F. LAKHANI, ATTORNEY AT LAW
361-993-1313
Q & A - Divorce
What You Should Know About Divorce
Introduction
Beyond the considerable emotional pain, the end of a marriage is legally complex. This pamphlet reviews alternatives to divorce and failing these, the procedures for obtaining a divorce. You should consult an attorney if your marriage is ending. You will need sound professional advice to determine child custody, financial support, and make a fair division of the property of the marriage.
Alternatives to Divorce
Depending on your circumstances, you may wish to consider alternatives to divorce - marriage counseling, annulment or separation.
Many couples try counseling from a marriage counselor, social worker or psychotherapist as an alternative to divorce. Such counselors are trained to help couples resolve differences. The counselor may be able to help you and your spouse learn communication skills and a better understanding of one another to prevent your marriage from failing. Marriage counseling can be useful when couples find their problems have begun to affect their compatibility with each other. Counseling may also keep a relationship with your spouse from worsening even if divorce is unavoidable.
An annulment is a court ruling that a marriage was never legally valid. A marriage can only be annulled if there was a serious defect at the time of the marriage ceremony. In most states, marriages can be annulled if one of the parties was under age at the time of the marriage, if a spouse could not consummate the marriage, if consent was obtained fraudulently, or if the marriage was bigamous or incestuous.
If you and your spouse separate, it may be best to obtain temporary orders from the Court, providing for spousal support, child custody, child support, visitation, and division and use of the property during the pendency of the divorce.
Grounds for Divorce
Common grounds for a fault divorce are adultery, bigamy, and cruelty. In addition, Texas has adopted "no fault" divorce, referred to as "insupportability," which allows a divorce without showing that one spouse was at fault. In Texas, a divorce can be obtained because of incompatibility or irreconcilable differences.
In certain circumstances, a fault divorce may offer a better legal strategy for you. Your lawyer can guide you on the best way to proceed.
Divorce Procedure
Divorces may be uncontested or contested. An uncontested divorce can be granted when the parties agree on all issues such as child custody, support and property division. It will involve the filing of papers at the courthouse, and a brief appearance before a judge. Your spouse will have to sign the papers indicating the parties agreement to the divorce and all issues.
A contested divorce, where the parties cannot agree to terms, resembles a standard lawsuit with a trial before a judge.
After the judge grants a divorce, generally, you may not remarry for thirty days.
Child Custody and Visitation
Child custody can be given exclusively to one spouse, or you can share joint custody. In most cases, the parents will share joint custody with one parent having primary physical custody of the children and the other parent having visitation rights, taking the children on weekends, holidays, and vacations.
Spousal and Child Support
Spousal support is called alimony or maintenance in some states. Either you or your spouse may be entitled to spousal support depending on your income and property, work history, financial needs, and the circumstances leading to the divorce. If you and your spouse are unable to agree on support, a judge may decide who should pay it, how much is to be paid, if any, and how long it will continue.
You and your spouse are both responsible for the support of your children. If you cannot agree on child support, the court will apportion the responsibility based on custody, your incomes, and other financial resources.
In some cases, you or your spouse may go back to the court in later years to ask the judge to increase or reduce the child support. However, you must be able to show that there has been a change in financial resources or needs.
Dividing Property and Debts
States have their own provisions for dividing property at divorce. Many divide only property acquired during the marriage. If you and your spouse are unable to agree on who gets what, the court will divide the property based on various factors. The court may consider the contributions of each spouse to the property, the contributions of each spouse to child care and homemaking, the financial resources and needs of each spouse, the fault in the breakup of the marriage, and the income and career potential of each spouse. Your lawyer can help you obtain a fair division of property and help you avoid overlooking valuable assets such as pension and retirement rights.
You and your spouse can agree on assignment of responsibility for your debts. If you are unable to agree on a division of responsibility, the court will probably apportion them in accordance with the same kinds of considerations used to divide the property of your marriage.
Tax Considerations
A divorce has important tax consequences. Custody can affect your taxes, including your right to claim dependent exemptions, and child care credit. The property division may also affect your taxes. Your lawyer can advise you about the tax aspects of divorce to some extent; however, you may wish to also consult with an accountant.
Conclusion
Divorce is emotionally and financially complex. It is important to see a lawyer to protect your rights and your future. Your lawyer may help you to save your marriage by referring you to marriage counseling. If divorce is unavoidable, your lawyer can help you take the steps to end the marriage and advise you about obtaining custody of your children, support, and a fair division of property.
This page is intended to provide general information only. Laws develope over time and differ from state to state. This page does not provide legal advice about specific legal problems. Let us advise you about your particular situation.
