Common Questions:

Do we have to divide up real property during a divorce?

It depends.

If a spouse owns real property prior to marriage, or acquires during the marriage by gift, devise, or descent, that real property will not be divided during the divorce because it is separate property. Furthermore, if the funds used to purchase the real property during the marriage were entirely separate property, the purchased property is separate property and separate property is not divided.

Property purchased during the marriage jointly or by either spouse is presumptively community property. If community property was used to purchase the real property, that property will be divided among the spouses during a divorce. The property will be divided because each spouse has a one-half (1/2) interest in the part of the real property which is considered to be community.

This doesn’t necessarily mean that real property must be sold.  Sometimes, there is enough personal community property that the real property can be awarded to one spouse and the difference can be made up by awarding more personal property to the other spouse.


Am I entitled to any of my spouse’s business when we divorce?

It depends.

If your spouse started their business or purchased it while y’all were married, the business is a martial asset and it is presumed to be community property. If your spouse’s business is entirely community property, you have an equal one-half (1/2) interest in that business. In that case, the business would be part of the community property to be considered and divided by the court. If your spouse started their business or purchased it before the marriage, the business could be separate property. If it is separate property, the business will not be part of the community property and will not be considered and divided by the court.

That being said, any income earned during the marriage by your spouse through their business is community property. You have an equal one-half (1/2) interest in all of the community property income earned from your spouse’s business during the marriage and it is to be considered and divided by the court.

This area of the law can be quite complicated as not only must you consider when the business was established, but also what type of business entity it is, whether the spouse involved in the business was properly compensated, and other complex financial issues.


How can I ensure I get the house in the divorce?

The house often goes to the spouse who is awarded primary custody of the children. The court will want to provide the children as much stability as possible. However, if no kids are involved, the court may look to see which spouse can afford the house. Don’t forget that if you get the house, you are getting the debt associated with the house as well. Not to mention you will have to budget for maintenance, repairs and property taxes. When taking an honest look at your situation, it may not be worth it to keep the house. The court may order the house sold and the parties will split the proceeds if the prospect of owning the house is too much for either party.


Can my ex move out of state with our child even with joint custody?


A parent should request a geographic restriction to be imposed upon the other child in the original action. If this is addressed in the initial negotiation or litigation of the divorce, it is much more difficult for a parent to move the child or children after a geographic restriction is requested than it is if the discussion were omitted. These cases can be very drawn out and complex.  Before hiring an attorney, you should talk to him about his experience in this area.


My spouse left our home and children, do they still have the right to see our children?

Yes. The spouse is still the parent to the child or children despite their leaving the home and therefore has the right to see his or her children. However, if the leaving spouse is a danger to the children, a spouse may seek to obtain a protective order, restraining order or temporary orders.

These protections will be awarded based on the degree of danger presented by the spouse the protections are sought against.


How long will I be paying child support?

In Texas, a parent will have to pay child support until the child turns 18 or until the child graduates from high school at the end of the school year, whichever occurs later.  However, if the child is mentally or physically impaired, the court may order that child support needs to be paid past the age of 18 and for an indefinite period of time.


My spouse has stopped paying court-ordered child support. What do I do?

Contact the family law attorney that initially assisted you in the divorce. An enforcement action may be necessary in order to find your ex-husband and start receiving child support again. If the court has ordered your ex-husband to pay child support, he is responsible for paying it. It doesn’t matter if he moves or gets remarried.


My ex-spouse just got a higher paying job. Can get more support money from them?

If the earnings of a divorced parent who is paying child support has changed, a modification to the court order may be necessary. Generally you’ll need to prove that circumstances have changed dramatically since the court orders were finalized. Modifications to your original court-ordered child support may be in order if your ex-spouse receives a promotion or higher paying job.

A substantial increase in the parent’s ability to pay and the needs of the child or children in question are generally the factors looked to when discussing modification of a child support agreement.