Houston Estate Planning and Elder Law Attorney Blog
by Leonard M. Roth, Board Certified Family Law Specialist
Unfortunately, divorce is a life-changing event for married couples of all ages. My grandparents divorced after 65 years of marriage. There are critical factors to consider when divorce happens in your older years.
Texas is one of nine community property states. Property acquired from work during marriage is considered to be shared equally by both spouses. Marriage is a sharing event, and neither spouse has a greater right to the community property than the other spouse, until a court is asked to divide the community estate on divorce. In most marriages, there is a separate property estate that must be confirmed, but not divided, by the court, and a community property estate that must be divided by the court.
Separate property includes the following:
- Property owned prior to the marriage and property that is classified as separate pursuant to a prenuptial agreement,
- Gifts given directly to one spouse from a third party,
- Inheritances, and
- Funds from a judgment or settlement specifically for bodily injuries or pain and suffering damages.
If you sold an object that was your separate property, like separate property money transferred to a separate property car, it may be difficult to prove that it continued to remain separate property. Spouses have a right to request reimbursement for funds expended for debts among the various estates.
If the divorcing spouses cannot agree on a division of their community property, the Court will divide the community property in an equitable manner. Realistically, the Court may consider numerous factors when divided the community property including but not limited to age, health, education, the ability to earn income, the needs of dependent children (if any), the comparisons of assets of the spouses separate property estates, and the fault in the break-up of the marriage.
Texas is a “pick-yourself-up-by-the-boot-straps- and-support-yourself” state. Therefore, Texas law did not permit alimony until maintenance was passed. However, courts can award maintenance under specific circumstances. You must have been married for 10 years to ask for maintenance, except in narrow situations.
Keep in mind that 95% of all cases do not go to trial. They settle, usually in mediation, which is now required by the courts. It is much more economical to attempt to settle prior to going to trial rather than spending thousands of dollars in attorney fees to fight over the green, monogramed hand towels (a 2 ½ week trial I had 40 years ago).
You can find out more on my web site, www.leonardmrothfamilylaw.com.
Leonard M. Roth is a colleague of the Weiner & McCulloch Elder Law Firm. Since 1972, Mr. Roth has practiced family law based on the principle that each client deserves a lawyer who provides high-quality, aggressive, and effective legal representation. His many years of experience also gives him a fairly clear vision of the trajectory of a case and the probable outcome of the case. He is certified as a family law specialist by the Texas Board of Legal Specialization, which is your assurance of Mr. Roth’s experience and competence. Mr. Roth is also qualified to do Mediation, Family Mediation, and Collaborative Law.