Frequently Asked Questions – Texas Family Law
The following questions and answers provide information on some common Texas family law issues.
When would I need a custody order?
If you're currently married and in the process of a divorce, or you have left the home, you would need a custody order. You will also need one if there's a paternity suit in progress. However, in Texas, we don't use the terms custody in our orders. The term that is used is "conservatorship" which is a legal term to mean "decisionmaking."
What does child custody or conservatorship involve?
Custody or conservatorship involves the parent's decision-making rights. There's a whole laundry list of rights in the Texas Family Code, such as the right to make educational decisions or the right to make medical decisions. Some legal rights apply to both parents, some may only apply to one (for example, the right to decide where the child will live). There are some that apply to whichever parent the child's living with at the time. Obviously, most parents want to make sure they retain as many rights as possible.
I'm the father - doesn't the mother always get custody of the child?
No. The court will always consider the best interest of the child in determining custody or conservatorship. Generally, courts do not consider the gender of the parent and/or the child when making that decision. In fact, courts in Texas are likely to grant joint custody or joint managing conservatorship to both parents.
Can the child tell the court which parent he/she wants to be with?
The Court may interview a child to understand the child's wishes. However, the court will follow the "best interest of the child" standard to make its decision, and not necessarily the wishes of the child.
What's sole/joint conservatorship?
Sole conservatorship means only one parent has custody and decision- making rights for the child. Joint conservatorship means both have decision-making rights, but it wouldn't necessarily be equal; one may have more rights than the other. In Texas, the court generally order both parents as joint managing conservators (joint decision-makers) because that would be in the best interests of the child. The court will take into account the specific facts in a case to determine what rights to award to each parent.
What's a visitation or possession order?
A Visitation or possession order is an order giving a standardized set of dates and times for a non-possessory conservator to have access to the child. The dates and times are comprehensive, covering all major holidays. The standard possession order (which is what it is called in the Texas Family Code) could be edited by the court or by the parties (if they are in agreement) to conform to the specific facts of a case.
I have my son for the whole month of August - do I need to pay child support that month?
Yes. Unless your order says explicitly that your child support commitment excludes the month your child is with you, then you have to pay.
My ex won't let me have my visitation - can I stop my child support payments?
No. Child Support is not tied to visitation. Refusing to pay it will only get you in trouble with the court. Instead, you should pursue enforcement of the visitation order by filing a motion for contempt.
My ex isn't paying his/her child support. Can I refuse visitation?
No. Child Support is not tied to visitation. You should file a motion for contempt to enforce the existing child support order.
How do I determine my child support obligation in Texas?
In Texas, child support is determined by a formula established by the Texas legislature. The formula is based upon the percentage of the Obligor's net income. For example, an Obligor with one child should pay 20% of his or her net income. If the Obligor has 2 children, he or she should pay 25% of his or her net income. The more children there are, the greater the percentage. However, if the Obligor has another child with another parent, the Obligor's child support obligation is reduced by a percentage.
For child support purposes, what is the difference between net income and gross income?
Net income is determined by taking the gross monthly income and reducing it by taking out federal income tax, Medicare, and social security. If the Obligor belongs to a union, the Obligor may be given credit for paying union dues. Under some circumstances, other credits may be given, but the court determines the credit on a case-by-case basis.
Do other states use the same formula to determine child support?
Every state in this country is different when determining an Obligor's child support obligation. Therefore, if you have a child support obligation in another state, you should contact an attorney in that state to discuss the formula for that specific state.
Can I take into account the Obligee's income in determining child support?
No. In Texas, you cannot take into account the Obligee's income in determining the Obligor's child support obligation. In most cases, the Obligee's income is irrelevant in calculating child support.
When may I modify my child support?
Generally, you may modify your child support when there has been a significant change in circumstances to warrant a modification or when the Obligor's income has changed significantly that the child support would be increased or reduced by 20% or $100.00, whichever is greater. However, you should consult an attorney to discuss your specific facts to determine the appropriate time to modify your child support.
If I do not want to receive direct payments and want someone else to monitor payments, what can I do?
If you have been receiving child support directly from the obligor and wish to have it go through a third-party, you should through the Texas Child Support Disbursement Unit (TXSDU). The TXSDU is managed by the Office of the Attorney General. You would have to get a court order requiring child support to be garnished from the obligor's employer and sent through the TXSDU to you. In each county, there may also be local child support registry to support the courts. These county registries will also charge a fee to process and monitor payments.
Can I have the child support garnished from the Obligor's wages?
In Texas, it is mandatory that an obligor's wages be garnished. There are some exceptions to this rule, but this is on a case-by-case basis.
What happens if the Obligor does not pay his or her child support?
If you are the obligee, you may bring an enforcement action in court against the obligor. In an enforcement action, along with some other remedies, you may ask the Court to order the obligor to go to jail or place the obligor on probation for failing to pay child support. If you prevail in an enforcement action against the obligor, the court will award attorney's fees and court costs in your favor.
How long is my child support obligation in Texas?
In Texas, child support ends when the child reaches 18 years of age or graduates from high school, whichever is later. Child support will also end when the child emancipates or marries.
How can I stop my child support obligation?
Generally, it is very difficult to stop your child support obligation. If you are seeking to end child support, you should seek an attorney's advice before doing so. If you are an obligor, the law requires you to pay child support because it is the duty of a parent to care for a child. However, there are a few instances when you can stop your child support obligation, and each of these instances requires the permission of the court.
You cannot, on your own action, stop child support without legal consequences. You may abate your child support obligation if you relinquish or terminate your parental rights. However, the courts will not allow you to relinquish your rights just because you don't want to pay child support. In fact, if the Court finds that an obligor's sole reason for terminating parental rights is to avoid child support, the Court will most likely deny the request to terminate.
If you are permanently disabled, you may be able to reduce your child support obligation or have your child support obligation paid through your social security. However, the social security administration will make this determination.
If you are incarcerated, you may have your child support temporarily abated, however, some courts in some counties do not follow this policy. Again, abatement of child support is very difficult and can only be done on a case-by-case basis.
What is an Agreed Divorce?
In Texas an agreed or uncontested divorce means that the parties agree between themselves on the main issues involved (child support, visitation schedule, medical support, conservatorship rights, division of property, division of retirement funds, etc.), and the respondent agrees to be served. Your lawyer will then file the petition, waiver of service, draft the final decree, and appear in court in front of the Judge to verify and have the Judge approve the decree. These cases generally involve marriages where there are no children or property. It is very rare that divorces are agreed when there are child custody and property division issues, because those tend to be the most contentious issues. If disputes or disagreements arise in an agreed divorce, then your lawyer would need to expend more time and the case would be more expensive.
If we agree on everything, do we still need to go to court?
Yes, you still have to go to court and have the judge approve your agreement and/or decree and grant the divorce. However, only one party needs to be present as long as both parties have signed the divorce decree. We call this a "prove up". In a “prove up” your attorney will go through the salient points of the divorce decree by asking you to answer yes or no to certain questions. It generally takes 5 minutes for this, but you may spend all morning or afternoon at court waiting for your turn.
What else is covered in a divorce action?
Apart from dissolving the marriage, the divorce should address who gets custody of the child, who gets visitation, who pays child support, who pays medical support, and dividing the parties' assets and liabilities, such as financial accounts, vehicles, house, land, retirement benefits, credit cards, and other debts.
How long does it take to get a divorce in Texas?
The law requires a 60-day waiting period from the time the divorce pleadings are filed with the court to the day when the court grants the decree. This time period is designed to allow both parties to think things over, determine whether they can resolve their marital problems without a divorce, and have an opportunity to reconcile if at all possible. This is the minimum time; most cases generally take longer than 2 months to resolve because of other issues, such as child custody, child support, and property division.
Does Texas have a “no-fault” divorce?
Yes, in Texas “conflict of personalities” are the terms used to denote "no fault". It's the equivalent of California's "irreconciliable differences."
Can I get any of my things before the divorce is final?
Yes, in Texas you can ask the court to enter temporary orders in a divorce case. This allows a court to determine who gets to keep certain items on a temporary basis until the divorce is finalized.
Do I have to wait until the divorce is final to get child support?
No, temporary orders can also be obtained from the court to determine where the children will live on a temporary basis, and what child support should be paid to the person with whom the children live on a temporary basis.
What are the steps to getting a divorce?
A petition for divorce has to be filed. If the other party does not agree to the divorce then they will have to be served with a citation, and the pleadings that have been filed with the court. Once served with the divorce, the opposing party will have until Monday following the 20th day of service to answer the lawsuit. Once the opposing party has had a chance to answer the case, the parties would then negotiate (avoid litigation if at all possible) on the issues of child custody, spousal support, property division, etc. Once all issues in the divorce have been resolved, then a divorce decree is drafted. The parties will review the divorce decree, and if they approve of the terms therein, they may then proceed to court to finalize the divorce, provided that the 60-day waiting period has passed.
What assets are subject to division?
Any assets accumulated during marriage are considered community property and are subject to division by the court. This includes cash, checking/savings accounts, stocks, vehicles, boats, real property, retirement benefits, and any other property that comes into the marriage as a result of the labor of either party. The only properties not considered community property are those assets that are considered separate property.
In Texas, does “Community Property” mean property gets divided 50/50?
Generally, 50/50 will be the initial presumption for any community property. However, there are a number of circumstances that would result in what is called "a disproportionate share" of the community property. The term "disproportionate share" would mean that property would be divided unequally. Then, there's some property that is considered separate property (such as assets owned before marriage, proceeds from a personal injury suit, gifts or inheritances). When parties have property to be divided, it is advised that the parties consult an attorney to discuss the division of their community estate. Community property that is not divided 50/50 would mean that the court found some facts in the parties' particular case that would warrant a different division, such as 60/40 or 55/45 split. There could be issues of wasting or fraud in the marriage that would trigger a court to consider a division other than 50/50. The final division will be what the court deems just and right. So, a "just and right" division does not necessarily mean that the property would be divided 50/50. If you feel that a 50/50 division would not be fair for you, it's especially important to consult an attorney so that your case can be properly presented to the court.
If my spouse earns more than I do, do I automatically get spousal support?
No, spousal support is not automatic in Texas. You have qualify to get spousal support. Generally, if it is awarded, it's for a limited time to allow one spouse to “get back on their feet” after the divorce and be able to support themselves again. In deciding spousal support, a judge will consider the length of the marriage, the health and age of each spouse, whether there was any domestic violence in the prior two years, the ability of each spouse to support themselves, the minimum reasonable needs of the spouse asking for support, the income of the primary contributor and the standard of living enjoyed during the marriage.
How much does a divorce cost?
It really depends upon each divorce case. The cost is based on the amount of time your attorney spends on your case, either in court, drafting documents, negotiating with opposing counsel, etc. Generally the only “fixed cost” divorce is an agreed divorce, with no children, no property and where the other spouse agrees to be served or signs a waiver of service. We have many clients who tell us that their divorce is agreed only to find out later that the parties were still disputes issues in the marriage that require the attorney to step in to resolve or bring the issues to the court to decide.
Your attorney gauges how much it will take to draft the documents, file the pleadings, and go to court. Your attorney may give you an estimate of the cost, but the final number will be decided by the facts and complexity of the case, such as negotiations over child custody, or property, or drafting and re-drafting documents.
In addition, there are also costs aside from attorney fees, such as filing fees, the cost of having someone served, mediation fees, the costs of hiring a counselor for a spouse or the child(ren), or the costs of hiring an expert to do a custody evaluation, or the costs of hiring a forensic CPA to trace separate property claims.
Do I need a lawyer, or can I do it myself?
You can file and process a divorce without hiring a lawyer. There are books and software available that will guide you through the process. Having said that, we get a fair number of cases where people attempted the “Pro Se” (do-it-yourself) approach, only to become overwhelmed or to find out they couldn't satisfactorily “prove up” the case before the judge. The court is not allowed to give you legal advice or tell you what to do about your case. Neither is the clerk in the courthouse or the librarian in the library.
If you have a very simple divorce and want to try this, you need to consider all the implications that may cause issues for you later. Examples of this may be who pays off the credit card debt or car loans. Who has retirement and should you get any?
A lawyer will ask questions about your situation that are designed to protect your rights from the marriage and your property interests going forward.
If you do decide to do it yourself, do not depend on your spouse to understand the process and draw up the documents. Make sure you understand the process and everything you're entitled to. This may seem obvious, but we see many cases of an “amicable divorce” where one spouse depended on the other to take care of the proceedings, only to find later that they had received less than their fair share from the proceeds of the marriage. As a result, we have had many cases crop up AFTER the divorce is over where we have had to “modify” the divorce decree to benefit one of the spouses.
From our years of experience "fixing" the divorce that went wrong, fixing the divorce is more expensive in the long run than to do it right the first time.
I've drawn up my own decree, but I want a lawyer to look over it/prove it up for me. Can I do that?
Yes. We have many cases where we assist people who are trying to do their own divorce and who have either become overwhelmed or just need assistance in one area. In these cases, we charge on an hourly basis to have a lawyer assist you.
I don't know how to contact my child's father, and I have decided to give up my child through adoption. What can I do to terminate his parental rights?
Since a child cannot legally have more than two parents, in order to complete an adoption, the child's biological parents must terminate their parental rights. When a biological parent cannot be located, Texas law provides procedures for obtaining involuntary termination of their parental rights. We can assist you petitioning the appropriate Texas state court for involuntary termination of parental rights for purposes of facilitating an adoption.
My spouse and I have decided to divorce, but we are on reasonably good terms and would like to avoid dealing with our divorce publicly in court. Do we have any other option?
Yes. The Texas Collaborative Family Law Act provides a procedure for divorcing couples to resolve their divorces amicably without going to court. In a Texas collaborative law divorce, the parties agree to open sharing of information, and with the assistance of their collaborative law attorneys they work to negotiate a settlement that satisfies each of their respective needs and concerns. The collaborative law approach could be more expensive because it also involves a financial expert and a counselor in addition to each party's attorney, however, it is far less expensive than a long drawn out custody battle or litigation over property division involving many experts battling each other in court. The end result is a holistic approach that will help family members (parents and children) continue to have a good relationship with each other while negotiating a break up of the marriage. The financial expert guides the parties through and help them understand the nuances of dividing the community estate. The therapeutic counselor helps each party to process the emotional and psychological roller coaster of a family breakup, provides a safe place for each party and their children to talk, and educates the parties on how to communicate with each other for the best interest of the children. A collaborative law divorce is often preferable where the spouses are willing to participate and capable of doing so, as it typically saves time and money as compared to a lengthy court battle and also makes it easier for the children involved in the process.
What are the benefits of working with a Texas family law mediator?
Mediation is an alternative dispute resolution method that allows adverse parties to work through their differences in a private setting without the formalities and scheduling restrictions involved in going to court. It allows the parties to flesh out their true interests and concerns, and then work toward developing a creative solution that reasonably meets each of their respective goals in light of the facts at hand. Family law mediation can be used to resolve disagreements among family members, divorce-related disputes, and problems in non-marital relationships.
For More Information
For more information about these or any other Texas family law issues, contact Helene Parker & Associates, L.L.C. today. We serve clients in Denton County, such as Carrollton, Oak Point, Pilot Point, Aubrey, The Colony, Denton, Lewisville, Flower Mound, The Colony, and surrounding areas.