Sunday, February 6, 2011
Amount of Spousal Support
In Texas, a court may not order spousal support that requires one spouse to pay monthly more than the lesser of $2,500 or 20% of the spouse's average monthly gross income.
Spousal Support Factors
In Texas, a court determines that a spouse is eligible to spousal support based on the following factors:
(1) the financial resources of the spouse seeking maintenance;
(2) the education and employment skills of the spouses, the time necessary to
acquire sufficient education or training to enable the spouse seeking
maintenance to find appropriate employment, the availability of that education
or training, and the feasibility of that education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and emotional
condition of the spouse seeking maintenance;
(5) the ability of the spouse from whom maintenance is requested to meet that
spouse's personal needs and to provide periodic child support payments, if
applicable, while meeting the personal needs of the spouse seeking maintenance;
(6) acts by either spouse resulting in excessive or abnormal expenditures or
destruction, concealment, or fraudulent disposition of community property,
joint tenancy, or other property held in common;
(7) the comparative financial resources of the spouses, including medical,
retirement, insurance, or other benefits, and the separate property of each
spouse;
(8) the contribution by one spouse to the education, training, or increased
earning power of the other spouse;
(9) the property brought to the marriage by either spouse;
(10) the contribution of a spouse as homemaker;
(11) marital misconduct of the spouse seeking maintenance; and
(12) the efforts of the spouse seeking maintenance to pursue available
employment counseling
(1) the financial resources of the spouse seeking maintenance;
(2) the education and employment skills of the spouses, the time necessary to
acquire sufficient education or training to enable the spouse seeking
maintenance to find appropriate employment, the availability of that education
or training, and the feasibility of that education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and emotional
condition of the spouse seeking maintenance;
(5) the ability of the spouse from whom maintenance is requested to meet that
spouse's personal needs and to provide periodic child support payments, if
applicable, while meeting the personal needs of the spouse seeking maintenance;
(6) acts by either spouse resulting in excessive or abnormal expenditures or
destruction, concealment, or fraudulent disposition of community property,
joint tenancy, or other property held in common;
(7) the comparative financial resources of the spouses, including medical,
retirement, insurance, or other benefits, and the separate property of each
spouse;
(8) the contribution by one spouse to the education, training, or increased
earning power of the other spouse;
(9) the property brought to the marriage by either spouse;
(10) the contribution of a spouse as homemaker;
(11) marital misconduct of the spouse seeking maintenance; and
(12) the efforts of the spouse seeking maintenance to pursue available
employment counseling
Spousal Support Eligibility
Texas does not have "alimony", but refers to spousal support payments as "maintenance." Maintenance means an periodic payments for a maximum of three (3) years after dissolution of a marriage from the income of one spouse for the support of the other spouse. A court may order maintenance for a spouse, only if:
(1) The spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense and the offense occurred:
(A) within two years before the date on which a suit for dissolution of the marriage is filed; or
(B) while the suit is pending; or
(2) the duration of the marriage was 10 years or longer, the spouse seeking
maintenance lacks sufficient property:
(A) is unable to support himself or herself through appropriate employment
because of an incapacitating physical or mental disability;
(B) is the custodian of a child who requires substantial care and personal
supervision because a physical or mental disability makes it necessary,
taking into consideration the needs of the child, that the spouse not be
employed outside the home; or
(C) clearly lacks earning ability in the labor market adequate to provide
support for the spouse's minimum reasonable needs.
An order for maintenance is not authorized between unmarried cohabitants under any circumstances.
(1) The spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense and the offense occurred:
(A) within two years before the date on which a suit for dissolution of the marriage is filed; or
(B) while the suit is pending; or
(2) the duration of the marriage was 10 years or longer, the spouse seeking
maintenance lacks sufficient property:
(A) is unable to support himself or herself through appropriate employment
because of an incapacitating physical or mental disability;
(B) is the custodian of a child who requires substantial care and personal
supervision because a physical or mental disability makes it necessary,
taking into consideration the needs of the child, that the spouse not be
employed outside the home; or
(C) clearly lacks earning ability in the labor market adequate to provide
support for the spouse's minimum reasonable needs.
An order for maintenance is not authorized between unmarried cohabitants under any circumstances.
Illegal immigrants and Divorce
Contrary to popular belief illegal immigrants can obtain divorces in Texas and in any other state in the Union. The Privileges and Immunities Clause in Article Four of the United States Constitution provides that persons "of each State shall be entitled to all Privileges and Immunities of Citizens in the Several States."
In the 1950s and 60s, Americans went abroad to obtain no-fault divorces because these type of divorces were not an option available in many states. A no-fault divorce is a dissolution of a marriage that does not require a showing of wrong-doing, nor evidentiary proceedings. The legal equivalent of a no-fault divorce in Texas is defined as "discord or conflict of personalities that destroys the legitimate ends of marriage and prevents any reasonable expectation of reconciliation.
In America's legal jurisprudence, the legal doctrine of comity provides that one jurisdictions judgements or verdicts will extend to another jurisdiction in other states and nations as long as they are not against the public policy. Some lawyers might be weary of taking on these cases, however, as long as the client is willing to provide documentation of their income, employer information, residence information, birth certificate(s) evidencing their parentage to any children in the family, and a marriage license, obtaining divorce is possible.
If you need to obtain a uncontested or contested divorce visit www.tonyfamlaw.com for additional details.
In the 1950s and 60s, Americans went abroad to obtain no-fault divorces because these type of divorces were not an option available in many states. A no-fault divorce is a dissolution of a marriage that does not require a showing of wrong-doing, nor evidentiary proceedings. The legal equivalent of a no-fault divorce in Texas is defined as "discord or conflict of personalities that destroys the legitimate ends of marriage and prevents any reasonable expectation of reconciliation.
In America's legal jurisprudence, the legal doctrine of comity provides that one jurisdictions judgements or verdicts will extend to another jurisdiction in other states and nations as long as they are not against the public policy. Some lawyers might be weary of taking on these cases, however, as long as the client is willing to provide documentation of their income, employer information, residence information, birth certificate(s) evidencing their parentage to any children in the family, and a marriage license, obtaining divorce is possible.
If you need to obtain a uncontested or contested divorce visit www.tonyfamlaw.com for additional details.
How to calculate military retirement benefits for a divorce
The Uniformed Services Former Spouse Protection Act (USFSPA) governs the rights of former military spouses with respect to retirement settlement benefits. State courts have jurisdiction over military retirement benefits because of the service member's residence or their consent to the jurisdiction of the court.
It is best to file for divorce in the state you are currently living in. In Texas, either spouse can satisfy the residency requirements of living in the Texas for six (6) months and ninety (90) days in the county where the petition is to be filed. There is some difficulty for military families who are constantly on the move to determine which state they are a resident of. As mentioned earlier, the quickest way to obtain a divorce is to file the petition in the state that you are currently living in provided that you meet the residency requirements of that state. However, a spouse has the option to file a divorce petition in the state where they a legally domiciled in. Domicile means the state where a spouse maintains a permanent residence. Once when a Final Divorce Decree has been issued you can file decree in the state of your domicile.
There is a bit of confusion regarding whether a spouse can obtain military benefits if they have been married less than 10 years. According to the terms of USFSPA, a spouse may claim a portion of the service member's retirement benefits if the couple was married for ten (10) years or more while the service member served ten (10) years of creditable military service. However, what this means in laymen's terms is a spouse may obtain an order from the court and be paid directly from the military if they meet the 10/10 rule. If you do not meet the above mentioned requirements, a court can still order property division of the service member's military retirement benefits but any payments would have to be made from the service member spouse, not the military.
Determining the amount of retirement pay under USFSPA is moderately difficult, however, USFSPA provides for an equation to help you determine your portion of the retirement benefits as a percentage or fraction of the disposable pay. It is important to remember, a spouse can only collect the service member's retirement benefits when they have matured, in other words, when the service member has reached the age of retirement.
There are three steps to determine your percentage or fraction under USFSPA: First, in the numerator, put the number of years of creditable service during marriage. Second, in the denominator put the total number of years of creditable service at the time the service member would retire. Because Texas is a community property state, any income derived during the marriage is divided equally amongst the spouses. Third, after you have calculated your percentage or fraction of the service member's military benefits multiply the percentage or fraction by your share of the community property interest, fifty (50) percent or one half (1/2). This percentage or fraction you are entitled to under USFSPA.
Further, even if a court authorizes payment of more than the service member's disposable income, USFSPA authorizes the government to only pay up to fifty (50) percent of the disposable retirement pay directly to the spouse.
If you need help obtaining a divorce or figuring out your portion of military benefits, visit www.tonyfamlaw.com more information.
It is best to file for divorce in the state you are currently living in. In Texas, either spouse can satisfy the residency requirements of living in the Texas for six (6) months and ninety (90) days in the county where the petition is to be filed. There is some difficulty for military families who are constantly on the move to determine which state they are a resident of. As mentioned earlier, the quickest way to obtain a divorce is to file the petition in the state that you are currently living in provided that you meet the residency requirements of that state. However, a spouse has the option to file a divorce petition in the state where they a legally domiciled in. Domicile means the state where a spouse maintains a permanent residence. Once when a Final Divorce Decree has been issued you can file decree in the state of your domicile.
There is a bit of confusion regarding whether a spouse can obtain military benefits if they have been married less than 10 years. According to the terms of USFSPA, a spouse may claim a portion of the service member's retirement benefits if the couple was married for ten (10) years or more while the service member served ten (10) years of creditable military service. However, what this means in laymen's terms is a spouse may obtain an order from the court and be paid directly from the military if they meet the 10/10 rule. If you do not meet the above mentioned requirements, a court can still order property division of the service member's military retirement benefits but any payments would have to be made from the service member spouse, not the military.
Determining the amount of retirement pay under USFSPA is moderately difficult, however, USFSPA provides for an equation to help you determine your portion of the retirement benefits as a percentage or fraction of the disposable pay. It is important to remember, a spouse can only collect the service member's retirement benefits when they have matured, in other words, when the service member has reached the age of retirement.
There are three steps to determine your percentage or fraction under USFSPA: First, in the numerator, put the number of years of creditable service during marriage. Second, in the denominator put the total number of years of creditable service at the time the service member would retire. Because Texas is a community property state, any income derived during the marriage is divided equally amongst the spouses. Third, after you have calculated your percentage or fraction of the service member's military benefits multiply the percentage or fraction by your share of the community property interest, fifty (50) percent or one half (1/2). This percentage or fraction you are entitled to under USFSPA.
Further, even if a court authorizes payment of more than the service member's disposable income, USFSPA authorizes the government to only pay up to fifty (50) percent of the disposable retirement pay directly to the spouse.
If you need help obtaining a divorce or figuring out your portion of military benefits, visit www.tonyfamlaw.com more information.
Wednesday, February 2, 2011
What is a Marital Settlement Agreement?
A Marital Settlement Agreement is a contract between the spouses that divides assets, debts, determines spousal support and child custody issues. Also, the Marital Settlement Agreement lays out the relationship between the two spouses after the divorce.
A Marital Settlement Agreement has many advantages including:
A Marital Settlement Agreement has many advantages including:
- Laying out all the terms in writing. This is the primary advantage because it eliminates uncertainty between the spouses and their relationship after the divorce, specifically, this is important where child custody issues arise.
- The spouses do not have to go to court. Although it is at the discretion of the court, a judge may honor the agreement between the spouses if the agreement covers all aspects of the divorce.
Spouses can begin the process of negotiating a Marital Settlement Agreement anytime after the filing of the Divorce Petition. Further, the Marital Settlement Agreement can be signed by both spouses any time before a Final Divorce Decree is entered. The Final Divorce Decree is based on the Marital Settlement Agreement.
If you have any questions about the uncontested/contested divorce process, please visit www.tonyfamlaw.com for more information.
Tuesday, February 1, 2011
Final Divorce Decree
A Final Divorce Decree is the court's order terminating the marriage. In an uncontested divorce, an attorney would write a Final Divorce Decree based upon the Marital Settlement Agreement that both spouses have signed. In an Marital Settlement Agreement, both spouses lay out a plan to divide assets, debts and custody of child(ren). In a contested divorce, the judge issues a judgment and the judgment has legal effect when the judge signs the Final Divorce Decree.
Divorce Petition
What is a Divorce Petition?
In Texas, a Divorce Petition is the first process in obtaining an uncontested/contested divorce. The Divorce Petition is filed at your local district court house. Remember in Texas, in order to file for an uncontested/contested divorce, a spouse must meet the residency requirements of 90 days in the county where the Divorce Petition is filed and 6 months in the State of Texas. Either spouse can meet the residency requirements for the Divorce Petition to be filed. The Divorce Petition is a request for divorce from the district court and lists any relief that party filing for the divorce feels they are entitled to under Texas law.
The Divorce petition will identify the petitioner (the spouse seeking the divorce), the respondent (the other spouse) and any children the couple may have. The Divorce Petition will lay out a plan to divide assets, debts and custody issues. The petitioner has to provide a reason for wanting a divorce. In Texas, a spouse can list "irreconcilable difference" as a reason for the divorce.
In Texas, a Divorce Petition is the first process in obtaining an uncontested/contested divorce. The Divorce Petition is filed at your local district court house. Remember in Texas, in order to file for an uncontested/contested divorce, a spouse must meet the residency requirements of 90 days in the county where the Divorce Petition is filed and 6 months in the State of Texas. Either spouse can meet the residency requirements for the Divorce Petition to be filed. The Divorce Petition is a request for divorce from the district court and lists any relief that party filing for the divorce feels they are entitled to under Texas law.
The Divorce petition will identify the petitioner (the spouse seeking the divorce), the respondent (the other spouse) and any children the couple may have. The Divorce Petition will lay out a plan to divide assets, debts and custody issues. The petitioner has to provide a reason for wanting a divorce. In Texas, a spouse can list "irreconcilable difference" as a reason for the divorce.
Waiver of Citation
What is a Waiver of Citation?
A Waiver of Citation is used to do away with the procedure of providing service of legal papers to the other spouse and transcription of proceedings in uncontested divorces. In an uncontested divorce, the petitioner (the spouse who files for the divorce) may just mail to the other spouse the Divorce Petition along with the Waiver of Citation. The spouse who signs the waiver is acknowledging that they have received the Divorce Petition and they do not need to be formally served by a constable or a private process server. Additionally, the waiver allows the uncontested divorce hearing to be held without the other spouse being present in the court room and does not require a court reporter present to record what was said during the hearing.
A Waiver of Citation is used to do away with the procedure of providing service of legal papers to the other spouse and transcription of proceedings in uncontested divorces. In an uncontested divorce, the petitioner (the spouse who files for the divorce) may just mail to the other spouse the Divorce Petition along with the Waiver of Citation. The spouse who signs the waiver is acknowledging that they have received the Divorce Petition and they do not need to be formally served by a constable or a private process server. Additionally, the waiver allows the uncontested divorce hearing to be held without the other spouse being present in the court room and does not require a court reporter present to record what was said during the hearing.
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