No-Fault Divorce From A San Antonio Attorney With 18+ Years Of Experience
At Sralla Family Law PLLC in San Antonio, family law cases are handled with professional and caring skills. When spouses decide to part ways through a divorce, it is usually due to irreconcilable differences. For this reason, the vast majority of divorces in the state of Texas are considered no-fault divorces. In other words, neither party is considered to be at fault. The spouses have just grown apart.
Divorce can either be contested or uncontested. The no-fault category simply means neither side is alleging fault in the breakup of the marriage. Rather, the divorce is sought on grounds of insupportability, which basically means irreconcilable differences have surfaced between the parties and there is no hope of reconciliation.
How Does Property Division Work In No-Fault Divorce?
Property and debts are divided in a manner the Court deems “just and right.” This usually results in a division that is roughly 50/50 between the parties in a no-fault divorce. Upon proof of proper grounds, either party may request a disproportionate distribution of the marital estate. There are numerous factors that the court will consider when determining whether to grant a disproportionate distribution. These factors include:
- A disparity of earning power between the parties
- The parties’ respective work histories
- Whether either party is disabled
- Whether either party was at fault in causing the breakup of the marriage
- Other equitable considerations that would render a disproportionate distribution to be a just and right division of the marital estate
In a no-fault Texas divorce, neither side has a leg up in terms of being in the right when it comes to the reason the marriage has come to an end. But there is still much to sort through. The practical effect of the no-fault label is that the marital estate will more or less be divided right down the middle, with the court awarding half of the value of the estate to each spouse. That means the value of all marital assets will divided evenly between the spouses, the goal being to divide the community estate in a manner that the court deems just and right, leaving both sides with assets of equal monetary value.
What Counts As Community Property?
It is important to note that the court will only divide community property, not each spouse’s separate property, and assign community debts. Community property is property or assets acquired during the marriage by either spouse, regardless of whose name the asset is in. For example, if one spouse uses their own salary to buy a vehicle and register it in their name only, that vehicle is technically still a community asset and subject to division by the court. The same goes for a house or literally any other asset acquired during the marriage. This often comes as a shock to spouses who do not realize that something they purchased with their own earnings is part of the community and their spouse could receive half the value of that asset.
Examples of separate properties include:
- Property owned by either spouse prior to the marriage
- Inheritance money
- Military disability awards
- Awards from personal injury lawsuits
While these separate assets are generally not subject to division by the court, they can become community property if commingled with community assets. It is therefore important to keep separate funds in a separate account so they do not end up being divided in the divorce.
Navigating Child Custody And Relocation In No-Fault Divorce
No-fault divorces can still involve hotly contested issues surrounding the children of the marriage. One such issue is whether to impose a geographic restriction on the residence of the children. If imposed by the court, this means that the primary managing conservator of the children, the person who determines where the children will live after the divorce, cannot establish or change the children’s residence outside of a particular geographic area. A common way of defining the geographic area where the children are allowed to reside is to limit the residence to the county where the divorce is filed and any other county that touches – or is contiguous to – that county. Typically, that means that parties can take the children outside that geographically defined circle to visit, take trips or vacations, but may not set up a new residence outside the area.
This issue is challenging to get around from a litigation standpoint. That is, whether or not an order contains a geographic restriction, the issue is always likely to come up before the court because the side that stands to lose something will almost always assert the existence of nonexistence of a geographic restriction. For example, if a party wants to move with his or her children to a different state, he or she will argue that no geographic restriction should apply. Whereas a party trying to keep his or her spouse from leaving the area will request the imposition of geographic restriction from the court.
Exploring All Solutions For Your No-Fault Divorce
There are multiple ways of resolving no-fault divorces, including by agreement, through mediation and by a trial. Mediation is a process whereby the parties and their lawyers meet at a neutral location and, with the help of a neutral mediator, attempt to iron out the differences that exist in their contested or uncontested case. This is an informal yet rigorous process that puts pressure on both sides to compromise. One spouse and their lawyer will typically be set up in one room while the other spouse and his or her lawyer will assemble in a separate room.
The mediator, usually an attorney, will typically start out with a joint session where he or she explains the process to the parties and lays down certain ground rules such as the rule against using anything said or offered in mediation in an eventual trial setting if the case does not settle. The other main rule of mediation is the idea that once the parties sign the mediated settlement agreement, the deal struck is irrevocable, at least in theory, and very hard to overturn short of a showing of outright fraud or something of that nature.
After the initial joint session, and the spouses retreat to their separate rooms with their respective attorneys, the mediator will meet with each side to gather information about that side’s position on the issues. The mediator will then float back and forth from room to room, conveying offers to each side. A good mediator will finesse each side, letting each spouse know when they have a good point and when they are asserting an argument that will not go very far at trial. Each spouse will analyze the deal offered and weigh it against what could possibly happen in court and their respective chances of getting a better deal in court.
While the ultimate decision to settle the case is up to each spouse, the risk of proceeding to trial and leaving the decision up to a judge usually induces a settlement from both sides. It’s a classic bird-in-hand versus what lay in the bush analysis. At the end of the day, parties in a no-fault divorce are still in a position to litigate everything and all issues presented by divorce except the issue of who caused the break-up of the marriage.
No Fault Divorce FAQs
Is Texas a no-fault state divorce?
Yes, Texas is a no-fault divorce state.
What happens in a no-fault divorce?
A no-fault divorce means that a marriage is dissolved due to irreconcilable differences between the parties, and that is not necessarily due to the fault of either party.
What is the number one cause of divorce?
Common and leading causes of divorce are communication problems, financial issues, infidelity and general incompatibility.
Does it matter who files for divorce in Texas?
No. Either party will have an opportunity to be heard and present his or her case to the court regardless of who files first.
Is Texas an alimony state?
Judges in Texas can award post-divorce maintenance for limited periods of time on a sliding scale based upon the length of the marriage, the earning power of the spouses and the requesting spouse’s ability to meet his or her minimum reasonable needs without assistance from the other spouse.
How do I get a divorce with no money?
Getting a divorce with absolutely no money is difficult but not impossible. The party seeking to file for divorce can visit the Staff Attorney’s Office at the Bexar County Courthouse to obtain a packet of information to assist in preparing and filing the paperwork for starting a divorce case. The filing fee can be waived if the filing party prepares an affidavit of indigency declaring that he or she has no money. Another alternative is to seek free legal aid or the assistance of a pro-bono lawyer.
How long does it take for a divorce to be final in Texas?
The minimum amount of time for a divorce to be final is 60 days, per the Texas Family Code. However, depending on the complexity of the conflict, the nature of the issues involved and the extent to which the issues are contested, a divorce can take up to multiple years to complete.
Do both parties have to be present to sign divorce papers?
No. Parties can sign divorce papers remotely.
How long do you have to be married to get half of 401k in Texas?
There is no minimum amount of time that parties must be married before a spouse is entitled to one half of the community property portion of a 401K account in Texas. However, a spouse is only entitled to half of the community property portion (the value that accrued during the marriage) of the asset, not half of the account as a whole.
How long do you need to be separated before divorce in Texas?
Parties do not need to separate before filing for divorce in Texas. There is no legal separation in Texas. Parties can pursue a divorce even while physically living together.
Can you legally steal from your spouse?
No, you cannot legally steal from your spouse.
Can you be denied a divorce?
No. You cannot be denied a divorce.
Reach Out Now For Our Texas Divorce Lawyers’ Help
Please call with any questions you have pertaining to San Antonio family law. We can also set up a consultation to discuss your situation in person. Contact us by calling 210-600-9565 or by using our online contact form.