Community Property vs. Separate Property

Texas is a community property state. This means that couples are required to fairly divide all jointly owned property. While this sounds simple enough, identifying which property is community property and which property is separate property (owned by only one person) can be complicated.

Typically, a trust fund is considered separate property if you can prove that it is yours and yours alone. Your spouse must not have any claim to it at all. There are a few situations that can change that rule, however.

Prenuptial Agreements

A prenuptial agreement is a binding contract that determines how all property will be divided if the parties divorce. The couples who agree to the prenuptial agreement must do so voluntarily and both parties must sign the agreement before they get married. Each person must disclose their full financial information to the other person and give each other the opportunity to discuss the agreement with an attorney before they sign the document. Depending on agreement, the trust fund could be subject to division during the divorce if it specifically says so in the agreement.

Trust Funds and Commingling

In Texas, separate property can be claimed which allows you to prove that the trust fund belongs only to you. However, if you have commingled, or mixed, your separate trust property assets with marital assets, the court could order you to give part of that money to your spouse. If you funded your trust with separate funds, you must be able to trace that contribution through documentation or receipts that show the source of separate funds.

Because of this rule, it is important that you keep your funds separate by placing them in a separate account rather than a joint account, limit the access to the account by your spouse, do not use the funds to pay marital debt, and don’t use the funds to help pay for a family home or other family property.

Trust Funds and Support Payments

Whether your trust fund was created through separate property or marital assets, the court will include any income you receive from the fund as part of your total assets when determining spousal and child support. This applies whether you are the party receiving the support or the spouse paying the support. The court will include the income in the calculation of the support and determine how much you will receive.

How an Attorney Can Help

If you have made mistakes as mentioned above, you may still be able to prove that your trust fund is a separate asset. It could be more difficult, and an experienced attorney will know how to prove that your trust fund should be yours only. The Houston attorneys at Lindamood & Robinson, P.C. have the knowledge and experience to help you protect your assets. Contact us for a consult today.

While Texas law does allow for the possibility of spousal support during and after divorce, how much and whether or not spousal support will be awarded will depend on the facts specific to your case. While a spouse can voluntarily pay spousal support, if one spouse is requesting it without the other’s consent, the demanding party must first establish that they are eligible for the support.

Does My Situation Qualify for Spousal Support?

In 2011, Texas changed its rules for court ordered spousal support. Under the new laws, a spouse must prove that when the divorce is final (after assets and liabilities have been divided) there won’t be significant property to meet their necessities, which typically means their monthly expenses. If they can prove that, they also must prove at least one of the following:

• The spouse responsible for paying has received a plea deal or been convicted for domestic violence.
• The spouse seeking support cannot earn sufficient income to pay for their necessities due to mental or physical disability, due to their custodial parent responsibilities for a child from the marriage who needs special care due to their mental or physical disability.
• The marriage last ten or more years.

If the requirements for receiving spousal support are met, then it is up to the court to determine the amount that will be required to be paid and how long the support will have to be paid.

How Much Spousal Support Will I Pay or Receive?

If a judge finds that one of the spouses is eligible for spousal support, the court will also determine how much support will be paid. Typically, the amount determined is the difference between the spouse’s monthly expenses and their monthly income, but that isn’t always the case. According to law a judge also must take into consideration the following.

• The financial resources of both parties after the divorce is final.
• How paying the support will affect both spouses’ ability to pay their bills.
• The age, employment history, physical and emotional condition of the requesting spouse, and earning ability.
• Each spouses’ education and employment skills and how long it would take for the requesting spouse to get education or training.
• Homemaker contributions.
• Marital misconduct of either spouse and family violence.
• Whether either spouse inappropriately spent joint funds or disposed of joint property during the marriage.

In the State of Texas, the cap on spousal support is set by statute. The amount of support the judge orders a spouse to pay cannot be more than $5,000 per month or 20 percent of the paying spouse’s average monthly gross income, whichever is lower.

How Long Will I Pay or Receive Support?

Generally, the court ordered support will be limited to the smallest time period that will allow the spouse being paid the money to being earning enough money to meet their monthly expenses unless the spouse has a physical or mental disability, is caring for a young child or infant, or there is another reason they cannot meet their own needs.

The maximum amount of time one spouse can be ordered to pay support to another depends on the length of their marriage. The time could be as long as five years if the marriage was no more than nine years and the spouse ordered to pay was abusive or if the marriage lasted between 10 and 20 years. The judge could order up to seven years of support if the marriage lasted between 20 and 30 years long, or as long as 10 years of support if the marriage was more than 30 years. The support could be ordered indefinitely if the receiving spouse or their dependent child is disabled.

Know Your Rights

Financial decisions such as spousal support during a divorce can be difficult. Paying or receiving the amount you deserve is important to both parties and an attorney experienced in family law can help you determine what your options are. The attorneys at Lindamood & Robinson, P.C. can help you move forward and understand your options under Texas law.

In an effort to obtain money owed after a divorce, it may be possible to initiate a wage garnishment action from the delinquent parent. 

What Exactly is a Wage Garnishment?

Wage garnishment is a process in which a portion of an individual’s earnings is withheld to satisfy a debt obligation. Wage garnishment is a legal process whereby a court enters an order instructing the debtor’s employer to withhold a specific sum or percentage of the debtor’s earnings. 

Can You Garnish Someone’s Entire Paycheck?

No. There are laws in place that limit the amount of money that can be garnished since the debtor still needs to receive enough funds to cover their living expenses. Typically, courts order the garnishments of a debtor’s “disposable income.” This is the money available to you after paycheck deductions are completed (e.g., FICA deductions, state taxes, etc.).

In some cases, garnishment for owed child support and alimony can be as much as 60 percent of the debtor’s disposable income. 

How Courts Calculate the Amount of Wages Garnished

If the debtor already supports a child from a different spouse, then their wages can be garnished up to 50 percent. However, if they do not support another kid, their wages can be garnished up to 60 percent. Furthermore, if they are delinquent in their child support obligations by more than three months, an additional 5 percent of wages can be garnished. 

Delinquent Parents Prohibited from Registering a Vehicle

In addition to a fairly large percentage of wages being garnished, the Office of the Texas Lawyer General instituted a new policy that prevents parents significantly behind on payments from renewing their vehicle registrations, according to Dallasnews.com.

In Fiscal Year 2015, the Texas AG’s office collected nearly $3.9 billion in child support, which makes Texas one of the best states at collecting support payments. 

Experienced Houston Child Support & Alimony Lawyer Here to Help

A parent ignoring their financial responsibilities to support a child, or an ex-spouse, carries numerous consequences. It places a tremendous amount of emotional and financial stress on the custodial parent and can adversely affect the development of the child. This is why it is so important to take legal action if your ex-spouse is no longer making their court-ordered support payments. The experienced and skilled Houston child support lawyers at Lindamood & Robinson, P.C. are ready to assist you during this difficult time. Our team of lawyers possesses decades of experience helping individuals get the child support and/or alimony they are owed. Contact our office today to schedule an in-person consultation.

Resources:

thespruce.com/us-child-support-statistics-2997994

dallasnews.com/news/texas-politics/2016/12/22/new-program-linking-vehicle-registration-child-support-sees-uptick-payments

• An Lawyer Can Prove Beneficial In Determining Whether Or Not It Is Worth It To Demonstrate Cohabitation. There are sometimes fees involved in determining whether cohabitation occurred that cost more than the total of spousal support payments. In Texas, payments are often restrictive and the amount required for maintenance is frequently only temporary. Furthermore, an individual might have to demonstrate that a former spouse is in a “marriage-like” relationship with a new love interest, which can be a difficult threshold to meet. As a result, it is wise for those who are considering initiating an action to show cohabitation occurred to first consult with experienced legal counsel who will be able to determine if these types of measures are worth the time, energy, and expense that must be invested.
• Cohabitation Rules Leave Some Room Open To An Interpretation. A former spouse’s new partner need not stay in the house full-time in order for spousal support to be terminated. Instead, house-sharing can occur on a “continuing basis” as suggested by Texas law. The law, however, makes it unclear with what frequency overnight visits must occur in order to fulfill cohabitation requirements to end spousal support. As a result, individuals on both sides should consult with a lawyer as new relationships begin after a divorce in order to understand how potential cohabitation might affect the responsibility to pay spousal support.
• Consult With Children. Cohabitation is likely to be found to exist if the spouses’ children reveal that another adult has been sleeping over or the adult helps to perform household tasks.
• No Separate Legal Residence. If the person living with a former spouse does not keep a separate residence, cohabitation may be occurring.
• Records Show Something Suspicious. There are several types of records that can be used to demonstrate cohabitation including cell phone records, bank records, or sometimes even corporate records.

There are various tactics that are occasionally used to demonstrate a behavior that suggests cohabitation is occurring between a former spouse and another individual. Contacting a talented Houston divorce lawyer at the office of Lindamood & Robinson, P.C. can help clients on either side of a cohabitation issue reach the best outcome possible.