Property and Debt Division

49741011911-320x193You have probably heard that Texas is a “community property state.”This is true, but many people misunderstand what that actually means in the context of a divorce. It does not mean that both spouses are entitled to half of the property. In fact, a couple’s property is rarely divided exactly 50/50.

The court considers several factors including: whether certain property was owned by one spouse or the other prior to the marriage (i.e. the property is separate rather than community property); the amount of separate property that each spouse owns; the earning power and potential of each of the parties; any proven fault grounds; which parent will be the primary conservator of the children; etc. The basic rule for dividing community property upon divorce is that the division must be “just and right.”

The reality for most couples is that, while they may have assets that must be divided between them, they also have debt that must be apportioned. The court can consider whether one spouse was more responsible for incurring certain debts and it can also consider the relative ability of either party to pay the debts.

Suits Affecting the Parent-Child Relationship

When divorcing couples have children together, the terms of the divorce must include orders regarding custody and support of the children. Furthermore, parents who were never married to each other must enter into orders regarding the custody and support of their children. These types of orders arise in a specific type of case called a Suit Affecting the Parent Child Relationship, or SAPCR (pronounced SAP-ser).

When the parents are a married couple who are divorcing, a SAPCR is automatically initiatedin addition to the divorce case. A SAPCR can be filed on its own if the parents are not married or, in certain circumstances, if the parents are married but not sure yet that they will ultimately divorce.

Remember, while a SAPCR will involve matters of both child support and child custody, these are technically separate issues. The rights and obligations pursuant to the child support order and the child custody order are not allowed to be ignored or deviated from even if one parent has violated certain terms. For example, it is a misconception that a parent may stop paying child support if the other parent does not follow the visitation schedule. This is not true and can get the support-owing parent in a lot of trouble. The remedy for any violation by either parent is to go to court to seek enforcement or possibility modification of the orders.

Child Support

Child support is recurring, regular payments (usually made on a monthly basis) by the non-custodial parent to the custodial parent until the later of the child’s eighteenth birthday OR his or her graduation from high school. In some cases, such as when a child is disabled, the court may order child support to continue for a longer period.

Child support is assessed based on the number of children the couple has and the non-custodial parent’s net resources. The Texas Family Code includes a formula for calculating the amount of child support payments:

  • One Child: 20% of the non-custodial parent’s net resources;
  • Two Child: 25% of the non-custodial parent’s net resources;
  • Three Children: 30% of the non-custodial parent’s net resources;
  • Four or More Children: 35% of the non-custodial parent’s net resources.

It is important to understand that this formula is a guideline and not an absolute requirement in determining the amount of child support payments. The court may consider such factors including: the incomes of both parents, whether either party is deliberately underemployed or unemployed, the cost of any extra-curricular activities of the child, , whether the support obligor has other children for whom he or she must pay child support, etc.

The state Attorney General’s office monitors all child support payments and will pursue serious penalties against people who fail to pay child support. Such penalties may includethe garnishment of wages and/or bank accounts; suspension of the obligor’s driver’s license or even of a professional license; and contempt of court (which usually results in jail time) for failure to pay.

If you are legitimately having trouble making your child support payments, please do not bury your head in the sand and duck payments or try to get the other parent to agree informally not to receive the ordered payments.  Parents are not permitted to informally modify court-ordered child support. Modification is often possible when there is a legitimate change in circumstances, but this must be presented to the court for consideration and approval.

Child Custody and Visitation

fog-79456640In Texas, “child custody” lawcovers two interrelated concepts: conservatorship (informally called “custody”) and access (informally called “visitation”). For both of these issues, the best interest of the child is the guiding principle for a court in making decisions. The best interest of the child is determined by considering factors including:  the health and safety of the child, the mental and emotional wellbeing of the child, whether one parent or the other is better equipped to meet the child’s physical and emotional needs, whether one parent has had a more active role in the child’s care, whether the child has siblings in one or the other parent’s home, etc.

Regarding conservatorship, under Texas law, there are two types of conservators: managing and possessory. Managing conservators have decision-making authority with regard to medical care, schools, and eventhe child’s primary residence. Conversely, possessory conservators, while being entitled to possession and access, have little or no legal authority to make major decisions on behalf of the child.

Remember, in most cases, the court will allow both parents to be managing conservators (though one parent—the primary managing conservator—will retain the right to determine the child’s primary residence) so that both parents may have authority to make important decisions regarding the care of the child. If, however, one parent is proven to be unsuitable for managing conservatorship, that parent may be only award possessory conservatorship or, in some situations, access rights only. In certain cases, one parent may not be awarded conservatorship and may even be required to have supervised visitation. The court must put the best interest of the child above all other considerations.

The court will also set a schedule for visitation. This can either be the standard schedule as delineated in the Texas Family Code, another schedule that the parents agree to, or a scheduledetermined by the court. The court usually gives great weight to minimizing disruption in the child’s schooling and extra-curricular activities.

Like child support orders, child conservatorship and visitation orders may be modified by the court if a material change in circumstances is proven.

Additional Family Law Matters

In addition to the legal matters listed above, we handle many other types of family law cases, including:

  • Access/Visitation by Grandparents
  • Adoption
  • Annulment
  • Contempt
  • Domestic Violence Issues
  • Enforcement of Child Custody Orders
  • Enforcement of Child Support Orders
  • Family Violence Issues
  • Grandparents’ Rights
  • Guardianship
  • Mediation
  • Modification of Child Custody Orders
  • Modification of Child Support Orders
  • Name Changes
  • Paternity Issues
  • Protective Orders
  • Pre-nuptial Agreements
  • Post-nuptial Agreements
  • Spousal Support
  • Step-parent Adoption
  • Supervised Visitation
  • Temporary Orders
  • Termination of Parental Rights
  • Unsupervised Visitation