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It seems that everyone has an opinion as to "what the law
is" or wants to be an "armchair lawyer." Sometimes, a client
needs to understand that the law may not be what "they have
heard." The following bullet list addresses some of these
issues:
Joint Managing Conservators: The Court will appoint both
parents as "Joint Managing Conservators." It is a legal
presumption that the JMC relationship is in the best
interest of the children. Absent a circumstance that either
removes the presumption, family violence, or overcomes the
presumption, the Court will appoint the parents JMCs. See
Texas Family Code §153.131(a). The vast majority of all
divorces involving children will result in both parents
being appointed "joint managing conservators." Texas
does not follow a "custody" scenerio as other states do.
It is all about joint parenting.
Standard Possession Order: As to visitation, the Court
usually implements the Texas Standard Possession Order. The
Standard Possession Order is a codified order that sets
forth those periods in which one parent will have a right to
possession and access to a child. Note, both parents have a
right of possession to the exclusion of the other as set
forth in the possession order. All Standard Possession
Orders call for agreement between the parties and in the
absent of agreement the Standard Possession Order applies.
Note, a violation of the possession order may result in a
contempt charge. If held in contempt, the party
violating the order may very well go to jail; be orderd to
pay fines and the attorney's fees of the opposing party.
In one case, a North Dallas soccer mom found herself paying
$9,000.00 in fines "instanter;" $15,000.00 in attorney's
fees and went to jail for a week. Many courts will not
hesitate to send someone to jail for 30 days.
Child Support Guidelines: The Texas Family Codes provides
for "Child Support Guidelines" in order to determine child
support. In most circumstances, the Court will follow the
guidelines. The table below, sets forth the basic parameters
of child support. Recognize that this is a simplified
version of the actual tables used and does not take into
consideration all factors:
| 1 Child of the Marriage |
20% of Net Resources |
| 2 Children of the
Marriage |
25% of Net Resources |
| 3 Children of the
Marriage |
30% of Net Resources |
| 4 Children of the
Marriage |
35% of Net Resources |
| 5 Children of the
Marriage |
40% of Net Resources |
| 6 Children of the
Marriage |
45% of Net Resources |
Permanent Alimony. The
Courts cannot award post divorce permanent alimony unless
there is a permanent disability subject to review by the
court periodically.
Temporary Alimony or
spousal Support while the case is pending. The Court can
order one spouse to pay the other "temporary alimony" for
support during the pendency of the litigation. This is
commonly referred to as "spousal support." Spousal Support
is usually awarded to one party due to some extraordinary
financial need. For example, a recent case involved a wife
who was working as a receptionist in order to fill her time
and for spending money (she was approaching her senior
years, the kids were grown and gone). Husband had a very
good income (over six figures). They lived in a $300,000
home. Spousal support was awarded during the pendency of the
case in order to allow her to continue to make the utilities
and mortgage payments.
Contractual Alimony. The
parties can agree for, as part of the division of the
marital estate, post divorce contractual alimony.
Contractual alimony can be structured so that payments are
deductible in calculating the obligor's taxable income. See
26 United States Code §71. This is commonly done as a
methodology for balancing out the property division where
there are assets not readily divisable by the court.
Also, this is just a fact, oftentimes a spouse will pay
contractual support to the other spouse as a effort to
making things right. An example, Husband has a long
time affair with secretary. He may pay contractual
alimony to his spouse in a significant amount for a long
period of time in order to assuage his guilt - done all the
time. Note, the failure to pay contractual alimony is not
subject to contempt as statutory alimony is. The
failure to pay contractual alimony is simply a breach of
contract subjecting the nonpaying spouse to all the remidies
for a contractual breach - debt collection.
Statutory
Alimony. The Court can order support payments for one spouse
after the divorce is final only if that spouse shows
entitlement to "espousal maintenance." Note the burden
of proof is on the spouse seeking the alimony. To qualify
for espousal maintenance, the spouse will have to show (1)
marriage of 10 years or more, (2) the spouse lacks the
skills and experience for gainful employment, (3) lacks the
means for self support. Maintenance payments must cease no
later than three years after the divorce. The typical fact
scenario for espousal maintenance involves an elderly
housewife who has spent most of her married life in the
home. She is without the requisite job skills to support
herself.
The court
cannot divide or divest one spouse of title to his or her
separate property. Eggemeyer v. Eggemeyer 544 S.W.2d 137
(Tex. 1977); Cameron v. Cameron, 41 S.W. 210 (Tex. 1982).
Separate property is all property owned by the spouse prior
to marriage, all property received by the spouse as a gift,
and all property inherited by a spouse.
The only hard and
fast rule for the division of marital property is a "just
and right division." An ambiguous term at best. In most
cases, the Court will divide the property along the lines of
50/50 absent some circumstance which indicates otherwise.
Circumstances calling for an unequal division include
disparity of earning power, spousal or child abuse, and/or
size of the separate property estate. If Spouse A is making
$350,000.00 per year and Spouse B wil do well making
$45,000.00, then expect Spouse B to receive a greater share
of the marital estate.
Note, if one spouse proves to
be "a bad guy," then expect unequal division. Our best
case was a 90/10. Husband was having sex with various
neices (yes, indeed he was - he video taped it); and wife
was bilind although gainfully employed with the IRS.
She received 90% of the estate.
Common Law Marriage - Not
by living together, Not by having a child.
"I have lived with my significant other for 10 years, do we
have to get a divorce?" Living together has nothing to do
with a finding that the parties are "common law." A
common law marriage, in Texas, is formed by one of two
methods:
First, if the parties have signed a "Declaration of
Marriage" pursuant to Section 2.402 of the Texas Family Code
then the parties are married.
Or §2.401(a)(2) Texas Family Code, if
- a man and woman have agreed to be married;
- after agreement to be married they lived together as
husband and wife in this state; and
- if they have held themselves out to the public as
married then the parties are married.
The second test above is the most common cause for
concern between parties. Answer, just because you lived
with a significant other for a period of years, does not
make you married. You have to have fulfilled all three
requirements above in order to be married. "But we had a
child together." It does not matter - a child is about
paternity in this case it is not about being married.
Having a child is not one of the elements of common law
marriages.
Please, if you are
unmarried and desire not to be married or found to be
married although having lived with your partner for a
significant period of time, DO NOT hold yourself out to
the public as being married. Examples, signing off
on some hand written "agreement to be married" document
or filing tax returns with the IRS wherein you and your
spouse are filing jointly.
If a Court proceeding in which a marriage is to be proved by
§2.401(a)(2) of the Texas Family Code is not commenced by
the second anniversary of the date on which the parties
separated and ceased to live together, it is a rebuttable
presumption that the parties did not enter into an agreement
to be married. In other words there is a statute of
limitations for a divorce proceeding as to common law
marriages, albeit, an informal and not absolute statute.
A person under 18 may not be a party to a common law
marriage or execute a declaration of informal marriage.
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