Understanding Family Law

October 1, 2005 by  
Filed under Edit

Separating fact from fiction on issues such as divorce, common law marriage and child support.

Deciding to undertake a family law matter, whether it?s the decision to file for divorce, or realizing the need for a pre-marital agreement, can be a very trying time. While we at H Texas can?t give you any legal advice, we can tell you about some of the basic facts involved with family law matters in our state.

Please note that the following is not intended to be legal advice and should not take the place of representation by an attorney. You should contact an attorney to discuss the specifics of your situation.

Texas does not have a legal separation, as you may have heard of in other states. If you feel that you need to protect your interests while your divorce is pending, you must file for divorce and request temporary orders be entered by the court. These temporary orders can control, among other things, which of the parties lives in the marital residence, who pays what expenses, where the children live, if temporary support is paid and to whom. While Texas does not have legal separation, it does have a mandatory 60 day minimum waiting period before your divorce can be finalized. This means that at least 60 days must pass between the day the Petition for Divorce is filed and the day that the court enters your Final Decree of Divorce. The Final Decree of Divorce is the document that outlines for the parties, and the court, exactly how everything was handled in your divorce. It addresses the division of your property and debt, as well as child custody, support and visitation.

Most people have heard that Texas is a ?community property? state but don?t really understand what that means. There is a presumption in the State of Texas that all property that is accumulated during a marriage is assumed to be the property of both the husband and wife. The same is true of any debt that was acquired during the time the parties were married. Both community assets, and debt, must be divided during the parties divorce. Separate property must also be considered in a divorce. This is generally property that was owned by one of the parties before they were married, or was given to one of the parties during the marriage by gift or through an inheritance. It is important in a divorce to keep documentation showing you owned an asset before marriage, or it was a gift or inheritance, if you want that asset to be confirmed as your separate property during a divorce.

If the parties are unable to reach an agreement on their own, community property in a divorce is divided in a manner that the judge ?deems just and right, having due regard for the rights of each party and any children of the marriage.? The judge may start with the assumption that property, and debt, will be divided 50/50 but may consider additional factors such as fault in the breakup of the marriage and disparity in the earning ability of the spouses when making the final decision.

A pre-marital agreement can be used in Texas to address the rights and obligations of each of the parties and any of the property that is acquired during the marriage. The agreement is a contract that can change the presumptions about community and separate property and gives the parties the freedom to arrange their marital property and property rights as they desire, not as governed by the Texas Family Code. The most significant limitation to a pre-marital agreement is that it may not adversely affect child support. Parties may also contractually change the character of their property after the marriage with a marital property agreement that partitions and exchanges between themselves all or part of their community property.

Common Law Marriage
Common law marriage is an area of family law that is often very confusing for people. Contrary to popular opinion, there is no minimum time that you must live together to automatically be considered ?common law? married. Texas courts will say you are ?common law? married if you have lived together in the State of Texas, hold yourselves out to others as husband and wife, and have a proven intent to be married. This is a much harder test to pass than merely living together for a certain length of time. You do not need a divorce from a common law marriage if you have been separated for more than two years. However, if it has been less than two years, and you have property to divide, you should file for divorce so the court can divide the property.

Child Custody/Conservatorship/Child Support
When most people are considering divorce, they often say they want ?full custody? of their children. This is not really a term that is used in Texas when dealing with custody issues. Texas finds parents to be ?conservators? of their children, and they can be either joint managing conservators, or one parent may be the sole managing conservator. Conservatorship does not define the amount of time that each parent will spend with the children, but defines the legal rights, responsibilities and duties of parents in raising their children. There is a presumption that it is in a child?s best interest for the parents to be named joint managing conservators; however, if there is a history of violence between the parents or involving the children, then the court may not appoint the parent perpetrating the violence a joint managing conservator. When parents are joint managing conservators, they generally share the rights and duties involved in rearing their children, but only one parent may determine the primary legal residence of the children, and generally, it is that parent who has the right to receive child support from the other parent. Texas law requires all parents to support their child with food, clothing and shelter while the child is with them. The parent that does not determine the primary residence of the child has an additional obligation to provide financial support of the child in the form of child support. There are guidelines in the Texas Family Code that determine the amount of child support a parent should pay if that parent does not have any other children to support and their net monthly resources are $6,000 per month or less:

20% from net monthly income for 1 child
25% from net monthly income for 2 children
30% from net monthly income for 3 children
35% from net monthly income for 4 children
40% from net monthly income for 5 children

No parent can be required to pay more than 50 percent of his/her net monthly earnings to support their children, and the percentages are reduced if the parent has children to support in another household.

Collaborative Law
Collaborative law is a new process in the State of Texas in which a husband and wife agree to cooperate completely in the divorce process. The purpose is to limit the damage, both emotional and financial, to the parties and help them make a smoother transition from married to divorced. There are attorneys who specialize in collaborative law, and one of these attorneys should be utilized to take full advantage of the process. True collaborative cases involve the parties signing an agreement to be respectful and cooperate fully in sharing information and during settlement negotiations. Unlike in most divorce proceedings, in a collaborative case, it is not unusual for counselors, accountants or clergy to attend meetings to assist in the settlement of the case. If an agreement is not reached, and the issues must be decided in court, the parties must dismiss their collaborative attorneys and hire new attorneys to handle the litigation of the case. Collaborative law is an excellent new tool that can limit the animosity and emotional hardship, as well as expense, of a contested divorce. H

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