FAQs During Divorce

Posted by Ashley Russell on August 1, 2011

The divorce process is not an easy one, nor is it uncomplicated.  Divorce can bring up many questions that may not have been considered prior to filing.  Divorce Magazine did a piece on FAQs during divorce.  I offered my responses to a couple of these questions.

What if we decide we want to reconcile?

            Second thoughts after a divorce has been filed are not uncommon.  This is an important question to ask.  While a case is pending, couples often decide that they would like to try to reconcile and work out their differences instead of pursing the divorce.

            If both parties agree that they want to stop the divorce, the answer is an easy yes.  In this situation, the parties can agree to nonsuit their divorce action and the case will be dismissed by the court, no questions asked.  The document filed with the court is called a Notice of Nonsuit.

            Likewise, if only one spouse has filed affirmative pleadings in a case, that spouse can unilaterally decide to nonsuit their claims, thus stopping the divorce.  However, since a party’s Notice of Nonsuit only dismisses that party’s claims.  One party can not unilaterally stop a divorce by filing a nonsuit because the other party’s claims will still remain pending. 

            Once a party files a Notice of Nonsuit, their claims will typically be dismissed without prejudice.  This means that if the parties want to re-file their divorce at another time then they are not prohibited from doing so. It is important to note that dismissal is final, by a Notice of Nonsuit or otherwise.  It does not pause the divorce or hold it while the parties make up their minds.  In the event attempts at reconciliation are unsuccessful, the parties will have to re-file their divorce action.

           It is possible to continue hearings or trial dates while parties attempt reconciliation, but the court is not likely to postpone the resolution of a case indefinitely or allow the case to remain on the docket for years.   While the litigation can be stalled for a little while, at some point parties attempting reconciliation will have to decide whether to nonsuit their case and dismiss the divorce or whether to move forward with ending their marriage.

 

 Will I get 50% of our family assets?

            Not necessarily.  While many people believe that they will get “half of everything” upon divorce, an equal division of the community estate is not required in Texas.  Although the property division often ends up at an award of roughly 50% of the community estate to each party, this is not the legal standard.  Instead, the Texas Family Code provides for a “just and right division” of the community estate. Specifically, in a decree of divorce, the court is required to order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

            Absent an agreement of the parties, the court is afforded broad discretion in deciding how to divide the community estate in a just and right manner based upon the evidence before it.  While the division will typically start at 50/50, the court will then consider various factors that can shift the percentage of the martial estate awarded upon divorce in favor of one spouse or the other in order to each a “just and right” division.  A property division weighted more heavily in favor of one spouse than the other is referred to as a “disproportionate division”.

            Among the factors that a court will consider in arriving at a just and right division are the following: (1) fault in the breakup of the marriage; (2) the spouses' capacities and abilities; (3) benefits which the party not at fault would have derived from the continuation of the marriage; (4) business opportunities of either spouse; (5) relative physical conditions; (6) relative financial conditions of the parties, including their obligations and need for future support; (7) disparity of ages; (8) size of separate estates; (9) the nature of the property; (10) debt owed by a spouse; waste or concealment of community assets; (11) disparity of earning capacity; and attorney’s fees.  This list is not exclusive and the court can consider other evidence it believes to be relevant to its decision.

            While this seems complicated, in a no-fault divorce where the parties are of similar age, in similar health, and have roughly equal incomes, debts, separate property, and have committed no real wrong doing during the marriage, then the court will typically divide the community estate in a roughly equal manner.  It is situations where one party has extenuating medical circumstances, the parties have disparate incomes or earning capacities in the future, or one party has been the victim of cruel treatment or abuse, for example, that the division will have to favor one spouse over the other in order to be just and right.  

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