Family Law

Texas law provides that a divorce (dissolution of marriage) may be granted on various fault-based grounds, such as cruelty, adultery, or abandonment, among others, as well as on the no-fault ground of insupportability. A court can grant a divorce without regard to the fault of either party if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.

In order to file a suit for divorce, one of the spouses must have been domiciled (lived) in Texas for the past six months and must have been a resident of the county in which the suit is filed for the past ninety-day period. Except in cases involving family violence, a divorce suit must have been on file for at least 60 days before a court may grant the divorce.

Divorce cases that involve complex property division and/or contested child custody, possession, and/or support issues, can and often do take much longer to finally resolve.     While former spouses may re-marry each other at any time, absent a finding of good cause by the court, neither spouse may marry a third party before the 31st day after the day the divorce has been granted.

The Texas Family Code provides that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

If both parents are appointed as conservators of the child, the court is required to specify the rights and duties of a parent that are to be exercised (1) by each parent independently; (2) by the joint agreement of the parents; and (3) exclusively by one parent.

“Joint managing conservatorship” means the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the right to make certain decisions may be awarded to one party. 

 “Primary” joint managing conservator often refers to the parent or party who has the exclusive right to designate the primary residence of the child. 

A parent appointed as a conservator of a child will have certain rights and duties at all times, unless limited by the court and found to be in the best interest of the child, including, but not limited to such rights as (1) access to medical dental, psychological and educational records of the child; (2) attending school activities, including school lunches, performances, and field trips (regardless of whose parenting time during which the event occurs); (3) to consult with a physician, dentist or psychologist of the child; (4) to receive information from any other conservator of the child concerning the health, education and welfare of the child.

In addition, a parent appointed as a conservator of a child will have certain rights and duties during the period that the parent has possession of the child, unless limited by the court such as (1) the duty of care, control, protection and reasonable discipline of the child; (2) the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure; (3) the right to consent for the child to medical and dental care not involving an invasive procedure; and (4) the right to direct the moral and religious training of the child.

The court may order either or both parents to support a child in the manner specified by the court  until the child is 18 years of age or until graduation from high school, whichever occurs later. The court may also order child support to be paid by one or both parents for an indefinite period if the child is disabled.  The appointment of parents as joint managing conservators does not limit or prohibit the authority of the court to order a joint managing conservator to pay child support to another joint managing conservator.  Generally, the parent conservator who does not have the right to determine the primary residence will be ordered to pay child support to the other parent conservator who has the exclusive right to determine the primary residence of the child 

The amount of child support that is to be paid by the obligor (the conservator required to make child support payments) to the obligee (the conservator or entity entitle to receive payments of child support) begins with the child support guidelines since those guidelines are applicable in every case and are intended to guide the court in determining an equitable amount of child support to be paid.  The amount of child support to be paid as established by the child support guidelines is rebuttably presumed to be in the best interest in the child.  The amount of child support to be paid is usually calculated according to guidelines which are based on the paying parent’s net resources and the number of children to be supported that are before the court. Under the child support guidelines, the child support amount can range from 20% for one child up to 40% for six or more children of the obligor’s net resources. The obligor’s (paying party’s)  net monthly resources are generally capped at a certain amount per month. However, a court may determine that the application of the child support guidelines would be unjust or inappropriate under the circumstances.  In making a determination of whether application of the guidelines would be unjust or inappropriate under the circumstances and deviating from the guidelines would be in the best interests of the child, the court can consider evidence of all relevant factors Relevant factors to be considered by the court in making such a determination include, but are not limited to,  such relevant factors as age and needs of the child, amount of time of possession of and access to a child, child care expenses incurred by either part in order to maintain gainful employment, whether either party has the managing conservatorship or actual physical custody of another child, or any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.  The court cannot make or issue any order that makes one parent’s possession and access rights contingent upon the timely payment of child support by the obligor parent.

Texas is a community property state and all property acquired by either spouse during or on the dissolution of marriage is presumed to be community property subject.  A spouse’s separate property consists of (1) the property owned or claimed by the spouse before marriage; (2) the property acquired by the spouse during marriage by gift, devise, or descent; and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. 

At the time of divorce, Texas courts must divide the community property estate between the parties in a manner that the court deems just and right manner, taking into account and having due regard for the rights of the spouses and any children of the marriage.  Characterizing whether a particular asset is a community property asset or a separate property can be extremely important because the court can only divide what has been determined to be community property.  

Determination of whether certain assets such as real estate, business interests, insurance policies, pensions plans, stock options, and other retirement and employment benefits can be quite complicated and complex. Determination of the value of marital property assets can also be complicated and complex.  It is very important for an individual with these types of cases to hire an experienced family law attorney with the requisite skill, knowledge, and ability to assist that individual in properly characterizing the marital assets as well as the separate property assets.  It is equally important for that individual’s attorney to have the ability to argue aggressively and persuasively to the court for a division of the marital estate that is just and right for that individual and to have the court confirm that client’s separate property.

Spousal Maintenance is an award in a divorce case of periodic payments from the future income of one spouse for the support of the other spouse.  A few of the many factors considered by the court in whether to order one spouse to pay spousal maintenance to the other spouse include (1) each spouse’s ability to provide for that spouse’s minimum reasonable needs; (2) the education and employment skills of the spouses; (3) the duration of the marriage (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance. The duration for any maintenance order is set statutorily, may be modified by the court that issued the maintenance order or even terminated if either party dies, the obligee remarries, or after a hearing, the court finds that the obligee cohabits with another person with whom the obligee has a dating or romantic relationship in a permanent place of abode on a continuing basis.  The amount of maintenance that a court may require an obligor to pay monthly is the lesser of $5,000.00 or 20 percent of the spouse’s average monthly gross income.

All community property acquired by the parties during the marriage will be subject to division by the Court upon divorce.  However, parties may agree to contractually change the characterization of property and parties may partition or exchange between themselves all or part of their community property then existing or to be acquired as they may desire. Parties about to marry and parties already married can enter into premarital agreements and parties already married can enter into postmarital agreements that alter the marital-property rights without the necessity of judicial action.

• Premarital Agreements: A Premarital agreement is an agreement between prospective spouses, made in contemplation of marriage and which will become effective on marriage.  A premarital agreement must be in writing and signed by both parties.  Premarital agreements can alter the rights and obligations of each party in any of the property whenever and wherever acquired. While income earned during marriage is presumed to be community property, premarital agreements can alter the characterization of income earned during marriage so that income remains the separate property of the party earning the income. A premarital agreement must be in writing and signed by each party and becomes effective on marrage.
• Postmarital Agreements: There are two types of postmarital agreements: (1) partition/exchange agreements and (2) conversion agreements. A partition/exchange agreement allows spouses to partition or exchange between themselves all or part of their community property then existing or to be acquired, as the spouses desire.  Property or a property interest transferred to a spouse by a partition or exchange agreement becomes that spouse’s separate property.  A conversion agreement is an agreement entered into between spouses whereby they agree that all or part of the separate property owned by either or or both spouses is converted to community property.