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Basic Issues In Texas Family Law |
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April 1, 2011
Family Law involves many different aspects of the law developed over many years, and these few pages are intended to be informational only. Please do not rely exclusively on them in evaluating your situation or representing yourself. Before you venture into the legal system, or become involved with any litigation including family law, you should consult an attorney. Please do not think that this document means that the McNamara Law Office is your attorney or represents you. We only represent people who have signed an agreement to employ us.
BASIC ISSUES IN TEXAS FAMILY LAW
PROPERTY
1. All community property is divided as "the Court deems just and right, having due regard for the rights of each party and any children of the marriage."
A. Community property is all property acquired during marriage that is not separate.
B. Separate property is:
1. Owned before marriage;
2. Acquired during marriage by gift, or inheritance; or
3. Personal injury damages, except recovery for lost wages. (Lost wage recovery is community property).
2. The law presumes that marital property is community unless proven otherwise by "clear and convincing evidence."
3. Separate property is not divided in a divorce.
4. FACTORS AFFECTING DIVISION OF COMMUNITY PROPERTY:
A. Disparate earning capacity between spouses, i.e. a substantially higher earning spouse may be awarded a smaller percentage;
B. Fault in the breakup of the marriage, such as cruelty, adultery, felony conviction, & abandonment (at least 1 year).
SPOUSAL MAINTENANCE (ALIMONY) (TX Family code Ch. 8)
Introduced to Texas in 1995, & very difficult to qualify for. Passed by the legislature as a welfare reform bill.
1. Eligibility:
A. Marriage of at least ten years;
B. Lacking sufficient property for “minimum reasonable needs;”
AND
C. Clearly lacks earning ability in the labor market to provide for “minimum reasonable needs.” OR
D. Spouse paying maintenance was convicted of family violence within 2 years before date of filling for divorce or while divorce is pending. (Deferred adjudication also counts).
2. Maximum Amount:
20% of payer's average monthly gross income; OR
$2,500.00, whichever is less.
3. Spousal maintenance cannot be court ordered for more that three years.
CHILDREN
1. The law favors Joint Managing Conservatorship (not necessarily joint custody).
"The sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party." (TX Family Code sec. 101.016).
Most important rights:
A. With whom the children will live primarily, and where, i.e. is there a residence restriction;
B. Who has the right to make educational decisions;
C. Who has the right to authorize invasive, non-emergency, medical, psychiatric and psychological care.
Other rights and duties of conservators found in TX Family Code chapter 153, subchapter B, C, & D.
2. The legislature has provided a detailed visitation schedule called the Standard Possession Order. It distinguishes between parents living within one hundred miles of each other and more that one hundred miles apart.
"The Court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard order." (TX Family Code sec. 153.311)
The Standard Possession Order is only effective when the parents cannot agree on visitation.
3. Highlights of Standard Possession Order when parents live within on hundred miles of each other:
A. First, third & fifth weekend of each month;
B Every Thursday evening;
C. Every other spring break;
D. Thirty days in the summer;
E. Every other Thanksgiving;
F. 1/2 of Christmas school vacation;
G. All Father's day or Mother's day weekend.
The Standard Possession Order is very detailed and you should study it if it governs your children's visitation periods.
4. Child Support
Child support is calculated based on the income of the person paying it (the payer). The income of the parent receiving support is usually not relevant. The payer’s monthly net income is calculated using charts provided by Texas Attorney General.
Calculate annual income of payer, including average bonuses, overtime, etc, subtract taxes withheld for a single person (Attorney General chart), union dues, and the cost of the children's health insurance, divide by twelve, then apply the following percentages to the first $7,500:
One child 20%
Two children 25%
Three children 30%
Four children 35%
Five children 40%
The calculated amount equals the monthly child support obligation of the payer.
BRIEF OVERVIEW OF PROCEDURE FOR DIVORCE
1. File Original Petition for Divorce;
2. Attend temporary orders hearing at court, if necessary;
3. Learn information about the case through "discovery," if necessary;
4. Prepare and file Inventory & Appraisement;
5. Attend mediation, if necessary;
6. Attend trial, if necessary;
7. File Divorce Decree (either and Agreed Decree or imposed by Court after trial).
GENERAL SUMMARY OF PROCEDURE IN DIVORCE:
To give you a clearer over-view of the divorce process, we have prepared the following summary which should help you to have an idea of what to expect between the time of filing and finalization of your suit:
1. PARENT EDUCATION PROGRAM. This applies only to parties who have children under the age of 18 or who are still in high school. If applicable, information concerning the programs available is attached.
2. ALTERNATE DISPUTE RESOLUTION (ADR). This is required in all divorce cases which are not settled prior to the date the court assigns for trial. All parties must participate in mediation if they are unable to reach an agreement. There are attorneys who have been specially trained in mediation and a determination of the mediator will be made at a later date. A.D.R. has become a very useful tool to the Courts in that many cases are settled at this time and a trial is not necessary thus clearing the Courts’ calendars.
3. INVENTORY & APPRAISEMENT. This is a very important document and instructions concerning it are very detailed and warrant a separate set of instructions which is attached.
4. WITNESSES. You should begin now to make a list (including names, addresses, and telephone numbers) of all persons who have knowledge of any facts involving your material situation and, if applicable, knowledge of your parenting abilities. With each name, make a notation of their area of knowledge.
If you know anyone your spouse may list as a witness, include that as well, with a notation as to what that person may have to say even if it may be something bad about you.
5. DISCOVERY. This may be the most onerous process you will be required to complete. If your spouse's attorney sends me interrogatories and/or requests for production, they will immediately be forwarded to you. We have a total of 30 days in which to respond. That does not mean that you have 30 days to forward the information to me because documents will have to be assembled and interrogatory answers placed in proper form for your signature before a notary. Of course, I will also be sending the same types of request to your spouse's attorney and your spouse will be going through the same process.
Discovery may cover many different areas but be prepared to produce copies of some or all of the following (and any others requested) which may or may not be requested by your spouse's attorney:
a. Bank records, including statements, canceled checks and deposit slips for a specified number of years.
b. Income tax returns for a specified number of years, both individual and corporate.
c. Life insurance policies.
d. Medical insurance policies.
e. Information concerning pension, profit-sharing plans through your employment.
f. The items listed in connection with the inventory.
Another type of discovery is the taking of depositions. It may or may not be necessary for me to take your spouse's deposition or for your spouse's attorney to take your deposition. If it is necessary, you will be notified and we will go over what to expect at that time.
When a Scheduling Order has been received from the Court, a copy will be sent to you and we will review it at that time.
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