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:
- Texas Child Support
- Texas Divorce and Alimony
- Unequal Division of Marital Property is Possible
- Common Law Marriage – Not by living together, Not by having a child.
- Child Custody – Joint Custody is Presumed
Joint Custody — Joint Managing Conservators (“JMC”): It is presumed that joint custody or joint managing conservator is in the best interest of the child(ren). Unless there is evidence of family violence, it is presumed that the parties will have joint custody. The Court will always appoint both parents as “joint custodians” or “Joint Managing Conservators” absent facts that show it is not in the best interest of the child. 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 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.
Texas Child Support
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|
Child Support Net Resources – for the purpose of calculating child support net resources —
All Income — Child Support Net Recources Include all income from any source such as 100% of all wage and salary including commissions, overtime pay, tips and bonuses; interest, dividends and royalty income; any self-employment income; any “net” rental income (defined as rent after deducting operating expenses but not depreciation); and any and all other income actually being received (severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security, unemployment, disability and workers’ compensation regardless of source, gifts, prizes, spousal maintenance and alimony). See Texas Family Code 154.062.
Child Support Net Resources do not include return of principal and capital; accounts receibable, benefits paid in accordance with the Temporary Assistance for Needy Families program or another federal public assistance program; or payments for the foster care of a child.
Deductions — Child Support Net Resources are determined by deducting social security taxes; federal income tax for a single person claiming one exemption and the standard deduction; state income taxes, union dues; expenses for the costs of health care or cash medical support for the obligor’s child ordered by the court under Texas Family Code 154.182.
No Divestment of Separate Property.
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.
Note, the burden of proof is upon the person claiming separate property to prove that it is separate property. You will need deeds, bank statements, and other documentation to prove the separate property characteristic. Please do not rely upon your spouse’s good graces because “she knows.” He or she “may know” that you bought your house two weeks prior to your marriage, but unless you can prove it it is presumed to be community property.
Community Property? Not Necessarily 50/50.
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 in Texas
A common law marrige is not formed by simply living with your partner or having a chld with him or her.
“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
a man and woman have agreed to be married;
- after agreement to be married they have lived together as husband and wife in this state; and
- if they have held themselves out to the public as married then they 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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