Divorce can be a financially stressful process, and one of the most common questions people have is: who should pay for what? From legal fees to spousal support and the division of assets, knowing who is responsible for paying certain costs during a divorce can help ease some of the uncertainty.
There are several factors that affect financial obligations during a divorce, but many costs ultimately depend on individual circumstances, including the parties’ financial situations, the terms of the divorce agreement (or lack thereof), and the nature of the divorce itself. Here's a breakdown of common costs and who typically pays for them in a Texas divorce.
1. Attorney’s Fees
In most cases, each party is responsible for hiring and paying their own attorney. However, in some circumstances, the court may order one spouse to pay the other spouse’s attorney fees if there is a significant imbalance in financial resources or if there was some wrongdoing on the part of the party ordered to pay.
Factors influencing who pays attorney’s fees:
• Income disparity: If one spouse has a much higher income or greater financial resources than the other, the court may order the higher-earning spouse to pay the other spouse’s legal fees. This is especially true if one spouse is financially disadvantaged and unable to afford legal representation.
• Misconduct: If one spouse engages in bad-faith behavior, such as hiding assets or being uncooperative, the court might order that spouse to pay the other party’s attorney fees as a penalty. This usually occurs when one party is being uncooperative in discovery and the other must bring a motion to compel the other to respond to discovery requests; in such a case, attorney’s fees relating to the motion to compel may be recovered.
2. Court Costs and Fees
Court costs can add up quickly during a divorce, including filing fees, fees for serving papers, and charges for any expert witnesses or financial professionals brought in to assess the division of assets. In most cases, each party is responsible for paying their own portion of court fees.
3. Spousal Maintenance
Texas law allows for spousal maintenance in certain situations, but it’s not automatically awarded in every divorce. In fact, it is more the exception than the rule. The court will only grant spousal support if certain conditions are met, such as long marriages and one spouse’s inability to support themselves.
Who pays spousal maintenance:
• If the court finds that one spouse is entitled to maintenance, the higher-earning spouse is typically required to pay. The amount and duration depend on the specifics of the case, but the support is usually temporary, lasting for a few months to several years.
• In Texas, the amount of spousal maintenance is capped by law. The monthly support cannot exceed $5,000 or 20% of the paying spouse’s average monthly gross income, whichever is lower.
4. Child Support
Texas has specific guidelines for determining child support payments, which are calculated based on the paying parent's income and the number of children involved.
Who pays child support:
• The non-custodial parent, or the parent who does not have the right to designate the child’s primary residence, is typically responsible for paying child support. Texas uses a formula based on the paying parent’s net resources to calculate the amount.
• The amount of child support may be adjusted for specific situations such as the paying parent having other children or special needs of the child.
• Payments are typically made directly to the Texas Child Support Disbursement Unit, which ensures the funds go to the custodial parent.
For a calculation of your child support obligation, click here.
5. Division of Assets and Debts
Texas is a community property state, which means that most assets and debts acquired during the marriage are presumed owned by both spouses, unless there is a valid prenuptial or postnuptial agreement in place that dictates otherwise. Such property is distributed in a just and right division, usually near a 50/50 split between the spouses absent clear fault in the breakup of the marriage such as adultery or abuse, in which case the victimized spouse might get a disproportionate share of the community estate.
Who gets what:
• Community property: All property, assets, and debts acquired during the marriage (except for gifts or inheritances) are considered community property and should generally be split 50/50.
• Separate property: Any property that was owned by either spouse prior to the marriage, or acquired by gift or inheritance during the marriage, is considered separate property and is not subject to division.
• Debt division: Both spouses are generally responsible for any debts incurred during the marriage, whether it’s credit card debt, mortgages, or loans. Debts incurred specifically for an item awarded to a party, such as a particular vehicle or piece of real property that has a lien or mortgage still on it, are usually distributed to the party awarded that piece of property.
Conclusion
When it comes to who should pay for what during a divorce, there is no one-size-fits-all answer. Factors such as income, asset division, spousal maintenance, and child support all play a role in determining each party's financial obligations. While both spouses are generally responsible for their own legal fees and financial obligations, the court has discretion to shift some costs based on fairness, need, and the specific circumstances of the case. It’s important to note that the court strives to achieve a fair and equitable division of assets and responsibilities, not necessarily an equal one, particularly when the financial situations of the spouses are very different.
In the end, understanding the financial aspects of your divorce, including who will pay for what, can help reduce stress and bring more clarity to an otherwise challenging process.