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Knowing The Basics of Divorce
Family law is a complex practice area, regulated by rules that vary
slightly from state to state. In Texas, the Texas Family Code
governs and guides attorneys and their clients through the divorce
process.
Family law cases can be highly complex and involved. It also can be
the most emotionally charged area of the law to deal with because of
the difficult issues that must be addressed.
The procedures used in these cases are similar to other areas of the
law, but there are important differences. Family law, unlike many
types of litigation, goes directly to the issues that affect people
the most: money and children.
It is imperative to have the best legal representation available to
assist in navigating the treacherous waters of a divorce court.
There are three basic parts to the dissolution of marriage - the
divorce itself, the division of property and issues related to
children.
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The Divorce Itself
The court (usually a judge) enters an order that says the spouses are no longer legally married to each other.
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The Division of Property
The property owned by the spouses must be characterized, valued and divided.
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Issues Related to Children
If there are children, decisions must be made about whom they will live with, child support and the rights/duties each parent has to the children.
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If there are children,
decisions must be made about whom they will live with, child support
and the rights/duties each parent has to the children.
THE DIVORCE ITSELF
Whether or not the couple has children, the legal procedure for a
divorce is similar to the procedure for other lawsuits.
The first step should be to hire an attorney. Although, it is legal
to get a divorce without the assistance of an attorney, the process
will be incredibly difficult and it will be virtually impossible to
know if your rights are being protected. An attorney will be able to
guide you and make sure you have full knowledge about the applicable
statutes. But perhaps most importantly, an attorney will be able to
approach the issues objectively, without succumbing to the emotion
of the divorce.
Like many states, Texas has a no-fault divorce system, which
simplifies the divorce procedure. Under a no-fault system, the
spouse seeking the divorce merely files a petition with the court
saying that the marriage has failed due to conflict of
personalities, with no reasonable expectation of reconciliation.
Under a no-fault system, a divorce can be granted without either
spouse being forced to prove that the other was at fault in breaking
up the marriage.
That doesn't mean that fault is never considered.
A spouse may still note in the petition for divorce that the other
person was at fault in breaking up the marriage. If a court agrees
that one spouse's actions created fault, a bigger share of the
property may be awarded to the spouse who is not at fault. Under
Texas law, "fault" is defined as (1) adultery, (2) cruelty, (3)
conviction of a felony, (4) abandonment for at least a one-year
period, (5) living apart for at least three years, and/or (6)
confinement in a mental hospital.
THE DIVORCE PROCEEDING
There are four basic steps to a divorce proceeding:
FILING A DIVORCE PETITION
Any divorce, even one on friendly terms, must begin with the filing
of an "original petition for divorce" in a state district court.
Some counties, such as Harris and Fort Bend counties, have specialized
courts that deal only with family law matters, such as divorce.
Other counties send divorces through the same general district
courts used for all types of civil and criminal matters.
In order to file for divorce in Texas, one of the spouses must have
been a resident of the state for the six months prior to filing the
petition and a resident for the preceding 90 days in the county
where the suit is filed.
Most petitions include a request for a two-week temporary
restraining order (TRO). This freezes things as they are and
prevents one spouse from taking any action that harms the other.
The TRO prevents spouses from hiding money or spending money in
abnormal ways. It also prevents the interference of the use of the
marital residence. The restraining order cannot order that the party
be excluded from the home without special circumstances, and it
prevents the changing of locks or any other type of exclusionary
action.
Before the TRO expires, a judge will schedule a temporary orders
hearing to determine if the TRO needs to be made permanent while the
divorce goes forward. The judge will also make provisions for
temporary spousal support, temporary custody and possession
arrangements, temporary child support, temporary use of property and
payment of debts, and payment of interim attorney's fees and other
orders.
DISCOVERY
The next step in the divorce process is discovery. This procedure
allows both sides to determine the size of the community estate and
to learn the position the other party will take on certain issues.
Discovery can be written or oral.
Written Discovery
Request for Disclosure: These are standard questions that are asked
in every civil suit. Parties are required to identify persons with
information relevant to the case, identify expert witnesses, detail
the legal contentions and specify any economic damages.
Interrogatories: One of the most useful pretrial discovery methods,
interrogatories are a set of written questions sent to the opposing
party that require responses about relevant issues, such as the
location of bank accounts, balances in those accounts and signatory
privileges on the accounts. Although almost anything relevant to the
case can be asked, the total number of questions is limited to 25.
Request for Production of Documents: This discovery tool allows a
party to request copies of documents relevant to the issues in the
case. Just about any document can be requested. The most frequently
requested items are records reflecting bank accounts, 401(k) plans,
stock options, income, gifts to people other than the spouse, safe
deposit boxes, telephone records and insurance plans.
Request for Admission: These are statements that the opposing party
must either admit or deny. If they refuse, they must state a reason
why the statements can neither be admitted nor denied. The person
answering these requests will be stuck with the answers, and failure
to answer them will result in all of the requests being deemed
admitted.
Sworn Inventory and Appraisement: This type of discovery is unique
to divorce cases. It requires the answering party to list every
asset he or she knows about. It also requires the party to
characterize the assets as either separate property or community
property and to place a value on it. This document is signed under
oath, so a party who deliberately hides assets and keeps them off of
the inventory will be subject to punitive remedies from the court.
Oral Discovery
Oral discovery is in the form of depositions. These are pretrial
witness examinations taken under oath in front of a court reporter.
Any witness with information that will affect the case can be
deposed. Under Texas law, the deposition testimony can be presented
to the court as if the witness were testifying before the court.
The deposition is an incredibly useful tool because it locks the
witness into the testimony he or she will give. The witness cannot
come back later and change his or her story regarding a certain
event. If they do this, then the deposition can be used to challenge
their truthfulness as a witness.
TRIAL OR SETTLEMENT
Not all divorce cases go to trial. First, after pretrial discovery
is over, the spouses will probably be ordered to go into mediation.
Mediation is a procedure where the parties and their attorneys meet
with a neutral third-party (usually an experienced family lawyer) to
try and negotiate a settlement. The vast majority of all family law
cases are settled prior to trial.
If settlement is not possible, the case will go to a judge or jury.
Either party has the right to request a jury trial.
Texas is the only state that continues to allow jury trials to
determine child custody. A jury trial may also be held on other
issues, such as character and value of marital property. If a jury
is not requested or allowed, then the judge decides the contested
issues.
DIVORCE DECREE
After a decision is reached, whether by settlement or trial, a
divorce decree is entered. This is usually a lengthy document that
formalizes and finalizes all of the provisions of the divorce –
including issues of property division and child custody. The decree
must be drafted very carefully, because, once entered, this
agreement will become the rules by which you must live.
THE DIVISION OF PROPERTY
More than likely, each spouse entered into the marriage with
personal assets. Just as likely, once married, the spouses
accumulated joint assets including money, real estate, personal
property such as cars and investments, and even debt. How to
properly and fairly divided of this property can turn even the most
amicable divorce into a bitter battle.
Texas, along with California, Louisiana and a handful of other
states, use a "community property" system of property division,
which was derived from Spanish law. Other states follow an English
law tradition.
So what does it mean when we say Texas is a community property
state? It means that a court can divide the community property
between the spouses, but cannot divide separate property.
Separate property is something one person (1) owned before the
marriage; (2) initially received during the marriage by gift or
inheritance; or (3) in some circumstances, money received in a
personal injuries lawsuit during the marriage (except for lost
earning capacity.) Community property is everything other than
separate property.
There is a presumption that all property owned at the time of
divorce is community property. If either spouse insists that certain
property is separate property, it is up to that person to prove
their claim in court.
However, not every case has to go before a judge for asset division.
After filing for divorce, the spouses are free to agree to divide
their assets any way they see fit. They can even split their
personal property or agree to pay alimony on their own.
Proving Separate Property
How one spouse proves that certain items are separate property and
not subject to division.
Agreeing Ahead of Time on What Property is Separate
Spouses can sign written agreements before and during the marriage
to designate separate property.
Dividing the Property
Once all separate property has been identified, what remains is
community property that must be divided between the spouses.
Alimony
Called "maintenance" in many states, including Texas, a judge may
order one spouse to continue paying money to the other after the
divorce.
PROVING SEPARATE PROPERTY
If a spouse wants to keep certain property after the divorce, it
must be proven in court that it should be considered separate
property. In the case of property owned before marriage, that
determination (also referred to as the "inception of title" rule) is
usually made according to when the item was received. The simplest
way to prove this is to produce a title or receipt that shows the
purchase date was prior to the marriage.
Also, if clear and convincing evidence is presented, assets
purchased during the marriage using separate property funds can also
be considered as separate property. The courts refer to this as
"tracing."
AGREEING IN ADVANCE: WHAT PROPERTY IS SEPARATE
Before the wedding, the couple may make a pre-marital agreement
(commonly known as a "prenuptial agreement" or an "ante
nuptial
agreement") that spells out who owns specific property in the event
of a death or divorce.
The spouses may also create a post-marital agreement any time during
the course of the marriage, as long as the agreement was not created
in an attempt to defraud current creditors. A pre- or post-marital
agreement might also change the status of property acquired in the
future.
Both pre- and post-marital agreements must be in writing and signed
willingly by both spouses. It is difficult to change the terms of
these agreements when enforced at the time of divorce.
DIVIDING THE PROPERTY
Once everyone agrees on what will be considered separate property,
everything else is classified as community property that must be
divided between the divorcing spouses. Judges have tremendous
latitude when dividing property – there is no set formula for who
gets how much and there is no guarantee that assets will be split
evenly.
Among the factors a judge may consider when dividing property:
Age and physical condition of each spouse;
Relative ability and earning power;
Relative need for future support;
Size of the estate;
Benefits a spouse would have received if the marriage had continued;
and
Fault in the break-up of the marriage.
Even though Texas has adopted no-fault divorce, determining "fault"
can still play a very important part in the division of the
community assets. Also, judges are likely to award a slightly larger
portion of the community property to a spouse who has not worked
outside the home during the marriage. This is done because that
spouse may find it difficult to secure employment that will provide
adequate support.
ALIMONY/MAINTENANCE
Until recently, Texas did not allow for the payment of alimony and
even now, it is available in extremely limited circumstances and
only for a limited period of time.
A spouse can be awarded alimony/maintenance only if two specific
conditions exist.
The first is if the other spouse was convicted of a crime involving
family violence within the two years prior to filing of the divorce
suit.
The other applies to a 10-year marriage, where the spouse seeking
maintenance lacks sufficient property (including property awarded in
the divorce) to provide for his or her minimum reasonable needs as a
result of incapacitating personal physical or mental disability or
they are the primary caregiver of a child requiring substantial care
due to a physical or mental disability; or the spouse clearly lack
adequate skills to find a job to support minimum reasonable needs.
Most alimony claims cite the last stipulation. But for the request
to be successful, the spouse must be able to show a reasonable
attempt to find an appropriate job or get job training.
Judges are further limited in the right to award alimony by state
law that says support can continue for no more than three years
after the divorce is finalized, unless it is proven that the
disability is ongoing. Also, monthly alimony payments are limited to
either $2,500 or 20 percent of the paying spouse's average gross
income – whichever amount is lower.
ISSUES RELATED TO CHILDREN
There are four areas that must be addressed when divorcing spouses
have minor children. All of the issues are related (although each
must be reviewed separately) and all must be determined to be within
the "best interests" of the child.
It is important to note that the gender of the parent plays no part
in decisions involving children.
Conservator ship
The legal relationship between the parents and the child.
Rights and Duties
Once conservator ship is established, each parent has certain rights
and duties owed to the child.
Visitation Scheduling
Rules must be established to govern when each parent has control of
and/or can visit with the child.
Child Support
One parent may be required to pay for the support of the child.
CONSERVATOR SHIP
Conservator ship is the term used to describe the legal relationship
between the parent and the child. In Texas, there are two basic
arrangements. In one, both parents are "joint managing
conservators." In the other, one parent is the "managing
conservator" and the other parent is the "possessory conservator."
Even though the word "possessory" is used, none of these terms are
related to the amount of visitation a parent has with a child.
Instead, the terms refer to the legal relationship and the authority
a parent has to make decisions affecting the child's life.
Texas law presumes that parents should be named as joint managing
conservators after a divorce, unless there is a history of child
neglect and/or child or spousal abuse. In assessing whether it is
appropriate to appoint the parents as joint managing conservators,
the court will consider the questions of whether:
The child's physical, psychological or emotional needs will benefit
from the arrangement;
The parents have shown the ability to reach shared decisions;
Both parents have participated in child rearing before the suit was
filed; and
The geographical proximity of the homes of the parties is
problematic.
If the parents are joint managing conservators, either they will
agree between themselves or the court will select one to have
primary custody of the children with the other parent receiving
visitation rights.
To avoid joint conservator ship, one parent must prove that it is not
in the child's best interest. Usually this is reserved for
situations where a parent has committed domestic violence against a
member of the family or has engaged in other actions or behaviors
that could endanger the child.
RIGHTS AND DUTIES
Subject to court approval, a parent of a child has the following
rights and duties at all times:
To receive information concerning the child's health, education and
welfare;
To confer with the other parent, to the best extent possible, before
making a decision concerning the child's health, education and
welfare;
To have access to the child's medical, dental, psychological and
educational records;
To consult with the child's physician, dentist or psychologist;
To consult with school officials concerning the child's welfare and
educational status, including school activities;
To attend school activities;
To be designated on the child's records as a person to be notified
in case of emergency;
To consent to the child's medical, dental and surgical treatment
during an emergency involving an immediate danger to health and
safety;
To manage the child's estate that has been created by the parent or
the parent's family;
To inform the other parent in a timely manner of significant
information concerning the child's health, education, and welfare;
and
To inform the other parent if the parent resides for at least 30
days with, marries or intends to marry a person who the parent knows
is a registered sex offender under applicable state law.
While the child is in their care, a parent also has the following
rights and duties, subject to the court's approval:
The care, control, protection and reasonable discipline of the
child;
To support the child, including providing clothing, food and
shelter;
To provide and consent for the child's noninvasive medical and
dental care;
To consent to the child's medical, dental and surgical treatment
during an emergency involving an immediate danger to health and
safety; and
To direct the moral and religious training of the child.
A court may require that joint managing conservators consult with or
obtain the consent of the other parent in the exercise of these
rights; or, a court may allow each joint conservator to exercise
these rights independently of the other. This can becomes
problematic, particularly with regard to medical and educational
decisions, if the lines of communication are faulty between the
parents.
The following rights and duties may be divided between the parents
in a joint managing conservator ship arrangement, or be given to the
sole managing conservator.
The right to consent to the child's medical, dental and surgical
treatment involving invasive procedures;
The right to consent to the child's psychiatric and psychological
treatment;
The right to represent the child in legal action and to make other
decisions of substantial legal significance concerning the child;
The right to consent to marriage and enlistment in the armed
services of the United States;
The right to make decisions concerning the child's education;
The right to the services and earnings of the child;
The right to act as an agent of the child in relation to the child's
estate if the child's action is required by a state, the United
States, or a foreign government – except when a guardian of the
child's estate or a guardian or attorney ad litem has been
appointed; and
The duty to manage the estate of the child to the extent the estate
has been created by community or joint property of the parents.
The rights typically allocated only to one parent, regardless of the
type of conservator ship involved, include:
Establishment of the child's primary residence; and
To receive and give receipt for periodic payments for the support of
the child and to hold or disburse these funds for the benefit of the
child.
A recent trend has developed among many Texas courts to restrict the
establishment of the children's primary residence to a particular
geographic area. Dallas County judges routinely restrict a child's
residence either to Dallas County or to Dallas and its contiguous
counties. If the primary parent chooses to relocate outside the
designated area, he or she must seek permission from the court
before moving the children.
VISITATION SCHEDULING
A schedule must be established to govern when parent and the child
get to be together. Most people call this a "visitation" schedule,
though it is also referred to as "possession" and "access"
scheduling.
Judges have wide discretion to determine schedules that will create
a stable environment for the child, while also providing both
parents with significant visitation periods with their child. Texas
has developed standard visitation schedules, but by mutual
agreement, parents can deviate from those standards.
Texas' Standard Schedule for Parents Who Live Within 100 Miles of
Each Other:
The non-primary parent has visitation from 6 p.m. on the first,
third and fifth Fridays of every month until the immediately
following Sunday at 6 p.m.
At the option of the non-primary parent, he or she may pick up the
child on the Fridays of their weekends at the time school is
dismissed for the day and retain possession until the immediately
following Monday morning when school resumes.
The non-primary parent has visitation with the child from 6 p.m. to
8 p.m. on each Wednesday night when the child's school is in
session.
At the election of the non-primary parent, he or she may choose to
pick up the child at school at the time the child is dismissed from
school on Wednesday and then return the child to school the next
morning.
The non-primary parent receives the right to have the child for 30
days during the child's summer vacation.
In even-numbered years, the non-primary parent has the right to
possession of the child during the child's spring vacation from
school.
In even-numbered years, the non-primary parent has possession of the
child from the time school is dismissed for Christmas vacation until
Noon on Dec. 26.
In odd-numbered years the schedule flips, with the non-primary
parent receiving the children beginning at Noon on Dec. 26 until
school resumes following the Christmas vacation.
In odd numbered years, the non-primary parent receives possession of
the child for the Thanksgiving holidays.
The mother always gets to spend Mother's Day weekend with the child.
The father always has possession during Father's Day weekend.
Texas' Standard Schedule for Parents Who Live More Than 100 Miles
From Each Other:
At the option of the non-primary parent, he or she may have either
the first, third and fifth weekends of a month, or one weekend per
month of his or her choosing.
There is no Wednesday visitation in the standard possession order.
The non-primary parent receives custody during the spring vacation
in every school year.
Summer visitation for the parent who lives more than 100 miles from
the child has 42 days with the child during the child's summer
vacation.
Holiday possession is the same as that for parents who live less
than 100 miles from each other.
If the child is too young to be in school, the visitation order for
vacations follows the calendar of the public school district where
the child lives.
The visitation order continues in effect until the child reaches the
age of 18. The visitation order may, of course, always be altered by
the court should the need arise.
Again, the spouses are free to agree to any visitation agreement
that works for both of them.
Some parents choose to implement a plan where the child spends one
week with one parent and the next week with the other parent. Other
parents create more complex schedules for possession of the
children. Even if the court enters a standard possession order,
parents are still free to modify it by mutual agreement. So long as
both the parties agree, there is no limit to the parties' authority
to change their respective visitation periods.
A parent who withholds the child from the other is in violation of
court order and can be subjected to a contempt order, which can
result in fines or even jail time. However, there is no punitive
remedy for the non-primary parent who fails to exercise his or her
scheduled visitation.
CHILD SUPPORT
Child support is the money a judge orders the non-primary parent to
pay the primary parent for the child's benefit. How exactly the
money is used is up to the sole discretion of the primary parent;
the parent who pays has no authority to dictate the manner of use of
the money.
How long do payments last?
How much is each payment?
What happens if payments aren't made?
HOW LONG DO PAYMENTS LAST?
Usually, payments last only until the child reaches the age of 18 or
graduates from high school, whichever is later. An exception is made
when a disabled child is involved. In that instance, support may be
continued indefinitely.
Texas law provides no authority for payment of college tuition or
any other expenses following high school graduation. Of course, the
parents can agree between themselves concerning payment of college
expenses for their children.
HOW MUCH IS EACH PAYMENT?
Texas, like most states, created "child support guidelines" to
determine how much a non-primary parent should be required to pay.
Like the standard possession order, these are suggestions, and are
not written in stone. However, judges are reluctant to stray from
these guidelines without good cause.
The guidelines base the percentage of that parent's net income to be
paid in support on the number of children involved. For one child,
the guideline for payment is 20 percent of the parent's net
resources, 25 percent for two children and so on. The percentage is
capped at 40 percent for five or more children.
The calculating of percentage is limited to the first $6,000 of net
resources. Therefore, if the non-primary parent earns $6,000 or more
in net resources and is paying support for one child, the amount of
support would be capped at $1,200 per month. In order for the
primary parent to receive more than the guideline amount, he or she
would have to show that the needs of the child surpass the allotted
amount.
What income is used to determine the non-primary parent's net
resources? It is:
100 percent of wages and salary, including tips, commissions and
bonuses;
Interest, dividend and royalty income;
Self-employment income;
Net rental income; and/or
All other income actually being received. This includes severance
pay, retirement benefits, pensions, trust income, annuities, capital
gains, Social Security benefits, unemployment benefits, disability
and workers' compensation benefits, interest income from notes
regardless of the source, gifts and prizes, spousal maintenance and
alimony.
The following deductions are made from gross income to determine net
income:
Social Security taxes;
Federal income tax;
Union dues; and/or
Expenses for health insurance for the child
Either parent can argue that child support should be more or less
than what the guidelines suggest. To receive more, the parent must
show that the child has special needs that cannot be met with the
guideline amount of support. To argue for less, the parent must show
that the guidelines are excessively burdensome.
Of course, the parties are free to make their own agreement on child
support, setting the amount higher or lower. The court, however,
will review these agreements closely to make sure that the
children's needs are being met.
The parents also can agree that child support will extend beyond the
later of the child's graduation from high school or the child's 18th
birthday. The spouses are free to agree that the non-primary parent
will have to pay for private school, extracurricular activities and
college tuition. Such agreements are contractual and may not be
enforced by the courts by way of contempt motions.
WHAT HAPPENS IF PAYMENTS AREN'T MADE?
Violations of court orders can be dealt with severely. Enforcement
options for violations may include jail time and fines.
There are several methods to ensure that court-ordered child support
money is paid.
Wage withholding: A judge will send a notice to the parent's
employer directing the employer to automatically deduct the amount
of child support from the parent's salary. This money is sent to the
child support office, which distributes it to the child.
Contempt: If a parent continually fails to pay, the primary parent
can file for contempt of the court's order. There are severe
sanctions for failure to pay child support.
The parent can be jailed or the court can place the parent on
community supervision (probation) for up to five years. The parent
can be ordered to pay the primary parent's attorney's fees related
to the enforcement action. The court also can order 12 percent
interest be added to the outstanding past-due amount of support
owed.
Failure to support the child for more than a year can result in the
termination of the parent's parental rights. If a parent's rights
are terminated, this severs all ties between the parent and his or
her child. The effect of this judgment is extreme and will only be
used in the most extreme cases and only if the court determines that
the child will not suffer because of it.
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