Law Offices of
David S. Bouschor II
217 E. Oak Street
Denton, Texas 76201
(877)592-1300 (toll free)
217 E. Oak Street
Denton, Texas 76201
(877)592-1300 (toll free)
The following are guidelines for general information purposes and are not a substitute for specific legal advice.
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".
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.
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.
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.
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.
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.
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.
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, 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.
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.
"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.
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.
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.
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.
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.