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.
Texas Divorce / Texas Child Support Questions and Answers
Q: How Much Is Texas Child Support ?
A: See our Infographic Below
Q: How long is the divorce process ?
A: In a Texas divorce there is a waiting period of a minimum of 60 days from the time you file the Original Petition commencing the lawsuit to the time the divorce may be finalized. Few divorces are finalized in this time-period. It is more likely that an uncontested divorce will take approximately 3 to 6 months and a contested divorce will likely will take much longer depending on the issues and conduct of the parties.
Q: Do my spouse and I both have to hire attorneys?
A: No. But it is certainly in your best interest to hire an attorney for a consultation purposes and to review legal documents for your own protection. An attorney should not in the vast majority of cases represent both parties, so if one attorney is involved he or she will under law be looking out for the best interest of the client that hired him/her, while the other party is representing themselves (pro se).
Q: Will I have to go to court?
A: If the spouses reach agreement, one party will have to appear in Court. Often times, when the parties have worked out their own settlement, that agreement is signed by each of you and submitted to the court with only one party making a personal appearance to state to the Court that the agreement has been reached and to establish statutory requirements. If, on the other hand, you and your spouse cannot come to an amicable settlement through this process, you will both have to appear in court, and often on many occasions.
Q: Should I Move Out of the Marital Residence?
A: Be sure to consult with an attorney before leaving the marital residence. Leaving the home may be viewed as abandonment or actually declaring a new residence, especially if you are taking personal items with you (clothing, automobile, sentimental possessions, etc.). If children are involved issues may arise as to who currently has or should have primary possession of the children. Once you have voluntarily left the home, it may be difficult to move back in or obtain orders for primary or temporary possession.
Q: How Do I Get a Divorce?
A: Before getting divorced you or you and your spouse should decide that you absolutely want and need the divorce. Even though in the divorce process prior to final judgment everything is reversible, it is important that you realize that the road is sometimes very long and can be a difficult one to travel.
Q: What if I Do Not Want a Divorce?
A: The advent of a divorce is something that slowly builds. You may want to consult with your spouse about placing things on hold while you receive counseling. However, the need for a divorce is rarely something that happens over night. Your spouse may have made his or her mind up long ago that divorce is the only option. If your spouse has filed for divorce, you have no choice. The most important thing for you to do if your spouse has filed for divorce is promptly seek proper legal advice.
If your spouse has significant assets and you feel they may be considering divorce seek legal advice immediately. You may want to do some pre-planning to make sure you have complete copies of original and final documents and know where all the marital assets are located and to assure their status. Do not give your spouse time to stash, spend away and/or hide assets.
Q: Can You Modify Child Support Orders?
A: Making changes to an existing child support order is not uncommon. Most states will not allow a request for modification on a child support order unless a time-period (of 2 to 4 years depending on the state) has passed since the order was put into place. Keep in mind that child support orders cannot be increased or decreased on a whim. In Texas, you must show a change in circumstances. However, if the person paying child support’s income has gone up or down more than 25% you can request a change. IMPORTANT NOTE: If you agree to no child support in your first order (Final Decree) and your spouse has a significant income at that time, you may have waived a statutory right to future child support unless the income level at the time of the existing order increases or decreases significantly.
Q: Can I Deny My Ex-spouse Visitation, Possession or Access?
A: You can not and should not deny visitation or possession, unless the Court has modified the visitation or possession to allow it! Denying visitation or possession is one of the biggest mistakes made by most primary custodial parents – it is an act of contempt in Texas. You may believe you have a justifiable reason for denying the visitation or possession rights, but by law your are not permitted to do so absent extraordinary circumstances, usually involving gross neglect or physical abuse.
Q: How Do I Get Custody of My Child(ren)?
A: The first and most important step to getting custody of your child(ren) is to be an involved and hands-on parent and to be honest. Being a great parent is not always the easiest task during divorce, but it is important to carefully consider each and every action you take during a divorce and how it may or may not effect the child(ren). You will also need good legal representation. Child custody issues can become ugly and complicated no matter how good your intentions may be. Make sure you are prepared. Document everything.
Q: What if I Do Not Like the Judges Decision?
A: The purpose of the ruling is to establish what exactly should be stated in the Final Divorce Decree. Once the attorneys have drafted the Final Divorce Decree and both parties have agreed that it coincides with the ruling, it will be presented to the Judge for signing. Once the parties have agreed and signatures are signed, you will have to live with the decisions. If the divorce is highly contested and the Judge rules and you are unhappy with the results, you have only a small window to appeal the decision or request a new trial.
Q: What is Fair Spousal Support or Alimony?
A: If you and your spouse can not come to agreement on the need for or amount of spousal support to be paid, the length of time, and under what conditions, the spousal support will most likely be set by a Judge according to Texas law.
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: 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
High Asset Divorces: Business Evaluations
A High Asset Divorce in Texas can be a complex process, especially when high-value assets like Corporations, Limited Liability Companies, Partnerships or other Business Entity are involved. In Texas, which follows community property laws, determining the value of a business is a crucial step in ensuring a fair division of assets. This process, known as business valuation, helps establish the worth of a business for equitable distribution between spouses.
What Is a Business Valuation?
A business valuation is a financial analysis that determines the economic value of a business. This is especially important in a divorce when one or both spouses own a business, and its worth must be assessed to divide assets fairly. Valuation experts use financial records, market trends, and various methodologies to establish a business’s value.
When Is Business Valuation Necessary?
Business valuation is necessary in a Texas divorce when:
- The business is classified as community property (owned by both spouses, even if one spouse primarily operates it).
- One spouse seeks to retain ownership and must compensate the other for their share.
- The business needs to be sold, and its value must be determined for proper distribution.
- There are disputes over the true worth of the business.
Who Is Qualified to Conduct a Business Evaluation?
In a high asset divorce, a business valuation should be conducted by a qualified financial expert with experience in divorce-related valuations. The following professionals are typically qualified:
- Forensic Accountants
- Specializes in tracing assets and analyzing financial records.
- Can identify hidden assets or income.
- Certified Public Accountants (CPAs) with a Business Valuation Credential
- Look for CPAs with additional credentials such as:
- Accredited in Business Valuation (ABV) – issued by the AICPA
- Certified Valuation Analyst (CVA) – issued by NACVA
- Certified Business Appraiser (CBA) – issued by the IBA
- Business Appraisers
- Specialize in evaluating privately held businesses.
- May hold designations such as ASA (Accredited Senior Appraiser) from the American Society of Appraisers.
- Economists or Financial Analysts
In cases involving complex financial structures, economists with experience in valuation can assess the long-term economic impact.
- Industry-Specific Experts
If the business is in a specialized industry (e.g., medical practice, law firm, tech startup), an industry expert may be necessary to assess market value.
The cost of a business valuation in a high-asset divorce in Texas can vary significantly based on factors like business complexity, expert credentials, and whether litigation support is required. Here’s a general breakdown of what you can expect:
Basic Business Valuation (Small, Simple Business)
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- $5,000.00 – $15,000.00
- Typically used for small businesses with straightforward financials, such as a sole proprietorship or single-member LLC.
Standard Business Valuation (Medium-Sized Business)
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- $15,000.00 – $30,000.00
- Includes businesses with multiple revenue streams, moderate assets, or industry-specific complexities.
Comprehensive Business Valuation (High-Asset, Complex Businesses)
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- $30,000.00 – $100,000.00+
- Necessary for businesses with complex financial structures, partnerships, intellectual property, or hidden assets.
- Includes forensic accounting, expert witness testimony, and detailed reports for court.
Additional Costs to Consider:
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- Forensic Accounting: $250.00 – $600.00 per hour
- Expert Testimony: $400.00 – $1,000.00 per hour (if the case goes to trial)
- Document Review & Discovery: Additional $5,000.00 – $20,000.00+ depending on the volume of records
If the divorce is contested and involves disputes over business valuation, costs can escalate due to prolonged litigation and expert testimony requirements.
Key Methods of Business Valuation
Experts use different approaches to assess a business’s value, including:
- Asset-Based Approach
This method calculates the value of a business by assessing its total assets minus liabilities. It is particularly useful for companies with significant tangible assets, such as manufacturing or real estate businesses.
- Income-Based Approach
This approach evaluates the business’s earning potential by analyzing past income, projected future earnings, and financial statements. Two common methods within this approach are:
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- Capitalization of Earnings: Used when a business has stable, predictable income.
- Discounted Cash Flow (DCF): Estimates future cash flows and discounts them to their present value.
- Market-Based Approach
This method determines the business’s value by comparing it to similar businesses that have recently been sold. It is often used when industry sales data is available and reliable.
Factors That Impact Business Valuation
Several factors can influence a business’s valuation, including:
- Revenue and profitability: A highly profitable business is usually valued higher.
- Market trends: Economic conditions and industry growth affect valuation.
- Debt and liabilities: More liabilities reduce the overall value.
- Ownership structure: Whether the business is solely or jointly owned impacts valuation.
- Goodwill and brand reputation: The business’s reputation and customer loyalty contribute to its worth.
The Role of a Business Valuation Expert
A certified business appraiser or forensic accountant is typically hired to conduct the valuation. Their role includes:
- Reviewing financial documents (tax returns, profit and loss statements, balance sheets, etc.).
- Investigating potential hidden assets or underreported income.
- Applying appropriate valuation methods.
- Providing a detailed report and potentially testifying in court.
How Business Valuation Affects Property Division
Once the valuation is complete, the business can be handled in a few ways:
- One spouse buys out the other: The spouse who keeps the business compensates the other for their share.
- Selling the business: The proceeds are divided between both spouses.
- Co-ownership: In rare cases, ex-spouses may agree to continue running the business together.
Challenges in Business Valuation
Divorces involving business assets often face complications such as:
- Disagreements on valuation methods.
- Hidden income or financial manipulation.
- Business debts impacting valuation.
- Determining community vs. separate property (whether the business was started before or during the marriage)
In a Texas divorce, business valuation is essential for an equitable division of assets. Hiring an experienced valuation expert ensures that the process is fair and transparent, protecting the financial interests of both parties. Whether you’re a business owner or a spouse seeking your fair share, understanding how business valuation works can help you navigate the divorce process more effectively.
If you’re going through a divorce involving a business, consulting with a Texas divorce attorney and valuation expert is crucial for ensuring a just outcome.
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
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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
