Dallas Divorce Law Blog

Noteworthy divorce issues that involve a special needs child

One of the most difficult challenges in divorce is planning for a child's future. There are considerations such as custody and visiting rights along with arranging child support.

When parents with a special needs child divorce, many other arrangements become necessary. The word "child" usually means a person of minority age who depends on parents for support; however, the law may identify adults with special needs as children upon and after the age of majority to indicate that they still depend on parents for support and are not physically or mentally capable of providing adequate living support for themselves.

What child support is used for

When parents in Texas get a divorce, one parent might be required to pay child support to the other. While child support is usually paid to the custodial parent, this is not always the case.

The custodial parent is generally the parent who has physical custody of the child. The other parent might still have ample visitation time. If one parent has physical custody, parents may still share legal custody. Fathers are often the ones who pay child support, but some mothers must pay it as well.

Avoiding a messy high-asset divorce

Many Texas residents have likely heard about the impending divorce involving Amazon founder Jeff Bezos and his wife of 25 years. The couple appears to be handling things right so far. They started off with a joint announcement that included a commitment to enjoy a "shared new life". While this is admirable, there are other steps high-asset couples may want to consider to avoid common missteps.

For starters, being highly focused during the divorce process can make it easier to restructure the family. This typically means encouraging spouses to avoid negative talk in public while continuing to attend school-related, social, and public functions together without conflict. Splitting spouses are also urged to avoid making decisions based on emotions.

Division of 401(k)s in a divorce

According to a survey by the American Association of Matrimonial Lawyers in 2016, retirement accounts were the second most common issue divorcing couples fought over, just behind alimony. People in Texas who are getting a divorce and who must divide a retirement account should make sure they understand the complexities involved. Failing to do so could mean paying a significant amount in taxes and penalties or one spouse getting more than a fair share of the account.

With a 401(k) or a pension plan, it is necessary to obtain a document known as a qualified domestic relations order. The QDRO must be approved by the plan administrator, and then a distribution can be made. If the distribution will be rolled into an IRA, which is necessary to avoid a tax for early withdrawal, this should be specified in the QDRO. The terms of the QDRO must be consistent with the divorce agreement.

Understanding different types of child custody

Child custody is usually one of the most contentious issues in any divorce. In most cases, a judge will try to award some form of joint custody so that the child can spend time with both parents. However, various factors can influence a judge's decision. 

In one recent example in Texas, a mother accused the father of her child of abusive behavior and sought to terminate his parental rights. A litany of other factors can influence a judge's decision, and it is vital for both parents to be aware of all their options. This will allow them to plan accordingly and determine what is best for their family. 

Why parents may seek a DNA test

Child support disputes in Texas can be complicated situations that can take a long time to get resolved. However, resolution often comes when a DNA test is made, paternity and maternity are legally established and support is ordered by the court.

There are many reasons why parents seek DNA tests. For some parents, it might mean having a father legally recognized that a child is his. This can then result not only in support but also in a relationship between parent and child. Ascertaining parentage is very important, but when children are conceived and born when the parents aren't married, the father's name does not have to be on the birth certificate. In those cases, the father is considered the 'alleged father" until paternity is established by a DNA test. Once that is completed, however, a court can order the father to pay support and grant him visitation rights.

The challenges and advantages of parallel parenting

Texas parents who are getting divorced may hope to establish a healthy co-parenting relationship with each another. However, if there is a great deal of conflict, this may not be possible. An alternative to co-parenting is an approach called parallel parenting.

In both co-parenting and parallel parenting, exes should want what's best for their children. Sometimes, that means less interaction between exes. Parallel parenting eliminates as much direct contact as possible to reduce the likelihood of conflict. Research indicates that parental arguing is particularly difficult for children to deal with in a divorce.

What is conservatorship in Texas?

Most people have probably heard of child custody, and parents in Texas may approach their divorce prepared to negotiate for joint custody. However, custody laws are different from state to state. In the Lone Star State, family law courts refer to custody as "conservatorship."

Joint managing conservatorship

How 'birdnesting' may make shared custody easier post-divorce

Regardless of how amicable a split is, the end of a marriage can present several challenges for anyone in Texas, especially when children are part of the picture. Unless sole custody is granted, children are likely to have to split their time between two homes. Some parents wishing to minimize this type of transition for their kids are exploring their options with what's termed "birdnesting."

Essentially, birdnesting is an arrangement where children remain in the marital home while each parent alternates time spent there. When not in the home, each parent residents in a separate home, or a jointly owned apartment nearby. Generally, such arrangements tend to work best when child custody terms have already been worked out. The motivation behind the birdnesting concept is to minimize disruption for children. However, it's not advised that parents continue with this setup indefinitely.

Divorce and financial assets

Couples in Texas who get a divorce should understand the tax ramifications of the dividing their financial assets and take care to follow the correct procedure when dividing certain types of assets. For example, for divorcing couples who want to split a workplace retirement plan, it will be necessary to obtain a qualified domestic relations order, a legal document that details how much of the employer-sponsored retirement benefits of one spouse will be given to the other spouse.

Individuals who are recipients of their ex-spouse's workplace retirement plan and who are younger than 59.5 years old will be able to take advantage of a one-time exemption for the withdrawal penalty. While they will not have to pay the penalty, which is 10 percent of the withdrawal amount, they will still be assessed taxes on the funds that are withdrawn from the plan. However, if the money is transferred to an IRA, they can avoid having to pay any taxes.