In the post-information age in which we live, we can literally find an answer to any question within seconds at the touch of a button or a question to Alexa. However, finding accurate and relevant information can be much more challenging, especially when it comes to finding answers to frequently-asked questions about divorce. There is quite a bit of misinformation on the internet today about divorce laws in Texas. Here are three of the most common e-myths:
1. Texas is a “50/50” State.
While it is true that Texas is one of nine community-property States in the Union, Texas is not a 50/50 state. Fundamentally, community property is the property that a married couple accumulates over the course of the marriage, whereas separate property is either property that a person owned before marriage, acquired during the marriage by gift or inheritance, or compensation received for a personal injury. Upon divorce, the Texas court only has the power to divide community property, and that division does not have to be equal. The Texas Family Code only requires that a court divide the community estate of the parties upon divorce in a manner that the “court deems just and right, having due regard for the rights of each party and any children of the marriage.” Tex. Fam. Code Ann. §7.001. In practice, what that means is that the court is supposed to consider the unique facts and circumstances of the specific case before dividing the estate. Factors such as the comparative age, education, work experience, and health of the spouses should be considered. Additionally, the court looks at whether one spouse will bear the brunt of continuing to raise any minor children of the marriage, as well as any bad behavior of the spouses, when considering how to divide the estate. At the end of that evaluation, the court then divides the estate in a “just and right” manner in light of the totality of the specific circumstances brought to the court’s attention. Sometimes the result is 50/50, but just as often, the result differs from a strict 50/50.
2. Moms Usually Get the Kids Because They are Moms.
The Texas Family Code prohibits discriminating against a parent on the basis of the parent’s sex or marital status, or the child’s sex. Tex. Fam. Code Ann. §153.003. Nevertheless, some have argued that courts retained an unofficial discriminatory policy favoring mothers over fathers, and perhaps there is still some vestige of truth to that assertion in certain pockets of the State.
Today, however, in the main, primary caregivers usually get the kids because they are primary caregivers. While moms still serve as the primary caregivers more often than dads, fathers are increasingly taking on the role of the primary caregiver for their children. Courts are required to conduct a best-interest analysis and to make rulings that promote the child’s best interest. When the evidence presented leads to the conclusion that dad has historically functioned as the primary caregiver, and he has done a good job, courts are increasingly opting in favor of preserving that relationship and maintaining the status quo.
3. If You Want to Win, You Have to Fight.
Texas was the first state in the nation to pass a body of laws designed to protect and promote less adversarial methods of resolving divorce conflict. (See Tex. Fam. Code Ann. §15.001 et. seq.). “Collaborative Divorce” is an alternative method that empowers the spouses to make joint agreements and shared decisions for their mutual benefit – even in the middle of a divorce. This alternative method is rapidly gaining ground both nationally and internationally. Increasingly, couples are discovering that they don’t have to go to court and try to destroy each other in order to get what they need out of a divorce. In fact, it is quite possible for both spouses, as well as their children, to avoid court altogether, as well as most – if not all – of the customary divorce-related trauma by using the Collaborative Divorce approach.
Curtis W. Harrison is a partner with Goranson Bain Ausley (www.gbafamilylaw.com). He is Master Credentialed by Collaborative Divorce Texas and is board certified in Family Law by the Texas Board of Legal Specialization.