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Family Law FAQ
Q. What does “community property” mean?
A. Texas is a community property state. Although there are exceptions to every rule, community property is subject to a division in the event of a divorce, including debts. Before the community estate can be divided, it must be characterized. The estate is not merely divided by giving each side 50%. Instead, several questions are asked to determine what a “just and right” division of that estate should be. For example, items that would be considered part of the community estate could consist of cars, houses and other property obtained during the marriage.In Texas, all property that is owned by the parties at the time of divorce is presumed to be community property, however, property that is considered the separate asset of a party is generally not divided. It is only the community estate that gets divided. For instance, if one party owned a house before the marriage, that house would remain the property of that person after the divorce is settled. However, there are also rules that might give the other spouse a claim of economic contribution or reimbursement if certain criteria are met. Other separate property items may include such things as stocks, businesses, inheritance and gifts. Whether each item of the marriage is characterized as community or separate is one of the keys to the final outcome of the division of property.
Many times, the determination of how an article of property will be categorized can be difficult. In these circumstances, “tracing” is often used to make these determinations. Tracing develops relevant evidence for the tracking of an individual’s separate property through the entanglement with community property. Often when tracing is used, expert witnesses are needed to testify to the evidence or give appropriate appraisals of the property’s value.
Q. Does Texas law allow for alimony?
A. Alimony in Texas is called “spousal maintenance.” Until recently, Texas was the last state without spousal maintenance. Recent changes in the law, however, have opened the door to very limited spousal support after divorce. The possibility and probability of spousal support will be evaluated by your lawyer and factored into the strategy and outcome of the case.
Q. Can we settle our case with our attorneys out of court and get a judge to approve the settlement?
A. There are several different avenues for resolving divorces and issues involving children out of court-such as mediation and collaborative law-and these tools can greatly improve the financial and emotional factors of a divorce. However, your decision must be carefully thought through. After the divorce is over, it is often too late to change your mind. It is imperative that you consult with a qualified and experienced attorney before agreeing to anything, especially if there are children involved. You want to make sure that your children’s best interests are taken into account. Ultimately, most cases are resolved without a final trial.
Q. What is the child custody law in Texas?
A. In Texas, all custody determinations will be made based upon what is in the best interest of child. The legal termination for custody in the Texas Family Code is “possession and access.” There is a presumption that the parent that does not designate the primary residence of the child should have possession and access of the child on the 1st, 3rd and 5th weekends of each month, extended summer possession and alternate certain holidays with the other parent. Possession and access can also be affected by the distance the parents reside from each other.Over the past several years, domicile restrictions have become more and more popular. This means, although one parent may have the right to designate the residence of the child, that residence must be located within a certain geographic boundary. That boundary can be a school district, city, county, state or even country. Most often, the children’s residence is limited to a county or group of counties. Some courts are more likely to impose geographic restrictions, however, these decisions are made on a case by case basis.
There are many factors to consider when determining possession and access, and it is very important to retain an experienced family law attorney to assist you in making informed and appropriate decisions, or to protect your interests in a contested “custody” case.
Q. How does child support work in Texas?
A. Child support, in most instances, is based on the Texas Child Support Guidelines. To put it simply, child support usually ends up being a percentage of the obligor’s (the party paying support) net pay. In Texas, the courts most often require the obligor to also pay for the children’s health insurance as additional child support.Courts want to see children provided for. If a judge orders one parent to be the primary conservator of the children, he or she will usually order the other parent to pay child support. Likewise, if the children change from living with one parent to living with the other, then the support is likely to shift.
If support has already been ordered, sometimes a modification of the amount of support is necessary. Either the obligor changes jobs and the pay decreases or the receiving parent desires an increase in support due to various reasons. Generally, every three years the support obligation may be adjusted. If the obligor or obligee desires to change child support less than three years from the last child support order, they have additional burdens of proof to receive an increase or decrease in child support.
Q. What is contempt?
A. Contempt is a remedy that is often used to compel the parent who has been ordered to pay child support and who has failed to do so, to appear in court to offer a legal excuse for failing to pay the support as previously ordered.Contempt is also the remedy that is used when one of the parties violates an existing order by denying access to children, violating the other party’s rights in certain items of property or, on some occasions, by physical or verbal attacks that have been prohibited by the court.
The Court has the power to punish the party violating the court’s order by placing them in jail, fining them, or both. The Court can also enforce payment of support arrearage by placing the violator in jail until the monies are paid.
These are, of course, extreme remedies and before a court will use these remedies, the attorney bringing the motion must have met a great number of technical requirements. These are the most detailed motions that a family law attorney can bring, since the accused party can lose his or her freedom. It is essential, therefore, that any lawyer bringing a contempt motion be well trained and experienced in these matters since even a small technical defect can cause the motion to fail.
Q. What happens in a paternity case?
A. In a paternity case, all issues of child custody, visitation, and support apply. In these cases, however, there is also the determination of who the father is. If the parties were not married when the child was conceived or born, then the man will most likely not have conservatorship or visitation rights and will not be obligated to pay any support until he is found by a Court to be the father (or in the case of a temporary hearing, until the paternity tests have found him to be the father by way of a DNA test).Once a man is found to be the father, and depending on the circumstances, he may: (1). be required to pay child support; (2) exercise visitation with the child; (3) make decisions concerning the health, education and welfare of the child; and/or (4) designate residence of the child.
There are many factors to consider; therefore, it is important to have an experienced attorney who can explain all the aspects of paternity and the consequences that follow.
Q. How will our divorce affect our children?
A. Chronic conflict and stress is hard on children, emotionally as well as physically. Children often blame themselves for their parent’s conflict. Children under stress are more vulnerable to physical illness, problems at school, and problems with others. If there is chronic conflict in your marriage, that conflict has already had a negative impact on your children.If a divorce will ultimately result in less stress for the children, then the short-term impact a divorce may have on your children could be far less traumatic on them than the long-term stress of a chronically conflicted household. Change, even if it is ultimately for the better, is stressful on both children and adults. Extended family, clergy, or mental health professionals can help your family through a divorce if you decide this action is the best choice.
Many children have misperceptions about having to choose one parent over the other, that they won’t ever see one of their parents, or that they’ll have to go to court. It is, therefore, important that, when possible, you educate your children together about what to expect in the upcoming months and reassure them that they will always have a mom and dad that love them, although you will not always be living together.
Listen to your children’s concerns. Encourage your children to talk so you can address possible concerns and misperceptions. Absent extraordinary circumstances, let your children know that you support their relationship with the other parent. Tell your children that it’s okay to love and miss the other parent and that having these feelings is natural.
Remember that your children will look to how you and your spouse are coping with the upcoming changes. Your confidence and your reassurance about the new changes in the family will instill confidence in your children.
If your relationship is so strained that you have a hard time being civil to each other, find a neutral person or a therapist to help you and your spouse focus on the needs of the children. Conflict between parents is extremely hurtful to children. Use your neutral person to help you both tell the children about the upcoming divorce and your hopes that the strife between the two of you will lessen by living independently.
Be very careful to keep your children out of the middle. Resist any urge to draw your children into the divorce issues. Most courts send divorcing parents to some type of co-parenting class to instruct the parents how to assist their children adjust with the resulting change.
Q. How can I make sure the children maintain a healthy relationship with their other parent?
A. Children tell us they most often miss the parent they are not with at the time, so you need to let your children know it is natural and normal to miss the absent parent. Give your children permission to call or see the other parent.Teach your children how to deal with feelings of missing the absent parent. Show them how to telephone, e-mail or help them arrange a meeting with the absent parent. Your showing them how to reach out is teaching them how to cope, as well as a demonstration of your support for the other parent. It is a physical demonstration of permission to love the absent parent.
You and your spouse will have legal documents that will likely provide for set periods of visitation for the other parent. Although your children don’t need to know the details of the Court’s orders, they should know that they will be able to see the other parent on a regular basis. Even though your legal documents will outline specific periods for both parents, you will have the ability to mutually agree with the other parent to be flexible with the children’s schedule.
Q. My children live with the other parent, so how can I maximize my time and relationship with them?
A. During your periods of visitation enjoy meals, do homework, attend sports practices, reasonable discipline, and bed-time contribute to a rich parenting relationship that mirrors normal family life. Try to interact with your children in these types of natural, everyday experiences. The limits and routine will be good for them and your relationship with them.Establish independent lines of contact with teachers, therapists, friends, neighbors, and extended family. This will help you continue to play a part in your children’s lives without interruption and without infringing or becoming too dependent on the primary parent. Knowing your children’s schedules and habits at their primary home will help you maximize their experience at yours.
Finally, remember that your children have two homes, not just one. Don’t make the mistake of “taking the children home” after your period of possession. Keeping this mindset will help you create a fulfilling family life for the children.
Q. How much do we share with the children about litigation?
A. Resist the temptation to involve your children in any aspect of the divorce or child custody fight. If the children are naturally curious or have heard statements about the litigation from the other parent or extended family, do not discount their feelings or questions. Calmly explain to them that these are adult issues that do not concern them.Always take the high road. Your children are part you and part the other parent. Any criticism of the other parent reflects poorly on the self-esteem of your children. Find a balance between keeping the children out of the process and answering questions by explaining to them that everything will be alright, that both parents love them, and that the litigation will not affect that love and affection by both parents.
Q. What can I do if the other parent won’t share my children’s school and medical information with me?
A. Be pro-active; take the responsibility of getting the school and medical records from the children’s schools and doctors yourself.
Q. What should I do if my child doesn’t want to visit with the other parent?
A. Gently explore with your child why they don’t want to spend time with their other parent. Make sure they know that they can come to you with any concern.If, after speaking to your child about their reasons for avoiding visitation, you determine that your children are being abused, seek help from your attorney, law enforcement authorities and/or Child Protective Services.
Unless you reasonably believe your child is being harmed, you should support frequent and ongoing contact with the other parent. Be enthusiastic when you talk about visits with the other parent. Talk about all of the activities your child and the other parent will enjoy. The more supportive you are of the visit, the more likely your child will want to go and that they will enjoy their time with the other parent.
Q. What can I do if my ex-spouse deliberately takes low-paying jobs to avoid paying more child support?
A. If a court in Texas finds that your ex-spouse is intentionally under employed or is intentionally unemployed the court has the authority to order child support in the higher amount they could be earning, and not at the lower amount.
Q. What can I do if my ex-spouse won’t follow the court’s order?
A. Any violation of the court’s order may be addressed through an enforcement action. This includes a failure to timely pay child support, and a failure follow a possession order, which are enforceable by contempt. A finding of contempt can result in jail, fines, the award of attorney fees, or a requirement that a bond be posted.Your remedy is a motion for Enforcement. Texas law states child support and possession and access have nothing to do with one another. If you withhold the child because the other parent won’t timely pay child support or vice versa, you could face the penalties of contempt.
Q. Can the other parent move to another state without my consent?
A. A move to another state will certainly affect the relationship between the child and the parent left behind. Often that relationship is harmed. Generally, children of parents separated by distance most often miss the parent left behind a great deal. If the children have a close relationship with the parent left behind, then a move should be avoided if at all possible. Most counties in Texas have policies that prevent such a move unless there is a very compelling reason.