Divorce Law

Family law centers around the marriage –  the creation and dissolution of that institution.  The entire process is covered by the Texas Family Code.

Divorces - The sad truth is that today, almost one half of all marriages end in divorce.  From the time of the marriage to the day the divorce is granted, the parties live as one unit and that unit accumulates assets, liabilities.  In addition, many divorcing couples have children under the age of 18 or who are still in high school – and all of their needs will have to be met and the respective rights of the divorced parents delineated, while maintaining the CHILDREN’S BEST INTEREST as the focal point.  The divorce not only ends the marriage, but it also entails the process of dividing up the marriage accumulations.

The vast majority of divorces never go to trial; they are settled along the route. At the end of the day, everyone is better served if the parties can settle their differences without court involvement and head out to their new separate, lives. Believe it or not, the parties are more likely to settle with two good attorneys in the mix, than they are on their own.

Children - The most difficult task faced in divorces are the issues that relate to the children.  Provisions will have to be made relative to with which parent the children will primarily reside, what the non-custodial parent’s periods of possession will be, who will pay child support and how much, who will maintain medical insurance for the children, how the children’s uninsured medical expenses will be paid, how the children’s extracurricular activities will be handled.  Unfortunately, oftentimes, the children are the PRIZE and the divorce arena the battleground.  The system is doing all in its power to attempt to protect the children from the parents’ fights, so common sense rules must often be established regarding how the parents must treat each other in the presence of the children and what parents may or may not say in the presence of the children. Most courts require the parents to take a parenting course for divorcing parents toward the end that they may learn new skills that will help to save the children. 

It is always important for divorcing parents to remember that children have rights.  The following is a list prepared by an author unknown setting forth the rights of children: 

CHILDREN’S BILL OF RIGHTS. 

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Mediation is especially important when children are involved. Things said in court cannot be taken back and may forever hurt the relationship between parents. The divorcing parents will ALWAYS be parents to their children – and that is something that must be communicated to the children. The children must be given permission to love both parents. Parents who alienate the children from their other parent are the biggest monsters that we face in this arena. 

Asset Division - Texas is a community property state and we start with the proposition that all of the assets owned by either party are community property.  However, that general presumption can be rebutted.  The property which each spouse owned before marriage is that party’s separate property. Additionally, any gifts, or inheritance or personal injury recoveries received during the marriage are separated out from the pack and labeled as the separate property of the one who received the gift, inheritance or personal injury recovery.  Separate property belongs to one spouse and the other has no legal interest in that property. Generally, the courts will then take a look at all of the assets and liabilities of the parties and divide them: “in a right and just manner”. The court will start with a 50/50 split and then it may, or may not, modify that position depending on the equities (for example, if one party earns more than the other, has a better education, owns more separate property, committed adultery) to as much as a 60/40 split, although 1 55/45 split is more likely. It must also be remembered that 100% of zero is zero.  Attorneys can help you to divide your assets, but cannot create assets out of thin air.

Into this pot of community property will be included all pensions earned by a spouse during the term of the marriage. Even if the pension plan was started prior to the marriage, that part which was contributed during the marriage is community property and will need to be divided between the parties or assigned to one of the parties.  The law makes no distinction as to who earned what –  it is all community property if it was earned during the course of the marriage. Interest or profit earned from separate property assets are characterized as community property.  So, if you want the income from your separate property to remain separate, you should have a pre-marital agreement prepared prior to marriage or a partition agreement prepared during the marriage.

The court cannot divide future income, perse, but can, under certain circumstances, grant spousal support, both on temporary orders and final.

Pre- and Post- nuptial Partition Agreements - Just as the name implies, these agreements allow the parties to agree on the financial arrangements of their marriage and possible divorce, as well as relative to the inevitable: death.  The obvious situation is where the asset base of one spouse is much different than that of the other from the onset of the marriage. While some say it is an act of bad faith made in anticipation of failure before the marriage even begins, others say it is the ultimate act of faith, not wanting the money, but the person.

Child Custody - Of all civil litigation, this is the most dramatic, expensive and heart wrenching. This is true not only for the parents, but for the children, juries, attorneys and judges as well. The overriding consideration for every decision is: “what is in the best interest of the children.” The sole question answered by the jury is, simply, who is to have the exclusive right to determine the residence of the child. The other parent (the non-custodial parent) will then be awarded periods of possession when he/she will have the child at his/her residence at varying times under a scheme called the Standard Possession Order.  There can be a variance from the Standard Possession Order.  However, that is the norm. At the end of the day, the parent who has the exclusive right to establish the children’s residence will have the child about 60% of the time and the other, about 40% of the time.

Child Support - Child support is just that, support paid by the non-custodial parent for the maintenance and upkeep of the child.  It is paid through a state disbursement agency that keeps the records of who pays what so there are no arguments, or at least fewer arguments.  Standard child support is a percentage of the net income of the non-custodial parent – net income of up to $7,500.00 per month. The percentages are: 1 child, 20%; 2 children, 25%; 3 children, 30%. If the non-custodial parent’s net income is greater than $7,500.00, any support over the guideline support is per the court’s discretion. It should also be noted that the percentages change if the non-custodial parent also supports other children of his/hers. It is also customary that the person paying child support also supplies the children with health insurance, at his or her sole cost and expense. Usually, the children’s uninsured medical expenses are shared by the parents on a 50%/50% basis.

Decree Enforcement - Your divorce decree will be very specific as to who does what, when and how. If the decree is not followed, there are certain remedies which the aggrieved party can utilize to get that decree enforced.  If it is simply the payment of money (other than child support), that would be just like any other judgment, whether from a credit card or bank loan. If it is to turn over certain property, the offender can be held in contempt of court for not obeying the court’s order.

The most serious of decree enforcement involves the issues surrounding the children.  Either there is child support not being paid, or one is not letting the other exercise his/her periods of possession.  In both cases, the offending person can be held in contempt of court. Contempt of court is punishable by jail time, and, almost every court in Texas has no difficulty in placing that offending party in jail. The courts see these offenses as an affront to the dignity and authority of the court where the real victims are the children.  Judges have absolutely no sympathy for this type of offender.

Decree Modifications - Most judgments and decrees are final 30 days after the judge signs  them,  absent any appeal. The one exception is when the decree involves minor children.  Generally, one year after the decree has been signed, the parties can petition the court to modify the arrangements concerning the children. This would include such items as an increase or decrease in child support, who can designate the child’s residence, geographic restrictions on the children’s residence and the like.

The courts will not listen to any of the facts which were in place at the time the original decree was signed, but will listen to new developments which demonstrate changes for the parents or child. Some divorce decrees deal with children in their infancy and to assume that everything will remain the same until that child is 18 years old is recognized as unrealistic.  This modification of the decree is an accommodation, which will allow the court to modify the arrangements: “in the best interest of the child.

Temporary Restraining Orders - When the parties first start down the divorce path, there is a tendency to do things “to protect” themselves and the parties’ assets.  Usually this “protection” is at the expense of the other party. The Restraining Order is a temporary device to declare a STOP to all of the “protecting”.  Basically, on the Affidavit of the party who requests the temporary restraining order, courts will issue mutual injunctions prohibiting BOTH parties from spending for matters other than their customary living expenses and attorney’s fees.  After a very short time, two or three weeks, a hearing will be held so that the court can put in place temporary orders setting forth who gets the temporary use of which assets, who pays which debts and what are the rules of conduct between the parties during the pendency of the divorce.

When children are involved, then, of course, the court will also make decisions regarding the temporary custody of the children, child support, possession, medical expenses and like issues regarding the children.

Protective Orders - The procurement of a protective order is a quasi-criminal proceeding. This is for the protection of the family members where physical violence is present or threatened. It is not something which the courts take lightly, not  the violence nor the crying of wolf. The result is that the offender will be bound by orders carrying criminal sanctions from doing certain things and going certain places. This could and normally does include provisions regarding supervised visitation of the children for the offending parent.

Grandparents’ rights - Grandparents can be an important part of any child’s life. It is said that menopause evolved as a result of higher infant survival rates because Grandma could now help with the rearing of the young ones. The legislature and courts are slowly, but surely , allowing more and more rights to the grandparents to be a part of the child’s life after the parents’ divorce. Each situation is different and rarely supplant the parents, but there are rights which can be put into place and enforced.

Adoptions - There are three main branches of adoptions, child, stepchild and adult.  In each situation, the adopted person becomes the child of the adoptive parent, as though birth had set up the relationship. Before any adoption can take place, the parent /child relationship between the child and  the birth parent who is being supplanted must be severed. Obviously, death would cause such a severance, but the courts have the power to terminate a parent’s rights just as permanently. The courts do not do this lightly, and there are safeguards built into the system to protect the rights of parenthood.

The process of adoption will include social studies, criminal background checks, an attorney ad litem for the child and at least one hearing before the court. It is not a difficult procedure, but it is long and tedious – with the courts not wanting to make any mistakes. In the end, it is something which gives a child something which money cannot buy, a parent.

Mediation - Mediation is the avenue where both sides sit down across the table from each other – usually with their respective attorneys – and, with the help of a disinterested outside third party, try to work out a scenario with which both sides can live.  It is usually the last step where the parties are actually in control of the situation before handing this matter over to a judge or jury.

Most mediations are successful and most courts require mediation before trial. Some courts, especially in Montgomery County, Texas, require mediation prior to temporary orders hearings.

The mediators cannot impose any settlement or render any judgments.  All that this person can do is to try to figure out what is important to each side and help the parties to try to accomplish the best outcome for each person. This person is akin to a referee who cannot call anyone out, but, rather, can make them stay for the afternoon to discuss the situation.   The next time the parties tell their story will be to the judge or jury and they will be powerless to effectuate an outcome.  During mediation, the parties are still in control of their own fates.

Collaborative Law - Collaborative law is defined as follows:

A procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties' counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.

Collaborative law has been dubbed to be the wave of the future because it claims to be less adversarial and more cooperative. While it sounds great on paper, in practice, it can lead to abuses.  Given the correct circumstances, parties with equal knowledge and ability,  it is a good method that can yield good results. Unfortunately, it can also lead to abuses given incorrect circumstances, such as when there is an imbalance of knowledge of the parties’ assets and liabilities  or ability between the parties. It requires a full and candid exchange of information. Therein lies the problem.  Under the “normal” divorce process, parties exchange sworn inventories of their assets and liabilities and that creates protection for both parties. More often than not, once inventories are exchanged, the parties can come to an agreement regarding the division of their assets and liabilities between them.  However, if they cannot, then they are free to take the matter to court. Under the collaborative law scheme, if the parties cannot reach an agreement, then they must hire new counsel and begin the “normal” process from step one.

We, at Gallagher and Stull, are true believers that parties are happier with solutions that they have developed on their own, as opposed to with mandates of the court.  Therefore, we strongly encourage negotiations and mediations and, under the proper scenarios, collaborative law solutions.

Links

Texas Family Code:  After you arrive at the Texas Quick Search page, select "Family Code" from the Code drop down menu. (More)

Family Law Handbook of the Houston Bar Association