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DIVORCE AND FAMILY LAW

WHEN CAN A DIVORCE BE GRANTED IN TEXAS?

    Divorce can be a very disturbing time for a married couple. It can be a very stressful time for the children of the marriage. In Texas, a divorce can be granted without regard to the fault in the marriage. If the marriage is unsupportable, due to discord or conflict of personalities which destroys the legitimate purpose of the marital relationship which prevents any reasonable expectation of reconciliation, then a divorce can be granted. Generally, the other reasons a divorce can be granted if shown are; 1. if one spouse is guilty of cruelty to other spouse; 2. if one spouse has committed adultery; 3. if one spouse has been convicted of a felony, has been imprisoned for at least one year in a state or federal penitentiary and has not been pardoned; 4. if one spouse intentionally abandoned the other and remains away for a year; 5. if the spouses live apart for at least three years without co-habitation; 6. if one spouse at the time divorce is filed is confined in a state or private mental hospital for at least three years and it appears that the spouse's mental disorder is to such a point that adjustment is not likely, and if adjustment does occur a relapse is probable.

    As we all know a marriage is not an easy thing, it takes the work of both husband and wife to keep it working. Before going to that serious step of a divorce, a husband and wife should exhaust all remedies, including counseling.

SEPARATE AND COMMUNITY

PROPERTY IN A TEXAS DIVORCE

    Texas has been under some form of a community property system since 1840. Therefore, property in a marriage is usually defined as separate or community.

    Generally, a spouse's separate property is property owned or claimed by the spouse before marriage; also property obtained during the marriage which was a gift or inheritance, and monies recovered for personal injuries, that occurred during the marriage. However, if the spouse recovers monies for any loss of earning capacity during the marriage for his injuries, that is considered community property. Further, during the marriage, each spouse has the sole management and control of that spouse's separate property.

    Community property is simply property that is acquired during the marriage and is not separate property. Further, property possessed by either spouse while being married or during a divorce is presumed to be community property, unless clear and convincing evidence is presented to show the property is separate property.

    Further, you may have property that is mixed which is not entirely community or separate property. This may occur if one spouse uses separate funds to help purchase something for the family. For example, if one spouse uses separate funds to make a down-payment on a house, and the general credit of the spouses is used to obtain the loan to secure the purchase price, then the house is generally considered as mixed.

    Property division in a divorce can be difficult, however, if the spouses have records that help determine what is separate or community property, then the chore of dividing the marriage estate is less tasking.

CHILD SUPPORT IN TEXAS

    Generally, in a divorce with children, one parent is usually ordered to pay child support, and the other to receive child support.  Well, how much is that support, what is it based on, and when does it stop?

    Child support is based on all net sources of the parent that is ordered to pay child support.  These resources are based on all income, interest, dividends, royalty income, net rental income, self-employment income and other sources of income.  To obtain net resources, one shall deduct the following items from the resources: (A) social security taxes; (B) state income tax; (C) union dues; (D) federal income taxes (based on single person tax rate with one exemption with standard deduction) and (E) costs for health insurance coverage of the parties child.

    Once you have obtained the net monthly resources of the parent, then the Texas Family Code provides us with guidelines as to the amount of monthly support that can be ordered.  For example; 20% of the parents net resources for one child, two children 25% of the parent's net resources; three children 30% of the parent's net resources and so forth.

     If the parent who will pay child support has other children he is presently paying child support on, then the percentages change to make allowances for the additional children.

    When a parent is ordered to pay child support, he or she shall generally  pay; (A) until the child reaches the age of 18 or until graduation from high school, which ever occurs later; (B) until the death of the child; (C) until the child is emancipated; (D) if the child is disabled then child support may be paid for an indefinite period.

    Child support is an important factor in supporting one's children and one of a parent's primary obligation.

CHILD CUSTODY IN TEXAS

    In my private legal practice I am asked numerous times, "Who gets the children in a divorce". Well, the Texas Family Code states in part " The best interest of the child shall always be the primary consideration of the Court in determining the issues of conservatorship and possession of and access to the child".  I am fully aware this doesn't give a person much guidance to predict the outcome of a child custody case.  Since the question of the "best interest of the child" is very broad and is open to wide interpretation.
    However, in Texas we have a public policy which, "(1) assume that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage."  Further, under Texas public policy visitation and access to the children shall not be conditioned upon the payment of child support.
    Generally, there are three types of child conservatorships (custody) in Texas.  They are joint managing conservator, sole managing conservator, and possessory conservator.
In joint managing conservatorship generally one parent is appointed as the primary conservator and receives the right to receive child support and determine the residence of the child.  While the other parent must pay child support and provide health insurance for the child.  The other duties and responsibilities are generally given to both parents under a joint managing conservatorship.
    Generally, under the sole managing conservatorship, one parent is appointed as such, while the other parent is appointed as possessory conservator.  The rights and duties of a possessory conservator are more limited then under a joint managing conservatorship.  Further, a possessory conservator generally pays child support, and provides medical insurance for the child.  Generally the sole managing conservator has the right to receive child support and determine the residence of the child in addition to other rights and duties that the possessory conservator does not receive.
I have learned in my practice, that joint managing conservatorship route is the best way to go, if the parents of the children can get along.  Sometimes, it is difficult for divorced couples to understand that they are still the parents of their children, and should act accordingly.

Adoption of a Child in Texas

     Generally adoption replaces the biological parents of a child with legal parents, through the adoption process.  A full adoption requires that the biological parents' rights to the child be terminated prior to the proposed adoptive parents being allowed to adopt the child.
     Under the Texas Family Code, a child residing in Texas may be adopted if; (1) the parent-child relationship of each living parent has been terminated; (2) A stepparent seeks the adoption of a stepchild, as long as the spouse of the stepparent still possesses his or her parental rights; (3) the child is at least two years old, and one  of the parent's rights have been terminated, and the person seeking the adoption is the child's former stepparent and he or she has had possession and control over the child for at least six months and/or was a managing conservator over the child and the non-terminated parent agrees to the adoption; or (4) the child is at least two years old, one parent's rights have been terminated, the person seeking to adopt is a former stepparent and was a managing conservator over the child or has actual, control and possession of the child for at least one year prior to the adoption.
     After a petition for adoption has been filed, the Court could order an Adoptive Home Screening, and a Social Study.  Further, the Court may order that an attorney ad litem be appointed to represent the interests of the child.
     The process of adoption may be complex, but the results of given a child a new parent who is caring, can be well worth it.


 

  This firm operates with a  tradition of integrity, common sense, technical expertise and with a principle that "Justice for All" applies to everyone. Further, the firm works for timely resolution of difficult family matters with a minimal level of confrontation, specially when children are involved.

    With the "client's interests at heart," the firm handles divorce and property cases, child custody and support, visitation, adoption, wills, criminal, personal injury, business and other legal matters. Through effective use of state-of-the-art technology, Weismuller Law Firm handles complex cases requiring extensive research and analysis.

 

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Disclaimer
No information or materials posted here are intended to constitute legal advice, and is not applicable to any particular set of facts, especially as to any personal situation. The information contained herein nor the use of it does not establish nor constitute an attorney-client relationship with the Firm or any of its Attorneys.

 

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