(Divorce) General Info
Understandably, divorce is often a difficult time for couples, and their family members are often affected as well; however, there are several avenues of relief that may ease the process. Here are a few things you can expect during the course of a typical divorce.
Either spouse can file a lawsuit for divorce (yes, a divorce is a lawsuit). This is true whether the marriage was created formally by a certificate of marriage or an informal marriage, typically referred to as common-law marriage. An informal or common-law marriage is a marriage between two people who agree to be married, live together in Texas as spouses, and hold themselves out to others as spouses but who have not obtained a marriage license and participated in a marriage ceremony. While there is technically no time limit to file divorce after separation in an informal marriage, if the suit is filed more than two years after the separation a rebuttable presumption that there was no agreement to be married, so it may become more difficult to obtain the divorce.
Once a lawsuit for divorce is filed, absent family violence, the parties must wait 60 days before the court can grant the divorce. (It is important to note, despite the mandatory 60-day waiting period, most divorce proceedings are eligible for an array of temporary relief during the pendency of the divorce, such as temporary custody and visitation, child support, exclusive use of property, temporary restraining order, temporary orders, protective orders, or injunction.) The 60-day “cool down” period, as it is often referred, allows the parties an opportunity to initiate other vital procedures during the divorce that can make the final hearing or trial a much smoother process. The parties can initiate a number of “discovery” requests to the other party or third parties. This process can include requests to produce documentation, answer questions, request admissions, or other relief helpful to the efficient and proper dissolution of the marriage relationship, separation of community and separate property, and orders pertaining to children of the marriage. Essentially, it allows the parties to get a full picture of what each spouse owns and how that property is characterized to give the parties a better idea of what might be a “just and right” division of their estate.
Identifying and Characterizing Property
As with any lawsuit, the more information you have, the easier the process will become. More information will aid a party when entering an agreement, during mediation, or knowing what to request at the final hearing/trial in front of the judge or jury. During the discovery process, you can “discover” (formally request information) concerning all the assets in each party’s possession or control and determine they type or classification of each asset as separate or community property. Is the asset community property, separate property, or perhaps not property of the parties’ at all? Texas is a community property state, so generally, property acquired during the course of the marriage is property of both spouses. I often explain this with the following example, every dollar one spouse earns is 100% earned by the other spouse, meaning eighter spouse may spend the other spouse’s money during the course of the marriage (providing they can legally access it), without much recourse from the other spouse unless it can be proven the expenditure was an intentional fraud on the community estate or an intentional wasting of community property. In other words, income is not automatically characterized as 50% to spouse A and 50% to spouse B. Splitting income is of course always up to the spouses. It is not until the division of the community estate at trial when court must divide property in a “just and right” manner, which may or may not be a 50/50 split.
The Texas Constitution does provide for three main categories of separate property, i.e., property that is completely one spouse’s property. These categories are 1) gifts whether from a third party, spouse, or inherited; 2) Property acquired before marriage; and 3) property recovered for personal injury. A party must plead for separate property designation or characterization by the court or risk having to divide the separate property asset with the other spouse.
