In a Divorce proceeding, in Texas and Arizona, the state legislatures have set up the process of divorce as “no fault.” What this means is that the Divorce can take place without passing blame on one spouse or the other. Because of this, it is entirely possible for the couple to file for divorce merely for the reason of “irreconcilable differences, ” and in a no-fault state, the party seeking the divorce will obtain the divorce even if the other spouse does not want the divorce. And, although some divorces involve complex issues and disputes such as custody or property, some divorces between spouses can be “agreed” upon, meaning that the spouses seeking the divorce agree to dissolve their marriage in an amicable way and by agreement.
Either way, in order to make sure that your legal rights are protected during your divorce, it is best to seek the advice of a qualified divorce lawyer. And, in cases where there are going to be disputes during the divorce, it is always advisable to hire and to allow a qualified divorce lawyerwho specializes in property disputes, property division, and custody matters to handle your divorce and better argue your legal matter.
Alimony or Spousal Maintenance
In the state of Arizona and in the state of Texas, the days of receiving a guaranteed award of alimony or “spousal maintenance,” are long over. Today, the injured spouse or the spouse seeking spousal maintenance, must prove that the award is warranted because of reasonable needs that the spouse requires. This proof is provided through state statute and through compelling legal argument and evidence provided to the court. Such conditions that allow for spousal maintenance include the following:
Texas Statue:
- The length of time that the seeking spouse’s marriage lasted – the spouse must show that a minimum of 10 years of the marriage occurred, they have reasonable financial needs that must be met, and that she/he is unable to meet those needs because of being without financial resources to properly take care of herself.
- The seeking spouse suffered from family violence at the hands of the other spouse, or that the spouse has a physical or mental disability that prohibits her from being employed.
Arizona Statue 25-319:
In a proceeding for dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court that lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse for any of the following reasons if it finds that the spouse seeking maintenance:
- Lacks sufficient property, including property apportioned to the spouse, to provide for that spouse’s reasonable needs.
- Is unable to be self-sufficient through appropriate employment or is the custodian of a child whose age or condition is such that the custodian should not be required to seek employment outside the home or lacks earning ability in the labor market adequate to be self-sufficient.
- The spouse seeking contributed to the educational opportunities of the other spouse.
- Had a marriage of long duration and is of an age that may preclude the possibility of gaining employment adequate to be self-sufficient.
- The maintenance order shall be in an amount and for a period of time as the court deems just, without regard to marital misconduct, and after considering all relevant factors, including: The standard of living established during the marriage; the duration of the marriage; the age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance; the ability of the spouse from whom maintenance is sought to meet that spouse’s needs while meeting those of the spouse seeking maintenance; the comparative financial resources of the spouses, including their comparative earning abilities in the labor market; the contribution of the spouse seeking maintenance to the earning ability of the other spouse; the extent to which the spouse seeking maintenance has reduced that spouse’s income or career opportunities for the benefit of the other spouse; the ability of both parties after the dissolution to contribute to the future educational costs of their mutual children; the financial resources of the party seeking maintenance, including marital property apportioned to that spouse, and that spouse’s ability to meet that spouse’s own needs independently; the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment and whether such education or training is readily available; excessive or abnormal expenditures, destruction, concealment or fraudulent disposition of community, joint tenancy and other property held in common;
- The cost for the spouse who is seeking maintenance to obtain health insurance and the reduction in the cost of health insurance for the spouse from whom maintenance is sought if the spouse from whom maintenance is sought is able to convert family health insurance to employee health insurance after the marriage is dissolved.
- All actual damages and judgments from conduct that results in criminal conviction of either spouse in which the other spouse or child was the victim.
- If both parties agree, the maintenance order and a decree of dissolution of marriage or of legal separation may state that its maintenance terms shall not be modified.
Division of Property
In some instances, the couple divorcing will decide how their property division should occur. Unfortunately, that is not always the case. When a couple cannot agree as to property division or spousal maintenance, it will be up to the court to hear argument, review evidence and finalize the divorce terms.
If the court intervenes in determining property division, the court will look at several issues in order to determine how the property in question should be divided:
First, property held during the time of the marriage and through the divorce is considered community property, with equal rights of ownership for each spouse. If one spouse can prove that the assets were owned individually or separately before the marriage, the court may deem that property to be that individual’s property (or separate property) which means the spouse without this claim has no right to this property. The court will then divide the community property of the marriage equally, and in some cases considering earning potential, financial contributions to the relationship and the fault of a spouse who spoiled community resources. If you are in the process of filing for divorce or if you have been served with a petition for Divorce, contact a qualified divorce lawyer who can assist you in this process and protect your rights.
Legal Separation
There is no statute providing for legal separation in Texas. However, couples seeking to separate prior to divorce can enter into a legal agreement to split the assets and debts of the marriage. This agreement is know as a partition and exchangeagreement and it will be considered and enforcedby the court during the divorce if the drafting of the agreement is legally sufficient.
In the state of Arizona there is a statute that allows for legal separation. If one of the parties files for legal separation the parties are able to determine child custody, child support, and division of property and debts – all without dissolving their marriage. These agreements are totally enforceable by the court in any eventual later divorce.
If you are seeking a divorce or if you have been served with a Petition for Divorce, contact the Divorce attorneys at Goldstein & Scopellite, PC, who will offer legal expertise and legal representation in regards to divorce, child custody and property division.
Goldstein & Scopellite, PC is located in the Dallas-Fort Worth metroplex and in Tucson, Arizona and joining communities. For more information, see the Goldstein & Scopellite, PC local listing in D Magazine.
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