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Frequently Asked Questions

Divorce

Child Support

Child Custody


Divorce

When can I file for divorce?

Texas Law requires that before you file for divorce in Texas, you must have lived in this State for more than 6 months and in the particular county for more than 90 days prior to filing.

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What is community property?
Under Texas law, all property that you or your spouse own is presumed to be community property, that is, property owned by the “family unit” comprised of you and your spouse. However, the presumption may be rebutted if you can show that there is certain property that you owned either 1) prior to marriage; 2) received as a gift before or during your marriage; or 3) received as an inheritance. Any property, whether tangible things, real estate or cash that you had prior to your marriage, or received as a gift or by inheritance is yours and cannot be taken away from you or taken into account by the Court in splitting the marital estate. The exceptions are numerous and it requires a knowledgeable attorney to determine what property is or is not your separate property in any given case.

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On divorce, the marital estate is split 50/50, right?
NO, this is a popular misconception. The Courts in Texas may split the community estate in any manner they deem “just and right”, depending on many factors, including what each party makes, who gets the kids, fault in the break-up of the marriage, and many various other factors.

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What does “fault based” and “no-fault” divorce mean?
Texas is a no-fault divorce state, which means that if you can say that your marriage has “become insupportable due a conflict of personalities that has destroyed the legitimate ends of the marriage relationship and there is no possibility of reconciliation” (or in other words, you just don’t get along anymore and it isn’t any one’s fault), you may get a divorce. “Fault-based” divorce is still an alternative under Texas law, and may be based upon several factors such as adultery and incarceration of a spouse for a certain period of time. The consequences of obtaining a fault-based divorce should be discussed with your lawyer, and may range from a higher share of the marital estate and the payment of your attorneys fees.

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What is the law in Texas regarding alimony?
Several states in our country have had alimony for many years, and the term has become a household word. Texas, historically, very much disliked the idea of alimony and there has only been an alimony statute on the books since the mid 90’s. Texas abhorred alimony so much that it doesn’t even call it alimony. In Texas it is called “spousal maintenance” and it is rather difficult to get. Here, in order to obtain spousal maintenance, the party seeking maintenance must 1) have been married more than 10 years; and 2) must be “unable to meet their minimum reasonable needs” OR be a victim of family violence OR be disabled. Under the first set of circumstances (10 years and unable to meet needs), if proved, spousal maintenance may be awarded up to 20% of the payor’s gross income, but only for a maximum period of three (3) years. Under the other two scenarios, the Court may award maintenance for another period of time, but this may be reviewed every three years to see if the maintenance is still necessary. This part of the law is very complicated and requires the skills of a good attorney to determine whether this statute would apply to you.

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How should I prepare for my impending divorce with property at stake?
This is the most important question. First, gather together all of the records that you can. This is not to say “take records”, rather gather together everything you can - tax records, W-2’s and income records, bank statements, deeds, payment books, stock and bond statements, retirement statements, automobile titles, everything dealing with the finances, and make copies of those documents - then put the originals back. Remember, you are trying to protect yourself, not start a war. Everything that you do to make getting your divorce more difficult will end up costing you money and time since your money is your spouse’s money. Be smart but don’t be vindictive. Begin taking an inventory of all of your belongings; use a video camera (with the ability to date the film) to walk around your house taking pictures of all of your assets - dishes, tools, collections, the general shape of the house, etc., and save the video tape in a safe place. Take your time and be thorough. Hopefully, you will not need it, but if things start “disappearing” from the house, you will have a record that the items actually existed.

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I have been served with a TRO (Temporary Restraining Order) with a Petition for Divorce. This means I can’t call my spouse or my children, right?
ABSOLUTELY NOT. As a general rule, you may still call and contact your spouse and/or children. Read the document carefully; the standard TRO in Texas says that you cannot call your spouse at unreasonable hours for the purpose of harassment or say vulgar things to them. NOW, that being said, if the document specifically states, for some reason, which has to be spelled out clearly, that you may only contact your spouse and/or children through your spouse’s attorney, then do NOT attempt any form of contact until the Court makes the order that you may do so. There has to be good cause for a prohibition like this, and your attorney will know how to respond to this.

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What is mediation?
Mediation is an alternative method of settling your case and is widely employed by family law courts in Texas. Many courts will require that you go to mediation before setting your case for trial. Mediation consists of you and your attorney and your spouse and their attorney going to the office of a third party mediator who is experienced in helping people in family law cases settle disputes. The parties field offers to one another to settle their case and attempt to compromise all issues. Once a mediated agreement is reached and that agreement is signed, it is filed with the court and is irrevocable. The agreement is reduced to writing and submitted to the court for finalization. Mediation tends to keep costs down by settling cases prior to lengthy and often times very expensive trials. Mediation may not be appropriate in all cases, and this is a decision that you may make with the help of an experienced family lawyer.

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What is Common Law Marriage?
Common Law Marriage is a very old theory of marriage which is still recognized by the State of Texas and historically was developed for folks who may have been in the wilderness when they cohabitated and were unable to seek the services of a minister to marry them. Today’s law says that if you have lived together AND you hold yourself out to the public as married (you call each other spouse, you tell others that your significant other is your husband, use your significant other’s last name, file joint tax returns as married, etc.), then the Court may consider you married despite not having a service or a marriage contract. This could seriously impact the division of your property, retirement accounts, and give rise to spousal maintenance claims. Of course, every case is factually different and your situation may not rise to the necessary legal level to be considered a “common law marriage.”

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How long does it take to get a divorce in Texas?
From the date of the filing of your petition for divorce you must wait 60 days before the court may divorce you or sign your divorce papers. This is considered a “cooling off” period designed to let people reconsider divorce. The legislature has at various times considered raising this period to one year.

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What is Collaborative Divorce?
Collaborative law in the context of divorce is a relatively new concept in Texas family law. In a nutshell, collaborative law is a method of working out your divorce without the intervention of a court. You and your spouse hire specially trained attorneys who lead you through a process whereby you prepare and provide documents to your spouse and have a series of meetings to determine what each of you want to get out of the divorce, and the best way to fairly settle the issues of your marriage, to the benefit of all parties involved. This is done without the stress and cost of court hearings and trials and formal discovery. There are special provisions in the Texas Family Code that deal with the abatement of all proceedings in a family law court when the parties agree to work out their divorce through the collaborative law process. Of course, if you reach an impasse and you and your spouse cannot reach an agreement, you may always go forward with your lawsuit for divorce, but you are required to hire completely different counsel to go to court with you, which is starting all over again and paying a retainer to a new lawyer etc. The advantages to collaborative divorce are many; less hostile atmosphere, everyone working together to solve the situation, spouses remaining friends after the divorce (which can be most important for the children), each party getting what they want without the exorbitant cost of trial (even though you will spend money in the collaborative process too, just generally not as much). The are several downsides also: you don’t get your day in court, people who can’t agree in their marriage are often unable or unwilling to agree during their divorce creating stress and the possibility of unnecessary delay (though trial can take a very long time too). Ask your family lawyer about the possibility of collaboratively settling your case.

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If I leave the marital household, I forfeit any right that I have to the value of that asset under the theory of “abandonment,” right?
Absolutely NOT. If you feel threatened or things have gotten terribly bad for you at the marital residence, then by all means, get out! Do not let your kids get involved in your fighting, do not let yourself get hurt or allow yourself to go into a rage that you may regret in the future. You will NOT lose your rights to claim a portion of the marital assets.

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Child Support

I have just returned from a Temporary Orders hearing with an order that I pay child support beginning on a specific day. The document also orders that the child support be taken out of my pay by a wage withholding order - so that means that I just wait to pay the child support, and it will begin coming out of my pay check, right?
NO, regardless of when the child support begins coming out of your paycheck, you are responsible for all child support when it is due. It may take weeks for an attorney to complete and submit a wage withholding order, and months for an employer to begin withholding from an employee’s paycheck. You must pay all child support on time-every time regardless of the status of the wage withholding order. If you need to know where to pay, call your attorney’s office and ask for specifics on when and where.

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My child support order says that the child support will be by wage withholding, how much will they take out of mypay?
The child support order will break your child support down by how often you get paid, in other words, say you are paid on the 1st and 15th of a month (24 pay periods a year) and you have been ordered to pay $1000.00 per month in child support. You will have debited from your check $500.00 which will be sent by your employer to the child support office, to be remitted to the parent with custody of the children. It is the policy of the State of Texas to require wage withholding orders in every child support case and The Decker Law Firm recommends the child support paid in this way. Why? First, you don’t have to think about writing the check; it is done automatically. Second, a record of all payments is kept at the child support office, protecting both the payee and the payor from “lost” or “never received” payments.

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My spouse makes a lot of money - they don’t need my child support, so why isn’t this taken into account?
In the State of Texas, the income of the person with custody of the children is not taken into account at all in determining the correct amount of child support. Child support is based on the income of the paying party only. Therefore, even if the paying party is remarried, the new spouse’s income may NOT be taken into account in determining child support - only the parent.

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I have heard about a “cap” for child support in Texas, what does this mean?
The “cap” for child support is the presumed ceiling of income from which child support may be assessed. That is, child support is calculated on up to the first $7,500.00 *net* per month that a person makes after the allowance by the State for certain income taxes, cost for carrying health insurance on the child, and several other factors. Therefore, barring any unusual circumstances, if you have one child, the most in Texas that you could ever pay for one child support is $1,500.00 per month, which is 20% of $7,500.00 net. However, even if you make $25,000.00 per month, the most you would pay child support on will be the first $7,500.00 per month of net income, barring any unusual circumstances (such as a disabled child which requires more support than anticipated by the cap).

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When will I have to start paying child support?
Parents have a legal and ethical obligation to support their children. Assuming for the moment that you are not the custodial parent, meaning the child does not live with you primarily, and you are not living with the other parent and the child, you will be required to pay some form of support for the child. Don’t wait for a court order to begin paying support; make voluntary payments to the custodial parent in a reasonable amount, or talk to a family lawyer who can do the calculation for you. Why would you do this? First, it makes you look like a concerned parent, which you should already be. Second, children *need* support - and regardless of the circumstances surrounding the birth of the child, you need to accept responsibility for the child and support and love that child. The child will, as they grow, remember who was there for them, who cared enough to support them, and visit them and call them on the phone.

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Child Custody and Visitation

I have heard that joint custody means I will receive fifty percent of the visitation time with my child and I won’t have to pay child support. Is this true?
NO. In Texas, every parent is presumed under the Family Code to be a “joint managing conservator” which means that you share in certain decisions, but it does not necessarily mean that you are a 50/50 parent. Joint conservators in Texas typically are awarded the Standard Visitation Schedule, which is not 50/50 time and the nonresidential parent (the visiting parent) still pays the full freight for child support.

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What is the Texas Standard Possession Order?
Under the standard order, the visiting parent has the child on the 1st, 3rd, and 5th weekends of every month, beginning on Friday and going to Sunday. The visiting parent also receives every Thursday night for 2 hours but only during the school term. Further, the visiting parent receives every other Spring Break, Thanksgiving, and one half the Christmas break, and 30 days in the summer. The custodial parent may have the right to take from the visiting parent, two weekends during the summer. There are specific rules for time with the child on Father’s and Mother’s day weekends and the child’s birthday. Further, special rules may apply allowing visiting parents to expand their visitation by picking the child up from school and returning the child to school. For more specifics on the Standard Possession Order, call your family lawyer.

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What is child support based upon in Texas, and how can I get out of paying?
Every year, the State Attorney General produces a tax chart that we use to determine your child support obligation. From your gross income you are allowed to deduct taxes and social security equivalent to a single person deduction from your income, to come up with your “net” income. You may not deduct 401k contributions, extra taxes you are taking out, or any other deductions except for a few narrowly drawn exceptions. Multiply the correct percentage (depending on the number of children you have) by your monthly net income, and you will have your monthly child support obligation. The percentages in Texas are 20% for one child, 25% for two children, 30% for three children and 40% for four or more children. Your child support may, at this time, only be based upon the first $7,500.00 net income you have per month, meaning that for one child the maximum amount of child support that you would generally pay is $1,500.00 ($7,500.00 x .20), $1875.00 for two children ($6,000.00 x .25), etc. There are of course, exceptions and ways that a court could find that your child requires more money than the cap child support (like costs for a disabled child), but the situations are very fact specific and may be explained by an experienced family lawyer. Paying child support is your duty as a parent.

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What is involved in a custody case?
Custody of children is the most expensive thing that we do and a great number of our cases deal with custody. When one parent believes that a child should live with them and a lawsuit is filed, an entire series of events takes place that the court uses to discover the best home for the child if the parents can no longer live together. The Court considers many factors when making this determination but among the most important are: Who is the child’s primary caregiver? Who does the child spend the most time with? Who is more involved with the child’s school, doctors, and activities? Which parent has the ability to better encourage a relationship between the child and the other parent? Who is better able to support the child? Who has more time to devote to the child and the child’s needs? Bottom line, the courts are most interested in what is in the child’s best interests and that is the legal threshold. It is not a test, not a battle, not an attempt to say that one parent is bad or that another is better, it is what the court finds will be in the child’s best interests. Most parents know, without a court, with whom the child should live with, with whom the child is closer, and with whom the child will thrive and flourish. But sometimes the question is not as easy to answer.

Often a court will hire an outside series of professionals to evaluate the parents and/or the child in a custody case and accept recommendations by those professionals. Those professionals include psychologists and social workers. A court may request that a psychological exam be conducted on each of the parents to determine whether allegations made by one party or the other regarding the mental fitness or stability of a parent should impact that person’s right to be the primary custodian of a child. A more common method courts use in Tarrant county is to hire a social worker to make a “social study” which entails the social worker interviewing everyone, including the child and collateral witnesses of the parties, seeing the living conditions of the parties, observing the child’s interaction with each of the parties. Then the social worker makes a report giving an opinion to the court regarding where the child should primarily reside based on the experience of the social worker. Social studies are generally the cheapest form of discovery available to the parties and it is crucial that they do well in the social study as many courts will seriously consider the opinions of the social worker in making a final custody order. You family lawyer will help you to prepare for your social study and let you know what to expect.

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Can’t children decide for themselves whether they want to visit with their Dad?
NO. Children do not, under the law, have a choice as to who they want to visit and when. The order of the court orders them to visit then it is the custodial parent’s responsibility to assure the child visits. Giving a child the idea that they have the right to choose whether to visit or not is dangerous and wrong. If the child doesn’t go to the visits, it is not the child who may be subjected to contempt of the court order, attorneys fees and possible jail time; it is the parent. Repeated failures of the parent to enforce the visitation order may subject that parent to a change of custody.

That being said, a child age 12 or older may sign a “choice of managing conservator” form that will indicate to the court with which parent they want to primarily reside. This does NOT mean that it is automatic that the child will live with the other parent; the court merely takes the child’s wishes into account if it will be in the child’s best interest to live with the other parent. More often than not, the court will allow the child to live with the other parent if no major issues exist and all things are considered equal, but it is different with every court. Some courts for instance will tell you that it is wrong to make a child sign a choice of managing conservatorship, because it puts the child in the middle of a potentially combative situation between the parents. This choice is best made by the parents however.

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What are things that will help my custody case?
First, keep a diary. Every contact you have with opposing party, every comment, every telephone call, every drop off and pickup of the child, write down what is said, whether the children could hear it, etc. At first keep the journal all the time, then later on you will recognize what needs to be memorialized and what does not. Second, get involved; meet the teachers, be familiar with your child’s grades, go to doctors appointments, and learn about any ailments and treatment for those ailments. Learn seemingly mundane things like the child’s clothing size, shoe size, favorite toy, and favorite food, if you don’t already know these things. Make an effort, and your child will not only appreciate it, but your Judge will see it as well. Third, be on your best behavior, because everyone in the case will be looking at you; no DUIs, no assault charges, etc.

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