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Ask Ely Your Own Question
Ely
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 100053
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Wife wants a divorce. Supported her for 10 years while she

Customer Question

Wife wants a divorce. Supported her for 10 years while she got her career going. She is an ER doctor now. I currently don't have a job and she just started a side business that is starting to boom. We have two children. A boy, who is 4 years old and a girl who is 11 months. I don't know what to do. I don't want to ask for alimony, my pride won't allow it. What are my options??
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: Texas
JA: Has anything been filed or reported?
Customer: Not yet. But wife says she is filing soon.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Trying to figure out my options for custody and child support. I was the primary parent while she worked.
Submitted: 2 months ago.
Category: Family Law
Expert:  Ely replied 2 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

I am sorry to hear about this situation. Your question - "what are my options," is very open-ended. I am not sure what you are asking here, exactly, in regards ***** ***** divorce. As in, custody? Division of property? How a divorce works? Can I stop her from filing a divorce? Etc. Please clarify.

This is not an answer, but an information request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.

Customer: replied 2 months ago.
We agreed to joint custody, but I don't trust her. She may try to take the children away from me because she knows how much it will hurt. So, what are my options for custody & division of property?
Expert:  Ely replied 2 months ago.
Sure.
Custody
The Court decides on custody based on the rule of thumb of "best interest of the child." This includes, but is not limited to, general stability of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc. The courts generally do not like to split the custody 50/50 since this is hard on the child unless both parents agree to this.
One parent usually becomes the custodian and the other parent becomes the "visiting" parent which is generally one day a week, every other weekend, and alternating holidays. The nuanced points of the custody can either be decided by the parties or the Court, if the parties cannot come to an agreement.
Even if a parent does not get managing custody, they are almost guaranteed visitation unless they have a drug problem, alcohol dependency, or an unsafe home environment. Abuse and or neglect of the child or previous children are an almost automatic bar for even visitation, although supervised visitation may be granted by the Court.
Of course, that is the standard order of possession. That order can be modified if both parties agree or if the Court finds that it is an extraordinary situation.
Division of Property
Separate property and debt is property that is generally:
1. Owned before marriage by one spouse; or
2. Acquired by gift or will or similar legal way by the spouse during marriage; or
3. Declared as such by prenup or postuptual agreement; or
4. Traceable property purchased by one spouse only; or
5. Tort Recovery for personal injury, but not medical expenses or loss of earning capacity.
Separate property and debt is awarded to the party which had claim to it in accordance with the rules above.
Community Property and debt is everything else, including but not limited to:
1. Income from BOTH parties; or
2. Declared as such by prenup and postuptial agreement; or
3. Gift from one spouse to another; or
4. All titled and non-titled property gathered during marriage.
However gets the children normally gets the home.
Of course, if both parties come to an agreement about marriage property regardless of the rules above, the Court will most likely endorse said agreement in interest of post-divorce harmony. The above rules only come into play if the parties cannot agree on splitting of assets.
It is also common for parties to agree to 95% of the split, but then ask the Court to make a decision in regards ***** ***** 5% that cannot be agreed upon.
Reimbursement
The fact that you supported her while she went to school is tricky. Texas does not have a history of reimbursements, although one can get this if one can successfully argues that it falls into one of these categories below:
TEXAS FAMILY CODE Sec. 3.402. CLAIM FOR REIMBURSEMENT; OFFSETS. (a) For purposes of this subchapter, a claim for reimbursement includes:
(1) payment by one marital estate of the unsecured liabilities of another marital estate;
(2) inadequate compensation for the time, toil, talent, and effort of a spouse by a business entity under the control and direction of that spouse;
(3) the reduction of the principal amount of a debt secured by a lien on property owned before marriage, to the extent the debt existed at the time of marriage;
(4) the reduction of the principal amount of a debt secured by a lien on property received by a spouse by gift, devise, or descent during a marriage, to the extent the debt existed at the time the property was received;
(5) the reduction of the principal amount of that part of a debt, including a home equity loan:
(A) incurred during a marriage;
(B) secured by a lien on property; and
(C) incurred for the acquisition of, or for capital improvements to, property;
(6) the reduction of the principal amount of that part of a debt:
(A) incurred during a marriage;
(B) secured by a lien on property owned by a spouse;
(C) for which the creditor agreed to look for repayment solely to the separate marital estate of the spouse on whose property the lien attached; and
(D) incurred for the acquisition of, or for capital improvements to, property;
(7) the refinancing of the principal amount described by Subdivisions (3)-(6), to the extent the refinancing reduces that principal amount in a manner described by the applicable subdivision;
(8) capital improvements to property other than by incurring debt; and
(9) the reduction by the community property estate of an unsecured debt incurred by the separate estate of one of the spouses.
(b) The court shall resolve a claim for reimbursement by using equitable principles, including the principle that claims for reimbursement may be offset against each other if the court determines it to be appropriate.
(c) Benefits for the use and enjoyment of property may be offset against a claim for reimbursement for expenditures to benefit a marital estate, except that the separate estate of a spouse may not claim an offset for use and enjoyment of a primary or secondary residence owned wholly or partly by the separate estate against contributions made by the community estate to the separate estate.
(d) Reimbursement for funds expended by a marital estate for improvements to another marital estate shall be measured by the enhancement in value to the benefited marital estate.
(e) The party seeking an offset to a claim for reimbursement has the burden of proof with respect to the offset.
Good luck.
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Expert:  Ely replied 1 month ago.
Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!

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