Let's say you split up from your spouse and move to another state. When it comes time to divorce, do you know where to file? It can make a huge difference in the outcome, says Arizona family law attorney Billie Tarascio of Modern Law, and Texas family law attorney Brian Walters of Walters Gilbreath PLLC.
In this episode, you'll learn the sort of differences that can change the way the court will split up assets and whether you'll be eligible to receive spousal support (alimony). For instance, Texas says NO to spousal support, but may split up property differently than a community property state like Arizona, or California. It's also possible to take child custody issues to court in one state, while dealing with divorce and property issues in another.
How do you know which is best for you? Listen in for an illuminating conversation, and something that may change how and where you choose to divorce.
Let's say you split up from your spouse and move to another state. When it comes time to divorce, do you know where to file? It can make a huge difference in the outcome, says Arizona family law attorney Billie Tarascio of Modern Law, and Texas family law attorney Brian Walters of Walters Gilbreath PLLC.
In this episode, you'll learn the sort of differences that can change the way the court will split up assets and whether you'll be eligible to receive spousal support (alimony). For instance, Texas says NO to spousal support, but may split up property differently than a community property state like Arizona, or California. It's also possible to take child custody issues to court in one state, while dealing with divorce and property issues in another.
How do you know which is best for you? Listen in for an illuminating conversation, and something that may change how and where you choose to divorce.
Brian Walters Podcast
Billie Tarascio: [00:00:00] Hi, there it's Billie Tarascio from the modern divorce podcast. And today we are co-hosting and co interviewing with my friend, fellow attorney, Texas family law attorney Brian Walter is Brian. Welcome to the show. Do you want to introduce your podcast?
Brian Walter: [00:00:45] Yeah, thanks for, with the Texas family law podcast and my partner, Jake Gilbreath and family and divorce lawyers based in Dallas, Houston, and Austin.
And I'm happy to talk about this with you.
Billie Tarascio: [00:00:59] Fantastic. This is going to be a great topic today. We're going to talk about what happens when , families are divided in summer in Arizona and summer in Texas, and just how different the laws are and what that can mean for your case. So, Brian, why don't you describe what, what might typically happen in that scenario?
Brian Walter: [00:01:18] Yeah, let's pick a hypothetical with a married couple that married say 15 years, they've got a 10 and a five-year-old. They've been beat up in Phoenix for most of their life. And, the husband gets a, uh, job, uh, in Dallas and they decide he's going to kind of work remote for a couple of years, rather than uprooting the family and then come back, maybe the American airlines or something like that.
And, and so. Let's assume the husband's has been out there for a year and a half out of that time period, where mom and the kids have stayed in, Phoenix and things go South for whatever reason. And, suddenly they're in our respective offices, I'm talking to the husband and you're talking to the wife.
so yeah, and in our world, this is increasingly, this kind of thing is increasingly common. we get these kinds of situations all the time and it's, some big differences between our States. I think we'll discover in some things that aren't so different.
Billie Tarascio: [00:02:11] I love it. So this couple has had a big fight this weekend.
The first question I've got for you is, does it matter. If the husband's talking to you first, or if the wife's talking to me first, does it matter if somebody is filed?
Brian Walter: [00:02:25] Right. I think the talking part is just, it doesn't matter. You can, you know, it's, it's good to be informed and I have plenty of people I'm sure you do too, that come in and talk and you never hear from them again. Or you don't hear from them for five years or something. Cause there, they had a fight, like you said, and then they kind of decided they would go, okay, I'll make it work. but it does matter where you file and um, and who files first can make a big difference.
and I think we, this is where we kind of divide the world into. The child part of the case. and then the, the divorce or property part, because they're very different rules for those two things. so do you want to talk about the most important part that the kids step first?
Billie Tarascio: [00:03:01] Yeah. Well, the kids set this clear.
So the interesting thing about divorce is that Arizona has jurisdiction over divorce as long as someone's lived here for 90 days. And even if somebody hasn't lived here in 90 days, If they've been here for any amount of time, we can file for a legal separation and then convert it to a divorce. And that would give our state jurisdiction over the divorce.
now what about you? What are the residency requirements to file?
Brian Walter: [00:03:25] Good question. It's six months and, and, and we do not have legal separation. I think Texas is the only state that does not from what I understand. And so. It's all or nothing. You either file for divorce or not, but it is a strict six month rule.
and so in that particular case, For whatever reason, if somebody, if they both moved from New York and one moved to Dallas and one moved to Arizona, it sounds like much more quickly the Arizona resident could get into court if they needed to, as it relates to the divorce.
Billie Tarascio: [00:03:53] Yes. And so in Arizona, we could absolutely file for divorce.
We could also file. We would also have jurisdiction. Over the children, because this is where the UCC JEA comes into play. This is the statute that's been adopted by all 50 States that determines that only one state can really properly have jurisdiction. So while Texas and Arizona might both have jurisdiction over the divorce, only one can have jurisdiction over the kids.
Brian Walter: [00:04:17] Right. Which is really interesting because you can have two cases going on at the same time. And the divorce in Texas, let's say, and the, and the kids stuff , in Arizona, um, it's even more confusing when you file for divorce in Texas, under this scenario, you still have to list your kids as part of it, but then you need to kind of basically say, well, the case doesn't really belong here, but, it belongs to the kid part of the case belongs over in, in Arizona.
Billie Tarascio: [00:04:41] Now, most lawyers don't even think about why it might be a good idea. To divide your case. It might be in your best interest to have the property piece heard in a different state, even if it means having two cases. And that's why I think this discussion is so interesting.
Brian Walter: [00:04:56] I agree with you. And, there's, there's even a question I think about whether which state would determine child support, in the child part of the case, because this UCCJ is, as it relates to charter custody jurisdiction, not necessarily. There's a different statute for, for child support. Let's put that aside.
I don't want to get too much into the weeds, but I agree with you. There, there can be enormous differences. Again, our state Texas has got some really, unusual rules and, and, it relates to the other States and they're normal for us. We don't have to think about it. But when I started talking to lawyers out of state, they looked.
They look at me like I'm from a different planet, which I guess some people might consider Texas to be a different planet, but, yeah, there are real differences. And maybe we could talk about that if, um, maybe this scenario is the dad is working and the mom is a stay at home. Mom. They've. you know, he earns a six figure income and she used to be a nurse, but then stop working to raise the kids, you know, 10 years ago.
and they've acquired, let's say, you know, two or $3 million worth of assets. They've got a nice house in Phoenix or Scottsdale or something, and they've got her, he's got a retirement. Um, and so. That's the scenario where I suspect we're going to find there's some real big differences. There, probably a lot of cases where if the parties are both working and they make about the same income and they don't really have assets, it's probably not a big deal, but there, but I think the one I've laid out is going to be significant.
So first of all, are you guys a community property state? They're in Arizona. Okay. So are we, so that at least we're on the same basic. Page there. Do you want to explain a little bit what that, what that means?
Billie Tarascio: [00:06:32] So community property is this concept of, the community is created as its own entity, sort of how you think of, companies having their own status.
The community has its own status. And so any actions that either the husband or the wife takes on behalf of the community can bind to the community. Basically, what that means is that all the debts will be divided or both of are responsible for all the debts. And both of you are responsible for all of the money, no matter who actually did what to contribute.
Brian Walter: [00:07:01] Right. So you can't, if you're the high wage earner and you're getting divorced, he can't say, give me all that money back because I'm going to want to work and you didn't work. It's all all going to be shared in some manner, correct?
Billie Tarascio: [00:07:12] Yeah, there's a pot and it's going to get divided. So what does Texas do that's wonky?
Brian Walter: [00:07:17] So, well, let me ask you a couple things. So first of all, cause I know this from California, California divides that community property. As I understand it by statute right down the middle, um, you know, it's always complicated, but it basically it's, it would be divided 50 50, where a Texas can and frequently does divide it. 55 45 or 60, 40, even, even 70 30, depending on the situation. Um, it's a lot that goes into that too. But, um, so it's not a straight up even division of that community or where, where do you guys stand on that?
Billie Tarascio: [00:07:50] So our statute says that all, community property will be equitably divided. This the case law goes on to, define further that equitably is equal, unless there's a good reason for equal not to be equitable.
So for instance, let's say this couple had a lot of debt it's unlikely, but let's say they did. I might argue that an equitable division would give my client more of the community property because she has less available income to pay half of the debt.
Brian Walter: [00:08:25] I see. Yeah. And we, you, you could make the same arguments here.
We also have some, kind of good and bad behavior arguments. Um, and so we do get into things like whose cruel treatments, family violence, adult tree. Those are the kinds of things that it could affect. The division of property. And so, we still have the, we still have some of that here.
Billie Tarascio: [00:08:47] Well, that is, that is different.
Brian Walter: [00:08:50] So for some interesting cases, I can assure you. so there's that, and I think probably the other significant, Aspect of this as alimony, which does not exist in Texas period, we a few years ago had a have a statute called spousal maintenance. That's really limited, probably less than 1% of all cases.
I've only litigated two cases in my entire career where it was awarded in even in, for a very short period of time. it's just not a thing. and that is, I suspect a real big difference between our two States, especially when you have the kind of extreme income disparity that we've talked about in this scenario.
Billie Tarascio: [00:09:30] Absolutely. That's mind blowing. There's no spousal maintenance, there's no alimony. So we call it alimony or spousal maintenance here. but it's what you think of as alimony. So, okay. So I can understand how, if there's no alimony in this case is in Texas. We're going to ask for a lot more than half of the con of the community property, because my client hasn't worked in 10 years.
Brian Walter: [00:09:52] Right. And that's, and that's a reason the court could make an, a hugest state. If you had a $10 million estate and, and the wife got 60, 40 on a 20% swing. So that's $2 million. You know, maybe those, those cases would come out to be pretty similar. I had one like that about 10 years ago, there was just enough there that it was California, Texas.
And it just didn't really matter because California had the divided 50, 50 in Texas was going to give her a big chunk of extra. And it was probably about a wash, but in the snare, but most people don't have $10 million. And so. It's a big difference. And, yeah, I, I think that in that particular case, I think you would probably advise your client to the wife and in this case, um, to probably really seriously consider how you really should consider filing in Arizona.
Because if this case ends up in Texas, you're not going to get anything or not an alimony, at least on the spousal maintenance are highly unlikely to get it. And that could be. A real big number. Um, give us a sense on the scenario that we talked about, what, uh, what, uh, let's say a $250,000 a year for the husband and nothing for the wife 15 year marriage, is there kind of a rough estimate of what that would be?
Billie Tarascio: [00:11:08] So Arizona definitely is following the trend towards Texas. I wouldn't say that we're looking at eliminating spousal maintenance, but in general awards are getting. Smaller and shorter, especially on something like a 15 year marriage where my client is a nurse and has worked and probably will be able to support herself in a few short years.
I would imagine that she would probably get anywhere between. I'm going to go with a bigger range, maybe between two and six years of spousal maintenance. And maybe if it was six, it would probably be a descending amount. So she might get a good amount and by a good amount, I mean, if she was going to go in front of a judge, maybe.
Three to 4,500, 3000 to 4,500 a month for the next several years, um, to give her time to, uh, become self-sufficient get herself, you know, the license that she needed to work again as a nurse and, and make that right. Another real opportunity here for her would be to ask for a large upward deviation of child support.
Because that is less discretionary in Arizona than, spousal maintenance. There's a formula from the Steve Nash case, and it's very rarely pled correctly or litigated correctly by attorneys, but it's not really discretionary. If you can prove how much money was spent on the kids during the marriage, then you can get that amount of child support.
Brian Walter: [00:12:34] Interesting. Um, and that's the basketball player I'm assuming, or that's Steve Nash. Okay. Interesting. Um, yeah, and that's, and that's interesting because we really divide. We don't really impacted by statute. We don't consider child support as anything to do with the property division. And, and this is another example of, and I mentioned it briefly that there might be a difference about where the child support is calculated.
But Texas has capped. And essentially whether you're Steve Nash or, um, Luca Doncic or whatever, whatever other basketball or you want to mention, they're gonna pay for one, if they one kid they're going to pay about $1,800 a month in child support period, even if they're a billionaire. Um, so, and now there's a, there's a very difficult way to get above that.
Basically, if you have a disabled child only, and that's, and that's defined very strictly. So, yeah. And it doesn't matter what you spend on the kids. Um, it really doesn't, um, even private schools and you know, that that's where they've been going, well, maybe they're not going to private school anymore. So it's like I said, it's a considerable, considerable difference.
whatever, you know, whatever, whatever the reason was that's those are the way the laws are. Sure.
Billie Tarascio: [00:13:50] So how does it work when you've got someone who's unable to support themselves or let's say, you know, I've got a case right now that is not a 15 year marriage. It's a 30 year marriage, 30 five-year marriage wife worked for two years, you know, back in 1980.
he makes a good amount of money and she's probably going to get a good amount of maintenance. So in that case, what would happen realistically to the wife?
Brian Walter: [00:14:14] I mean, that's a, that's a case where maybe this statute would kick in for her. maybe, and, but even then it will be short and it will not be that long.
I mean, we're talking, you know, a couple of thousand bucks a month for maybe 18 months or something like that, but basically they make the laws. I think the philosophy is you're not married anymore. Go, you know, go on with your life and, whether, you know, and figure it out. Um, that's essentially what it is.
And, You know, again, if there's a substantial community estate, the court can do something to try to rectify that a little bit. but it's, uh, that's, that's the view is you're not married and you don't have a claim on each other's income going forward for, for the most part, either direction, other than child support.
And that's related to a child about the marriage.
Billie Tarascio: [00:15:01] Yes. Is that making a difference in the way people behave while they're married? Are people less likely to make the decision that one party should stay home and support and you know, and sacrifice a career on behalf of children?
Brian Walter: [00:15:16] I don't, I don't know if there's an empirical evidence of that.
I mean the marriage rates in Texas are, are I think at or above the, the national average. you know, I think it's, you know, staying home with the kids is more of an economic decision than a, than it is anything. And of course, you know how this is, nobody gets married thinking they're going to get divorced.
And divorce is generally not a, the decision to get divorced. It's certainly not an economic decision of, you know, I'm going to. Be 20% better off financially. If I get divorced, it's usually emotionally, mostly an emotional component of it. Although when it comes time to divide things, all, you know, that's what you divide as money.
So, it, it is a, you know, it is a risky situation, I think for some stay-at-home moms to take that. I think also the statistics are that most people remarry, within five years of being divorced, that's just a that's. The, the law that's the the statistics, I think in every state. And maybe that's the way some people deal with it as well.
You know, I'll make it for a few years. I'll find somebody better than my husband and, get on with it, but it certainly can, can make that transition difficult. And, I think, uh, I, I would, I would definitely advise a client about those differences in this scenario that we gave.
Billie Tarascio: [00:16:30] In the scenario that we gave, I think you said there was two to $3 million, let's say there's $3 million in net worth.
if they were divorced in Texas, no alimony, how much of the property would my client get?
Brian Walter: [00:16:43] I think in that scenario, assuming there was no outrageous behavior between the spouses, I think at least 55%, maybe even 60%. So. You know, if that's a 20% swing, you know, that that's $1.8 million instead of 1.5.
so, you know, it's a $300,000 depending on the type of the asset, probably tax-free. you know, and I guess if you did the math on that over five years of alimony, that's 60 months divided by 300,005,000 a month. And so maybe you're getting to the same. Similar numbers. but again, that's because they have a substantial net worth.
And if you don't, it's a very, very, if you're some of those folks who kind of spend the money as it comes in and you come out of a 15 year marriage with little or no assets, it's, it's going to be a stark difference. Now I will say that there's a. There's a bit of a tweak, which is since we don't have spouse and this may explain why we don't have alimony since we don't have legal separation, all that time period where you're going from the time you filed till you get divorced, which could be a year or 18 months in a contested case.
you're still. Gathering the community money together, and you have an obligation to support each other. So in a, in a scenario where a case drags out 18 months in that case, the, spouse who's not working would have 18 months, basically of really half of the, again, not some smaller percentage of it.
And that is a time period where they would have a chance to realize that and to start making adjustments to, to go forward. but it's definitely a lifestyle change much. It sounds much more dramatic than, than what they would face in, Arizona.
Billie Tarascio: [00:18:17] I don't know that my client would get $300,000 of spousal maintenance in Arizona.
So it's, it's an interesting thing to, to really think about and to analyze. And I think it should be analyzed on a case by case basis. And I think if you do have the option of filing in one state or another, it's probably a good idea to talk to both me and Brian and maybe even have Brian. And I talked to each other to figure out what is the best thing for this client to do.
can I ask another question?
Brian Walter: [00:18:45] Yes, of course.
Billie Tarascio: [00:18:46] So what if, what if your client is, having an affair with, with the flight attendant? How does that affect our property division?
Brian Walter: [00:18:55] So in Texas, that that would probably weigh against him. if that was sort of the cause of the, breakup of the marriage.
and so, you know, you combine that with, the disparity earning capacity, now you might be looking at 65% or something along those lines, toward the wife. And so that, that can have a significant effect on things. I, uh, and you know, that used to be difficult to prove, not anymore.
As long as I have access to someone's phone, I can tell you exactly what they've been doing and with who,
Billie Tarascio: [00:19:26] so can you get access to people's phones?
Brian Walter: [00:19:29] Absolutely would just subpoena it and, um, no questions, no problems, computers, phones, DMS, you name it. It's all. It's all coming in because it's relevant and,
Billie Tarascio: [00:19:41] is Texas a no fault divorce state?
Brian Walter: [00:19:44] So there isn't no what's called in supportability, which is no fault. And that even where there's been. Adultery or grill treatment or something like that. Almost all of them still have written down in the divorce document is in supportability. People will kind of pay a premium to not have that, you know, on a, on a public document or for their kids to see.
So, um, yeah, it's, uh, it's that's 99% of them are granted on that basis, even though there's often been some. Some stepping out of the marriage is in a later stage of his stages of it or something like that.
Billie Tarascio: [00:20:20] So it's not really no fault. I mean, we care in Texas. If you've been cruel, if you've been a jerk, if you've withheld money, if you've, you know, been mean to the kids, what counts is, is a, is a, uh, recording, screaming at your spouse.
Is that going to be admissible and, and results in money?
Brian Walter: [00:20:39] It might. And then. Type of things you need to think about those bad facts hanging out there. You probably need to settle your case and it's probably going to cost you. so I know a lot of other States, it sounds like Arizona is kind of the same way of moving beyond, you know, it just didn't work out.
Let's not get into the gory details, but we're all over the gory details all the time we subpoena and take depositions of the girlfriends and boyfriends and ask them about. All kinds of highly personal things that he wants to talk about. And, uh, where did it happen? What position? I mean, it's all, you know, it's, it's sort of like the Jerry Springer show sometimes here.
It's pretty interesting. The other, the other interesting thing about our state, which is that juries are allowed to make these decisions about custody, about whether someone committed adultery or not. I've got a jury trial set in three weeks for. Asking a jury to value an asset. we're going to have experts come in and talk about it.
And then they're going to tell us what it's worth, because they can't agree on what it's worth it's. So we are the only state, as I understand that does that, and gives those SRE those rights to 12 of our citizens. And instead of a judge sitting up somewhere to do it, which is, Quite quite the thing, especially in these COVID times, it's been particularly, uh, particularly interesting to try this.
Billie Tarascio: [00:21:52] Okay. How often are divorced cases heard by a jury?
Brian Walter: [00:21:57] It's pretty rare because of the, because of the cost. I mean it triples probably the trial costs and, you know, and it makes them twice as long and there's just so much more so it's way under 1% of all trials are, are that way. it's generally a case only where there's a lot of, a lot of high stakes and people willing to pay for it.
And there's often an emotional component to it. So it's still pretty rare. we try a bunch of them for whatever reason, but it's still pretty rare. I'm I've got. Three scheduled for the next three months. We'll see how many of them actually happen, but that's, what's on my docket. So the dockets are starting to come back to life.
Now, so starting to reach somewhat returned to normal in our court system.
Billie Tarascio: [00:22:41] That's fantastic. And to me it sounds like kind of a blast.
Brian Walter: [00:22:46] Well, it is. And if you're good at it in my, in my law partner in particular is really, really good at it. Juries. And, and he, you know, it, it's very intimidating for other lawyers.
It's really difficult. And, so if you're confident about it, it's really an advantage. Um, like, all right, sure. We'll try it to a jury. And the other side is thinking that's not such a great. Plan. And, um, it's a great way to extract, uh, extract a better settlement if that's what happens, because that's what happens in probably you guys are the same way.
99% of them are still gonna settle. 90, 98, 99% are gonna settle without a full blown trial. At the end of things, it's just, just predictable and not worth, not worth the cost or the stress or the headache or the risk.
Billie Tarascio: [00:23:29] Well, Brian, this has been a fantastic conversation, much more interesting than a former conversation I had about Florida and Arizona, Texas sounds like a fantastic place to practice law and a terrible place to get divorced
well, it
Brian Walter: [00:23:43] depends on which side of the divorce you're on it.
Billie Tarascio: [00:23:46] It does depend in this case. You, you may, you know, based on my side, I don't want her going there, but, um, yeah, it must be great. So thank you so much for your time today. It's been, it's been a lot of fun.
Brian Walter: [00:23:57] Okay you have a good day.
Billie Tarascio: [00:23:58] You too.