Family law involves many different aspects of the law developed over many years, and these few pages are intended to be informational only. Please do not rely exclusively on them in evaluating your situation or representing yourself. Before you venture into the Courts system, or become involved with any litigation including family law, you should consult an attorney. Please do not think that this document means that Bivin & McNamara, L.L.P. is your attorney or represents you. We only represent people who have signed an agreement to employ us.
Basic Issues In Texas Family Law
- All community property is divided as "the Court deems just and right, having due regard for the rights of each party and any children of the marriage."
- Community property is all property acquired during marriage that is not separate.
- Separate property is: 1. Owned before marriage;
- Acquired during marriage by gift, or inheritance; or
- Personal injury damages, except recovery for lost wages. (Lost wage recovery is community property).
- The law presumes that marital property is community unless proven otherwise by "clear and convincing evidence."
- Separate property is not divided in a divorce.
- FACTORS AFFECTING DIVISION OF COMMUNITY PROPERTY:
- Disparate earning capacity between spouses, i.e. a substantially higher earning spouse may be awarded a smaller percentage;
- Fault in the breakup of the marriage, such as cruelty, adultery, felony conviction, & abandonment (at least 1 year).
SPOUSAL MAINTENANCE (ALIMONY) (TX Family code Ch. 8)
Introduced to Texas in 1995, & very difficult to qualify for. Passed by the legislature as a welfare reform bill.
- Marriage of at least ten years;
- Lacking sufficient property to provide for "minimum reasonable needs;" AND
- Clearly lacks earning ability in the labor market to provide for "minimum reasonable needs." OR
- Spouse paying maintenance was convicted of family violence within 2 years before date of filing for divorce or while divorce is pending. (Deferred adjudication also counts).
- Maximum Amount:
20% of payer's average monthly gross income; OR
$2,500.00, whichever is less.
- Spousal maintenance cannot be court ordered for more than three years.
1. The law favors Joint Managing Conservatorship (not necessarily joint custody).
"The sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party." (TX Family code sec. 101.016).
Most important rights:
A. With whom the children will live primarily, and where, i.e. is there a residence restriction;
B. Who has the right to make educational decisions;
C. Who has the right to authorize invasive, non-emergency, medical, psychiatric and psychological care.
Other rights and duties of conservators found in TX Family Code chapter 153, subchapter B, C, & D.
- The legislature has provided a detailed visitation schedule called the Standard Possession Order. It distinguishes between parents living within one hundred miles of each other and more than one hundred miles apart.
"The Court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard order." TX Family code sec. 153.311.
The Standard Possession Order is only effective when the parents cannot agree on visitation.
- Highlights of Standard Possession Order when parents live within one hundred miles of each other:
- First, third & fifth weekend of each month;
- Every Wednesday evening;
- Every other spring break;
- Thirty days in summer;
- Every other thanksgiving;
- = of Christmas school vacation;
- All of father's day or mother's day weekend.
The Standard Possession Order is very detailed and you should study it if it governs your children's visitation periods.
- Child Support
Child support is calculated based on the income of the person paying it (the payer). The income of the parent receiving support is usually not relevant. The payer's monthly net income is calculated using charts provided by Texas Attorney General.
Calculate annual income of payer, including average bonuses, overtime, etc, subtract taxes withheld for a single person (Attorney General chart), union dues, and the cost of the children's health insurance, divide by twelve, then apply the following percentages:
One child 20%
Two children 25%
Three children 30%
Four children 35%
Five children 40%.
The calculated amount equals the monthly child support obligation of the payer.
BRIEF OVERVIEW OF PROCEDURE FOR DIVORCE
- File Original Petition for Divorce;
- Attend temporary orders hearing at court, if necessary;
- Learn information about the case through "discovery," if necessary;
- Attend mediation, if necessary;
- Attend trial, if necessary;
- File Divorce Decree (either an Agreed Decree or imposed by Court after trial).
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.