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But it WAS their fault!: An Analysis of No Fault v. Fault Divorces in Texas

When a potential new client comes to me to discuss a divorce, they usually have a laundry list of items that their spouse did “wrong” that lead to them to want to file for divorce. Most are frustrated when I tell them that the Texas Family Code only recognizes six reasons to grant a divorce for fault grounds, which are the following:

  1. Cruelty
  2. Adultery
  3. Conviction of a Felony
  4. Abandonment for one year or more
  5. Living Apart without cohabitation for at least three years
  6. Confinement in a Mental Hospital

You will notice that narcissism, emotionally unavailable, nagging, carrying the mental load, workaholic, and disproportionate share of the household labor are not included on that list. So what does that mean for those that want to seek a divorce but none of the “fault” grounds apply?

Texas permits you to file for divorce on “no fault” grounds. This means that you cite irreconcilable differences as the reason for your divorce. When the Judge finally grants your divorce, neither party will hold any blame for the break-up of the marriage (even though you might feel your spouse is 100% to blame). This is the most common type of divorce in Texas. It typically is also the fastest way to get a divorce in Texas, since you are not required to prove anything to be granted a no-fault divorce. You simply have to file a Petition for Divorce with the Court.

On the other hand, if one of the above-listed items applies to your situation and you want to claim the other party is at fault for the end of your marriage, this process will likely take longer to reach a resolution. If you file for a fault divorce in Texas, you are required to prove that your spouse is at fault for the end of your marriage for the reason you asserted. Fault grounds 3-6 do not apply to the majority if the divorce cases that I have seen. The most commonly referenced fault-based divorces involve cruelty and adultery, but do those words mean what we think they do under the law?

Adultery is defined as the voluntary sexual intercourse of a married person with another person who is not the spouse. This means that if you ask the Court to grant a divorce because your spouse has committed adultery, you have to prove they had a sexual relationship with another person. You will notice that “emotional affairs” or “dating” are not included in the definition. Proof of adultery can come in the form of communications, social media, photos, or anything else that helps prove your case, but the proof must establish that adultery was committed during the marriage (which includes after separation).

Cruelty is defined as conduct that renders the couple’s living together insupportable (unendurable, insufferable, and intolerable). This can mean physical abuse, verbal or emotional abuse, or any other conduct that rises above mere disagreements or trifling matters. Like all other fault grounds, the spouse claiming cruelty as the basis for the divorce has to prove that cruelty was committed. This can again be through actual evidence, like a police report documenting physical violence, or circumstantial evidence, like communications, photos, records, etc.

At the end of the day, determining whether to request a no-fault or fault divorce in Texas is a discussion you should have with an experienced family law attorney. Contact us today to schedule a consult!

Community and Separate Property in Texas

By now I’m sure you’ve known someone that has gotten a divorce that talks about dividing up property with their ex-spouse, and some might have even expressed frustration that their ex-spouse “took everything they had.” Divorce is an emotional process, which is sometimes further fueled by the fact that your spouse is entitled to “your stuff.” But why is that so?

Texas is a community property state. Community property is defined as property acquired by either spouse during marriage. So whether your husband went out and bought a boat or your wife went out and bought a designer purse, if it was purchased during marriage, it is considered community property (with a few exceptions, which we will get to). This means that that boat and designer purse are also your property, even though your spouse purchased it. In fact, the Court PRESUMES that all of your property is community property until you prove otherwise.

Separate property, which is property that you will keep 100% in the divorce, is any (1) property you owned before marriage, (2) property you acquire at any time by gift, devise, or descent, and (3) recovery for personal injuries sustained by you at any time. Let’s break that down a little.

First, if you purchased or acquired the property prior to marriage, it’s your separate property. You will have to prove to the Court that the purchase or acquisition was made prior to marriage, which is why keeping records is important. Things get a little fuzzy if you begin to use this separate property with your spouse once you get married. For example, if you put a down payment on a home that you purchased before marriage, but you and your new spouse end up living in the home once you get married, paying the mortgage out of community funds, and make improvements on the home while you are married, this makes the issue a little more convoluted. An experienced family law attorney can walk you through your rights in the property.

Second, if you receive any property as a gift, devise (someone left it to you in their will), or descent (you received it because someone passed away without a will and you are their heir), this is also your separate property. You will still have to prove to the Court that you did, in fact, receive the property via gift, devise, or descent. Devise and descent are a little easier to prove because often there are probate proceedings regarding the property in the Court records. A gift might be a little trickier to prove, as most of the time people don’t keep official records of their gift-giving. This might require calling the gift-giver as a witness to prove their intention that it was a gift.

Last, if you have filed a personal injury lawsuit, most of the recovery award would be considered separate property for your injuries. There are exceptions to this, like damages for “loss of consortium” which relates to your spouse. This issue is best discussed with an experienced family law attorney if it applies to you.

Now that you understand the ins and outs of community and separate property, you’re probably wondering how the Court will divide that property in a divorce proceeding. Well, first, if you have proven to the Court that a piece of property is your separate property, the Court will confirm it as your separate property and award it 100% to you. Then, the court will divide all community property 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.” Texas Family Code Section 7.001.  What does just and right mean? It means the Court can take into consideration whether to divide the property equally or unequally based on the claims of the parties. If a party presents a valid reason for an unequal division of property, the Court might give more property rights to one spouse than the other. This is a discussion you should have with your attorney to determine if you have a valid claim for a larger share of the community property in a divorce.

Working with an experienced family law attorney can help you understand your property rights in your divorce. Reach out to us today to schedule a consult!

Newly Divorced Top 5 Checklist for Property, Assets, and Liabilities

You just spent months going through the divorce process to divide all of your assets and debts. Whether this took you months or years, you’re probably exhausted. But are you done? Let’s make sure. This guide will assist you in ensuring that all of the property awarded to you in the divorce is taken care of.

1. First, is Property Awarded to you retitled just to you?

While you were married, it’s likely that a lot of the marital property was in both your and your ex-spouse’s names. Once you are divorced, you will want to ensure that the property awarded to you is solely in your name.

  • For real property (houses and land), a Special Warranty Deed can be signed by your ex-spouse to transfer their portion of the home to you – something needs to be filed in the property records to effectuate this transfer and remove your ex
  • For motor vehicles, your ex can sign the Certificate of Title to you, if it is owned outright, or a Power of Attorney to Transfer Motor Vehicle can be signed by your ex-spouse to transfer their portion of the motor vehicle to you.
  • For financial accounts, take the Divorce Decree to the financial institutions to remove your ex’s name. They may have specific paperwork that your ex needs to sign as well. Provide that to your ex to ensure he or she is removed as an owner and as a signer on all accounts awarded to you.
  • For personal property, (household items, furniture, and the other “stuff” that you were awarded), the Divorce Decree is sufficient to show others that the property is yours. It is key to get these items into your actual physical possession quickly post divorce to make sure they are not “lost”, “stolen”, “sold”, or otherwise disposed of.
  • For debts, reading this guide might be too little too late to transfer a debt OUT of your name. That debt is likely a contract between you and the financial institution loaning the funds. A divorce decree can only do so much to interfere in that relationship between you and a financial institution who was not involved in the divorce process. However, if your ex-spouse was ordered to pay a family debt, but your name is on that debt, the only way to ensure the debt might not be your liability if your ex-spouse fails to make payment is to have the Court order the debt to be refinanced in your ex-spouses name. If this was not done, you might be on the hook to make payment (or have your credit affected) if your ex-spouse fails to make payment. If this has become an issue for you, our office can assist you with an Enforcement action to enforce the provisions of the Final Decree requiring your spouse to make payment and recoup any money you had to pay because of their failure to pay.

2. Second, ensure that a Qualified Domestic Relations Order (QDRO) was submitted for required retirement account transfers.

If a retirement account was divided in your divorce, it is very likely that you need a QDRO to divide the retirement account. Most financial institutions that manage these accounts have specific forms to use to separate these accounts upon a divorce. Not only does this form need to be prepared correctly according to your decree, it is a separate court order that needs to be signed by the Judge and issued to the plan administrator. The plan administrator will then roll the separate portion into a separate account, and the owner of the separate account can then decide whether to leave the funds with the administrator, roll the funds into another qualifying account, or withdraw the funds. We recommend you work with a financial advisor in making this decision, as it is very likely that you will be responsible for taxes and/or penalties if you cash out any portion of your qualified retirement funds.

3. Third, Review (and change) your Beneficiary Designations.

This is an easy way to make sure the bulk of your assets are distributed as you wish upon your death. Many assets transfer directly to your selected beneficiary (and outside of your estate) depending on a beneficiary designation, payable on death, or even joint ownership with rights of survivorship. This is one very important reason to check these beneficiary designations post-divorce is to ensure your ex is not your listed beneficiary, or worse, still a joint owner of any accounts.

Examples of property with beneficiary designations are your retirement accounts, life insurance, annuities, and transfer on death designations on bank accounts. Updating your beneficiary designations to ensure the proper people receive these types of property upon your death is important to ensure your ex-spouse does not mistakenly receive your life insurance proceeds because of a failure to remove him or her as your beneficiary.

*keep in mind that your Decree may require you to maintain life insurance or another asset in a specific manner to cover life insurance or property division details. Please review your Decree to ensure changing your benefits or designations does not run afoul of your specific requirements.

4. Fourth, check on your estate plan.

Do you have a Will, Powers of Attorney, HIPAA releases, a Trust, or Guardianship designation? If so, once you are divorced you should review these. You may need to update these documents to remove your ex-spouse as a beneficiary and as an executor, trustee, or agent.. If you have decided you need to revisit your estate plan, reach out to our office to set up a consultation to discuss revising your estate plan!

5. Last, ensure that you have changed passwords and removed your ex-spouse from all accounts awarded to you.

Chances are while you were married your ex-spouse had login information to most of your accounts. Upon divorce, you will want to make sure to change any passwords they might know to make sure they no longer have access to your accounts. This includes bank accounts, social media, and subscription services like Netflix, Hulu, and Amazon. It is also key to make sure that your accounts are not synching in any manner – think Google Drive, cloud services, iPhone backup, etc. Nothing says divorce like a surprise Facebook status you didn’t know you wrote!

The family law and estate planning attorneys at Hanshaw Kennedy Hafen, LLP are here to assist with any problems you are having related to divorce or estate planning. Give us a call today to schedule a consultation!

5 Things to Have for Your Divorce Consultation

The top 5 things to consider and be ready to discuss at your initial divorce consultation. When thinking about post divorce goals, the following information will assist your potential lawyer advise you.

1. Budget Summary

To know what things will look like during the divorce process and to prepare for life post divorce, it will be helpful to plan what your needs may be and how you intend to meet those needs. Are you going to continue to live in the marital house? How much is the mortgage? Monthly bills and upkeep? Do you need to look at apartments? Look for roommates? Think about how much you spend on auto expenses (gas, insurance, tolls, parking); cell phone; Internet; utilities; credit cards and other debts (including student loans). Will you have expenses for kids? Private school, daycare, extracurricular activities, clothing, grooming, medical expenses? Find a good budget worksheet and fill it in to the best of your ability ahead of the consultation.

This should also include an overview of your income and expected income from any sources. if you have a pay stub, bring that as well. If you have a copy of your spouse’s pay stub, a copy of that may also be helpful to your attorney.

2. List of Assets and Liabilities

To the extent you can access information regarding your assets and debts, that information is helpful to your attorney. If there are bills due monthly, any you can plan to push out over time, any you can pay off with assets you already have? You can work with your attorney on the best short and long term plan in dealing with assets and liabilities.

3. Timeline of Relevant Facts of Marriage

It is very helpful for your attorney if you have a list of facts including the date and location of marriage; any moves throughout your marriage; when children were born or adopted or otherwise brought into your home – and their names; any incidents of counseling, healthcare issues that may be relevant, issues with children that may be relevant; and instances of any family violence, verbal abuse, financial abuse, emotional abuse, physical abuse, and sexual abuse during your marriage, as well as any affairs or other issues you think may come up (that can be used in your favor and those that may be used against you).

4. Any Legal Documents

If you have a prenuptial agreement or post marital agreement, please bring that to your initial consultation.
If any documents have been filed in the divorce case or in any cases regarding the children, including any police reports, CPS reports, etc., take those to your consultation.
If you have been served with any documents in the divorce, bring those to your attorney as they may trigger deadlines that the attorney needs to work under.
Any other lawsuits that involve you, your spouse, and/or your children should be brought to the attention of your attorney early.
If you or anyone else has a trust in place or are the beneficiary or trustee of a trust, bring a copy to your attorney.
If you own any businesses, individually or with your spouse, or if your spouse owns any business interest, bring all legal documents regarding those businesses so the attorney can assess accordingly.

5. Bring a List of Questions

If you are at a divorce consultation, it may be emotional and overwhelming. List your questions and concerns ahead of the consultation and bring those with you to ensure your questions are addressed by your attorney. Include questions about likely outcomes; the divorce process; and costs/billing.
Other important questions address how to communicate with your attorney – is email best, scheduling phone calls? How frequently? How quickly will the attorney typically respond? And how are you billed for emails and calls?
Ask about local rules of the court and standing orders (if any). Ask about timelines for the divorce process. Ask whether you will need experts or other witnesses, the costs of those, and the strategy and timeline for hiring experts.

Top 5 Reasons to Review or Update Your Estate Plan/Will

We highly recommend each adult resident in Texas have at least a simple will and probably an estate plan. It is imperative to review your plan at every major life event for you, family members, and anyone named in the estate planning documents.

1. You do not have an estate plan or Will

If you do not have an estate plan or Will, or you created your own that has not been reviewed by an attorney, you need to meet with an attorney. It is significantly more costly to administer an estate without a Will than with a Will, in Texas.

Just as important is to ensure you have financial planning and healthcare planning documents in place in case of an emergency or healthcare issue.

Talk to your local estate planning lawyer to make sure you and your family are covered in case of an emergency.

2. You were recently married – Congrats!!

If you were married for the first time, or this is a subsequent marriage, it is imperative to check your Will and your post death planning to make sure you and your spouse are covered. You cannot will away your new spouse’s share of community property without specific written permission from your spouse in a prenuptial agreement or post marital agreement. Failing to protect your spouse’s rights in your estate may lead to expensive litigation.

If this is a subsequent marriage or if you have children from a different relationship, it is key to talk to an estate planning attorney to decrease the likelihood of future litigation within your family.

3. You were recently divorced

If you were recently divorced – or divorced at all since your prior look at estate planning, it is time to look again. This really could be an entire section of its own.  We have an article with more in depth information regarding dealing with property, assets and liabilities during a divorce that can be found here.
1. Make sure all of the loose ends are tied at the end of your divorce. (Property is adequately transferred, titles are transferred, designated beneficiaries are changed, etc.).
2. Look at your existing estate plan and think about all the places that list your spouse – executor (to manage your estate), beneficiary (to receive your estate), trustee (to manage the estate for the benefit of another – maybe a minor child), etc. You likely want to change most or all of these. Consider adding successor or back up people to manage your estate and to make decisions for you if you become unable to do so.

4. You had or adopted a child

This will change the outlook of your estate plan. You want to make sure your child or children are cared for after your death. This becomes more important if your kids are minors. It becomes more difficult with blended families. In any situation, having a child or adopting a child is a great reason to review your estate plan.

Something people fail to consider is when people named as guardian in their estate planning documents has children. This is a big deal and to be considered. If I want my single sister to take my 2 kids if something happens to me and my husband, I can include that in my estate planning documents. If, then, my sister adopts infant twins, is she capable and ready to take on the responsibility of my 2 kids? Definitely worth thinking about.

5. Something happened to someone in your family or someone named in your estate plan

In our estate planning documents, we name executors to manage our estates; we name beneficiaries to inherit our assets; and we name agents to take care of our needs if we become incapacitated. If such an executor, trustee, agent, etc. marries, divorces, has children, goes to college, goes through bankruptcy, moves, or has any other major life events, it is time to review your estate planning documents to make sure all such documents still fit your needs.

Top 5 Things to Know About Child Custody Holiday Visitation Schedules in Texas
  1. Most Possession Schedules Permit (and Courts Encourage) Agreements to Modify the Holiday Visitation. While the specific language in your order controls, check out your order to see if this applies to your case. Most possession schedules permit you to exercise ANY periods of possession by mutual agreement. Do you hate that one parent gets the entire Thanksgiving break? Try working with the other parent to divide up that week to establish Thanksgiving times for each parent that benefits the child most.  Maybe switch days and offer some make up time. With visitation, really anything goes as long as it is good for your family and agreed by the parents.With that being said, ALWAYS ALWAYS ALWAYS get those agreements that change your written possession schedule IN WRITING (text or email is fine). Also understand that you are relying on the other person’s word to keep these agreements. If one parent decides to renege on the agreement at the last minute, you are unfortunately stuck with following the possession schedule in the child custody order, as the written court order is the order that is enforceable.  Of course, if you have questions or need advice, contact your local family law attorney.
  2. A Typical Holiday Possession Schedule Alternates Each Major School Break (regardless of virtual, face to face, or other schooling options). Pursuant to the Standard Possession Order, the holiday possession schedule typically follows the below schedule: 
    Custodial Parent Years Non-Custodial Parent Years
    Spring Break Odd Spring Break Even
    Thanksgiving Even Thanksgiving Odd
    First Half of Christmas Odd First Half of Christmas Even
    Second Half of Christmas Even Second Half of Christmas Odd

    Per the Standard Possession Order, the Christmas or winter holiday is broken down into the First Half of Christmas, which begins when the child is released from school for Christmas and ends at noon on December 28, and the Second Half of Christmas, which begins at noon on December 28 and ends on the Sunday prior to the child returning to school. Mother’s Day and Father’s Day are also included to give the respective parents time with the children on those days. Many orders also include terms for birthdays of the children. The Standard Possession Order entitles the parent in possession for Spring Break and Thanksgiving possession as beginning the Friday beginning the break and ending the Sunday following the break, for almost 9 full days for each such holiday. Any other Holidays that you want to include and delineate specific possession times have to be specifically requested before the Judge or agreed upon between the parties. If those holidays are not included in your order, you are able and encouraged to try to work between the parents to written agreements regarding those additional holidays.

  3. If Your Holiday Possession Schedule is Not Working, You Can File a Modification. Do you think your current holiday possession schedule is not in the best interest of the child? Have the circumstances in your family or the other parent’s family materially and substantially changed since the prior order was entered, which you believe warrants a change in your possession schedule? If you answered yes to both of these questions, you are entitled to file a Petition to Modify Parent-Child Relationship to address any issues that affect the children. The best way to determine whether filing a Modification is your correct next step is to contact a family law attorney with experience in these matters. The family lawyers at Hanshaw Kennedy Hafen are working and ready to take your call.
  4. If the Other Parent Refuses to Follow the Holiday Possession Schedule, You can File an Enforcement. Are you having difficulty getting the other parent to properly follow the possession schedule? Do they refuse to do what is required of them under your Child Custody Order? If so, you are entitled to file a Motion for Enforcement, which asks the Court to order the other parent to follow the Custody Order and can include penalty for the parent refusing to follow the Order (this could be monetary fines, jail time, make up time, etc.). The best way to determine whether filing an Enforcement is your correct next step is to contact a family law attorney with experience in these matters. The family lawyers at Hanshaw Kennedy Hafen are working and ready to take your call.
  5. THE FAMILY LAWYERS AT HANSHAW KENNEDY HAFEN ARE OFFERING FREE CONSULTATIONS THROUGH THE HOLIDAY SEASON! Are you experiencing any of the difficulties described above with your co-parent? As their holiday gift to you, the family law attorneys at Hanshaw Kennedy Hafen, LLP are offering FREE consultations through January 1, 2021. Give us a call to determine the best way to protect your children’s best interest and deal with a difficult co-parent. We offer in-person, virtual, or over-the-phone consultations, and we are able to initiate your case ASAP even in light of COVID-19.*

*The Family Lawyers at Hanshaw Kennedy Hafen, LLP are able to advise on issues related to COVID-19 and visitation with the children. Pursuant to the Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster, possession of and access to a child shall not be affected by any shelter-in-place order or other order restricting movement that arises from the pandemic. The original published school schedule still controls, and possession and access shall not be affected by the school’s closure that arises from the pandemic. The full Emergency Order can be found by clicking HERE

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Hanshaw Kennedy Hafen Family Law

1415 Legacy Drive, Suite 350
Frisco, TX 75034
Phone: 972-731-6500
Fax: 972-731-6555

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