My children's rights

Is now a good time to politely point out that the original poster is not a resident of Texas, but of New York? She isn't subject to Texas residency laws. You may want to check New York Civil Practice Law and Rules, which according to her original post, have applied to her for at least one year. Civil Practice Law and Rules 302(b) allows the court to grant a divorce even if only one party resides in New York. Residency is defined in Section 230; 2 years is the minimum. She is the one considering filing the legal action and as such, the laws of her state apply.

In New York, generally all property acquired during the marriage is marital property. Marital property can consist of a home that was purchased with either joint or separate earnings during the marriage. The physical location of the marital property isn't relevant. (Separate property is defined under Section 236.B.1.d.) Section 236 B.5.c. and 236 B.5.d also outline what the courts take into consideration while dividing martial property under "equitable distribution", not community property. New York is not a community property state, as Texas is. Military pension benefits are covered under The federal Uniformed Services Former Spouses Protection Act (USFSPA).

Marital misconduct isn't taken into consideration in the division of marital property under Section 236 B.5.c. Many people expect that the court will find some way to punish the behavior of the spouse who broke society's rules. However, this usually doesn't happen. In most states, the courts view divorce solely as an economic transaction. Any betrayals or abuse a spouse commits typically do not change the property settlement or spousal maintenance amount. (This doesn't include child abuse, of course.) New York also participates in the Uniform Custody Act (observed by several other states) when it comes to custody decisions.

If your name is on a credit card (for example,) you are still legally liable to pay the debt. That applies nationwide. The court may decide that the debt is your spouse's separate liability, but that only settles matters between you and your spouse. If you pay the debt, your spouse will have to reimburse you, if that's what your settlement agreement stipulates. But as far as you and your credit card company are concerned, you are still on the hook. Be extremely careful about that one in particular. The creditor is legally entitled to collect the debt from the person who signed the contract. New York residents are not exempt, nor are the members of the armed forces or their dependants.

Regardless of where you live and if you have any doubts about this, call your own credit card company (or any other monthly bill, for that matter) and ask.

That's not quite correct either. In any action, including divorce, a court will not have personal jurisdiction over the defendant (and his property) unless the defendant has the necessary minimal contacts with that state (that's not just state law, but required by the Supreme Court).

I did make an assumption that may not be true, however: I assumed the original poster's husband does not have minimal contacts with NY (such as owning property there, etc).

It's true that if the original poster meets the residency requirement in NY, the court will have subject matter jurisdiction over the action, and thus, can grant a divorce. However, without meeting the requirements of the long arm statute, the court will not be able to touch the husband's property located out of state.

An excellent example where it is advisable to listen and learn. I appreciate the clarification and have learned from it, although I see many admittedly "gray" areas. Many thanks.

It's pretty obvious that both parties need to come to terms and have a mutually-beneficial property settlement agreement drawn up for both parties to avoid court intervention...and have it recorded immediately. The poster will have access to a qualified legal counsel if her husband is still in the military; they are available at her nearest military installation and an excellent place to begin, as they obviously network throughout the country. Rather a handy solution in my opinion .. both are obviously versed in their particular state's laws...and both do have "long arm jurisdiction." I would also assume a qualified divorce attorney in either location would know whether or not these states reciprocate and cooperate with each other. If she doesn't have access to the military outlets (which would of course be a bit easier to manage financially), a quick call to a local divorce attorney would answer that. You're right..she would appear to meet Texas requirements in that it appears from her post that Texas was the last state she co-habitated in her marriage, even if it's been longer than 2 yrs since she started any proceedings. (New York's long arm laws specify only real property located in New York.) Since she's currently a NY resident, I believe that's her first place to start asking questions (outside of the military.)

At this point, she isn't indicating she's seeking a divorce, but is considering a legal separation and hopefully, a marital property settlement agreement that both she and her husband mutually work out (with their prospective legal counsel.) As long as all parties (and the courts agree,) that document will hold, even through formal divorce proceedings and with any luck, neither of them will have to suffer through expensive, multi-state arguments or disputes.

Any divorce attorney, regardless of location, would jump at an opportunity like that.

In any case where joint collateral has been used to secure financing, the creditor is well within their rights to attach a lien against the collateral in an attempt to collect their debt. Simply put, if this poster's husband has already used their joint marital home to get a loan, and if he doesn't pay his loan, that creditor can attach a sizeable lien on the house (depending on how much was borrowed.) She of course then becomes liable for repayment indirectly..the lien must be satisfied before the property can be sold or otherwise transferred. This has nothing to do with community property states..it can be done anywhere in the country where someone has used joint real property to secure a loan. That's the only likely scenario where this poster's husband's bills can become a problem for her. In most cases, any creditors he has do not have legal action to pursue her. (We are basically saying the same thing, with clarification.)

She may bring a divorce action in Texas because her husband, the defendant, is domiciled there. Where they last resided together is irrelevant.

§ 6.302. SUIT FOR DIVORCE BY NONRESIDENT SPOUSE.
If one spouse has been a domiciliary of this state for at least the last
six months, a spouse domiciled in another state or nation may file a
suit for divorce in the county in which the domiciliary spouse
resides at the time the petition is filed.

When a loan is secured with collateral, a lien exists. A lien is not something that a secured creditor obtains after the default of a loan. Indeed, if he has no lien, the creditor is not secured.

Also, while Texas does not adhere to this rule, states that recognize a tenancy by the entirety (over half do) generally will not allow just one spouse to encumber such property with a lien -- both spouses must agree.

What's legal and what can be done by unscrupulous lenders can be 2 completely different issues, especially with anti-predatory lending laws only now making their presence felt in the Southwest. Unfortunately, that's just a fact of life. Hopefully she'll protect herself with a recorded marital property settlement agreement which among other issues, clearly specifies which party is responsible for each particular debt and which clearly holds the other harmless from the payment or responsibility. If it's a very good agreement, it'll also hold her harmless from any mechanics' (or any other type of liens) placed on any joint marital real property without her knowledge until final disposition of the property. It's not a guarantee but it is a valid document. Not even a final recorded divorce decree legally releases her of joint signed credit obligations, which was only one of her concerns. While it can help in some cases to obtain new credit, the only real way of protecting herself in that case is to have each debt refinanced or otherwise legally transferred out of her name. If both parties can agree on the disposition of marital assets and property as well, most courts will accept it, as long as it represents an equitable and economically fair division. The courts will also accept it in regards to custody and child support, with review, another of her concerns.
For someone who has already stated she's not contemplating divorce at this point, and has already been separated for 3 years, a legal separation agreement with a marital property settlement is really the only way to help legally resolve (some of) her concerns. At the very least, hopefully it'll get the wrangling, rheotoric and legal interpretations over with should she eventually decide on filing for divorce. And with a good attorney, it will both address and comply with both state statutes.

She said she wasn't contemplating divorce? I thought she said,

"I never said I don't want to divose (sic) him, I know I have to, he keeps telling me he's very sorry and wants to be with me and he only has 1 year and he'll be home with me, I admit I wanted <past tense> to save my marriage for my children's sake, but now I know divorse (sic) is the only way."

That's precisely why I explained to her that her marriage IS over in every possible way---she has nothing more than a piece of paper. He is gone, playing house half a continent away with a new honey and more kids. To think there is a marriage there TO save is misguided and naive. I also encouraged her to expect better for herself and her children than a man who sets a dishonorable and untruthful example. "Saving" a relationship ( and I use the term loosely) with a dishonorable, untrustworthy loser is never advisable. "For the sake of the kids"? Surely you jest. How are the kids benefited with promises made by a man who has no intent or inclination to keep them, and if perchance he actually DOES "come home", what about the OTHER children that have grown accustomed to his place in their life? Or worse yet, he comes "home" with promises of fidelity he can never keep and leaves AGAIN? Any way---children suffer. To take a man like this "back" is nothing more than a demonstration of the mothers selfishness and insecurity, assuming she cannot make it on her own, or believing she cannot do better for herself and her children. Take him back if she wishes, but don't delude yourself into thinking it's "for the children". The best predictor of future behavior is past behavior. To ignore this reality is inviting heartache and grief into her life, and the lives of impressionable children.

No, sometimes having "daddy" ( or mommy, as the case can be, too) "gone" is the BEST thing, not the worst.

But, then again, perhaps I misunderstood her statement, "I know divorse (sic) is the only way."

The poster's final message indicated otherwise. My own statements have never recommended she either reconcile or divorce, but to seek an alternative with legal counsel to settle some of the questions obviously of concern to her.

Talk about beating this to death....

I have the best advice. Go speak to an attorney.

Thank you. That's what I've been suggesting all along.