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What is a Divorce Decree?

Posted on March 26th, 2014 by The Red Headed Lawyer

A divorce decree, also know as the final decree of divorce, is a formal document granted by the court and signed by a judge (and the parties to the suit), that legally terminates a marriage. The divorce decree is stored in the vital records office of the county courthouse.  Additional copies are available to each spouse for a small fee charged by the county. Details pertaining to spousal maintenance (alimony), property division, child custody, and child support are typically contained in the divorce decree.

Property Division

In a divorce, the court has authority over the community property (property acquired by the spouses during the marriage which was not a gift or was not inherited). This applies no matter which spouse’s name is on the title.  Property accrued during the marriage is presumed to be community property.  Property acquired prior to the marriage or by gift or descent is separate property. However, it is the burden of the spouse claiming separate property to prove how it was acquired.  This usually requires documentation; testimony is not considered sufficient to prove separate property.  The court’s objective is to divide the property in a way that is “just and fair.” While often this is a 50-50 division of the community property, the judge is not bound to make it 50-50 as long as the division can be considered “just and right.” It is important to remember, especially when the divorce decree results from an agreement, that property divisions are “set in stone.”  Once the divorce has been granted and the statutory 30-day waiting period for filing for a new trial has passed, it is extremely difficult to get the court to change a property division, absent fraud which can be proved.  I frequently have people in my office who have been divorced a year or two and have realized they made a mistake in agreeing to a property division.  Perhaps they didn’t feel they could afford a lawyer and made the agreement without a lawyer. Perhaps they simply wanted to get an agreement and move on.  I make it a point to make sure my clients understand (1) what they are agreeing to and (2) the ramifications of the agreement.  As part of that analysis, my paralegal prepares a spreadsheet so that the client can see in numbers what percentage of the community property he or she is agreeing to.  Often, this is eye-opening and my client will not agree to what he or she previously considered “fair.”

Child Custody

In many divorces, the parents of the children involved will reach a custody agreement before coming to court. After an agreement is made, it will be entered into the divorce decree. In situations in which an agreement cannot be made, the court will decide on who will have custody of the children based on many factors which fall under the heading of “best interest of the child.”  There is a long laundry list of what constitutes “best interest.”  The analysis is too much for these few paragraphs.  The most important thing to remember is that in a Texas divorce decree, whether the judge made the order or there was an agreement, it becomes the rulebook for what happens to the children until they turn 18. You must read your divorce decree page by page and understand every page if you have children.  As with property division, I discuss each provision with my clients before I ask them to sign.  Children’s provisions are lengthy and complicated in divorce decrees, but very few things are as important to a parent as these provisions.  If you don’t understand, ask.  Don’t assume because your lawyer put it there it’s ok to go ahead and sign it and deal with any problems later.

Child Support

After child custody is decided upon, the courts will come to a decision on the amount of child support the non-custodial parent will pay the “primary parent”. Although theoretically the amount can vary from situation to situation depending on the needs of the child and other factors, the reality in Texas is that the judges base child support on the formula which Texas has decided is in the best interest of the children.  Although the percentage per child is easy to determine – 20% for one child, 25% for two, etc., the use of the formula is more complex.  To begin with, you must have the formula for the year in which you are calculating child support.  The Attorney General publishes the formula each year.  It involves beginning with the gross income from all sources for the paying parent (the custodial parent’s income is not factored in), subtracting those items which the legislature says can be subtracted, and coming up with a net income.  This is based on the formula, not what is on the actual paycheck.  Although in theory judges can vary from the formula, the fact is that they do not.  In 29 years of practicing law, I have seen only one occasion where the judge varied from the formula.  Judges can be required to explain in writing if they vary from the child support guidelines, and it’s been my experience that that is something judges do not want to do.

Receiving a divorce decree is the final step in what can be a long and grueling experience. Having a knowledgeable and experienced divorce attorney in Spring, TX can help alleviate some of the stress associated with the process, and assure that you understand each part of one of the most important documents of your life.