Law Offices of
David S. Bouschor II

217 E. Oak Street
Denton, Texas 76201
(940)323-1300
(940)323-1400 (fax)
(877)592-1300 (toll free)

General Information About Family Law

The following are guidelines for general information purposes and are not a substitute for specific legal advice.

Texas Family Code

The Family Code is the body of law that governs all causes of action for divorce, child custody and support, property division, modification, adoption, termination of parent-child relationship, and other family law matters. However, the laws of real estate, corporations, contracts, commercial transactions, personal injury, and other areas must be considered. Never assume that your family law matter is "simple".

Jurisdiction:

Divorce

Generally, a Texas court has jurisdiction over a divorce if the person seeking divorce has been 'domiciled' within the State for the six months, and 'resided' in the county in which suit is filed, for the 90 days preceding the date of filing of a divorce petition.

Suit Affecting Parent-Child Relationship(SAPCR)

Jurisdiction over any suit involving children, whether as part of a divorce, modification of a prior court order, or adoption, generally lies in the County where the children have lived for the preceding six months, but significant additional considerations apply. There are exceptions to these rules, so discuss this issue with your Attorney if you think there is a problem.

Divorce in General

Divorce Grounds

Texas is generally a "no-fault" divorce state. Sufficient grounds exist for granting a divorce if one party feels that the marriage has become 'insupportable' because of personality conflict or discord (incompatibility) to the point where there is no reasonable expectation of reconciliation. There are other grounds, such as adultery, abandonment, or cruelty, but are not alleged except in the most egregious cases. Your Attorney will advise you if another ground should be alleged in addition to insupportability.

Duration of a Divorce

A divorce cannot be granted until the petition has been on file for 60 days. This is the minimum waiting period. The average divorce takes longer than 60 days to conclude because of the numerous issues that must be resolved, complexity of property division, as well as ensuring that you have sufficient information to make an informed decision about your case. Your Attorney will usually be able to give you a rough estimate of the time required after becoming thoroughly familiar with your case.

Modification of Orders Regarding Children

To modify a prior court order regarding children, the Movant must prove a change in circumstances of the parents or children since the rendition of the prior order. There are several other significant requirements for each type of modification, i.e custody, support, visitation, etc.

Enforcement of Court Orders

To enforce the terms of a court order, the order itself must be very specific about the obligations to be enforced, and the proof of violations must be very clear. Therefore, enforcement proceedings may not always be as easy as you think; your attorney will review these aspects of the case and advise you if a clarification or modification of the prior order is advisable.

Phases of a Family Law Case
[Applicable to all family law cases]

1. Commencement by Petition or Motion: Like every other lawsuit, family law cases commence with the filing of a petition or a motion (a general statement of the cause of action, i.e. requesting a divorce based on certain grounds with division of property and resolving issues about the children or requesting modification of a prior order). The person filing the petition is the 'Petitioner' in a divorce and 'Movant' in a modification; the other party is the 'Respondent'. Every Denton County family law petition or motion must have attached the “Denton County Standing Order Regarding Children, Property and Conduct of the Parties”. These are Court Orders that will protect you, your children and your property during the pendency of your case.
   
2. Notice to Opposing Party:
   (a) Generally: The Respondent must be given notice of the suit, allegations against them, and the time and place for responding. Failure to give required notice prevents continuing the suit or entry of a judgment.
   (b) Citation and Service: The usual procedure for giving notice of a lawsuit is by "Service of Process". In this procedure the Clerk issues a citation and the Sheriff or other court-appointed agent "serves" the citation and a copy of the petition upon the Respondent. It is simply delivery of the papers and does not require any signature or other response by the Respondent. This procedure is typically used when the Respondent has not been informed of Petitioner's intent to file, the Respondent has demonstrated an intention not to cooperate in the proceedings, the Respondent has threatened to leave the Court's jurisdiction, or immediate action is required.
   (c) Waiver of Citation and Service: If both parties are reasonably cooperative and know of the impending filing, it is preferable to use the "Waiver of Citation" procedure. This requires delivery (by mail or in person) of the petition to the Respondent, who then signs a "Waiver of Citation" acknowledging receipt of the petition and waiving the requirement of being formally served with citation. A "Waiver of Citation" is not a consent to a judgment or to any particular terms; it merely saves time and money and avoids the embarrassment of serving the Respondent in public. The Respondent still has the right to retain an attorney to represent them in the case.
   (d) Alternative Service: If the Respondent has left the jurisdiction or was not subject to service in Texas, it is possible to proceed with the suit by having citation served in an alternate manner. There are, however, certain special problems and additional expenses involved in this procedure which will be discussed if appropriate and applicable to your case.
   
3. Respondent's Appearance and Answer: After receiving notice of the suit (except 'Waiver of Citation' cases), Respondent files an "Answer". This pleading invariably is a 'general denial', which simply states that they are appearing in the case and require the filing party to prove their case and justify the relief requested. Respondent’s failure to timely file an answer may result in Petitioner obtaining a default judgment.
   
4. Temporary Orders: Temporary orders are entered as the result of a hearing or on the basis of an agreement between the parties; they specify the rights, powers, and responsibilities of the parties while the case is pending, and become void when the final decree or order is entered. Temporary orders usually include provisions regarding possession and use of property and require payment of specific debts during the pendency of the case, appoint one of the parents as the custodial parent and require payment of child support and accord visitation rights, require other steps to be taken while the case is pending, and may order payment of temporary spousal support and possibly interim attorney's fees and costs, as well as possibly include an injunction prohibiting certain conduct.
   When properly requested, the Court can issue a “Temporary Restraining Order” without prior notice to the Respondent or opportunity for hearing. These are effective for up to 14 days and are used only when emergency action must be taken to protect persons or preserve property; a hearing must be held to obtain orders that continue for the duration of the case except where the parties agree to entry of temporary orders.
   
5. Discovery: No legal matter can be resolved without obtaining accurate and complete information regarding the facts and issues. This information is obtained both informally and formally and usually involves obtaining information from you, from the opposing party, and from other persons or entities that have knowledge or information. This is commonly referred to as the "Discovery Phase" of a case.
   Throughout the case you will be requested to provide your attorney with as much information in as much detail as possible that you have in your possession or to which you have access. You will be provided with certain forms to aid you in this task. Always be diligent and thorough. Obtain and provide as much information as possible, even if you don't presently have all of the requested information.
   In many cases your Attorney will send formal requests for information to the opposing attorney. These are often in the form of 'Interrogatories' (questions to be answered by the other party under oath) and 'Requests for Production' (requiring that specific documents and other items to be produced for copying or inspection). Another form of discovery is a 'Deposition' (a party or witness gives testimony under oath before a court reporter). You should expect to be on the receiving end of these types of discovery requests. Two forms of discovery required in divorces are a 'Financial Statement' (listing of personal income and expenses) and an 'Inventory and Appraisement' (sworn listing of all property and debts and their values).
   Barring agreement with opposing counsel or by order from the Court, Texas law requires counsel to retain discovery responses for a period of two (2) years from the date your case is finalized.
   
6. Negotiation and Settlement Process: When your Attorney is thoroughly informed about your case and understands your objectives and preferences, an office conference will be scheduled to discuss a possible initial settlement proposal. Although your Attorney will be guided by your objectives and preferences, you will also be advised regarding realistic expectations and possible and probable results. It is invariably preferable to avoid having your family law matter become a bitter conflict or to drag on in contested hearings over a long period of time. In most situations it is possible to negotiate an agreement settling all issues and briefly appear in Court at the end of the negotiation process simply to obtain court approval of the settlement agreement. We always attempt to handle our cases in this way whenever possible.
   Remember that compromise lies at the core of negotiations. A good negotiator begins by asking for more than what they would actually settle for and seldom reveals the "bottom line" or minimum acceptable position. Unless directed by your Attorney, we strongly recommend that you not discuss settlement of any issues with the opposing party nor tell them what you are willing to settle for. (An exception to this rule pertains to visitation arrangements with children when custody is not an issue; free and open communication between the parents is recommended, with the primary focus on what is best for the children.)
   You should bear in mind that the results that can be obtained in a negotiated settlement depend in large part on the results that would probably be obtained as the result of a contested hearing or trial if the issues were presented to the Court to decide. This means two things: First, your Attorney's advice will be based in large part on what your Attorney reasonably believes would be the result ordered by the Court; Second, you must be prepared to go to Court if the opposing party is unwilling to agree to what you believe is the proper settlement or if you are unwilling to agree to the opposing party's settlement offer.
   
7. Settlement Agreements and Agreed Orders: If an agreement is reached through negotiation, it will be reduced to writing in the form of an agreed decree or order. The words and terms used in agreed decrees, orders, and settlement agreements are just as important as an order entered after a contested hearing or trial, and parties sometimes have a very different perception of the agreement when it is reduced to black and white; therefore, be patient while these documents are being prepared.
8. Contested Hearings and Trial: If negotiations don't result in settlement, whether temporary or final matters, your only recourse is to present evidence and arguments in support of your position to the Court for ultimate determination. All temporary hearings and most final trials are heard by a judge sitting alone without a jury; however, you have the right to request a jury trial to decide certain issues. Your Attorney will advise you about this decision. Although our Law Firm is committed to saving clients the time and expense of contested hearings by negotiating an agreement, you should not be afraid of a contested hearing or trial. Hearings and trials seldom have the tension or spectacle of those seen on "L.A. Law" or "Perry Mason". Moreover, your Attorney will work with you in fully preparing your testimony. Your best preparation for any contested hearing is to relax and tell the truth when called to testify.
   
9. Final Decree or Order: Your family law matter will be concluded on the date the Court signs the final decree or order; however, for 30 days after a decree or order is signed, an appeal of your case or motion for new trial could be filed. Also, remarriage within 30 days of divorce is generally prohibited by law.

Division of Property

A major consideration in divorce is "who gets what?" Property division is complex in a community property state like Texas, and is generally governed by the Texas Family Code and is further bound by appellate court decisions. Generally, a spouse's separate property is always awarded to that spouse. "Separate Property" is defined as that property owned by that person before marriage, acquired during marriage by gift or by inheritance, and includes recoveries for personal injuries. However, separate property may be subject to certain claims of the community property estate. "Community property" is all property, other than separate property, acquired by the spouses during marriage and is divided upon divorce. During a marriage, each spouse owns an equal, undivided interest in all community property; this does not mean 50/50 nor is community property always divided 50/50 upon divorce.

Division of property upon divorce is not automatic, nor is there a simple formula. The Court takes into consideration a myriad of factors such as the respective earning capacities of the spouses, the size of the respective separate property estates, the needs of children and the spouse having custody of the children. Also, if one spouse has committed acts that effectively forced the other party to seek a divorce, fault grounds and a disproportionate division may be urged as a means of penalizing the offending party. Also, claims of fraud, reimbursement rights, and other factors are weighed. Irrespective of these factors, the Court must always divide the property in a manner that is just and right having regard for the parties' and children's rights.

These principles are general in nature. It is your Attorney's job to know when these or other factors may affect your case and to advise you accordingly. Your Attorney will attempt the best possible settlement, but accept your Attorney's realistic advice and approach.

Alimony, or Spousal Maintenance

Alimony, or spousal maintenance, refers to payments made for support of a spouse after divorce, as distinguished from payments made for the support of children. Texas law has always permitted contractual alimony, i.e. the parties may agree for the payment of alimony, and has been used in equalizing property divisions in higher income divorce situations. Now, “limited” alimony may be ordered by the Court. The Texas legislature stated that court-ordered alimony is intended to “provide spousal maintenance primarily as a temporary rehabilitative measure for a divorced spouse whose ability for self-support is lacking or has deteriorated through the passage of time while the spouse was engaged in homemaking activities and whose capital assets are insufficient to provide support . . . spousal support should be terminated in the shortest reasonable time, not to exceed three years, in which the former spouse is able to be employed or to acquire the necessary skills to become self-supporting.”

Alimony may be ordered only when the marriage has lasted 10 years or longer, the payee spouse lacks sufficient property to provide for minimum reasonable needs, and that spouse (a) is unable to support themself because of an incapacitating disability, (b) is custodian of a child requiring substantial care preventing the spouse from working outside the home, or (c) lacks earning ability adequate to provide support for the spouse’s minimum reasonable needs. Court-ordered alimony cannot exceed the lesser of $2,500/mo. or 20% of payor spouse’s gross income and has a maximum duration of 3 years. Therefore, alimony is not intended as a permanent means of support.

When alimony is paid, the payor spouse is entitled to a federal income tax deduction for amounts paid as alimony and the payee spouse must declare all alimony received as income and pay tax on it.

Children

There are four primary issues pertaining to children: who will have primary custody of the children, what powers does each parent have regarding the children, what form and amount of child support will be paid, and what possession and visitation rights will adhere.

(1) Custody:

"Sole Managing Conservator" is the person having primary custody of the children. The "Possessory Conservator" has specific rights of possession of the children for certain periods of time under specified conditions and usually is required to pay child support. In addition to having primary custody of the children, the sole managing conservator generally has the exclusive legal authority to decide most of the matters which affect a child's life, i.e what school to go to, what doctor to use, how the child's money will be spent or saved, etc. The possessory conservator has rights regarding the child, though not as extensive as the managing conservator.

Joint Managing Conservatorship: It is presumed in Texas law that it is in the children’s best interests that both parents be appointed joint managing conservators to ensure the continued, active participation by both parents in the lives, activities, and decisions concerning the children. This arrangement provides for a greater sharing of powers between the parents, but which does not have to be equal.

(2) Child Support

Child support is comprised of periodic payments for financial support of the children, provision of health insurance, and payment of medical expenses, and usually continues after Obligor's death as an obligation of that person's estate. Periodic payments of child support are primarily set according to the Child Support Guidelines; variations from the Guidelines require good cause. The Guidelines also usually require the Obligor to maintain health insurance, with payment of uninsured medical expenses allocated between the Conservators. Other factors considered in setting child support include the number of children, income of the "Obligor" (the paying parent), cost of caring for children, living expenses of the respective parents, income tax dependency exemptions, and other financial arrangements.

(3) Possession and Visitation:

Commonly called "visitation", the preferred term is "rights of possession" since both Conservators have specific rights and periods of possession of the children. Since both parents should ensure that the children continue to have productive and caring relationships with the other parent, all possession orders provide that the Possessory Conservator will have possession of the Children as the Conservators mutually agree. If they cannot agree, each Conservator will have possession of the Children according to a schedule setting specific periods of possession for each parent and the terms and conditions under which possession is exercised. Typically, a "Standard Possession Order" is ordered which contains the presumably minimum amount of contact between a non-custodial parent and the children.

"Custody Fights":

Parents should engage in a custody fight only when absolutely necessary, i.e. there are serious fact situations and problems. Custody fights inevitably cause much anxiety and hostility, are especially traumatic for children, and are usually protracted and expensive (typically taking up to a year to resolve and costing each parent a minimum of $15,000 in attorney's fees, litigation expenses, and court costs). Every reasonable effort should be taken to avoid a custody fight; therefore, prior to commencing a contested custody case, we recommend that both parents seek advice of a professional knowledgeable in the area of child psychology.

Change of Name in Divorce:

A wife can restore her maiden name, taking into consideration ramifications when there are children of the marriage. Otherwise, restoration of a former name may be had for the asking.

IF THERE ARE OTHER ISSUES THAT YOU FEEL SHOULD BE SPECIFICALLY ADDRESSED, DISCUSS THEM IN DETAIL WITH YOUR ATTORNEY.