufficient income to provide for their minimum reasonable needs. Even if the spouse has been found to be permanently disabled, the trial court has discretion to deny continued spousal maintenance. 

About the Author

Ian Michael Kuecker

Ian Michael Kuecker is a native Texan who has dedicated his professional life to providing aggressive and compassionate legal representation for his clients. Prior to becoming a licensed attorney and credentialed mediator, Mr. Kuecker graduated Cum Laude from the University of Houston.

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