If you are going through a divorce, there are few things that can be more devastating, especially if you thought you had a seemingly well oiled life and that life has now come to a sudden and unexpected halt.
Whether you find yourself filing for the divorce or your spouse serves you with papers asking for a divorce, it is vital that you contact an experienced and qualified Divorce attorney who understands the litigation process and how to protect you, your children and your marital property distribution under the law and during your divorce proceedings.
No Fault Divorce
In most states, a divorce is allowed with no fault to be named other than irreconcilable differences – meaning that no specific reason must be entered on the Petition stating why the divorce should be granted. However, other faults can be submitted to the court for consideration. For example, although Arizona does not recognize adultery as grounds for divorce, Texas does, and this fault can be named on your Petition or Counter-Petition, thus allowing for a larger percentage of the marital estate to be awarded to the party claiming the cause of action, if proven to the court. Texas also recognizes abandonment, cruel treatment, long term incarceration, confinement to a mental facility and separation for over three years as legal causes of action / grounds for divorce. States like Arizona will consider these issues as a factor of “waste of marital assets” and the pleading process is much different.
As stated above, in Texas, if fault is found such as in a claim for adultery or abandonment, cruelty, etc. the party claiming the cause of action may be entitled to a greater portion of the marital property division, particularly when they were not found to be at fault for the dissolution.
Requesting Temporary Relief in a Divorce Action
In most states, claims can be made in your Petition or Counter-Petition, requesting temporary relief from the marital estate, including temporary spousal maintenance (formerly called alimony), attorneys fees, child support or the temporary use or distribution of marital property. If temporary orders are required, your experienced divorce lawyer can request a temporary orders hearing and prepare the proper Motion to plead for Temporary Orders and then, hold a hearing on same.
Community Property
Most states including Arizona and Texas are considered community property states. Which means that any property acquired during the course of the marriage is considered joint property of both spouses and must be divided in a reasonable and equitable manner. Check your local state laws to see if your state considers property acquired during your marriage community property. Keep in mind that prenuptial agreements can alter the distribution of marital assets and those agreements need to be carefully examined and researched by a qualified divorce attorney before filing any divorce petition or response in court.
Next, as to the valuation of the community estate, each state differs in its valuation, for example, Arizona values the accumulation of the community estate or marital property until the Response to the Original Petition is filed. After the Response is filed the community cease. However, in Texas, the community estate continues to accrue until the Decree of Divorce is entered with the court, thus adding months of income onto the marital estate.
If Property was owned by either party before the marriage, that property must be claimed in the Petition or Counter-Petition and during the divorce as being separate property and that property must be proven to have been the separate property of the party making the claim, otherwise, it will be deemed community property. If community funds or property was used to support the separate property of a party, a claim can be made to repay those funds used.
Many times, if a couple has been married for many years,one of the parties to a divorce, will often times, have difficulty providing evidence of the marital estate to their attorney. Therefore, it is essential that both spouses keep up-to-date on what property your community has, that you keep records proving separate property, and that you know where the important documents are kept.
In most states, community property and income of the higher wage earner can be used to pay spousal maintenance and child support. However, Arizona considers both parties income in deciding child support, where Texas does not. The non-custodial parent pays the support and none of the custodial parents’ income is considered, Also, in most states, the courts will require the parties to attempt settlement of their property division prior to the final hearing.
If you are going through a divorce contact our Dallas Divorce Attorney to assist you in clearly defining your needs and the causes of action in your divorce; one who can properly protect your community and your separate property during your divorce matter.
Spousal Maintenance – Alimony Considerations
While most states are community property and no-fault states, most allow for the income of one of the parties to be distributed to the other party for a designated period of time, if the elements of the statute are met requiring the maintenance to be paid. This is now known in most states as Spousal maintenance. For spousal maintenance to be awarded, one of the spouses has to have a lower earning capacity and they did so because they devoted their life and time to raising the family at the expense of having their own career or for instance one of the spouses is mentally or physically disabled. A hearing is usually required before spousal maintenance can be awarded, however, the parties can agree to the amount and time-frame of the maintenance. And, while Alimony was life long obligation years ago, the laws have drastically changed in most states, and alimony can now be removed or reduced if a proper petition is filed and court hearings are held. There are other possible ways to obtain spousal maintenance. Therefore, you should contact a qualified divorce attorney who can go over these elements with you and determine if you may qualify for spousal maintenance or other possible defenses to having to pay spousal maintenance.
Child Support
When the Petition for Divorce is filed with the court, if the parties decide that the children will primarily remain with the mother (or the father) during the divorce proceedings, temporary child support will be set, depending on the child support laws of that state and the needs of the children. If the parties cannot decide on who the children will reside with during or after the divorce, your Divorce Lawyer will need to set and hold a Temporary Orders hearing so that the court can determine who the children will primarily remain with during the divorce. After this is decided, temporary child support will be set, again depending on the child support laws of that state and the needs of the children. Each state has differing calculations in determining child support and therefore you should consult with your Divorce Attorney for more information.
If you are going through a divorce, contact one of the experienced and qualified Divorce Attorneys at Goldstein & Scopellite, PC. The firm, Goldstein & Scopellite, PC, with its experienced divorce and child custody lawyers, has an excellent track-record. The firm, located in Dallas, Texas, was established in 2002; and now only takes selected clients. Contact the firm at 214-351-9100 for more information.
