John L. Sanders, Attorney at Law

Friendly, down-to-earth legal advice and services for divorce, property division, child custody, support, modification, name change, adoption and other services under the Texas Family Code.


Frequently Asked Questions about Family Law (FAQ's)

1.  Can I get a divorce if my spouse does not agree to it?

Yes.  The Texas Family Code provides for a divorce on the grounds of insupportability. Divorce can be granted to either party to a marriage, without consideration of fault, if the "marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation."  (Family Code, Section 6.001)

   
2.  Are the other grounds for divorce?

Beside insupportability, the other grounds for divorce are: adultery, conviction of a felony, abandonment, living apart for three years or more, confinement and in a mental hospital. There are of course, limits and requirements for some of these grounds.

   
3.  What is community property? What is separate property?

A spouse's separate property consists of the property owned or claimed by the party before marriage, acquired by the spouse during marriage by gift, devise, or descent, and some recoveries for personal injuries.

Community property is simply property acquired by either party during the marriage, except separate property. The income from separate property is community property, for instance the dividends on separate common stocks.

Property owned by a married person is presumed to be community property until it is established as separate property.

   
4.  Why is it important to know whether an asset is separate and community?

Primarily because a divorce court cannot divest a person of his/her separate property. Also, a person has an unqualified right to manage separate property.

   
5.  How does the court decide how to divide the property?

Texas Family Code Section 7.001 states: "In a decree of divorce or annulment, the court shall order a division of the estate o the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Of course, the property aspects of some divorces are complicated, and must be studies on a case by case basis.

   
6.  What about retirement income?

Generally, retirement earned during marriage is community property. Any portion of the retirement earned before marriage is the separate property of the person who earned the benefit.

There are many kinds of retirement or deferred compensation plans. They work differently an each case must be carefully studied.

   
7.  How is child support determined?

Child support paid by an individual earning under $4,000 a month is determined by a percentage of the obligor's (person paying support) net resources. Net resources is gross income reduced by certain defined expenses. The idea is similar to net income.

The net resources figure, in conjunction with the number of children and other factors, is then used to calculate child support.

   
8.  Can the divorce court divide the parties' debts?

Yes and no.  The court may, and often does, as part of the property division, order one party or the other to pay specific debts. If the husband is ordered to pay a debt, and doesn't, and the wife has to pay, she can sue the ex-husband and obtain a judgment against him for what she had to pay.

However, the picture changes when the rights of the creditor are considered. If the debt was a joint debt during the marriage, a creditor may continue to hold both parties liable for the debt, and collect from either. The creditor was not a party to the divorce, and is not bound by the divorce decree.

Click here for Family Code law.

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John L. Sanders, Attorney
8026 Vantage Drive, Suite 100  *  San Antonio, Texas 78230  U.S.A.
Phone: 210.349.3153  *  Facsimile: 210.377.2382
E-Mail: jsanders@johnlsanders.com 

Licensed by the Supreme Court of Texas and Federal District Court, Western District of Texas
Not certified by the Texas Board of Legal Specialization.
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