Divorce: Overview of Divorce Issues in Texas

Jurisdiction: To file for and obtain a divorce in Texas, a person must be a resident of Texas for at least 6 months and a resident of the county for the pasts 90 days. Jurisdiction over the other party must be obtained by either serving them legal process within the State of Texas or securing their voluntary consent to jurisdiction in Texas. If a spouse's whereabouts are unknown, he or she may be served by publishing a notice in a local area newspaper. A respondent in a divorce matter may be deemed to have submitted to jurisdiction in Texas if he or she engaged in sexual relations in the state which resulted in the conception of a child, or otherwise has sufficient contacts with the state. The venue for the divorce action is in the county where either one of the parties resides.

Fault: The fault of either party need not be proved in order to obtain a divorce. All that is necessary is to show that the parties are incompatible. The fault of a spouse leading to the breakdown of a marriage (such as infidelity, abuse, or substance abuse problems) may be relevant to a divorce action impacting child custody and final property division.

The Petition: A divorce is commenced when a petition is filed by a party. A petition must contain certain statutory language and contain information about any children of the marriage. A filing fee must be paid at the time of filing the petition.

Service of Process: In order for the respondent in a divorce case to be brought within the jurisdiction of the district courts of Texas, that person must be served with copies of the petition, temporary orders, and a summons requiring them to file a responsive pleading within a certain time period. This is usually done by the county sheriff or an authorized process server. The service cannot be made by one party serving the other. The respondent may voluntarily consent to the jurisdiction of the court and waive service of process. This is usually accomplished by the respondent signing a form that is filed with the court. Once a respondent is served or has entered his or her appearance, the temporary orders take effect.

Waiting Period: In Texas there is a 60 day "cooling off" period after filing for divorce. Absent circumstances warranting an emergency divorce, a final decree of divorce cannot be granted until 60 days have passed since the filing of the petition.

Discovery: During the cooling off period, the parties will often engage in "discovery". Discovery is a process in which the two parties exchange information concerning the issues involved in the divorce. The parties may submit written questions to each other, request the production of documents, and take each other's deposition. Some cases require intensive discovery in which other witnesses are deposed, appraisals of property are obtained, homes and safe deposit boxes are inventoried, and records are subpoenaed. If a party refuses to respond to discovery requests, he or she may be sanctioned by the court.

Trial: Any issues which the parties cannot agree on will be tried to and decided by the court. Each party may call witnesses and introduce exhibits to support his or her position. The court will decide the dispute and make certain orders which will be contained in the decree of divorce.

Decree of Divorce: The decree of divorce is the official court document which dissolves the marriage of the parties. The decree will usually contain the judge's orders concerning property division, child custody, child support, child visitation, spousal maintenance, and other issues. Once the decree is filed with the clerk of the court the divorce is final, although the court retains exclusive continuing jurisdiction over issues concerning the children and maintenance.

Division of Marital Assets and Debt

Property Division: Generally, all property acquired during the marriage is community property and subject to division by the court. Separate property is property owned by a party prior to the marriage or obtained as a result of inheritance or gift from outside of the marriage. Separate property usually will be set aside to the party who brought it into the marriage and will not be divided by the court. However, appreciation on separate property which occurred during the course of the marriage may be divided. Courts will try to make an equitable division of the property of the parties to a divorce action. However, this does not necessarily mean assets will be divided equally.

Debts Division: Debts are treated much the same as assets in that those acquired before the marriage belong to the person in whose name they were acquired and those acquired during the course of the marriage will be divided between the parties. The fact that one party earned the majority of the assets or incurred the majority of the debt during the marriage does not necessarily affect property division.

Property Settlement Agreements: If the parties can agree as to how to resolve the issues concerned in their divorce, they can enter into a separation and property settlement agreement. The agreement is a written document embodying the parties' understanding as to all issues. The agreement is signed by both parties and taken before the court after the 60-day cool-off period has expired. If the agreement appears fair, just and equitable, the court will approve it and incorporate the terms of the agreement into its decree of divorce.

In many divorce cases, a spouse's retirement benefits compose one of the most significant assets owned by the couple. You or your spouse may be enrolled in an Individual Retirement Account (IRA) or a 401(k) Plan. But many other intricate plans exist, and some clients have no idea that the plans exist, much less that the plans are marital assets to be included in the property division at time of divorce. Hiring an experienced family law attorney who is familiar with the complexities of all retirement assets is critical in obtaining for our client a fair share of these valuable assets.

Retirement Account Division

The attorneys of the Oglesby Law Firm have extensive experience in dealing with retirement benefits such as the following:

  • Individual Retirement Accounts
  • "Roth" IRAs
  • Pensions
  • 401(k) Plans
  • 403(b) Plans
  • Teacher Retirement Benefits
  • Federal Retirement Plans
  • Employee Stock Ownership Plans ("ESOP")
  • Qualified and Non-Qualified Stock Option Plans
  • Deferred Compensation Plans

Asset Tracing

When a divorce occurs, the courts work to determine how to divide the property that is a part of that marriage. The general rule on what assets are subject to a division of property as part of a divorce is that any property acquired during the marriage is part of the marital estate and must be divided equitably. This raises three questions:

  1. What constitutes marital property?
  2. What constitutes an equitable division of the marital property?
  3. Were separate property funds spent on community property assets?

Hidden Asset Tracing: Most assets that are acquired during the marriage are considered marital property. Gifts and inheritance are typically considered individual or separate property. Separate property cannot be divided during the property division. Separate property can, however, become marital property under certain conditions or by certain conduct. We work to ensure the proper characterization of any asset as being part of or exclusive from the marital estate.

Keeping accurate financial records is crucial in establishing the proper characterization of your property. We stress to our clients the necessity of solid record keeping.

Spousal Support & Maintenance

During the pendency of a divorce or after the finalization of a divorce, the court may order one party to pay spousal support to the other party. Generally, support paid during the pendency of the divorce is referred to as "Temporary Maintenance" or, simply, spousal support. Spousal Maintenance is the term used in Texas for spousal support paid after the marriage by one party to the other. This support is sometimes known as "alimony" outside of Texas.

In determining whether one party should pay support to the other, either during or after a divorce, courts will usually look at the present and prospective earning capacities of the parties, the length of the marriage, the parties needs, the ages of the parties, the parties' overall financial situation, and whether one party contributed to the education or career of the other, among other considerations. Fault will not usually be a factor for the court to consider. There are general guidelines for the amount of maintenance to be awarded when appropriate. These guidelines typically will take into account the disparity between the parties' gross incomes and the length of the marriage in determining the amount of maintenance.

Child Custody

Courts in Texas must make decisions concerning children based on what is in the best interests of the children. Such decisions include determining the primary caregiver, the primary influence in the children's upbringing, and the children's primary place of residence. In all these determinations, Texas courts seek to ensure that the children have a continuing and positive relationship with both parents whenever possible.

Joint Legal Custody

Joint Legal Custody is the preferred custodial arrangement where both parents are found to be fit and proper persons to care for the children. Joint custody means both parents have equal rights and responsibilities to the child and each should consult with the other regarding any major decisions concerning the child, e.g. education, medical decisions, religious training, etc. Joint custody does not typically mean that the children will spend an equal amount of time at each parent's home. One party will be named the "primary custodian", which means the children will live primarily at that party's home subject to the other party's visitation rights, known as possessory conservatorship in Texas.

Split Legal Custody

Split Legal Custody is the situation where the children live equal amounts of time with each parent. As with Joint Legal Custody, both parents have equal rights and responsibilities to the child. This arrangement is less common as it does not provide much stability for children, particularly once they are school-aged.

Sole Legal Custody

Sole Legal Custody is the situation where one parent is given the power to make all decisions concerning the child, as well as physical custody of the child. The other parent may still be involved with the child and be entitled to visitation or parenting time. Further, the non-custodial parent may still be required to pay child support.

Visitation

The noncustodial parent in any custodial situation may be entitled to parenting time with the child. Most courts in Texas have guidelines which they follow concerning parenting time. Typically, in the joint legal custody situation, parenting time will consist of every other weekend from Friday evening until Sunday evening, one evening per week (not necessarily overnight), and every other major holiday. There may be extended vacation parenting time in the summer time. Of course, parenting time may be different for each family situation and will greatly depend on the age of the child, any special needs of the child, and the distance between the parties' homes. As in all other child custody issues, the courts will usually look at what is in the best interest of the child when determining what parenting time to order. Where one party has sole custody, there may be as much or as little parenting time as the parties agree to or the court orders.

Child Support

Child support is a continuing court order payment from one party to the other for the support of a child until such time as the court determines such support is unnecessary. As with spousal support, child support may be awarded by the Court during the pendency of a divorce or child custody proceeding or as part of the resolution thereof. The amount of child support is determined in great part by a formula promulgated by the Texas Legislature.

The gross income (less taxes, any medical insurance paid for the child, etc.) of an obligor is used to determine the amount of each child support payment. There are other factors that can be considered where merited by the circumstances, e.g. any disability or special needs of the child. Those values will be plugged into the formula, and child support calculated based thereon. Child support is subject to the continuing jurisdiction of the court and may be raised or lowered when there is a material change in circumstances, such as a change in the obligor's employment status or income.

Below is a table laying out the standard calculations for child support. These figures can vary depending on the extenuating circumstances and are subject to the Court's discretion.


Pre-Nuptial Agreements

A pre-nuptial agreement establishes the terms of separation, prior to marriage, should dissolution of the marriage become necessary. Pre-nuptial agreements are particularly useful when one or both parties have substantial individual assets prior to a marriage that would lead to unnecessary complications and the prolonging of proceedings in the event of a divorce. Often, there are specific requirements regarding the language and terms of such agreements in order to make them equitable and enforceable. Most pre-nuptial agreements have terms that affect the enforceability of the agreement based on the fault of either party in causing the unsustainability of the marriage. Pre-nuptial agreements can also be brought under the review of the court to determine the equitability of the agreement.

Post-Nuptial Agreements

Similar to pre-nuptial agreements, post-nuptial agreements establish the terms of separation should dissolution of the marriage become necessary. However, post- nuptial agreements are reached after the commencement of the marriage. For this reason, the requirements for post-nuptial agreements, in order to be equitable and enforceable, can be even more stringent than for pre-nuptial agreements. Post-nuptial agreements are usually necessary when one party comes into an inheritance or when one party starts there own business that is to be kept separate from the marriage, often for reasons of liability. Like pre-nuptial agreements, the enforceability of a post-nuptial agreement can be affected by the fault of one party in causing the divorce or the overall equitability of the agreement.

Modification & Enforcement

The experienced attorneys at Oglesby Law Firm, PLLC., are dedicated to helping families through complex matters involving the modification or enforcement of family court orders. While we are compassionate and personal with our clients, we are aggressive and persistent when it comes to protecting our clients' interests.

Post-Divorce Modifications

Sometimes things change after divorce - either because of time, a child's growth or a parent's decision. Not all life changes require a new order or motion to modify the divorce agreement. But when the change becomes material and substantial, our firm will fully develop the facts to demonstrate to the court why it is in the child's best interest that the previously stated rights, custody terms or child support amounts require change. We are experienced in pursuing and defending post-divorce modifications, such as:

  • Child custody and visitation modifications
  • Child support modifications
  • Alimony/spousal support modifications
  • Other post-decree modifications

Enforcement/Contempt of Court Actions

When a parent refuses to honor visitation agreements, fails to pay child support or fails to comply with other court orders, the parent is in contempt of court. In most circumstances, it is important that a child is supported by and has meaningful relationships with both parents. That is why it is so important to follow custody, visitation and support arrangements. Failure to do so can jeopardize the child's well being. If a parent willfully and recklessly avoided complying with orders when it was feasible to do so, the parent may be charged criminally with contempt and could face potential jail time, fines and other consequences. Our attoneys help clients pursue court orders of enforcement.

Relocation Of Children Post Divorce

Americans are a mobile people, and moving seems almost commonplace in today's society. People remarry, economies nosedive, a parent can become ill, a job transfer occurs. Any number of things can bring about relocation. But Texas courts are very strict when it comes to relocating a child after a divorce. It is generally the court's belief that a child have the right to see both parents and for both parents to be actively involved in their child's life. In fact, the Texas Legislature has stated:

"The public policy of this state is to:

  • Assure that children will have frequent and continuing contact with parents
  • Encourage parents to share the rights and duties of raising their child after the parents have separated or dissolved their marriage."

The Legislature has also made it clear that the best interest of a child shall always be the primary consideration of the court in determining issues of possession of and access to the child. Several courts throughout the United States have listed factors that should be considered in determining the best interest of a child when relocation is being considered:

  • The child's age
  • Reasons for and against the move
  • Comparison of education, health and leisure opportunities
  • The effect on extended family relationships
  • The ability of the noncustodial parent to maintain a full and continuous relationship with the child
  • Whether the noncustodial parent has the ability to also relocate
  • The parents' good faith in requesting or opposing the move
  • The nature of the child's existing contact with both parents
  • The child's extracurricular activities in the community

The courts are quick, however, to point out that each case must be evaluated on its own unique facts. Thus, it is imperative that you seek advice from an experienced attorney in the area of relocation of children after a divorce. An experienced attorney will know how to present evidence and documentation in a way that clearly identifies the best interest of your child.

And when the proposed relocation is interstate or international, the attorney you choose will also need to be prepared to assert appropriate conflict of law rules and applicable federal law.

Step-Parent Adoption

Being a parent is one of the most fulfilling roles that any person can ever hope to take on. For step-parents, there may come a time when you realize that you want the law to recognize the depth of the bond that has grown between you and your stepchildren.

Adopting your step-children allows you to secure the rights and privileges that truly reflect the depth of that relationship. At the Oglesby Law Firm, PLLC, our step-parent adoption attorneys bring decades of experience to the aid of our clients. Our experience with step-parent adoptions can help ensure that all necessary elements for a legally valid adoption are met.

Adopting a Step-Child

In a typical step-parent adoption scenario, one of the parents has minimized their involvement in the lives of the children. There may be a failure to pay child support. There may be a failure to have meaningful contact with the children. There may even be a death.

The first step in a step-parent adoption is the termination of the parental rights of the other biological parent. Often this can be achieved by agreement. When that is not possible, there are steps that we can take to employ the power of the court to involuntarily terminate a parent's rights. Our firm is skilled in negotiating these difficult steps and all others necessary to successfully complete the adoption of your stepchildren.

Grandparent Rights Attorney

The family bonds between children and their grandparents are special. Often, grandparents fill the role of caretaker, babysitter, mentor, confidant, and friend. The legal right of grandparents to have a relationship with their grandchildren has been both complex and in flux under Texas law. In fact, grandparent rights have been modified by the Texas legislature and case law perhaps more than any other family law issue during the past few years.

What are the rights of grandparents when:

  • The parents are not providing the basic needs of the grandchildren?
  • The parents are divorcing and grandparents want to be assured of access to and visitation with their grandchildren?
  • A parent dies and the surviving parent is preventing the grandparents from seeing their grandchildren?
  • A parent is deployed in the military overseas?
  • A parent of the grandchildren is incarcerated?
  • Child Protective Services is investigating the parents of the grandchildren for abuse or neglect and are talking about placing the grandchildren in foster care?
  • The rights of their child (the parent of the grandchildren) are terminated?

Mediation

Divorce and other family law challenges can create contentious relations between the involved parties. The stress and anxiety about the outcome of the proceedings can turn even amicable resolutions into bitter contests where it is easy to lose sight of your goals.

Mediation is a useful tool in keeping animosity in check and constructing agreements that provide real, workable solutions to the challenges that you are facing.

At the Oglesby Law Firm, PLLC, we understand the need for a means of finding common ground between the two parties. Mediation is a powerful tool for bringing people together and creating agreements that will function for everyone who is involved.

Dispute Mediation Law Firm

In mediation, a neutral third party is brought in to help the parties reach an agreement. In many family law proceedings, the court will require that the parties utilize mediation. Our firm is highly experienced at helping guide people through the mediation process so that they can get the maximum benefit from it. Our experience with mediation includes attorney Alice J. O'Neill being credentialed as a mediator.

Collaborative Law/Mediation

No one ever anticipates that their marriage will not last. It is a traumatic event when your marriage proceeds to divorce. After bitter fights and arguments during the marriage, many couples determine that fighting is not the most effective method for resolving important decisions, such as child custody or property division. The attorneys at the Oglesby Law Firm, PLLC, couldn't agree more. We help clients resolve family law disputes amicably through collaborative law methods, such as mediation. Contact us to learn more about collaborative law.

Resolving Complex Disputes in a Comfortable, Respectful Setting

Divorce and related family law disputes can be emotionally taxing on the entire family - especially on children. By working through decisions in an open environment, couples are often able to resolve many issues (if not all issues) in an amicable manner - thus enabling everyone to heal and move forward more efficiently. In addition, parents seeking divorce will need to maintain some form of relationship with each other for the remainder of their children's lives. Through collaborative divorce, or mediation, couples are capable of preserving a respectful relationship.Our attorneys are dedicated to excellence in family law. We clearly explain clients' rights and the process before them. We help clients understand that mediation is not surrendering to your spouse/ex-spouse's requests. It is a matter of working together, each with qualified legal counsel, to come to fair resolutions which are agreeable to both parties.

If our client is not satisfied with an agreement or his/her rights are not fully protected, we aggressively pursue further negotiations until we reach an agreement which is in our client's best interest.



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