The Texas Family Code provides a long list of valid legal reasons for divorce which include “fault in the break up of the marriage” (which includes infidelity, domestic violence), but most divorces today are “no fault” divorces.  This simply means you just couldn’t get along any more.  Generally a party will allege in his or her petition that the marriage has become “insupportable due to discord or conflict that destroys the legitimate ends of the marriage relationship and that there is no reasonable expectation of reconciliation”.

In Texas, the Parties must wait sixty days from the date the divorce is filed until the divorce may be finalized.  This is almost an absolute rule.

If there are children born or adopted during the marriage, the divorce must be combined with a suit affecting the parent child relationship.  Technically in a divorce involving children there are two lawsuits that are filed and tried simultaneously.

Generally divorces with kids or suits affecting parent-child relationship require courts to determine which parent is able to determine where the children based on the “best interest of the child” standard.  In Texas, it is presumed that the parents should be appointed Joint Managing Conservators which allows both parents to generally have the same rights and duties, except one parent must have the exclusive right to determine the primary residence.  Other important rights and duties include the right to make education decisions, right to make medical decisions, and right to authorize and choose a counselor.  The only “exclusive” right that the Court is required to determine is which conservator (or parent) shall have the exclusive right to determine the primary residence.  

The Court does have the ability to sign an order in which there is not a conservator with the exclusive right to determine the primary residence but the children are restricted or ordered to live within a geographic area, usually a school district.  This is only done in cases where the conservator (or parents) reach this agreement.  The Court cannot order this.  Therefore when a case is tried to a jury or to a judge, there is a “winner” and a “loser”.  Typically, one parent will be awarded custody or the right to determine the residence and the other parent will be awarded visitation in accordance with a standard possession order.

 Trials often render a type of “all or nothing” results even in close call decisions.  Additionally, the “winner” gets child support, and the “looser” pays.  This “winner take all” system often results in perpetual litigation in close call cases whereby multiple lawsuits are filed seeking modification in subsequent years.  This perpetual litigation with its negative effects on the children most often arises in otherwise good families.

Even when a case is tried to a jury, judges still determine the issues of visitation and access.  A judge will usually grant the “loser” or non-custodial parent a standard possession order, because it is easier than issuing a unique court order for every case and  because the Legislature has told judges that the standard possession order is deemed to be in the best interest of the child.  In order to obtain a visitation schedule that is either more or less than the standard possession order, the petitioner must overcome the legislatively created presumption that the standard possession order is in the best interest of the child.

Your attorney must have a realistic picture of the strength of your case and know how the judge is likely to rule on any set of facts.  It’s your attorney’s job to figure out how you win, but be sure to tell your attorney how you lose so your attorney doesn’t get caught off guard.  Problems in your case can only be fixed if they are identified.  The court room is too late.

The core competency of an attorney is advocacy.  Your attorney works for you and is paid to get you the best result possible.  Your attorney may encourage you to take a more or less aggressive approach than what you would normally take.  You are always free to disregard your attorney’s advice.  The buck stops with you.  A competent attorney will make sure you make well informed decisions and provide you the best chance of achieving your goals through the lifecycle of your case whether it be settlement or trial.

The rules for grandparent custody and non-parent custody in Texas are somewhat the same.  This is true even where the non-parents are not biologically related to the children.  This is because generally any person that has had possession of the child for six months has standing to seek custody.  Tex.Fam.Code § 102.003 (Vernon 2011).

However grandparents and some relatives are given special authority to seek custody.  Grandparents may also seek custody if they are able to show that the children’s current environment would significantly impair the child’s physical health or emotional development.  The most typical situations in which this standard is met is where there is abuse in the home or there is drug use such that the children are not being cared for.  

Grandparents may also seek possession and access of grandchildren, however possession and access may be obtained only in limited circumstances —   The grandparent’s child (the parent) is incarcerated, is found by a court to be incompetent, is deceased, or does not have actual or court ordered possession or access.  Tex.Fam.Code § 153.433 (Vernon 2011).  The logic for limited possession and access is parents are deemed to make decisions that are in the best interest of his or her children.  Courts have ruled that the judiciary cannot interject their parenting style or parenting decisions by requiring that a parent allow a grandparent to have access.  The only mechanism for a grandparent to have possession and access under the Family Code is, in essence, to show that their child’s ability to decide whether the grandparent should have access to the child is cut off.

Child support is simply the money paid by one or both parents of a child for the benefit of that child.  Entering child support orders can be simple, however collecting is often a challenge.  Family Courts across the state typically use the child support guidelines found in the Texas Family Code to determine child support.  A Court may modify child support if there has been a materially and substantial change in the life of a parent or the child OR it has been three years since the child support was ordered and it will increase or decrease by either 20 percent or $100.  A material and substantially change usually this means a change in employment or a loss of a job.  

Originally, child support guidelines were based on decades old studies indicating what percentage of a mothers’ standards of living dropped when fathers abandoned their kids and to a lesser extent how much the fathers’ standards of living increased.  Today the culture of using a chart to determine the proper amount of child support in lieu of hearing evidence still exists.  

An even more significant problem than the inherent inequities of determining child support from a chart arises for the inability to collect child support once ordered.  Problems often arise when the obligor changes jobs frequently, the obligor doesn’t notify the court of a change of address, or hides income.  Non-payment is almost always deliberate and the legal remedy is typically a multi-step process.  Often a motion to enforce is filed, asking the Court to order the obligor to go to jail or ordering the obligor to pay money in lieu of going to jail.  Like any case there is an upfront cost to hiring an attorney to collect past due child support.  Even after hiring an attorney money is sometimes hard to collect therefore trust is critical in this type of attorney-client relationship in order to ensure that your money is well spent.

Collection problems in Texas are so pervasive that the criminal charge of criminal non-support was created.  The hope was to provide further incentives to pay child support by threatening delinquent parents with a two-year long state jail sentence.  Typically, the plea offer for the delinquent party will be probation and payment of arrearages as a condition of probation.  If the arrearages are not paid during the probationary period then the parent may be sentenced for up to two years confinement in a state jail.

There is a presumption against spousal maintenance or alimony in Texas, but some recent changes to the Family Code has given spousal maintenance applicable in more cases.  Texas’ attitude towards alimony is far different than other states and is consistent with Texas’ conservative values favoring hard work over hand-outs.  The availability of spousal support increases with the length of a marriage and increases with one spouse’s legitimate inability to provide for themselves.  Spousal support, even when granted is for a limited time.  However, the restrictions on spousal support only apply to final orders.

Judges do have the ability to award “temporary spousal support” under a temporary orders hearing.  The payments would be made to the other spouse during the pendency of the divorce, unless modified by the Court.

Temporary support is meant to pay for necessary expenses.  The logic is to make sure that property is not lost before it can be divided up at the conclusion of the divorce.  For instance, spousal support may be awarded to ensure that a mortgage payment is made or to prevent a house from being foreclosed on before the divorce is finalized.

There are no rules governing temporary spousal support other than case law that says temporary spousal support is limited to the recipient’s “necessary expenses.” Herschberg v. Herschberg, 994 S.W.2d 273 (Tex.App. – Corpus Christi 1999, pet. denied).  Knowing the philosophy of the trial court judge regarding temporary spousal support is essential because there is no legislative or statutory criteria for the award or the amount.

Common property issues include characterization of property, spousal maintenance (alimony), temporary spousal support, distribution of retirement and tracing.

Characterization – Property division tab

Characterization of property is the concept use to determine whether property is community or separate property.  The trial court is not able to divide up separate property; separate property is not part of the community estate or the marital assets. Separate property is primarily composed of property owned solely by one party before the marriage, gifts, and inheritance.

It is a common misconception that in Texas divides community property 50/50. Instead, the Texas Family Code states that the court shall order a division of the estate in a manner that the court deems just and right.  Tex.Fam.Code § 7.001 (Vernon 2011).  However, often the issue of characterization of property is not black and white.

Retirement– Property division tab

Texas law provides for the distribution of retirement according to the same rules as other property unless a specific statutory exception applies.  However Federal Law controls distribution of retirement.  Having an attorney that understands the interaction between Federal and State law controlling distribution of retirement is essential for anyone who is getting a divorce.  

Tracing– Property division tab

Tracing is the process of determining whether property is community or separate.  Tracing examines how the parties to a divorce acquired property and how it changed during the marriage.  Attorneys must not only understand tracing, but take the time to go through documents, often hundreds of pages, in order to determine the nature of each asset.  

It is important to hire an attorney that understands financials, bank statements, etc and will protect your separate property and your interest in the community estate.

A party seeking to modify possession and/or access of a child must show a material and substantial change in the life of the child or a party affected since the issuance of the prior order.  Additionally, the party seeking modification must show that the modification is in the best interest of the child.  Denials of modifications happen more frequently in situations in which the parent seeking a modification proves a change in circumstance but the Court determines a change is not in the best interest of the child. Your attorney must be prepared to prove both that a material and substantial changed has occurred and that the evidence illustrates an environment justifying changing the existing order.  

Experience matters both in determining what evidence to present and in determining whether or not the Court will modify the existing order.  Sometimes filing a modification is a moral imperative.  Other times the decision of whether or not to file a modification is a close call.  An experienced attorney is most important in close call situations.  Your attorney should not only know the law, but know the judge.  That’s because the “best interest of the child” standard is more open to interpretation than most legal standards.  Courts give different weight to the child’s age,  development, and the good or bad behavior or a conservator.  This variance is so significant that often different judges will rule differently on almost identical facts.  Your attorney should know your judge well enough to tell you what your probability of winning is before taking your case.

Adoption

Adoption is possible once the rights of both biological parents are terminated. Adoptions are special occasions for everyone involved, to include the Court.  Adoptions give the judge a break from the grind of choosing a winner and a loser.  Terminations of parental rights for adoptions are bitter sweet, and typically based on affidavits of relinquishments.  Adoptions are done at a separate court proceeding after the termination proceeding.  

Termination

When a court terminates parental rights that parent has no more rights to the child than a stranger.   Involuntary termination cases are typically hard fought.  Often these cases arise from allegations of abuse or neglect and involve Child Protective Services.  Grounds for termination include abuse or neglect, not paying child support, abandonment as well a number of other grounds.  Terminations require clear and convincing evidence that one of grounds for termination is true and clear, and convincing evidence that the termination is in the best interest of the child.  

When the grounds for termination is a technical ground – not paying child support, for example — a Court may look for a party, “stepping into the shoes” of the terminated parent.  “Stepping into the shoes,” of another parent is not a requirement under the Family Code, however evidence that a party has stepped forward to care for and love the child as a parent makes judges more comfortable granting the termination.

The trial court judge’s level of comfort is important and attitudes about termination, like a lot of matters in family court, vary widely from judge to judge.  Terminations are legally disfavored.   Typically juries will terminate faster than judges will and for less cause.  The disfavored legal treatment of terminations is evidenced by the fact that even if a parent signs an affidavit of relinquishment, the Court must find that the termination is in the best interest of the child.

Claire has represented parents, grandparents, and children in child protective services cases.  If you are retaining an attorney to represent you in a CPS case it is important that you hire an attorney that has worked within the CPS system.  CPS cases are very different than a typical custody case or divorce.  There are different deadlines and different requirements mandated by the Legislature.  It is extremely important that your attorney is familiar with the specific requirements of CPS cases.

Retirement

Several myths and urban legends surround the division of military retirement.  One common myth is that the non-military spouse has no right to military retirement unless they were married during at least ten years of their spouse’s service.  Another common myth is that DFAS will begin paying the divorced non-military spouse based solely on DEERS information or that a clever non-military ex can obtain a share of the retirement without a court order but simply upon submitting the proper forms.  

In reality, Federal Law ensures DFAS treats military retirement like any other asset. Military retirement is subject to the same bargaining, haggling, and litigation as any other asset.  Many of the aforementioned myths stem from prior law and the procedural mechanisms used by DFAS to divide military retirement once a provided with a court order.    For example, DFAS will send the non-military ex-spouse his or her portion of the monthly retirement check directly if the marriage was over 10 years during which there is 10 years of credible military service.  However, if the marriage was under 10 years DFAS sends the entire check to the service member and requires the service member to pay his or her ex-spouse.  Neither is done until an order is provided.

Deployment Statute

Prior to the enactment of military deployment statutes, a non-military custodial parent was able to withhold his or her child completely from the military member’s entire family –which could include a step parent, grandparents, half siblings.  The non-custodial service member’s right to possession and access of the children ended with the deployment and their courted ordered time with their child reverted to the other parent.  Siblings who grew up seeing a brother or sister half of the time or more could only see his or her siblings with the permission of the service member’s ex-spouse.  Not surprisingly under the old law the 1st, 3rd, and 5th weekend often became never during the deployment.  Possession and access was at the whim of the service member’s ex-spouse.

Currently Texas Law allows the non-custodial military parent the right to obtain a temporary orders hearing to designate a spouse or grandparent to exercise his or her visitation with the child during the deployment.  If the military member is the custodial parent, the non-custodial, non-military parent, has the right to obtain a temporary orders hearing to grant him or her custody of the child during the deployment.  Often current divorce decrees or modification orders contain language that sets out these provisions without requiring the parents to go back to Court prior to each deployment.  It becomes simply part of the visitation arrangement.