The following sections are intended only to provide a basic overview and are not intended to address all topics or answer all questions. If you are considering filing for divorce or need legal help in areas such as child custody, child support or spousal maintenance issues, or grandparents visitation rights, contact our office to set up an appointment to discuss your legal questions.
Texas is what is known as a “ no-fault” state. One spouse does not have to be at fault in order for a divorce to be granted. Simply put, one spouse can file for divorce on the grounds that the marriage has become insupportable. However, if one spouse IS at fault for the breakup of the marriage, the court may take this into consideration when it decides how to divide the couple’s community property.
To file for divorce in Texas, you must have lived in this state for at least 6 months and at least one of the spouses must have lived in the county where the divorce petition is filed for at least 90 days. The non-filing spouse, known as the respondent, must be notified that a divorce case has been filed. Typically the respondent is notified of the divorce by a process server. If the respondent chooses, they can execute a document that waives service but acknowledges that they have been notified of the suit being filed.
Once service has been obtained on the respondent or a waiver of service has been filed with the court, the parties in some cases are able to reach an agreement on the central issues without asking the court to rule on these matters. In such cases, the divorce is uncontested. To be uncontested, both parties must reach an agreement that they agree to be divorced, they agree on parental decision making for the children, they agree on the visitation schedule and where the children will live, they agree on the amount and duration of child support, they agree on the amount and duration of spousal maintenance, and finally they agree on the division of the marital property and marital debts. If an agreement is reached on all these issues, there is a mandatory 60 day waiting period from the date the divorce petition is filed until the court finalizes the divorce by entering the divorce decree.
The divorce proceedings in an agreed case may range anywhere from 61 days to 6 months depending on a variety of variables. If the spouses can not agree on these core issues, the divorce proceeding may take much longer to finalize.
When a divorce petition is filed and there are children born of the marriage, the Texas Family Code requires that a separate suit be filed affecting the parent-child relationship. This second suit is known as a SAPCR. The SAPCR suit is to determine the parties rights and responsibilities with respect to the children while the petition for divorce is to determine the spouse’s marital status and rights as well as to divide the marital property and debts. The procedural framework for each of these suits is different but there are overlapping considerations.
In Texas, child custody essentially falls into 2 separate categories: conservatorship and possession. Conservatorship basically is the rights and duties of the parents to make certain decisions such as what schools will be attended, medical decisions, etc. The court may order that both parents are to make decisions jointly (known as joint managing conservators) or that one parent has the right to make these type decisions ( known as a sole managing conservator). Most courts favor joint managing conservators when it is possible and is in the best interest of the children. However, be aware that even if the parents are named as joint managing conservators, this does not mean that the parents will have equal time with the children. In addition, one of the parents will have the right to choose the primary residence for the children.
Parents may also be referred to as “managing conservator” or “ possessory conservator”. The managing conservator is typically the “ custodial parent” and determines the children’s residence and is paid child support. Conversely, the possessory conservator is the “noncustodial parent” who has the right to periodic periods of possession or visitation and typically pays child support.
Parents may reach an agreement regarding the possession schedule so long as this schedule is in the best interests of the children. If the parents cannot agree, the possession schedule set forth in the divorce petition will be in play until the court orders something different than the standard possession schedule.
For parents who live within 100 miles, the standard possession schedule for the non-custodial parent, in essence, provides for visitation with the children on the first, third, and fifth weekends of the month, Thursday evenings each week, alternating holidays every other year, and 30 days in the summer when school is out. If the parents live over 100 miles apart, a different schedule is used and this schedule is set forth in Texas Family Code Section 153.313.
Parents should also be aware of right of first refusal agreements. One parent can agree to allow the other parent to have custody of the children if the first parent is unable to take care of the children for an agreed upon period of time rather than allowing a third party ( example; a babysitter or another family member) to take care of the children.
Texas is a community property state. Community property includes all property acquired by either spouse during the marriage regardless of whose name is on it. This includes money earned during the marriage. It is a rebuttable presumption that all property acquired during the marriage is community property and this presumption can be rebutted only by clear and convincing evidence.
Under the Texas Family Code, the court is required to divide community property as it sees just and right. This means that the assets and debts do not have to be divided equally. In determining what is just and right, the court looks at factors such as the relative fault of a spouse in the breakup, disparity in earning power, disparity in the spouse’s separate property, the spouse’s health and physical condition, and any gifts or transfers of property to third parties.
The court has no authority to divide the separate property of the spouses. Separate property is a property that was acquired BEFORE the marriage, property acquired DURING the marriage by gift or inheritance, and property acquired during the marriage but acquired by use of separate property.
Upon entry of the divorce decree, the court will order one of the parents to pay child support. The amount of child support that must be paid starts with a formula that determines the parent’s net income as set forth in Chapter 154 of the Texas Family Code. Once the net income is calculated, Section 154.125 sets forth the percentage of the net income that must be paid and is determined by the number of children receiving support. If the parent paying child support has additional support obligations to other children, the court will use the percentages found in Section 154.129 to determine the required level of support in the instant case.
In addition to ordering the payment of child support, the court may also award spousal maintenance if one spouse is not working or earns significantly less than the other spouse. The factors for determining if a spouse is eligible to receive spousal maintenance is set forth in Texas Family Code Section 8.051. The Family Code also sets forth additional provisions if spousal maintenance is ordered by the court such as duration ( Section 8.054), amount ( Section 8.055), termination (Section 8.056), modification ( Section 8.057), and enforcement of the maintenance order ( Section 8.059).
Spouses in a divorce should be aware that the dissolution of the marriage can also be accomplished in a manner that is less focused on litigation and more focused on reaching acceptable agreements on the core issues that normally arise. This process is known as collaborative law. The issues of property division, child custody, and support, etc can be resolved in a forum that is not so public in nature. The parties enter into a Collaborative Law Participation Agreement and the matters to be addressed are done so in a private setting according to the parties schedules. The only things made public are the documents filed with the court that must be approved. Collaborative law only works when both parties desire to resolve the issues presented by treating the other spouse with civility, respect, and dignity. The goal of this process is to work through the issues in a way that minimizes the damage to family relationships that sometimes arise during a divorce proceeding.
If you are looking for a family law attorney and live in Frisco, Plano, Carrollton, The Colony, Little Elm, McKinney, Oak Point, Cross Roads, Prosper, Gunter, or Celina and need a lawyer or professional legal advice, feel free to contact us.