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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 7454
Experience:  Experienced Family Law Attorney
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I completed all the paperwork divorce with the expectation

Customer Question

I completed all the paperwork for a divorce with the expectation that she was going to sign. After receiving the paperwork, which I have a signed receipt from her as proof of delivery, she decided that she is not going to sign because two of the items that I requested as my personal property she had already sold. Those items I am not concerned about but in addition to that she wants spousal support. I have already agreed to pay off her car and gave her everything in the house as far as furniture, dishes, appliances, etc. I am trying to keep this from getting nasty, so I offered $275.00 every two weeks after her car is paid off and continuing for six months. Am I wrong in thinking that this is way beyond what would be expected of me?
Submitted: 11 months ago.
Category: Family Law
Expert:  LegalGems replied 11 months ago.

Thank you for your question; it will be a few more minutes as I prepare a response.

Expert:  LegalGems replied 11 months ago.

During a divorce, if the parties are unable to reach a settlement agreement, the court will divide marital property in a just and equitable manner (which does not always mean 50/50).

Marital property is defined as property acquired during marriage, except for by gift/inheritance.

The statute is located here:

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.3.htm

This discusses the equitable division:

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.7.htm

Some of the factors to be considered are:

the parties' earning ability (typically given signficiant weight for long term marriages where one spouse is a homemaker and therefore will not be able to earn as much money in the future due to lack of work experience, particularly if elderly)

the parties' respective financial situation

any financial misconduct during marriage (ie mismanaging marital property)

needs of minor children

Most courts are tending to lean away from taking into consideration one's non-financial conduct (ie affairs)

Each judge has great discretion in determining the division of property- as to what they deem to be fair; so it is impossible to determine what a particular judge will do.

For spousal support ("maintenance") the statute is here:

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.8.htm

The court will generally award support if one party is unable to support themselves. The idea is for both parties to continue to enjoy the standard of living achieved during marriage, after taking into consideration the fact that 2 homes are more expensive to maintain than one.

The court will first need to determine if support is proper; basically they would need to find that the spouse does not have sufficient assets/income to support oneself (including separate property) and is unable to support oneself due to an incapacitating physical or mental disability; inability due to child rearing responsibilities as the custodian of a child of the marriage whom requires substantial care and supervision due to a disability; or it is a long term marriage (10 years plus).

According to section 8.052, if support is proper, the court will take into account the following factors:

(1) each spouse's ability to provide for that spouse's minimum reasonable needs independently, considering that spouse's financial resources on dissolution of the marriage;

(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;

(3) the duration of the marriage;

(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;

(5) the effect on each spouse's ability to provide for that spouse's minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;

(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;

(7) the contribution by one spouse to the education, training, or increased earning power of the other spouse;

(8) the property brought to the marriage by either spouse;

(9) the contribution of a spouse as homemaker;

(10) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and

(11) any history or pattern of family violence, as defined by Section 71.004.

Length of support is also mandated by statute:

Sec. 8.054. DURATION OF MAINTENANCE ORDER. (a) Except as provided by Subsection (b), a court:

(1) may not order maintenance that remains in effect for more than:

(A) five years after the date of the order, if:

(i) the spouses were married to each other for less than 10 years and the eligibility of the spouse for whom maintenance is ordered is established under Section 8.051(1); or

(ii) the spouses were married to each other for at least 10 years but not more than 20 years;

(B) seven years after the date of the order, if the spouses were married to each other for at least 20 years but not more than 30 years; or

(C) 10 years after the date of the order, if the spouses were married to each other for 30 years or more; and

(2) shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse's minimum reasonable needs, unless the ability of the spouse to provide for the spouse's minimum reasonable needs is substantially or totally diminished because of:

(A) physical or mental disability of the spouse seeking maintenance;

(B) duties as the custodian of an infant or young child of the marriage; or

(C) another compelling impediment to earning sufficient income to provide for the spouse's minimum reasonable needs.

(b) The court may order maintenance for a spouse to whom Section 8.051(2)(A) or (C) applies for as long as the spouse continues to satisfy the eligibility criteria prescribed by the applicable provision.

(c) On the request of either party or on the court's own motion, the court may order the periodic review of its order for maintenance under Subsection (b).

(d) The continuation of maintenance ordered under Subsection (b) is subject to a motion to modify as provided by Section 8.057.

If a spouse is voluntarily un/underemployed, the court can take that into consideration because they will not reward a spouse that unjustly refuses to be self sufficient.

I hope I've answered your question to your satisfaction. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask and I will get do my best-- If I have fully answered your question to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent. Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating! Thank you; it's been a pleasure to assist you.

Customer: replied 11 months ago.
I guess I wasn't clear on what I was asking. What I want to know is if I should go ahead and file without her signing the papers and then serve her with the final decree?
Expert:  LegalGems replied 11 months ago.

Unfortunately per code 4.002 a settlement agreement will not be approved unless signed by both parties.

http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.4.htm

So if the other party refuses it would go forward as a contested case requiring the judge to decide the disputed issues. If the judge finds that a party acted in bad faith by agreeing to something and then changing there mind without a change in circumstance they may award attorney feed incurred as a result of the work done based on reliance on the other party's representations.

Customer: replied 11 months ago.
You stated in your response "During a divorce, if the parties are unable to reach a settlement agreement, the court will divide marital property in a just and equitable manner (which does not always mean 50/50)." This is the situation I am facing. If I can't get her to sign, what do I do?
Expert:  LegalGems replied 11 months ago.

Some people will request mediation. This is a voluntary process so ot only works if both parties are willing.

The other option is to contact the clerk and set the matter for hearing so that the judge will make an order on the issues. They will generally consider prior informal agreements in determining a fair decision. For this type of hearing it is best to hire an attorney to present the case because a lot of issues are at steak. Some attorneys will take a case on a limited scope basis. I.e. being hired to review the case and litigate at the hearing, as opposed to full representation, which can save some in legal fees. But generally money spent on hiring an attorney for this stage is money well spent. We cannot give specific referrals but the state bar does provide referrals.

I hope I've answered your question to your satisfaction. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask and I will get do my best-- If I have fully answered your question to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent. Otherwise, I receive no credit for assisting you today. I thank you in advance for taking the time to provide me a positive rating! Thank you; it's been a pleasure to assist you.