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| AGGRESSIVE DIVORCE ATTORNEY |
Attorney Solomon Bedford is an aggressive divorce
attorney representing clients in divorce matters in Austin,
Texas and surrounding areas. We are aggressive
because clients involved in divorce related matters deserve
Results, Not Excuses! If you or a loved-one are involved in
a divorce related matter and need results, Contact Us
Today!
GROUNDS FOR DIVORCE
No Fault Grounds
The no fault basis is the most common ground for divorce in Texas. The “no fault
basis” states that the marriage has become insupportable (unendurable) because of
discord or conflict between the spouses that destroys the legitimate ends of the
marriage relationship and prevents any reasonable expectation of reconciliation.
Fault Grounds
Alternatively, there are other "fault" grounds that may be used. These include cruelty,
adultery, conviction of a felony, abandonment for at least a year, living apart without
cohabitation for at least three years, or confinement in a mental hospital for at least
three years.
RESIDENCY REQUIREMENTS
Before filing for divorce in Texas, either spouse must have lived in Texas for at least
the last six months and in the county where the divorce will be filed for the last 90
days. Either spouse can file for divorce in Texas even if the other spouse is not a
Texas resident. If a spouse is a Texas resident who is in the military, the time the
spouse has spent outside the state is still counted toward residency in Texas, and the
spouse’s home county remains the same for divorce filing purposes. These residency
requirements can not be waived, so if neither spouse has lived here long enough
(remember only one spouse has to meet the residency requirement), you'll have to
wait to file for divorce until the requirements are met.
PROCESS BETWEEN FILING AND FINAL DECREE
Filing
The first step in starting the divorce proceedings is filing a divorce petition. If you're
the spouse seeking divorce, your petition must be filed with the District Clerk's office
in your county of residency. Your spouse may receive the petition in many ways.
The following are the most common:
(l) By certified mail, return receipt requested from the court clerk, or,
(2) By personal service from a deputy sheriff in the county of filing or anyone else
authorized by law.
If your spouse files for divorce and you are served with the divorce petition, your
attorney should file a responsive pleading or answer. You have at least 20 days to file
an answer; however, until the divorce is final, you can usually still file an answer and
make an appearance in court. But, in some cases, failing to file an answer may result
in a default judgment against you, which means you're no longer entitled to your "day
in court."
attorney representing clients in divorce matters in Austin,
Texas and surrounding areas. We are aggressive
because clients involved in divorce related matters deserve
Results, Not Excuses! If you or a loved-one are involved in
a divorce related matter and need results, Contact Us
Today!
- WARNING: We have provided the following information on
Texas Divorces, but visitors are reminded that THERE IS NO
SUBSTITUTE FOR A GOOD DIVORCE ATTORNEY.
GROUNDS FOR DIVORCE
No Fault Grounds
The no fault basis is the most common ground for divorce in Texas. The “no fault
basis” states that the marriage has become insupportable (unendurable) because of
discord or conflict between the spouses that destroys the legitimate ends of the
marriage relationship and prevents any reasonable expectation of reconciliation.
Fault Grounds
Alternatively, there are other "fault" grounds that may be used. These include cruelty,
adultery, conviction of a felony, abandonment for at least a year, living apart without
cohabitation for at least three years, or confinement in a mental hospital for at least
three years.
RESIDENCY REQUIREMENTS
Before filing for divorce in Texas, either spouse must have lived in Texas for at least
the last six months and in the county where the divorce will be filed for the last 90
days. Either spouse can file for divorce in Texas even if the other spouse is not a
Texas resident. If a spouse is a Texas resident who is in the military, the time the
spouse has spent outside the state is still counted toward residency in Texas, and the
spouse’s home county remains the same for divorce filing purposes. These residency
requirements can not be waived, so if neither spouse has lived here long enough
(remember only one spouse has to meet the residency requirement), you'll have to
wait to file for divorce until the requirements are met.
PROCESS BETWEEN FILING AND FINAL DECREE
Filing
The first step in starting the divorce proceedings is filing a divorce petition. If you're
the spouse seeking divorce, your petition must be filed with the District Clerk's office
in your county of residency. Your spouse may receive the petition in many ways.
The following are the most common:
(l) By certified mail, return receipt requested from the court clerk, or,
(2) By personal service from a deputy sheriff in the county of filing or anyone else
authorized by law.
If your spouse files for divorce and you are served with the divorce petition, your
attorney should file a responsive pleading or answer. You have at least 20 days to file
an answer; however, until the divorce is final, you can usually still file an answer and
make an appearance in court. But, in some cases, failing to file an answer may result
in a default judgment against you, which means you're no longer entitled to your "day
in court."
divorce action and don't want to contest it. Don't sign this waiver unless you and your spouse have agreed
to all the terms of the divorce, put these terms in a signed writing, and reviewed the written agreement. Be
sure you understand exactly what the agreement means and that it is included in the petition. Once you've
signed the waiver, you normally won't receive any further notice of what goes on in the divorce
proceedings. You should have your own attorney review the documents before you sign the waiver.
Alternative Dispute Resolution (ADR)
A Texas court may refer a dispute for resolution by an alternative dispute resolution procedure such as
mediation, mini-trial, moderated settlement conference, summary jury trial, and arbitration. Both parties
must include as part of their first pleading a “Statement on Alternative Dispute Resolution.” Parties can be
compelled to participate in ADR procedures (but cannot be compelled to settle their case during it). The
vast majority of disputed cases in Bexar County are referred for ADR, usually mediation. Texas law also
provides procedures for making arbitration or agreements reached in mediation binding if the parties
agree. The local rules for Bexar County courts require ADR for jury trials.
Couples seeking a divorce, who have not yet filed a petition and cannot reach an agreement, may also
seek mediation to reach an agreement before filing. This is generally less expensive than a contested
divorce and may give the parties more control over the selection of a mediator.
Delay of trial for military members
A spouse on active duty may be unable to attend the divorce proceedings because he or she isn't
stationed near the divorce court. In this case, the military member can petition the divorce court to delay
the proceedings until military requirements allow the member to attend. The judge will grant the delay
unless-he feels the military service doesn't materially affect the member’s ability to attend. If your spouse
is on active duty and doesn't want to exercise this privilege (which is granted by the Servicemembers' Civil
Relief Act, 50 U.S.C.A. App. § 521 (2003)), your attorney should have your spouse waive the privilege in
writing.
Waiting period
Under Texas law, a divorce will only be granted after sixty (60) days have passed since the filing of the
divorce petition.
Spousal restraining orders
The onset of divorce proceedings can be a traumatic time when emotions sometimes get the better of
rational thinking. Even though you are still legally married to your spouse at this time, that doesn't mean
that you or your children must continue to endure harassment from your spouse. Once the divorce petition
is filed, the court may grant a temporary restraining order as needed to protect you and your children.
These orders can prohibit your spouse from harassing (including through the mail or by telephone),
threatening or injuring either you or your children.
If your spouse has actually committed family violence, you can obtain a protective order barring him or her
from your residence or from going near your child's school or child-care facility. Copies of protective
orders are sent to your local law enforcement agencies (and the school or child-care facility, if any), but
not to the military police. Thus, if you live on a military installation and obtain a protective order, you will
need to personally provide the military police with a copy.
Restraining orders regarding property
The court can also issue orders to prohibit your spouse from acting--selling, transferring, destroying,
removing, concealing, spending, withdrawing and so on--with regard to your separate or marital property.
The court also can order an inventory, appraisal and/or production of property.
DO’s
If you or your spouse own property, DO
get originals (or at the very least copies) of all legal papers, insurance policies, titles and deeds,
certificates of deposits, bank books, canceled checks and monthly statements, notes, deeds of trust or
mortgages, pension and profit sharing plans, payroll check stubs or leave and earning statements,
contracts, income tax returns (for the past five years), financial statements, lists of credit card numbers
and savings bonds, and any other information that might have any bearing at all on any property.
DO discuss with your attorney any assets that your spouse might dispose of without your consent
including checking accounts, stocks, bonds, certificates of deposits or personal property such as boats,
guns, and so on. Any asset encumbered by a lien (car or property) needs to be protected, so discuss that,
as well as steps for ensuring that any business or commercial activities remain solvent.
DON’Ts
DON'T dispose of any assets or money (other than for reasonable living expenses) or tell your spouse
that you intend to do so.
DON'T buy anything other than necessities during the divorce process. If you buy a car, a stereo, or
household goods, in Texas it becomes community property in which your spouse has an interest. If you
sign a contract and pay earnest money or a deposit, you're acquiring a community asset.
DON'T make payments on bills, notes or loans other than what's normally due, and don't borrow any
money without consulting your attorney.
Temporary support of spouse
The court may order temporary support payments for either spouse, including the payment of reasonable
attorney's fees. The military still expects an active duty member to support their family members
(dependents) even if the spouses are separated.
DOs
DO, if you're the primary wage earner, make plans to support your spouse and any children during the
divorce proceedings. Realize that you're now probably maintaining two households, rather than one, and
you'll probably have to lower your standard of living.
PROPERTY DIVISION AND SETTLEMENT
Texas is a community property state, which means that each spouse has an interest in the property. All
property owned by either or both spouses is classified as either:
(1) Separate: All property you or your spouse acquired before marriage and any property you acquired
separately after marriage either as a gift or by inheriting it. There are exclusions to this principle, which
your attorney can explain to you. Generally, upon divorce you are entitled to keep all of your separate
property.
(2) Community: All property acquired by either spouse during marriage that doesn't satisfy the definition
for separate property.
Upon divorce, the court will divide community property in a “just and right” manner, taking into account the
rights of each party and any children. Nothing obligates the court to divide the property equally, especially
if it isn't feasible or practical to split property in half.
All property is presumed to be community property upon divorce. You or your spouse can prove
something is separate property by providing clear and convincing evidence that you either acquired it
before marriage or after marriage as a gift or bequest. Additionally, property that might seem on its face to
be separate property will be considered community property in Texas, for example:
(a) If community income paid for your life insurance policy, the cash surrender value of that policy is
community property.
(b) Income (rent, interest, dividends, royalties, etc.) derived from separate property is community property.
(c) Community property funds spent on separate property may entitle the non-owning spouse to
reimbursement.
Trade-offs:
You don't have to leave it up to the court to divide all your property, nor does all property need to be divided
equally. You and your spouse can work out a trade-off that suits your needs. The most important thing is
to ensure everything's incorporated in writing as part of the divorce decree--or you risk the possibility of
ending up back in court again sometime in the future.
SPOUSAL MAINTENANCE (Alimony):
A late 1995 legislative change in Texas law now allows for maintenance to be granted in limited cases.
Maintenance can only be granted in the following situations: (1) A spouse was convicted of or has
received deferred adjudication for family violence within the last two years, or (2) In a marriage of 10 years
or more, where, after the property division, one spouse lacks sufficient property to provide for themselves,
AND that spouse (a) cannot work because of an incapacitating physical or mental disability, OR (b) is the
custodian of a child requiring substantial care because of a physical or mental disability, OR (c) lacks
earning ability in the labor market. The court will consider a variety of factors in determining the amount of
maintenance, but limits it to the lesser of $2,500 per month or 20% of the average monthly gross income.
The length of time a spouse can receive maintenance is also limited. In the absence of an incapacitating
illness, payment of maintenance cannot exceed three years. It can terminate early upon the death of either
spouse or remarriage or “conjugal” cohabitation by the receiving spouse. Additionally, maintenance
provisions ordered through divorce decrees in other states are enforceable in Texas.
ACTIONS AFTER DIVORCE
Name change:
A divorce doesn't automatically restore the wife's previous name. The court can change your name--but
only if you make a specific request . Changing your name does not release you from any liability you
incurred under your former name (such as debts) or take away any rights you had under your married
name.
However, if you had your name changed, make sure you notify your creditors, banks, and other similar
institutions; send a certified copy of the court order to the IRS district office; and request a new Social
Security card (not a number).
Remarriage:
Texas law forbids you from marrying a third party for the 30 days immediately after the divorce decree is
final, although this may be waived for good cause. However, you and your former spouse may remarry at
any time.
Wills:
Until your divorce is final, provisions regarding your spouse in your will are still effective (even if you're
legally separated or have filed for divorce). A final divorce decree, however, nullifies any will provisions
relating to your former spouse. Either way, it's a good idea to prepare a new will.
Insurance:
(1) Life insurance: If a decree of divorce is rendered after an insured has designated his spouse as a
beneficiary of a life insurance policy the former spouse generally will not receive the proceeds unless the
decree designates the former spouse as the beneficiary or the insured redesignates the former spouse
as the beneficiary.
(2) Automobile insurance: Some policies issued in one spouse' s name may not cover the other spouse
when they aren't living in the same household. This usually applies only when one spouse is driving a car
not owned by the couple. Check with your insurance agent.
(3) Homeowners’ policies: Most policies insure your personal belongings--clothing, jewelry, household
goods, etc.-- while they're in your home. However, if you and your spouse are living apart, your insurance
may not apply to both households. Again, contact your agent.
TAX ASPECTS
Remember that the tax laws change every year. Check with your attorney, tax preparer and the IRS for
current tax guidelines.
Alimony:
The IRS has specific requirements your lawyer needs to follow if drafting an alimony agreement.
(l) Recipient: You must pay tax on alimony as income.
(2) Paying Spouse: Alimony--if clearly labeled as such in the agreement--is deducted from your gross
income.
Child support:
(1) Custodial parent (managing conservator): You don't have to pay taxes on any child support you receive
for your children. If you receive both alimony and child support, again, make sure that each is clearly
labeled. If not clearly designated as child support, the IRS often assumes the money received from your
former spouse is alimony.
(2) Dependency exemption: In the typical divorce, the parents provide all or most of the child's support and
one or both of the parents have custody of the child all the time. In these cases, IRS Publication 501 sets
forth these guidelines:
(a) Custodial parent (managing conservator): Generally, the parent who has custody the greater part of
the year is considered to be the parent who provides more than half the child's support. It doesn't matter
whether you actually provided more than half of the support. As sole managing conservator, you're entitled
to the deduction. In the case of joint custody, or joint managing conservators, the parent who has custody
for more than six months is entitled to the deduction. If custody is exactly equal, the divorce decree should
resolve this by declaring who is entitled to the deduction.
(b) Non-custodial parent (possessory conservator): To claim the deduction, your former spouse must
have signed a written declaration releasing the exemption to you as the non-custodial parent. The
declaration can release the exemption for one year, for a number of specified years (for example, for
alternate years) or for all future years. The IRS has a specific form, Release of Claim to Exemption for
Child of Divorced or Separated Parents (IRS Form 8332), you can use. You must attach the original
declaration to your tax return for a single-year exemption and the original the first year, then copies each
year, for releases of more than a year.
ENFORCING DIVORCE DECREES:
Property division:
If your former spouse hasn't divided the property as ordered by the court, you have to right to seek legal
enforcement--but you'll probably have to go back to court to do it. A motion to enforce the division of
tangible personal property existing at the time of the decree must be filed within two years after the divorce
becomes final. The court can't amend, modify, alter or change the original property division, but it can
clarify or more precisely specify the manner of carrying out the property division
The court has several options for enforcing the property division:
(1) Ordering your former spouse to deliver the property;
(2) Awarding you a money judgment for damages caused by the failure to deliver the property; and/or
(3) Citing your former spouse for contempt, which carries the possibility of jail time and monetary fines if
he or she refuses to comply with the court-ordered property division.
Visitation or child custody:
If you're the custodial parent and you refuse to allow your former spouse the visitation required by the
divorce decree, you can be held in contempt and be punished by confinement in jail, a fine, or both.
If the non-custodial parent or grandparents who have been granted access refuse to return a child after
visitation, you can petition the court for a Writ of Habeas Corpus to compel the return of the child. This can
be used to enforce a valid court order granted by another jurisdiction as well as a Texas order. The only
exception is if there's a serious immediate question concerning the child's welfare, in which case the
court may issue a temporary order preventing return of the child.
In either case, after two or more violations of the court order, the party who's been refusing to comply can
be forced to post a security bond that will be forfeited if another violation occurs.
Tort liability also can be imposed against a person who violates a court order regarding child custody or
possession. In other words, if you violate the order, you can be sued for damages, including the costs
and expenses of locating and recovering the child, court costs and attorney fees, and mental anguish and
suffering. Additionally, if you acted with malice or the intent to harm your former spouse, you can be found
liable for punitive or exemplary damages--which in the past have been awarded in amounts as high as
$53 million.
The point of all this is that violating a child custody order is not something you do to get back at or punish
your former spouse. It doesn't just hurt the other parent, it harms the children--and it can hurt you as well.
Visitation and child support are not reciprocal obligations. You cannot refuse to comply with your
obligations because your former spouse is not complying with his or her obligations.
Child support:
If your former spouse isn't paying child support, as mentioned earlier, refusing to permit him or her
visitation isn't a solution. You have several avenues open to you in these cases:
(1) You can seek to have the obligor held in contempt.
(2) If the nonpaying spouse is out of state, you can seek a remedy under the Uniform Interstate Family
Support Act. Unlike the old laws, this act allows private attorneys, not just the Attorney General’s office to
attempt to collect child support. It also provides for garnishment of wages. Many private firms now offer
child support collection services in exchange for a percentage of the support collected.
(3) Garnishment: If the non-paying parent is employed in Texas or is active-duty or retired military, his or
her pay can be garnished (involuntarily and automatically withheld) to pay back child support. This is in
addition to the automatic withholding for current support obligations. The requirements are as follows:
(a) The obligor must be at least two months behind in the payments.
(b) The court must order the garnishment.
(c) No more than half of the paying parent's pay can be withheld for both current and past-due child
support.
(d) The obligor can't be self-employed. (Self-employed parents may have to post a bond with the court
instead.)
To garnish wages, you must delivery a certified copy of the court order to your former spouse's employer,
either by certified mail or personal service. For retired or active-duty military members, use the same
addresses as for the original child-support withholding orders. The employer must begin withholding no
later than the first pay period occurring 14 days after receiving the order.
(4) Criminal penalties: A parent who is legally obligated to and financially capable of providing child
support but who knowingly or intentionally fails to do so can be convicted of a state jail felony which is
punishable by confinement, a fine, or both.
(5) Other penalties: A court (or the Attorney General’s office) may issue an order suspending a license if a
parent has at least a 90 day arrearage in support due under an order, and has been provided an
opportunity to make agreed or court ordered repayments on that arrearage, and has failed to comply with
the repayment schedule. Such licenses include professional, recreational, and driving licenses.
to all the terms of the divorce, put these terms in a signed writing, and reviewed the written agreement. Be
sure you understand exactly what the agreement means and that it is included in the petition. Once you've
signed the waiver, you normally won't receive any further notice of what goes on in the divorce
proceedings. You should have your own attorney review the documents before you sign the waiver.
Alternative Dispute Resolution (ADR)
A Texas court may refer a dispute for resolution by an alternative dispute resolution procedure such as
mediation, mini-trial, moderated settlement conference, summary jury trial, and arbitration. Both parties
must include as part of their first pleading a “Statement on Alternative Dispute Resolution.” Parties can be
compelled to participate in ADR procedures (but cannot be compelled to settle their case during it). The
vast majority of disputed cases in Bexar County are referred for ADR, usually mediation. Texas law also
provides procedures for making arbitration or agreements reached in mediation binding if the parties
agree. The local rules for Bexar County courts require ADR for jury trials.
Couples seeking a divorce, who have not yet filed a petition and cannot reach an agreement, may also
seek mediation to reach an agreement before filing. This is generally less expensive than a contested
divorce and may give the parties more control over the selection of a mediator.
Delay of trial for military members
A spouse on active duty may be unable to attend the divorce proceedings because he or she isn't
stationed near the divorce court. In this case, the military member can petition the divorce court to delay
the proceedings until military requirements allow the member to attend. The judge will grant the delay
unless-he feels the military service doesn't materially affect the member’s ability to attend. If your spouse
is on active duty and doesn't want to exercise this privilege (which is granted by the Servicemembers' Civil
Relief Act, 50 U.S.C.A. App. § 521 (2003)), your attorney should have your spouse waive the privilege in
writing.
Waiting period
Under Texas law, a divorce will only be granted after sixty (60) days have passed since the filing of the
divorce petition.
Spousal restraining orders
The onset of divorce proceedings can be a traumatic time when emotions sometimes get the better of
rational thinking. Even though you are still legally married to your spouse at this time, that doesn't mean
that you or your children must continue to endure harassment from your spouse. Once the divorce petition
is filed, the court may grant a temporary restraining order as needed to protect you and your children.
These orders can prohibit your spouse from harassing (including through the mail or by telephone),
threatening or injuring either you or your children.
If your spouse has actually committed family violence, you can obtain a protective order barring him or her
from your residence or from going near your child's school or child-care facility. Copies of protective
orders are sent to your local law enforcement agencies (and the school or child-care facility, if any), but
not to the military police. Thus, if you live on a military installation and obtain a protective order, you will
need to personally provide the military police with a copy.
Restraining orders regarding property
The court can also issue orders to prohibit your spouse from acting--selling, transferring, destroying,
removing, concealing, spending, withdrawing and so on--with regard to your separate or marital property.
The court also can order an inventory, appraisal and/or production of property.
DO’s
If you or your spouse own property, DO
get originals (or at the very least copies) of all legal papers, insurance policies, titles and deeds,
certificates of deposits, bank books, canceled checks and monthly statements, notes, deeds of trust or
mortgages, pension and profit sharing plans, payroll check stubs or leave and earning statements,
contracts, income tax returns (for the past five years), financial statements, lists of credit card numbers
and savings bonds, and any other information that might have any bearing at all on any property.
DO discuss with your attorney any assets that your spouse might dispose of without your consent
including checking accounts, stocks, bonds, certificates of deposits or personal property such as boats,
guns, and so on. Any asset encumbered by a lien (car or property) needs to be protected, so discuss that,
as well as steps for ensuring that any business or commercial activities remain solvent.
DON’Ts
DON'T dispose of any assets or money (other than for reasonable living expenses) or tell your spouse
that you intend to do so.
DON'T buy anything other than necessities during the divorce process. If you buy a car, a stereo, or
household goods, in Texas it becomes community property in which your spouse has an interest. If you
sign a contract and pay earnest money or a deposit, you're acquiring a community asset.
DON'T make payments on bills, notes or loans other than what's normally due, and don't borrow any
money without consulting your attorney.
Temporary support of spouse
The court may order temporary support payments for either spouse, including the payment of reasonable
attorney's fees. The military still expects an active duty member to support their family members
(dependents) even if the spouses are separated.
DOs
DO, if you're the primary wage earner, make plans to support your spouse and any children during the
divorce proceedings. Realize that you're now probably maintaining two households, rather than one, and
you'll probably have to lower your standard of living.
PROPERTY DIVISION AND SETTLEMENT
Texas is a community property state, which means that each spouse has an interest in the property. All
property owned by either or both spouses is classified as either:
(1) Separate: All property you or your spouse acquired before marriage and any property you acquired
separately after marriage either as a gift or by inheriting it. There are exclusions to this principle, which
your attorney can explain to you. Generally, upon divorce you are entitled to keep all of your separate
property.
(2) Community: All property acquired by either spouse during marriage that doesn't satisfy the definition
for separate property.
Upon divorce, the court will divide community property in a “just and right” manner, taking into account the
rights of each party and any children. Nothing obligates the court to divide the property equally, especially
if it isn't feasible or practical to split property in half.
All property is presumed to be community property upon divorce. You or your spouse can prove
something is separate property by providing clear and convincing evidence that you either acquired it
before marriage or after marriage as a gift or bequest. Additionally, property that might seem on its face to
be separate property will be considered community property in Texas, for example:
(a) If community income paid for your life insurance policy, the cash surrender value of that policy is
community property.
(b) Income (rent, interest, dividends, royalties, etc.) derived from separate property is community property.
(c) Community property funds spent on separate property may entitle the non-owning spouse to
reimbursement.
Trade-offs:
You don't have to leave it up to the court to divide all your property, nor does all property need to be divided
equally. You and your spouse can work out a trade-off that suits your needs. The most important thing is
to ensure everything's incorporated in writing as part of the divorce decree--or you risk the possibility of
ending up back in court again sometime in the future.
SPOUSAL MAINTENANCE (Alimony):
A late 1995 legislative change in Texas law now allows for maintenance to be granted in limited cases.
Maintenance can only be granted in the following situations: (1) A spouse was convicted of or has
received deferred adjudication for family violence within the last two years, or (2) In a marriage of 10 years
or more, where, after the property division, one spouse lacks sufficient property to provide for themselves,
AND that spouse (a) cannot work because of an incapacitating physical or mental disability, OR (b) is the
custodian of a child requiring substantial care because of a physical or mental disability, OR (c) lacks
earning ability in the labor market. The court will consider a variety of factors in determining the amount of
maintenance, but limits it to the lesser of $2,500 per month or 20% of the average monthly gross income.
The length of time a spouse can receive maintenance is also limited. In the absence of an incapacitating
illness, payment of maintenance cannot exceed three years. It can terminate early upon the death of either
spouse or remarriage or “conjugal” cohabitation by the receiving spouse. Additionally, maintenance
provisions ordered through divorce decrees in other states are enforceable in Texas.
ACTIONS AFTER DIVORCE
Name change:
A divorce doesn't automatically restore the wife's previous name. The court can change your name--but
only if you make a specific request . Changing your name does not release you from any liability you
incurred under your former name (such as debts) or take away any rights you had under your married
name.
However, if you had your name changed, make sure you notify your creditors, banks, and other similar
institutions; send a certified copy of the court order to the IRS district office; and request a new Social
Security card (not a number).
Remarriage:
Texas law forbids you from marrying a third party for the 30 days immediately after the divorce decree is
final, although this may be waived for good cause. However, you and your former spouse may remarry at
any time.
Wills:
Until your divorce is final, provisions regarding your spouse in your will are still effective (even if you're
legally separated or have filed for divorce). A final divorce decree, however, nullifies any will provisions
relating to your former spouse. Either way, it's a good idea to prepare a new will.
Insurance:
(1) Life insurance: If a decree of divorce is rendered after an insured has designated his spouse as a
beneficiary of a life insurance policy the former spouse generally will not receive the proceeds unless the
decree designates the former spouse as the beneficiary or the insured redesignates the former spouse
as the beneficiary.
(2) Automobile insurance: Some policies issued in one spouse' s name may not cover the other spouse
when they aren't living in the same household. This usually applies only when one spouse is driving a car
not owned by the couple. Check with your insurance agent.
(3) Homeowners’ policies: Most policies insure your personal belongings--clothing, jewelry, household
goods, etc.-- while they're in your home. However, if you and your spouse are living apart, your insurance
may not apply to both households. Again, contact your agent.
TAX ASPECTS
Remember that the tax laws change every year. Check with your attorney, tax preparer and the IRS for
current tax guidelines.
Alimony:
The IRS has specific requirements your lawyer needs to follow if drafting an alimony agreement.
(l) Recipient: You must pay tax on alimony as income.
(2) Paying Spouse: Alimony--if clearly labeled as such in the agreement--is deducted from your gross
income.
Child support:
(1) Custodial parent (managing conservator): You don't have to pay taxes on any child support you receive
for your children. If you receive both alimony and child support, again, make sure that each is clearly
labeled. If not clearly designated as child support, the IRS often assumes the money received from your
former spouse is alimony.
(2) Dependency exemption: In the typical divorce, the parents provide all or most of the child's support and
one or both of the parents have custody of the child all the time. In these cases, IRS Publication 501 sets
forth these guidelines:
(a) Custodial parent (managing conservator): Generally, the parent who has custody the greater part of
the year is considered to be the parent who provides more than half the child's support. It doesn't matter
whether you actually provided more than half of the support. As sole managing conservator, you're entitled
to the deduction. In the case of joint custody, or joint managing conservators, the parent who has custody
for more than six months is entitled to the deduction. If custody is exactly equal, the divorce decree should
resolve this by declaring who is entitled to the deduction.
(b) Non-custodial parent (possessory conservator): To claim the deduction, your former spouse must
have signed a written declaration releasing the exemption to you as the non-custodial parent. The
declaration can release the exemption for one year, for a number of specified years (for example, for
alternate years) or for all future years. The IRS has a specific form, Release of Claim to Exemption for
Child of Divorced or Separated Parents (IRS Form 8332), you can use. You must attach the original
declaration to your tax return for a single-year exemption and the original the first year, then copies each
year, for releases of more than a year.
ENFORCING DIVORCE DECREES:
Property division:
If your former spouse hasn't divided the property as ordered by the court, you have to right to seek legal
enforcement--but you'll probably have to go back to court to do it. A motion to enforce the division of
tangible personal property existing at the time of the decree must be filed within two years after the divorce
becomes final. The court can't amend, modify, alter or change the original property division, but it can
clarify or more precisely specify the manner of carrying out the property division
The court has several options for enforcing the property division:
(1) Ordering your former spouse to deliver the property;
(2) Awarding you a money judgment for damages caused by the failure to deliver the property; and/or
(3) Citing your former spouse for contempt, which carries the possibility of jail time and monetary fines if
he or she refuses to comply with the court-ordered property division.
Visitation or child custody:
If you're the custodial parent and you refuse to allow your former spouse the visitation required by the
divorce decree, you can be held in contempt and be punished by confinement in jail, a fine, or both.
If the non-custodial parent or grandparents who have been granted access refuse to return a child after
visitation, you can petition the court for a Writ of Habeas Corpus to compel the return of the child. This can
be used to enforce a valid court order granted by another jurisdiction as well as a Texas order. The only
exception is if there's a serious immediate question concerning the child's welfare, in which case the
court may issue a temporary order preventing return of the child.
In either case, after two or more violations of the court order, the party who's been refusing to comply can
be forced to post a security bond that will be forfeited if another violation occurs.
Tort liability also can be imposed against a person who violates a court order regarding child custody or
possession. In other words, if you violate the order, you can be sued for damages, including the costs
and expenses of locating and recovering the child, court costs and attorney fees, and mental anguish and
suffering. Additionally, if you acted with malice or the intent to harm your former spouse, you can be found
liable for punitive or exemplary damages--which in the past have been awarded in amounts as high as
$53 million.
The point of all this is that violating a child custody order is not something you do to get back at or punish
your former spouse. It doesn't just hurt the other parent, it harms the children--and it can hurt you as well.
Visitation and child support are not reciprocal obligations. You cannot refuse to comply with your
obligations because your former spouse is not complying with his or her obligations.
Child support:
If your former spouse isn't paying child support, as mentioned earlier, refusing to permit him or her
visitation isn't a solution. You have several avenues open to you in these cases:
(1) You can seek to have the obligor held in contempt.
(2) If the nonpaying spouse is out of state, you can seek a remedy under the Uniform Interstate Family
Support Act. Unlike the old laws, this act allows private attorneys, not just the Attorney General’s office to
attempt to collect child support. It also provides for garnishment of wages. Many private firms now offer
child support collection services in exchange for a percentage of the support collected.
(3) Garnishment: If the non-paying parent is employed in Texas or is active-duty or retired military, his or
her pay can be garnished (involuntarily and automatically withheld) to pay back child support. This is in
addition to the automatic withholding for current support obligations. The requirements are as follows:
(a) The obligor must be at least two months behind in the payments.
(b) The court must order the garnishment.
(c) No more than half of the paying parent's pay can be withheld for both current and past-due child
support.
(d) The obligor can't be self-employed. (Self-employed parents may have to post a bond with the court
instead.)
To garnish wages, you must delivery a certified copy of the court order to your former spouse's employer,
either by certified mail or personal service. For retired or active-duty military members, use the same
addresses as for the original child-support withholding orders. The employer must begin withholding no
later than the first pay period occurring 14 days after receiving the order.
(4) Criminal penalties: A parent who is legally obligated to and financially capable of providing child
support but who knowingly or intentionally fails to do so can be convicted of a state jail felony which is
punishable by confinement, a fine, or both.
(5) Other penalties: A court (or the Attorney General’s office) may issue an order suspending a license if a
parent has at least a 90 day arrearage in support due under an order, and has been provided an
opportunity to make agreed or court ordered repayments on that arrearage, and has failed to comply with
the repayment schedule. Such licenses include professional, recreational, and driving licenses.
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