The Webb Family Law Firm, P.C., realizes that most people have never been involved in a divorce or child custody situation and, therefore, these issues can be complicated and confusing. Below are some frequently asked questions and their answers that may be of assistance. If you would like personalized advice please contact our office at 800-655-1222 to set up a consultation.
Common Terms Defined
Child Custody Terms:
- Conservator — There are four definitions of "conservators" discussed below. Managing conservator, sole managing conservator, possessory conservator and joint managing conservator. If the court appoints one parent the sole managing conservator, then the other parent is typically the possessory conservator. It is more common, however, for the court to appoint the parents as joint managing conservators, and then divide the rights, powers and duties of a parent between the two parents. The court usually starts with the position that joint managing conservatorship is in the best interest of the children. This position of the court may be changed if the court finds that the appointment of the parents as joint managing conservators would significantly impair the child's physical health or emotional development.
- Managing conservator — Typically, the person who is the "custodial" parent. This parent is usually awarded the right to determine the residence of the child.
- Possessory conservator — The "noncustodial" parent who typically pays child support and has periodic periods of possession of the children (visitation). The periods of possession may or may not be equal in time with the periods of possession of the other parent.
- Joint managing conservator — This term means that both parents share parental rights, privileges, powers and duties with regard to the children and each parent has court-ordered periods of possession. Being named joint managing conservators does not mean that the parents will have equal time with the children or that they will have equal rights. One of the parent joint managing conservators will be awarded the right to choose the primary residence where the children reside.
- Sole managing conservator — This term means that one parent has the primary decisions-making rights, privileges, rights and duties in regard to the children and is usually awarded the right to determine the residence of the child.
The court starts from the premise that each parent may have possession of the children on a schedule that is agreed between the parents. If the parents CANNOT agree, then the possession schedule in the parent's decree of divorce or other court order comes into play. This is often referred to as the "standard possession schedule."
Basically, the standard possession schedule consists of possession on the first, third and fifth weekends of the month from 6 p.m. Friday to 6 p.m. Sunday; every Thursday night from 6 p.m. to 8 p.m. or until school resumes the next morning (overnight); alternating major holidays; and 30 days in the summer. However, if the parents can agree on a plan concerning the possession schedule that differs from the standard possession schedule the court will usually approve this plan. A "customized" possession schedule may have to be drawn up, if one parent works a nontraditional schedule, for example, a pilot, firefighter or doctor.
Right of first refusal — when you agree to allow the other parent to have custody of the children when you are unable to take care of them for an agreed upon amount of time rather than allowing a third party to take care of the children. For instance, if you have a right of first refusal for any time period over four hours and you intend to go to dinner and a movie that will take longer than four hours and this provision is in a court order, you must offer the children to the other parent before arranging to have a babysitter or another family member watch the children.
Property Division Terms
- Separate property — Property acquired before marriage, as well as property acquired by gift (from anyone, even the other spouse) or inheritance during marriage is considered separate property. The court cannot award your separate property to your spouse.
- Community property — All other property acquired during marriage, including a person's salary and earnings, along with income (including interest income) and royalties acquired from separate property is community property. All of this property is subject to division by the court upon divorce. This may be subject to change if the parties have entered into a binding premarital agreement (see below).
What Is A Premarital (Or Prenuptial) Agreement?
A premarital agreement is a document (usually drawn up by an attorney) and signed by both parties before their marriage that makes provisions for the assets and debts they each have at the time of the marriage and how any assets and/or debts they acquire during marriage (including salaries and other earnings) are designated (either as separate or community property). It may also make provisions for how the assets and debts of the parties are divided upon divorce. A properly drafted and executed premarital agreement may make a divorce less difficult, less expensive and protect the parties' current and future assets.
What Is Child Support And What Amount Should I Expect To Be Paid Or To Pay?
Definitions: "Obligor" is the person paying the child support and the "Obligee" is the person receiving the child support.
Child support is support ordered by one parent to the other for support of the children. The amount of support to be paid is usually determined by the Texas Family Code guidelines. The guideline support obligations are specifically designed to apply to situations in which the obligor's monthly net resources are $8,500.00 or less. The court generally applies the following schedule in rendering the support order:
- One child 20 percent of Obligor's Net Resources
- Two children 25 percent of Obligor's Net Resources
- Three children 30 percent of Obligor's Net Resources
- Four children 35 percent of Obligor's Net Resources
- Five children 40 percent of Obligor's Net Resources
- Six-plus children not less than the amount for five children
*The above guidelines became effective Sep. 1, 2013. The "cap" on monthly net resources for purposes of child support increased, with the adjustment effective September 1, 2013. If the person paying child support has children from another relationship to which he or she owes the obligation of support, the above-mentioned percentages may be decreased.
Can I withhold visitation from my spouse or "ex" if he or she is behind in child support payments?
No. In Texas, a parent is not permitted to withhold visitation because the other parent has not paid child support. And the opposite is also true, that a parent is not allowed to withhold child support because visitation has been withheld from him or her.
Can I Remarry Immediately After My Divorce Is Final?
No. Texas requires that either party to a divorce wait until 30 days after the date the divorce decree is signed by the Judge before marrying a third party. A party can request that the court waive the prohibition against remarriage for good cause, but that can only be granted by the judge.
Is There A Waiting Period To Obtain A Divorce?
In Texas, the court may not grant a divorce until 60 days after the date the suit was filed, assuming that the other party was properly served with the divorce papers. This allows a time period for possible reconciliation. Most divorces, even uncontested divorces, take longer than 60 days to finalize so this waiting period is not usually an issue.
What Is Legal Separation?
Legal separation does not exist in Texas. In order to protect your interests regarding your property or your child while separated from your spouse, you must file for divorce and obtain temporary orders from the court. Community property assets and liabilities continue to accrue whether you are living together or not living together until the divorce is final.
What Is A No-Fault Divorce?
"No fault" means that the marriage "has become insupportable because of discord or conflict that has destroyed the legitimate ends of the marriage." Texas is a "no-fault" divorce state and, therefore, it is unnecessary to prove grounds (such as adultery or cruelty) in order to obtain a divorce. Basically it means if one spouse wants to be divorced, the divorce will eventually be granted, even if the other party does not want the divorce. Grounds for divorce such as cruelty, adultery, abandonment and others can be, and are often pled as alternative grounds for divorce, but are not required.
What Are Temporary Restraining Orders And Injunctions?
A temporary restraining order (TRO) or temporary injunction is an order from the court to protect the parties and their assets. Dallas, Collin and Denton counties have standing orders that include temporary injunctions that go into place automatically once a party files for divorce and both parties are subject to these orders upon filing. Click on the Resource Links tab on this website for those standing orders.
Can I Obtain Alimony Or Spousal Maintenance?
Texas courts infrequently award alimony or "spousal maintenance" after a divorce. With some exceptions, the basic requirements to receive spousal maintenance are that the parties have to have been married 10 years and the party who wants to receive the spousal maintenance is unable to support him or herself.
Although a party may not be awarded spousal maintenance after the divorce, it may be possible to obtain temporary spousal support while the divorce is pending based on factors, including, but not limited to, the needs of the requesting spouse and ability of the other spouse to pay.
What Is The Basic Divorce Process?
1. Petition — The "original petition for divorce" is the initial pleading that is filed with the District Clerk in the county in which the spouse resides and requests the court to grant a divorce. The person that files for divorce is called "petitioner."
2. The answer — The "respondent's original answer" is the pleading filed by the respondent to respond to a petition to divorce. This document is required to be filed no later than the Monday following 20 days after the respondent is served with the petition.
3. Temporary hearing/temporary orders — The temporary hearing is a hearing before the court prior to the final trial to determine the rules that will govern the conduct of the parties until the divorce is completed. At this hearing the court can make orders on matters such as temporary child support, temporary custody of the children, temporary possession of and access to the children, temporary spousal support, payment of monthly expenses and bills, and temporary use of the residence and vehicles. These orders by the court are called "temporary orders" and are valid until revised by the written agreement of the parties and filed with the court, by further order of the court, or until the final decree is signed by the judge.
4. Discovery — Discovery is the exchange of information between the parties. This exchange of information may be done in written form by sending the other party a "request for disclosure," "request for production of documents," "interrogatories," "requests for admissions" or may be done orally in depositions.
5. Mediation — Mediation is usually required by the court prior to having a final trial. Most cases settle before trial so it is well worth the parties' efforts to prepare for mediation and have an open mind to negotiate. This way the parties themselves have input as to the final outcome of their divorce, rather than having a stranger (the judge) decide for them. It is important to remember that all discussions at mediation are confidential and cannot be used at trial.
6. Agreed divorce or trial — An agreed divorce occurs when the parties settle the case at mediation or any other time before the trial date. The parties will agree to all the terms in the divorce decree before signing the decree and submitting to the court for the judge to finalize. If the parties are unable to come to an agreement regarding the terms of the divorce they will go to trial and try the case in front of the judge or a jury. Both the petitioner and respondent will have the opportunity to present witnesses and introduce evidence to prove to the court or jury their side of the case.
7. Appeal — If, after a contested trial, either party believes the court made an error in reviewing the evidence and/or interpreting and applying the law, that party can appeal the case. The appeal process must be started no later than 30 days after the judge signs the decree of divorce. The terms of a divorce are final 30 days after it been signed, if an appeal has not been filed.
8. Enforcement — If either party fails to follow a court order, the party requesting compliance can file a motion for enforcement and ask the court enforce the order. This occurs most often in cases where one party refuses to facilitate visitation or fails to pay child support. The noncompliant party may be placed in jail for her or her failure to comply with the order, if the court finds that it is warranted.