For divorces filed after September 1, 2011, the rules for maintenance or “spousal support” have been greatly expanded. Spousal support may be awarded in cases where the parties have been married more than 10 years or a spouse has been convicted of or received deferred adjudication for a crime of family violence. Spousal support is limited to the following time periods:
- Five years for marriages lasting ten years
- Seven years for a marriage lasting twenty years
- Ten years for a marriage lasting thirty years
The amount of spousal support a Court may award is $5000 per month or 20% of the paying spouses average monthly gross income, whichever is less.
While the divorce is pending, however, the Court may order temporary spousal support paid between the parties to assure that each spouse is able to maintain a residence and pay their bills until the property is divided at the final trial or an agreement is reached between the parties.
A Texas divorce involves both the division of the parties’ property and, if children are involved, child custody and child support. Below is list of frequently asked questions regarding divorce.
How long will a divorce take?
The Court may not grant a divorce before the 60th day after the divorce is filed. In cases where a spousal agreement is reached, a divorce can be completed in approximately 60 days. In cases where the issues are contested and a final trial is necessary, a divorce may take several months depending on the complexity of the case.
How much will a divorce cost?
The cost of a divorce depends on the complexity of the issues and the level of hostility between parties. An estimate of the cost will be provided during an initial consultation. In all contested cases, work is charged using an hourly rate. A monthly itemized list of work performed on the case is provided to the client.
Can my spouse and I hire the same lawyer?
No. To avoid any conflict of interest, an attorney may only represent one party in a divorce.
What is separate property, and how does it differ from community property?
Separate property is property owned by a spouse before marriage, property acquired by a spouse as a gift or from an inheritance and/or any recovery by a spouse for personal injuries. Any property that is not separate property is considered community property. The Court may divide community property in the divorce. The Court may not award the separate property of one spouse to the other spouse in a divorce.
What are Temporary Orders?
Because there is a 60-day waiting period before a divorce may be completed and a contested divorce may take longer to complete, the Court may render temporary orders in a divorce. These hearings often take place shortly after the divorce is filed. After hearing from both parties, their attorneys and any witnesses, the Court can render a temporary order for child support, possession and access to the children, temporary possession of property, and spousal maintenance. The Court may make additional orders that it sees fit to preserve the parties’ property and protect the parties’ children. In most cases these orders stay in place until the divorce is completed.
What if I need to change my divorce decree in the future?
In most cases a division of property in a final divorce decree cannot be changed. The provisions regarding children in a divorce decree including conservatorship, possession and access, and child support may be changed at a later date if the circumstances of the parents or children have changed.
In a collaborative divorce, the parties strive to reach a fair settlement through a series of meetings (sometimes called joint sessions) between the two parties and their lawyers, and in some instances, neutral experts. The primary focus of these meetings is to identify the priorities, goals, needs and interests of the parties, and help them progress towards and create a settlement consistent with the parties’ determinations. The parties make their own decisions based on their own standards.
There is a parallel between collaborative law and mediation, in that both are facilitative processes. However, in collaborative law the parties are fully informed about the law and the consequences of various options and their advocates facilitate the negotiations.
The key document in a collaborative case is the participation agreement. It is a contract signed by the participants that sets forth the rules for the process. The parties and lawyers agree that:
- The lawyers will not litigate the case. If the process fails and litigation is the only recourse, the original attorneys must withdraw and the parties must retain new lawyers (the “disqualification” provision);
- Neither party will take advantage of mistakes by the other side;
- The parties will freely disclose all pertinent information and will not hide any material facts;
- What is said in the settlement meetings remains confidential;
- All experts will be neutral and hired jointly by both parties; and
- Everyone will behave courteously and in good faith.
The disqualification provision is a key element to a collaborative case. It ensures that the lawyers’ interests are aligned with the clients’ interests of reaching settlement by eliminating any incentive to take the case to trial. It also ensures that clients and lawyers work more diligently towards a negotiated resolution because there is a relatively high cost to ending the process prematurely.
A child support order may be initially rendered in a Divorce or a Suit to Establish the Parent-Child Relationship, which is a custody case between unmarried parties. Below is list of frequently asked questions about child support.
How much will child support be?
Child support is determined based on the income of the parent paying support. Child support is calculated by taking that parent’s gross monthly income, subtracting social security taxes, federal income taxes for a single person claiming one deduction, union dues, and health insurance coverage for the child. This amount is the parent’s net income.
The Court then sets child support as a percentage of the net income based on the number of children the parties have together.
- 1 Child 20%
- 2 Children 25%
- 3 Children 30%
- 4 Children 35%
These percentages are made with the assumption that the payor does not have other minor children for whom they provide support. If so, the percentages will be lower depending on the number of other children the payor supports.
What if I need to change my child support?
The amount of child support may be changed at a later date if the circumstances of the parents or children have changed. To change a child support order it is necessary to file a lawsuit called a Motion to Modify. The legal standard for the Court to modify child support is met when there has been a “material and substantial” change in the circumstances of the child, one of the parents, or it has been three years since the last child support order or agreement to pay child support and child support would increase or decrease by $100 or 20%, whichever is less.
How is child support paid?
In most cases, child support is paid through wage withholding, where child support is taken directly from the pay of the child support payor by their employer. The money is sent through the State Disbursement Unit, which is an entity set up by the State of Texas to track the date and amount of child support. Funds received by the State Disbursement Unit are then forwarded to the parent who receives support.
Enforcement of Child Support
If a parent does not pay child support, a lawsuit called a Motion for Enforcement may be filed. If the Court finds that a parent has not paid child support, and that parent does not have a valid defense, then the Court may fine or jail the nonpaying parent. The maximum punishment is six months in jail and a $500 fine per violation. The Court may also put the parent on probation subject to the future payment of support.
Child custody may be initially rendered in a Divorce or a Suit to Establish the Parent Child-Relationship, which is a custody case between unmarried parties. Below is list of frequently asked questions about child custody.
What is custody and what is joint custody?
Child custody has two components, the power to make decisions regarding the children or “rights and duties,” and the respective periods of possession of the parents.
The rights and duties of the parents include who decides where the children live and if there is a geographic restriction, who makes decisions on major medical issues, and who decides what school the children attend. Under a joint custody order called a “joint managing conservatorship,” the parents may agree or be given the right to make these decisions together except one parent must have the right to determine where the children live.
The possession schedule is decided separately. The Court is not required to award the parents equal time with the children in cases where the parents are appointed joint managing conservators. Parents may, however, agree to equal time with their children subject to the Court’s approval.
What is “standard possession” of children in Texas?
The Standard Possession schedule is a schedule for possession of the children contained in the Texas Family Code. The law presumes that the Standard Possession order is in the best interest of the child. In practical terms, this means the Standard Possession order is the schedule that the Court usually orders in contested custody matters unless there is a compelling reason to do otherwise.
Most custody orders contain provisions allowing the parents to agree to any possession schedule they believe is appropriate, but absent such an agreement, the Standard Order will govern the possession schedule.
Can my children decide where they want to live?
When children reach the age of 12, the law allows them to express an opinion, however, it is not binding on the Court. Be advised that involving children in a divorce or putting them in the position of having to choose between their parents can have serious adverse consequences on their long-term well being.
Can my spouse prevent me from moving in the future?
The Court may place a geographic restriction on the residence of the children. This restriction is often either the county in which the divorce occurs or the county of the divorce and any county that shares a border with the county of divorce. These residency restrictions, however, usually require the parent who does not determine where the children live to also remain in the same geographic area or the restriction can be lifted.
Paternity of a child may be initially determined in a Divorce or a Suit to Establish the Parent-Child Relationship, which is a custody case between unmarried parties. Below is list of frequently asked questions about paternity.
What is a presumed father?
The Texas Family Code states that the following individual are presumed to be the father of a child:
- A man who was married to the birth mother at conception;
- A man who married the birth mother after the child was born and treated the child as his, was voluntarily named on the birth certificate or asserted his paternity with the paternity registry;
- A man who filed an acknowledgment of paternity;
- A man who continually resided with the child during the first two years of the child’s life and represented to others the child was his.
If someone is a presumed father, the only way to challenge this presumption is to initiate a court proceeding wherein the court finds that someone else is the father or if the presumed father files a denial of paternity at the same time another individual acknowledges paternity.
Will genetic testing be done?
The court can order genetic testing at the request of either party so long as paternity has not been previously established by court order or an acknowledgment of paternity has not been successfully rescinded.
What happens after paternity is established?
Once paternity is established, the case proceeds as any other child custody case.
Grandparents have the right to file a lawsuit for managing conservatorship of a grandchild if the child’s present circumstances significantly impair the child’s physical health or emotional development OR both parents consent to the grandparent filing a suit.
If a child custody lawsuit is already pending, the Court may grant a grandparent the right to participate in the lawsuit if the grandparent is deemed to have had substantial contact in the past with the child and that appointing a parent as the child sole managing conservator would significantly impair the child’s physical health or emotional development.
A grandparent may be awarded visitation with a child if denying that visitation would significantly impair the child’s physical health or emotional development, OR the grandparent is the parent of the child and that parent is incarcerated, deceased or been declared incompetent.
When a child custody case involves individuals in different states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) determines jurisdiction.
To determine which state has proper jurisdiction to make an initial determination of child custody, the UCCJEA proceeds in the following order of priority:
- The state which is currently the “home state” of the child, or was the child’s home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;
- If no state has jurisdiction under #1, then jurisdiction is proper where the child and at least one parent have a significant connection with the state (other than mere presence), and substantial evidence concerning the custody determination is available in the state;
- If no state has jurisdiction under #1 or #2, jurisdiction is proper in any state having an appropriate connection with the child.
A state having jurisdiction under #1 or #2 may decline to exercise its jurisdiction, and transfer it to another state if it is more convenient for the parties, or if one of the parties has engaged in misconduct necessitating a change.
“Home state” is defined as the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.”
Once a state court has made a custody determination, that state keeps jurisdiction over all matters concerning that child, unless:
- A court of the state with jurisdiction determines that the child or the child and a parent do not have a significant connection with the state, and evidence concerning the child’s custody determination is not available in the state;
- A court of the state with jurisdiction, or any other state, determines that the child and both parents (or acting parents) do not reside in the state any longer.
Modification of Custody Determination
Once a custody determination has been made, a court of another state does not have authority to modify the determination unless the state with jurisdiction determines that it does not have jurisdiction as noted above, or any state court determines that the child, parents, and any acting parents do not reside in the state that currently has jurisdiction.
If a parent has not complied with an order for possession and access to a child, and that parent does not have a valid defense, then the Court may fine or jail the nonpaying parent. The maximum punishment is six months in jail and a $500 fine per violation. The Court may also put the parent on probation subject to the future compliance with the possession schedule.
Mediation is a non-binding confidential settlement conference at which a neutral mediator is present to help you and your spouse reach a final settlement of your case. Parties may attend without attorneys but should be advised that a mediator may not provide you with legal advice. Since an agreement reached in mediation is binding, it is highly advisable that you have legal counsel at mediation.
International child abduction and child custody is governed by the international treaty of the Hague Convention on International Child Abduction and has been signed by the United States and approximately 72 other countries. The Hague Convention attempts to set out an orderly and uniform for signatory courts to identify a valid custody order and for the return of children abducted from and to signatory countries. Unfortunately, while a country may be a signatory to the Hague Convention this does not necessarily mean they will recognize a child custody order from the United States. The U.S. State Department makes regular public reports identifying whether a county is complaint with the Hague Convention.