5 Important Legal Considerations for Getting a Divorce

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According to the Centers for Disease Control and Prevention, nearly half of all marriages in the United States end in divorce, despite the fact that it is often a difficult and emotionally heated experience.

If you are one of these couples who are considering filing for divorce or getting a divorce, learning what you can expect, and taking some initial steps to prepare can help the process go more smoothly.

This is true whether you are expecting to work out an amicable resolution or to go through a contentious divorce.

Every divorce is unique, but there are some common divorce requirements that all couples should consider before getting a divorce.

What to know when getting a divorce? Steps to take when preparing for divorce? How to proceed with divorce? Are only some questions that you must find an answer to.

While a divorce attorney can provide more detailed information about your specific situation every step of the way, coming into your first appointment prepared with some basic knowledge can help streamline the process.

Following are 5 essential legal consideration that you must keep in mind when getting a divorce:

1. New federal tax rules for alimony

One major change recently took effect in 2019: the reversal of the federal income tax treatment for alimony payments due to the Tax Cuts & Jobs Act (TCJA).

Previously, alimony payments were deductible by the payor and had to be reported as taxable income by the recipient.

However, for divorces finalized or separation agreements modified on or after January 1, 2019, the deduction is going away, and alimony payments are no longer considered taxable income.

This can be an expensive change for those who must pay alimony, as they no longer benefit from the potentially substantial tax savings, they were previously able to receive from deducting the payments.

At the same time, it relieves the tax burden on the receiving party, which is no longer required to pay income tax on the alimony that is paid to them.

2. Texas’s 60-day waiting period for divorce

Texas, like many other states, has a waiting period for getting a divorce.

This waiting period is for the courts to finalize the divorce (which is 60 days in Texas) from the date the initial petition for divorce is filed and must be at least 20 days after the respondent was served.

While this may sound like a long time, even amicable divorces routinely take much longer than 60 days.

While in theory, the courts can finalize the divorce on day 61 after filing, in practice, this only happens in default or no-answer divorce, where the respondent did not file a response to the suit for divorce.

For the vast majority of couples, the spouses must negotiate an agreement with regard to alimony, property division, child support, and child custody, a process that can potentially take several months.

However, this 60 day waiting period is waived in situations where domestic violence is involved and does not apply to annulments.

3. Separate vs. Marital property

When it comes to preparing for a divorce, one of the earliest steps spouses can take is to prepare an inventory of their separate and marital property.

In Texas (and in most other states), spouses’ “marital” assets are subject to distribution, while their “separate” assets are not.

Under Texas law, assets acquired prior to the date of marriage are generally considered separate, while most (but not all) assets acquired during the marriage are marital property.

Gifts, inheritance, and personal injury damages received during the marriage remain separate assets.

The same is true for proceeds from the sale of property which was acquired prior to the marriage, even if the property was sold during the marriage.

It is important not to commingle marital and separate assets while married, or it may be difficult to separate them again during the divorce process.

However, some property can be considered to be both marital and separate at the same time.

For instance, if the couple buys a home together and one party sells their separately owned property to put a 20% down payment on the new home, 20% of the home’s value will be considered a separate asset while the rest would be marital.

Also watch: 7 Most Common Reasons for Divorce

4. Online disclosure

During your divorce, anything you post online is potentially fair game. If you post photos of late nights out, your spouse may try to use this against you with regards to seeking custody of your children.

If you post photos of newly-purchased luxury items, your spouse could potentially use this to have the court question your Financial Affidavit.

As a result, during your divorce (and leading up to your divorce as well), it is generally best to stay off of social media.

This is particularly important if you are having a contentious divorce or custody battle, but even amicable divorces can become adversarial if your spouse sees you disparaging them or flaunting a new love interest online.

Don’t assume that having your social media profiles set to private will protect you, as there is always the risk that another party might show your spouse what you post. Of course, anything your spouse posts publicly is fair game as well.

5. Parenting and child support

If you have children, custody (technically called “conservatorship” in Texas when there is a court order) and child support will be key aspects of your divorce settlement.

While all custody matters are resolved based upon a case-by-case assessment of what is in the children’s “best interests,” child support is generally calculated according to a rigid statutory formula.

Under Texas law, parents are usually named Joint Managing Conservators, where both parents have an equal say in most decisions regarding the child, although the court may designate one party as the custodial parent and grant them the sole ability to decide where the child lives.

However, in instances where there is a parent who is abusive, neglectful, absent, or abusing drugs, the courts will name the other parent as the Sole Managing Conservator.

In addition to custody and child support, the divorce agreement will also include visitation and medical support as part of the court order.

Speak with a divorce lawyer in Texas

Of course, these are by no means the only legal issues involved in getting a divorce.

From the method you use to resolve issues (i.e., mediation, collaborative law, or litigation) to how you divide your marital property, all aspects of the divorce process require planning, strategy, and the ability to make decisions with your long-term best interests in mind.

While there is no legal requirement to have an attorney when getting a divorce and simple cases may not require one, if there are children or jointly owned property involved, it is important for each party to have a lawyer on their side to represent their interests.

If you are contemplating a divorce and would like more information, you should contact an experienced law firm for an initial confidential consultation, which many firms offer free of charge.

Getting a divorce can be complicated, and a skilled family attorney can assist you with navigating the process and answering your questions.