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Misperceptions About Divorce

When new clients come into our office for the first time, they often come into those meetings with some misunderstandings about divorce.

Sometimes, they come from hearing about divorces in other states, where the laws can differ significantly from what exists in Texas. Sometimes, they’re shaped from TV or movies, where writers might take artistic license to make a better (but less reliable) story. Sometimes, they come from Internet research, where not every source is as reliable as this blog.

Here are a few of the misperceptions that we frequently hear at [company], along with how we help clients separate fact from fiction with respect to Texas divorce law.

“Property is divided 50/50.” The rule in Texas is that property will be divided in a “just and right manner.” 50/50 is a common starting place for judges, but they don’t necessarily end up there. The most common reasons for deviating from 50/50 are fault and disparate earning capacity. When the courts do deviate from 50/50, it is rarely ever more than 60/40, although there are some 90/10 cases on the books!

“If I get custody of the children, I’ll get the house.” In a number of Texas divorce cases, one party is awarded the house where the couple resided, particularly if that party is deemed the custodial parent in the divorce decree. In that case, judges will seek to award assets to the other party to make up the difference. However, if it’s not possible to create a reasonable division of assets with one party getting the house, the judge will likely require that your house be sold and the proceeds split in some way.

“I’ll be able to get alimony.” There’s no provision in Texas law guaranteeing that a spouse will be awarded alimony; typically, alimony (called “maintenance” in Texas) will not be awarded in court except in fairly extreme circumstances where a spouse is not capable of supporting himself or herself. However, it is often a part of the negotiation in which one party agrees to help support the other via alimony, or uses alimony to buy a specific asset from the other. There’s actually a tax advantage to paying alimony vs. child support, which can make alimony a helpful bargaining tool in negotiations, but maintenance ordered by the court is not necessarily deductible.

“I’ll be able to survive with just child support.” While child support amounts awarded by Texas courts may vary, the typical formula is 20 percent of a parent’s net income for one child, 25 percent for two children, 30 percent for three children, 35 percent for four children, and 40 percent for five children. This adds up to a surprisingly low amount of support for children. In other words, child support is more appropriate to supplement a parent’s income than to replace it.

“Fathers will be able to have their children 50 percent of the time.” While many couples successfully negotiate equal parenting time for the mother and father, courts will typically default to what’s called an expanded standard possession order, in which the father’s parenting time is limited to Thursdays and first, third, and fifth weekends during the school year, plus 30 days during the summer and half of major holidays – which works out to about 35-40 percent of the year.

“My retirement plan won’t figure into my divorce.” Pensions, retirement funds, and IRAs do count as part of the divorcing couple’s assets – except any portion that was accumulated prior to marriage. While a judge might allow one party to keep his or her retirement funds, that would come at the expense of other assets.

I consider informing people about divorce in Texas to be one of the most important things I do in my practice. It’s not surprising that there are misperceptions out there, but I want to make sure my clients go into a divorce relieved of those misperceptions, armed with the best information possible, and knowing the best course of action to attain what’s most important to them in their divorce.