Going through a divorce is a process that requires patience, dedication, and a clear understanding of the various considerations involved. While many spouses find thinking about the process stressful, there is a clear path to follow, and learning more about the relevant considerations can help you feel more comfortable taking your next steps.
5 Key Considerations for Spouses Who Are Preparing for a Divorce
So, what do you need to know if you are preparing for a divorce in Texas? Here is an overview of five key considerations:
1. Community Property vs. Separate Property
Texas is a community property state. This means that under Texas law, any property that spouses acquire during their marriage is generally considered to be equally owned by both spouses.
This also means that spouses must generally divide their community property equally when going through a divorce.
We emphasize the word “generally,” because there are exceptions to both of these general rules. There are circumstances in which property acquired during the marriage will belong to one spouse only, and there are also circumstances in which divorcing spouses won’t be required to divide their community property equally. You can learn about some of these exceptions here: Texas Community Property: Sounds Deceptively Simple.
Any assets that do not qualify as community property are classified as “separate property.” Separate property belongs to one spouse only—and it is that spouse’s property to keep after their divorce. In most cases, an asset will be classified as separate property because either:
- One spouse acquired the property before the date of marriage; or,
- One spouse acquired the property after the parties separated.
With this in mind, as you begin thinking about the divorce process, you will want to think about which of your assets are (and aren’t) on the table. Make a list of assets that you believe qualify as community property, and make note of which ones matter the most to you. Since you will most likely need to divide your community property equally, it will be important for you to think about which items you want to prioritize in your divorce.
2. Texas’s “Best Interests” Factors for Child Custody
If you have minor children from your marriage, you will need to develop a child custody plan during your divorce. In Texas, as in other states, all child custody plans must reflect the best interests of the children involved.
Since divorcing spouses may have different opinions about what is in their children’s best interests when it comes to post-divorce custody, Texas law establishes a list of “best interests” factors that parents need to consider during the divorce process. Some examples of these factors include:
- The spouses’ respective parental abilities (and access to any programs that can provide assistance);
- The stability of each parent’s home environment;
- Any history of substance abuse by either parent;
- The children’s age and any physical or mental vulnerabilities; and,
- The children’s wishes (in appropriate cases).
Here too, as you begin preparing for your divorce, you will want to think about what matters most. While divorcing parents must consider the “best interests” factors when making decisions about child custody, they have a significant amount of flexibility to develop a plan that works for them and their children—as long as they are willing to work together. By thinking about what you and your spouse will want to prioritize when it comes to child custody, you can start considering options that may be viable solutions in your divorce.
3. Texas’s Child Support Guidelines
If you need to address child custody during your divorce, you will need to address child support as well. In most cases, this will involve applying Texas’s Child Support Guidelines (the “Guidelines”). The Texas Attorney General’s Office has published an online calculator that divorcing spouses can use to estimate child support based on the Guidelines—but it is important to be very clear that this is an estimate only.
As a general rule, both parents have a legal obligation to financially support their children to the extent that they can. As a result, both parents can generally expect to have financial obligations after their divorce. To begin your preparations, you can gather your recent income records (and make copies of your spouse’s recent income records, if possible), and you can try to make a list of your monthly child-related expenses.
4. Alimony in a Texas Divorce
In addition to (or, in some cases, instead of) child support, many divorcing spouses will also need to address alimony. There are two main types of alimony under Texas law: (i) temporary alimony during the divorce process; and, (ii) indefinite (or permanent) alimony paid after the divorce.
Generally, alimony awards are intended to allow both spouses to maintain the standard of living they enjoyed during their marriage (at least to the extent possible). You should take this into account when thinking about whether you may be entitled to seek alimony—or whether you may be required to pay. Your (and your spouse’s) income records will be important here as well; and, if you have reason to believe that your spouse may be hiding any sources of income, this is something that you will want to discuss with your divorce lawyer early in the process.
5. Options for Coming to Terms Without Going to Court
Finally, while it is common for divorcing spouses to have differences of opinion about all of the issues we’ve discussed above, there are various options for coming to terms without going to court. As you prepare for your divorce, you will want to think about which of these options might make the most sense based on your personal circumstances.
In many cases, divorcing spouses are able to come to terms through informal negotiations conducted with their respective divorce lawyers. But, in some cases, more structure is needed. When this is the case, mediation can be a good option, and tools like collaborative law can be highly effective as well.
Schedule a Confidential Consultation with a San Antonio Divorce Lawyer
Do you need more information about how to prepare for a divorce in Texas? If so, we invite you to get in touch. To schedule a confidential consultation with an experienced San Antonio divorce lawyer, please call 210-224-4077 or request an appointment online today.