Family Law | Frequently Asked Questions
- Legal Separation: Is there such a thing as legal separation in Texas?
- Alimony: Is Texas an alimony state?
- Child Custody: What is child custody in Texas?
- Child Support: How does the Court set child support?
- Property Division: How is the property division decided?
- Procedure: How soon can I have the final hearing?
- Is it possible for both spouses to use the same attorney?
Alimony: Is Texas an alimony state?
Texas is really not an alimony state, and alimony is a new creature first created in the mid-1990's called "maintenance". Texas is what we call a "one tone in the water" alimony state. Texas has adopted "rehabilitation alimony." Generally, alimony must be awarded to a spouse if the marriage was of at least 10 years duration and the spouse who is seeking alimony lacks sufficient property to provide for their minimum reasonable needs and:
- Is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
- Is the custodian of a child with a physical or mental disability that precludes employment outside the home; or
- Clearly lacks earning ability in the labor market to provide for their minimum reasonable needs.
Child Custody: What is child custody in Texas?
If you and your spouse agree on custody, the Court will almost always approve your written agreement, which is within reason.
The person with primary custody in Texas is called "the managing conservator", and the visiting parent is labeled the "possessory conservator". Texas now has a presumption of "joint managing conservatorship" and allow for one of the parents to be designated as the primary custodian under the arrangement. Even in joint conservatorship cases, the court is still usually obligated to have one of the parents pay child support to the primary custodian and to order a visitation schedule for the non-custodial parent.
Contested Child Custody. If there is a contest as to which parent should be awarded custody of a child or children, the process is lengthy, cumbersome, emotionally strained, and even sometimes can be financially devastating.
Child Support: How does the Court set child support?
The State of Texas has established guidelines to determine child support based upon the parents' net resources. The definition of net resources is quite long---for most people it means all wage and salary income and other compensation for personal services, interest, dividends, royalty income, self-employment income and net rental income, less social security taxes and federal income tax withholding for a single person claiming one personal exemption and the standard deduction. For one child the guidelines say 20% of net resources, for two 25%, etc. You will need to take your tax return, W-2 forms and documentary proof of your year to date income to your attorney's office so he or she will be able to calculate the child support obligation that you can expect to receive or expect to pay under the Texas Family Code.
Property Division: How is the property division decided?
If you and your spouse enter into a written property division, the Courts will almost always approve the agreement. If the parties cannot agree on a division of property, then the Court will divide the parties' community property "in a manner the Court deems just and right, having due regard for the rights of each party and any children of the marriage." Contrary to popular impression, the Court is not required to divide community property 50%/50%. Some of the factors the Court may consider in dividing community property are disparity of income, education and training, health, age, fault in break-up of marriage, nature of property, custody of children, and the parties' capabilities.
Texas is a community property law state, unlike most states which are not. There are two types of property in Texas, "community property" or "separate property" defined by Texas statutory and case law. Basically property acquired while you are married is community property unless it was a gift to one of the spouses and not the other or unless it is received from an estate, such as an inheritance. "Separate property" is basically any property you acquired before marriage, and property which constitutes a "gift" or that you received from an estate, such as by inheritance.
Is it possible for both spouses to use the same attorney?
Yes it is as long as both spouses agree. The attorney can file the case for one spouse and the other spouse can sign a Waiver of Citation, which is a common practice. Be cautioned that the attorney technically represents the spouse that he or she files the petition for. Regardless, attorneys have an obligation to tell both parties to the case the truth and so there is nothing wrong with consulting with the other spouse's attorney if you are not represented by an attorney yourself. Some attorneys are uncomfortable with this, so this has to be determined on a case by case basis.