Getting a Texas Divorce : Moving Out of the Marital Home
This is a complicated question to answer depending upon the facts of each case. If you have experienced domestic violence you need to immediately do whatever is necessary to secure you and your child’s safety. Many times a victim will go to court for a protective order and ask the judge to move the abusive or violent spouse out. In this situation contact an experienced family law attorney now!
In most cases, absent of violence or risk of abuse, we would not suggest that a spouse move out of the marital residence.
Why is this? One reason is once you have vacated the residence it may be very difficult to get back in! You have no legal obligation to leave the residence if your name is on the lease or mortgage personally and exclusivity.
Our suggestion to a client might be, to remain in the residence since the person who vacates may still have financial obligations and expenses of the family residence, while paying all expenses on a new residence for themselves. Double expenses are not a desirable result during the divorce process.
The higher wage earning spouse who moves out of the marital home must expect to continue to pay most of the household expenses, including the insurance and mortgage! What about the personal property and furnishings in the residence?
If an agreement has not been made between the divorcing couple, the moving spouse will generally only be able to leave with personal belongings (clothing & jewelry) until a court rules fairly as to temporary possession.
Secure a court order ASAP to equalize property and household expenses.
If You are Planning to Divorce – The Time To Financially Prepare is NOW!
Are you to the point of no return in your marriage? Nothing left of feelings, just apathy or indifference. Do you feel you must leave this place now or die trying? What about your financial security after the divorce? Divorce is an emotional roller-coaster. How will you take care of your debt, bills, and your children’s needs?
Time to grab your laptop or pad of paper and start thinking smart about “the first day of the rest of your life. If your “I need a divorce” decision is now made, start work on learning your current family financial situation and what needs to be done to secure your financial security for Post-Divorce life!
Here is a list of some of your most important Financial Information that you need to address before the Start of the Divorce
- What are the Community and Separate Property Laws in Texas?
Under the Texas Family Code, a spouses separate property consists of 1) the property owned or claimed by the spouse before marriage; 2) the property acquired by the spouse during marriage by gift, devise, or descent, and 3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
The terms “owned and claimed” as used in the Texas Family Code mean that where the right to the property accrued before marriage, the property would be separate. Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested. The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate. Inception of title occurs when a party first has a right of claim to the property.
Everything you and your spouse have earned in your marriage except for personal gifts or property from devise or descent will now, absent fault, be divided equally in the divorce. This could make a big difference in your post-divorce financial life! Gather all financial statements: income tax returns, insurance policies, bank statements, Investment Accounts summaries, Retirement Account balances, Bills, anything in your marriage that can show who owns separate assets or what constitutes the community property in this marriage.
2. DEBT: Deal With it NOW!
Are you and your spouse in a bad financial situation? Do you both have to work to pay the bills or just barely make ends meet? Now you want to get a divorce and HOW IS THAT GOING TO WORK? How can you be Post Divorce Happily EVER AFTER when you may not even be able to afford a down payment on an apartment? ORDER A COPY OF YOUR CREDIT REPORT now to see where the damage may exist. You will be able to see what credit cards, loans, and other debt you all have created. If you and your spouse have be leading “separate lives” for a while, you may be surprised when there is more debt incurred for entertainment you never knew about. Review this CREDIT REPORT carefully. Find out whether you are a joint owner or just an authorized user. Except for your home, usually the DEBT will be in existing credit card accounts, personal loans, and car loans. If possible, try to get as much debt as possible paid off before finalizing the divorce. Remember that joint debts remain both spouses’ legal obligation to the lenders, even when the divorce settlement states that only one spouse is responsible for the debt. If the responsible ex-spouse defaults on the payments, it will show up on both ex-spouse’s credit history. Some good advice? Get your own credit card in your name only. If you keep other credit cards take your spouse’s name off the credit card Now! Get your name off any credit card that your spouse uses NOW! Divorce causes financial upheaval to a family’s budget so protect yourself, so you don’t have to pay or be legally responsible for your soon to be EX’s Bills!
3. Bank Accounts
Most married couples have at least one joint bank account. Many will have joint checking and savings accounts. You need to get a record of every family bank account in existence. Make sure you have copies of all monthly bank statement for 3 years.
Review these carefully and see if there has been a constant drainage of money from the accounts.
Now open a new account in your name. It is critical to establish your own financial identity when you divorce.
If your spouse does business with the bank in a business capacity or you have car/personal loans with the bank, you need to open a personal account with another bank of your choosing.
4. What About Our Home?
One of the hardest assets to deal with in a divorce. This is where the couple lived as a family, with or without children. If there are children involved, their little lives have centered around their schools, churches, sports teams and friends. It is heartbreaking to the entire family, but this decision is usually the final family break.
If the decision is for one spouse to take over the homestead and debt, the ideal situation is for such spouse to refinance the home in only their name. The single spouse will be responsible for the debt on the house and full title on the house. Otherwise if the spouse can’t afford to refinance the house, both spouses will have to work out a co-owner agreement and continue to have both names on the title and share the large financial burden. In such event, frequently, sale of the home is the best option.
This is one of the most serious real estate problems we encounter in a post-divorce situation. Times get tough and the ex- spouse, who took over the house debt, cannot afford to pay the mortgage and the property falls into foreclosure, affecting both ex- spouses’ credit. Sometimes it is better, if one spouse cannot refinance the house loan, to sell the house and divide the proceeds.
Other “To Do” Items to Address Before the Start of the Divorce
- Make sure your assets are protected. Check that your car, health, and homeowner’s insurance is up to date and enough for your and your children’s needs. Also start the process of changing beneficiaries on all life insurance policies/annuities and retirement accounts (IRA / 401k at work) you own from your ex-spouse to your heirs or other designees.
- Change all passwords on your online accounts and all banking and credit card accounts. Time for some personal privacy!
- Time to start thinking about your digital assets that you as a couple developed and shared? This is a community state and how will this affect this type of asset?
- Think about reviewing your will and other estate planning documents. We suggest that when the divorce is final, you need to have a new will in place that will be only your heirs minus your Ex.
- Very important! Establish your own credit in your single name
This list will give you a start on the financial items that you must be addressed immediately in an upcoming divorce. Be prepared before the divorce and know where you stand financially. This will hopefully give you time to talk with financial and legal experts so you can make wise decisions on addressing the financial aspects of the divorce for you and your other family members.
The Nacol Law Firm P.C.
High Asset Divorces: Divorce Litigation
High Assets Divorces in Texas can be painstaking and involve substantial time and money to properly litigate an individual’s case.
- Original Petition and Temporary Orders
Single most important event for leverage is who files their Divorce Petition first. If you file first you are a Petitioner. A Petitioner receives a crucial benefit in litigation. A petitioner is afforded the opportunity to talk first and last in litigation, sets the tempo of the divorce, and creates the narrative of the litigation. Being a Petitioner is invaluable, thus if you have decided to file you should look to file first.
Temporary Orders are usually, absent emergency relief, the first hearing the Court will have in the case. At temporary orders the Judge will likely attempt to place a Band-Aid on all assets to insure there is not wasting of assets, custody and access of the children are determined, and payments remain the same of any separate or community property assets. Temporary spousal maintenance, exclusive use of property, and injunctions are granted at this hearing. With High Assets this hearing is pivotal in determining how litigation will continue in the future. Every Court is different but multiple additional temporary order may be filed or clarification motions.
2. Discovery Phase and Experts
The discovery phase may be cumbersome and painful. Discovery consists of multiple written questions. These include production questions (asking for documentation), interrogatories (questions require a written notarized response), admission (admit or deny questions), depositions (typically 6 hour cross examination in front of court reporter at an attorney’s office), and inventory and appraisal (sworn list of assets and values of each asset). These process are usually expensive but necessary to prove the amount of the marital estate and the characterization of property.
Experts are also employed at this stage. They are costly but necessary to prove tracing, value of fraud, or overall value of the business. These issue are likely contested, thus the battle of experts continue until the final hearing.
3. Depositions
A deposition is a formal question-and-answer session used in divorce cases to gather information under oath before trial. It typically takes place in a lawyer’s office, where one spouse (the deponent) answers questions from the opposing attorney while a court reporter records everything. The purpose of a deposition is to uncover facts, clarify disputes, and assess how a witness may testify in court. While it doesn’t happen in a courtroom, the statements made during a deposition carry legal weight and can be used as evidence later.
In high-asset divorces, depositions become even more critical because of the complex financial issues involved. Attorneys may ask detailed questions about business ownership, real estate holdings, investments, hidden assets, trusts, and even potential misuse of marital funds. If one spouse suspects the other of concealing wealth, forensic accountants or financial experts may analyze records and testify about discrepancies. The opposing attorney may also scrutinize spending habits, tax returns, and financial disclosures to ensure full transparency.
Because high-asset divorces often involve prenuptial agreements, inheritance disputes, or business valuations, preparation is crucial. A well-prepared spouse will work closely with their attorney to review financial documents and anticipate tough questions. While depositions can feel intense, remaining truthful, composed, and strategic can help protect one’s financial interests and ensure a fair resolution.
4. Mediation
Meditation may occur in the middle or toward the end of the litigation process. A good mediator may range from $2,000.00 to $3,500.00 per side. The mediation process can be difficult and last from a half to more than a full day. Some mediations go for 14 to 15 hours to obtain settlement. Though this is expensive it is still less costly than going to final trial and many outcomes may be obtain by agreement to which a Judge cannot order. The flexibility of mediation makes this process less painful and costly than attending final trial.
5. Final Trial before the Court or Jury
Final trial may be performed solely by a Judge or a Jury of 12 peers. Only 10 of 12 Jury members are needed to find in favor of either party. A Jury trial is more expensive, takes more time to prepare, and may be more risky depending on the County. A trial before the Judge is cheaper and may simplify many matters. It is important to know for every 1 hour in Court it takes more or less 4 hours to prepare.
A jury trial with a minimum of 2 experts and multiple other fact witness should take anywhere from 4 to 7 days. A trial before the Judge for a similar case may take 2-4 days, depending how the judge runs the Court.
There are many trials and tribulations an individual will have to surpass in the Court system if they are getting a divorce and the marriage contained with high assets. It will likely be costly, painful, but necessary. Many other factors such as summary judgements or motions to exclude experts, witnesses, or exhibits may increase fees. It is important to be confident with your attorney and find a firm that has experience with higher assets cases to ensure the flow and strategy of the litigation fulfills your goals.
High Asset Divorce Attorneys in Dallas Texas
Nacol Law Firm P.C.
(972) 690-3333
Going Through a Texas Divorce with a Special Needs Child
Going through a divorce can be a difficult time for all family members, including the children. The stress of dealing with a child that has a serious illness or difficulty prior to the initiation of a divorce may accelerate during the divorce process. We call such a child the “Special Needs Child”. This child has apparent or diagnosed emotional/medical problems.
Special Needs children are seriously impacted by the decisions made during a divorce. Many times the child becomes more vulnerable not knowing with is happening but very afraid of losing mom or dad forever and causing additional emotional and behavioral problems at home. It is important for parties to determine how meaningful regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a “special needs” child.
I. Child with Emotional Issues:
Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child. It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs or comply with the court’s order.
Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.
2. Special Medical Needs
When a child has significant medical health problems or disabilities parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation. This may be compounded by the emotions and breakdown in the marital relationship often caused by the stress and differing opinions of the parents on the care of the child. The Court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions. It is also important that the parties along with the Court work for a consistent treatment protocol to meet the child’s medical needs and best interests.
The real battleground in Texas custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs. Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs. Major problems occur when there are differing views between the parents on how to best treat the problem or a lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol
to “impose” upon the family.
Texas Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations. In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions the courts must award custody based on the principle of what is the best interest of the child. The Court will consider many factors in developing a parenting plan including the development status of the child, the child’s temperament, and each child’s specific needs.
To make a meaningful decision on the care of the child, the court will need evidence of the following:
• Which parent is the most involved in the decision making as pertains to the relevant issue?
• What are the competing theories of how to best treat the child?
• Current opinions from the child’s physician and /or therapist.
• What is the generally accepted treatment for the specific condition?
• What is the likelihood of each parent following the protocol selected by the court?
• How successful has the treatment been in the past?
• What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
• Which parent has shown a proven effort at recognizing the child’s needs and working to address them?
The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal and the expert must be a specialist in working with the child’s specific problem.
After the divorce is concluded, raising a special needs child requires a high degree of collaboration between both parents. This child feels very afraid and doesn’t have to be put in the middle of a parental alienation feud which could cause long term mental and physical scarring for both the child and the parents.
Parents, think about your child! Your child didn’t ask for a divorce but they will have to live with the consequences, good or bad, that your decisions leave them!
High Asset Divorces: Jury Trial on Assets
When two individuals have substantial assets and are resolved to file a Divorce, it is important to understand what a jury can and cannot determine regarding the assets or fault in the marriage. The strategy to request a jury trial or trial before a Judge can be complicated and vary greatly depending on the circumstances of the case.
- What can a Jury determine regarding marital property and fault between the parties.
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- A jury trial may be requested by either party when a divorce is filed. Tex. Fam. Code §6.703
- If requested, a jury alone decides whether contested assets/marital property will be characterized as either (1) community or (2) separate. In re Marriage of Moore, 890 S.W.2d 821, 834 n.7; 838 (Tex. App.–Amarillo 1994, no writ); Archambault v. Archambault, 763 S.W.2d 50, 51 (Tex. App.–Beaumont 1988, no writ).
- A jury may decide the issue of fault in the marriage i.e. (adultery, cruelty, etc.)
- A jury may decide disputed issues regarding spousal maintenance such as: (1) eligibility for spousal maintenance, (2) dollar amount needed to provide spouse with minimum reasonable needs, and (3) the amount of time reasonably necessary for a spouse to become self-supporting.
- A jury may decide reasonable and necessary attorney’s fees for either side.
- A jury fee must be paid for following a request made by the court’s local rules.
2. What can a Court determine regarding marital property and fault between parties?
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- A Court/Judge determines the just and right division of the martial estate when distributing or dividing the martial property.
- The Court/Judge take the Jury’s findings of fault and characterization of assets (separate or community) then determines what a just and right division of the property is proper in each specific case.
3. Things to consider regarding presenting evidence to Judge and Jury.
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- Expert witnesses likely will be discussing whether property is separate or community (forensic accountants, business evaluators, title searches, appraisers, etc.).
- The jury determination of 10 out of 12 jurors is needed to determine: (1) the character of the property (separate or community), (2) find fault in the marriage, (3) award reasonable and necessary attorneys fees to either side.
- Costs and expenses for a jury trial are substantially more than a trial before a judge.
- A jury may make advisory opinions as well, that are not required to be followed by a judge, such as fraud on the community estate, distribution percentages of community property, and others.
There are many reasons during a high asset divorce a party may request a jury. Perhaps the Judge is unfavorable to an individual; perhaps the facts supporting separate property are not will be more favorable to a group of peers than a judge; perhaps adultery is a serious issue and may lead to a higher award of attorney’s fees and spousal support in the hands of a jury. It should be noted that if a jury is to determine a plethora of issues to make an educated determination to whether property is separate or community property then there will require many experts and simplification of the issues should be paramount.
Dallas High Asset Divorce Attorneys
Nacol Law Firm P.C.
(972) 690-3333
NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
Office Hours
Monday – Thursday, 8am – 5pm
Friday, 8:30am – 5pm
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
