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Who says I been divorcin'?
Is it true that Texas is a "no fault" state as far as divorces go?
We all know that the wife in the divorce has the inside track on keeping the kids and house, but what if she is caught having an affair?
Can the husband take more than split custody on the kids on this? The house and finances? Or does Texas not allow this into the courts?
If both names are on the mortgage, can the husband take total control of the house because of this, or force her to sell the house.
I know some of you have divorced and could use some help on this. I'm trying to help a friend.
Thanks.
Who says I been divorcin'?
"trying to help a friend".. sure...
Uh huh... /wink
He/she needs a good divorce lawyer.
I concur.
Texas is both a "no-fault" state -- which means that you don't have to prove that there are some specific grounds for a divorce; it's enough that you don't want to be married any more -- and a "community property" state -- which means that everything that the couple acquired during marriage is owned equally by each of them; whatever you brought into the marriage is yours 100% and can't be given to the spouse unless you gift it. The fact that Texas is a no fault state doesn't mean that there can't be grounds for divorce (infidelity, abuse, fraud) that will affect the way the Court resolves the relationship between the parties, it just means that there's no requirement that such grounds exist.
The questions here are whether a court, in granting a divorce, can disproportionately divide the community estate and consider fault in determining who gets custody of the kids. The answer on each issue is yes.
The court can take the community estate and cut it up 60/40 or some other unequal percentage if it finds appropriate reason to do so. I'm not a family lawyer, but I'd think that disproportionate divisions don't happen very frequently. But it can happen.
As for custody, the court always considers the behavior of the parties in making those decisions. At one time, there was a strong presumption favoring the mother when it came to awarding what is known as managing conservatorship (generally, the day-to-day custody) and leaving the father with possessory conservatorship (visitation). Again, I don't practice in that area, but I've read and heard that the presumption is starting to fade -- that more and more courts are actually considering the father's interests in being the managing conservator, even in no fault cases.
For whatever it's worth, Texas also, generally, prohibits courts from awarding alimony in a divorce. The logic is that an even division of the marital estate puts the parties on relatively equal footing and it would be punishment to require one to pay alimony to the other. There's nothing, though, that prohibits parties from entering into a contract to divide their marital estate and provide for some sort of alimony-type payment. The only post-divorce payments that Texas law calls for are child support payments, but those payments are generally defined by statute.
Ultimately, though, what the court does in dividing the estate and awarding custody and assessing the amount of child support is a discretionary call and will generally be upheld by appellate courts unless there is something horribly wrong with the determination.
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