Divorce / Family Law…discontinued January 1, 2016
The following has been included for informational and educational purposes, and to illustrate the diverse background of my legal practice, but may not be totally accurate since I no longer accept family law cases and there may have been material changes in this area of law..
I’ve been handling divorces and family law matters since 1971. Back then, a divorce decree generally took only one or two pages. How things have changed! Divorce decrees now frequently number over forty pages if children are involved. We have “Standard Possession Orders” for visitation, “Texas Child Support Guidelines,” document assembly software programs, spreadsheet software for property divisions, same sex marriages, etc. What hasn’t changed is the emotional (and often financial) pain that comes with the failed relationship.
You may wish to read the material relating to divorce on this website, including the Frequently Asked Questions.
Divorce is very personal, and it’s extremely important to have a face-to-face conference with any attorney you are considering hiring. Call to schedule an appointment, which will generally take at least an hour. Depending on the attorney, there may be a charge for the initial conference, so ask. Some attorneys have non-lawyer personnel, such as paralegals, conduct the initial interview, but I suggest you insist on an initial conference with the lawyer who will actually be representing you. This personal conference gives you an opportunity to ask detailed questions, and determine if he or she is a good fit to represent you. If you want to hire a lawyer, most will have a written fee agreement based primarily on time and the complexity of the case. Ask about fees and how to keep them down. In my experience, divorce cases can be very hard on the lawyer as well as the client. Getting involved in someone else’s marital breakup is not fun, and fraught with difficulties. Consider that fact when lawyers address legal fees.
I do not encourage divorce. I’ve been married to the same wonderful lady since 1969. If you decide a divorce is what you need, or if one is forced on you, You need to learn your rights and obligations. Many family attorneys have years of experience with hundreds of cases, so you can obtain a reasonable expectation of what to expect. With legal advice, you can make better choices and plan strategies based on your particular situation. Divorce is about people — spouses, children, in-laws, lawyers, judges, assistant judges, social workers, and sometimes private investigators and possibly law enforcement officers. The biggest variable in a divorce case is the parties themselves. Aside from that, fighting over children is the least pleasant experience known to family lawyers; and should be considered only with reluctance. It’s expensive, and usually harmful to parents, children, the extended family, and anyone else who gets involved. Fighting over property is not as bad, but must be tempered with the cost (including legal fees) of the fight.
MODIFICATION SUITS
Most people are relieved when their divorce is final, but some things, such as the amount of child support, can be changed until the children are no longer entitled to support. Other things subject to modification include who will be the “primary” custodial parent, visitation/possession schedules, and the parent responsible for providing health insurance for the kids.
These modifications don’t just happen – someone must bring to the court’s attention that there has been a change of circumstances by filing a Petition To Modify. The party seeking a modification files in the court that has “continuing jurisdiction,” which is usually the court that granted the divorce. Judges cannot “backdate” a modification..
Typically, the ex-spouse receiving child support (Obligee) will seek an increase because he/she believes the Obligor is making more money than when child support was last set. Other situations, such as the Obligor having additional children, or being unemployed, may justify lowering child support. Since Texas has child support guidelines, it’s usually a simple matter to figure out if the current child support amount is within the guidelines.
A modification suit may be brought to change the primary custodial parent. Sometimes, the primary becomes impaired or incarcerated. Sometimes, a teenager becomes too much for the primary to handle, or chooses to live with the other parent. To enroll the child in public school and/or reverse the child support obligation, a modification is often required.
One hot issue that has led to suits to modify is relocation of the primary custodial parent. In most Texas divorces, both parents are named Joint Managing Conservators (JMCs) and have similar rights, but the primary JMC usually has the right to determine the children’s legal domicile, which is generally where they go to school. Often, there is a restriction on where the domicile can be, such as within Tarrant County and contiguous counties. If the primary JMC gets married or receives a job promotion, he or she may want to relocate outside of the permitted area, and the other parent may object because it makes frequent contact with the children difficult and/or expensive. These cases create very difficult decisions for judges, and can entail expensive modification suits. Every effort should be made to negotiate an agreement that both parties can live with.
Every situation is different and requires not only knowledge of the applicable law, but also what the particular judge has done in the past in similar situations. Family judges have a great deal of power, and their decisions are rarely overturned on appeal. That’s another reason I strongly suggest hiring a local attorney for a family law case.
FREQUENTLY ASKED QUESTIONS
Divorce / Family Law:
Q#1 What grounds are available for divorce in Texas?
A) There are several grounds. The most commonly used “fault” grounds are cruelty and adultery. Most divorces use the no-fault grounds of insupportability which alleges that the marriage is insupportable due to discord or conflict of personalities that destroy the legitimate ends of the marriage relationship and prevent any reasonable expectation of reconciliation. In other words, the marriage is lousy — at least in the opinion of one spouse.
Q#2 How long do I need to reside in Texas to file a divorce?
A) Technically, six months in the state and ninety days in the county. Sometimes, separated spouses in different counties can each file where they reside. In that situation, whoever files first usually determines the county for the divorce.
Q#3 My spouse lives in Tarrant County, Texas, but I live in Oklahoma. Where can I file for divorce?
A) Depending on the residency requirements of each state, either spouse may be able to file in their home state. If both file, there may be a jurisdictional conflict to be resolved before the divorce can proceed. If the spouse living in Oklahoma wants to avoid a jurisdictional issue, he or she may file in Texas.
Q#4 My domicile is in Tarrant County, Texas, but I work in Dallas County, and it would be more convenient for me to file there. Can I file in Dallas County?
A) Not unless one spouse is domiciled in Dallas County for the required ninety days.
Q#5 I’ve only been married for a few months. Can I get an annulment?
A) Possibly, but the grounds for an annulment are very limited. For that reason, a suit for annulment often asks alternatively for a divorce.
Q#6 What is Collaborative law?
A) Click on “What is Collaborative Law.”
Q#7 How long does it take to get a divorce?
A) There is a minimum waiting period of sixty days from the date of filing, but rare is the divorce that is obtained on the 61st day. If and when the parties reach an agreement on everything, including conservatorship of the children, parental rights, the possession schedule for the children, child support, division of property and debts, etc. and the documents are all prepared and signed by the parties and their attorneys, the divorce can be finalized with a quick trip to the Courthouse. How long it takes to do all this depends on the parties, their attorneys, the complexities of the case, the extent of the community property, and the number, length, and complexity of the related documents. If children are involved, a relatively standard divorce decree will be more than forty pages long. If retirement assets are to be split, there may be QDROs (Qualified Domestic Relations Orders) involved, which may delay finalization.
Sometimes, the parties have detailed agreements dealing with the post-divorce sale of real estate, alimony (spousal support) contracts, or business agreements, which can be complicated and may require review by employers or other attorneys. The judge may order the parties to attend “Children in the Middle” or anger control counseling, a social study or access facilitation, even drug tests or mental exams.
Even a case where the parties eventually reach an agreement may take months or years. Often, when the parties can’t reach agreement, mediation is ordered. If the parties are still unable to reach an agreement on everything, the trial court will try the unresolved issues when the court is available, generally scheduling the oldest cases first. Additional delays may be caused by vacations (judge or attorneys), deaths, illnesses, ice days, bomb scares, holidays, etc. The simple answer is that it takes as long as it takes.
Q#8 Can I force my spouse to pay my attorney fees?
A) Judges have the power to order either party to pay the attorney fees of the other party, but since the money generally comes out of the community property (CP) “pie” owned by both spouses 50/50, it is not always particularly helpful. Either party can borrow money, if necessary, to pay their attorney, and the judge may take fees into consideration when dividing the CP. In any case, due to the uncertainty whether a judge will order one party to pay the other party’s attorney fees, attorneys generally require a deposit or retainer fee (or both) paid in advance when they agree to take the case. Both parties need to realize that any fees paid to attorneys will shrink the assets available to divide between the parties. For this reason, you should always consider attorney’s fees and other costs in light of whether they constitute “money well spent.” For example, you would be unwise to incur attorney fees of $1,000 fighting over a TV worth $300.
Q#9: How is child support determined?
A: In Texas, the legislature has approved “child support guidelines.” Most family lawyers use a software program that calculates child support. Variables include the gross (before deductions) monthly income of the obligor (spouse obligated to pay), the number of children, the cost of health insurance for the children, union dues, etc. The child support amount is a percentage of the net (after deductions) monthly income. The software accurately calculates the guideline amount of child support, but errors — such as underestimating monthly gross income — will result in incorrect guideline calculations (garbage in, garbage out). Judges may order a variation from the “guidelines” if circumstances warrant, but this is unusual. Despite the fact there are guidelines, many factors can make calculation harder. These include self-employment, overtime, bonuses, stock options, car allowances, unreported cash income, etc.
Q#10: My spouse has minor children by another marriage or relationship that he or she is obligated to support. Will that effect the amount of support paid for our child?
A: Yes. The child support guidelines address this situation.
Q#11: For how long will child support be owed?
A: Unless a child is disabled, child support continues to be an obligation until the children are 18 years old or graduate from high-school, whichever occurs last.
Q#12: Can I get alimony/spousal maintenance?
A) As long as the marriage exists — including during the divorce — either party may be ordered to contribute to the support of the other. This is called temporary support. Upon divorce, the parties may enter into a contractual alimony agreement whereby periodic payments are made by one ex-spouse to the other. The ex-spouse paying the support can use the payment to reduce his/her taxable income, and the ex-spouse receiving the support claims the periodic payments as income. This works best when the ex-spouse paying the contractual alimony is in a higher tax bracket than the one receiving it. Even without a contractual agreement, post-divorce spousal maintenance can be ordered by the a court in some cases, usually for limited amounts over a limited time period unless the recipient is unable to support herself/himself through appropriate employment because of an incapacitating physical or mental disability.
Q#13 Upon divorce, is all marital property divided equally between the two spouses?
A) Not necessarily. Texas is a community property state. Generally, most property acquired during the marriage by either spouse is community property (CP). However, either spouse may own separate property (SP), which is generally property acquired before marriage, or acquired after marriage by gift or inheritance. Sometimes, an asset may be partially CP and partially SP (Mixed). An attorney, sometimes with the help of an accountant, will help you determine which property is CP, SP, or Mixed. Depending on many factors, including fault in the breakup and disparity of wage-earning capacity, CP can be divided unequally upon divorce, but SP remains the property of the spouse who owns it.
Q#14 I used property I had before the marriage to make improvements to my spouse’s separate property house and to pay off debts my spouse had before the marriage. Can I be reimbursed?
A) The Texas Family Code deals with claims for reimbursement and/or for economic contribution, but these require a lot of careful records to compute and can complicate the case considerably, resulting in additional delay and expense.
Q#15 Does each spouse get a portion of each asset?
A) The Judge can slice up the community property (CP) into two pieces any way that is “just and right.” Normally, the judge will have a pretty good idea of the nature and value of the assets and the debts. For example, if the total assets add up to $200,000 and the debts are $50,000, the net size of the pie is $150,000. If the judge thinks a 60/40 split in favor of the wife is just and right, he/she would award the wife assets and debts having a net value of $90,000 (60% of $150,000). He would probably start out by adding up the net value of the assets that are logical to award to each party. He would usually give each a car (together with the debt thereon), and each would get the retirement rights in their respective names unless doing so would result in too much or too little going to one party or the other, in which case he would divide as few assets as possible to accomplish the 60/40 split he wanted to achieve.
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Q#16: What if there is little or no property to divide?
A) Don’t waste money fighting over it.
Q#17: My spouse is having an affair. Since he (or she) is the one “at fault,” will I get all or most of the community property?
A) Although the judge has the power to award property in a manner that is “just and right,” and fault in the breakup can be considered, most judges consider many factors other than fault. Especially important is the difference in wage earning capacity, such as where the husband is a physician earning $500,000 annually, and his wife has not worked outside the home since their marriage. In an extreme case, a judge may split CP 80/20,or 70/30; more often it’s 60/40, 55/45, or 50/50.
Q#18: If my spouse is ordered to pay a debt, am I off the hook?
A) Unfortunately, the answer is no. A creditor is generally not a party to a divorce and its right to collect a debt is not affected by the divorce decree. For example, if a credit card is in the wife’s name and the ex-husband is ordered to pay that debt, but doesn’t, the creditor may sue the wife or possibly both her and her ex-husband. Similarly, if the wife is awarded the house and ordered to pay the mortgage on the house, but fails to do so, the mortgage company can foreclose on the house, sell it, and then sue both spouses for any portion of the note remaining unpaid. If the equity in the house is significant, this is unlikely.
Q#19: How should we determine the “equity” we have in our residence?
A) There are several ways, but all depend on the reasonable market value of the house and the liens, if any, that are secured by the property. The cost of selling the house is relevant also, even if sale is not contemplated by the parties. For example, if the value of the house is $150,000, and there is a mortgage for $100,000, the simplest answer is that the owners have $50,000 in equity. However, if real estate agents are used, and commissions of 6% are paid, the total “cost of sale” is probably close to 8% including title insurance, attorney fees, etc. If so, you could value the equity as follows:
Sales Price $150,000
Less cost of sale (8%) $12 ,000
Less mortgage $100,000
Net proceeds $38,000
Q#20: How is reasonable market value determined?
A) Unless the property is actually sold, opinions may vary, and this can be an issue for a judge to determine. The expense of litigation encourages parties to stipulate (agree) to a value if the house is not being sold. If the parties cannot agree on the value, they should consider agreement on a method for determining the value, such as an appraisal or a realtor’s market value analysis. Sometimes, the parties are willing to accept the Tarrant Appraisal District’s determination, although this is usually a conservative estimate.
Q#21: What if there is more owed on the mortgage or mortgages than would be realized from a sale?
A) This can happen, especially if the marriage fails shortly after purchasing or refinancing the house. This is “negative equity” referred to as being “upside down.” Assume that the couple finances $95,000 on the purchase of a new $100,000 house, and shortly thereafter separate, seeking a divorce. The house may have to be sold quickly because the parties cannot make the payments while one is living elsewhere. Assuming that the house sells for less than the original price (the house being built down the street is available for $100,000, and it’s new), and assuming an 8% cost of sale, the parties must come up with money at closing to get out from under the obligation of the mortgage. Illustrating:
Sales Price $95,000
Less cost of sale $7,600
Less mortgage $94,500
Negative equity ($7,100)
Q#22: How can I get off the hook for the mortgage?
A) If there is equity, the house could be sold, thus paying off the mortgage at closing. In some instances, the spouse that wants to keep the house can get someone else (such as a parent) to join in refinancing the house, which would also pay off the original mortgage. VA and FHA mortgages are usually assumable without recourse to the spouse who doesn’t take the house. One important lesson that I have learned over the years is that it is generally not a good idea for ex-spouses to be partners in the ownership of real estate. Consequently, I advise my clients to avoid jointly owning property post-divorce unless there is simply no other way.
Q#23: How can I get my share of the house equity if my spouse wants to keep the house?
A) This is a common problem. Of course, if there are other assets, such as cash, which you can take to offset the value of your share of the house equity, that’s the simplest solution. (See the example in the answer to Q#15). Another way is to have your spouse obtain an “owelty” mortgage whereby a mortgage company or bank cashes you out of your interest, and your spouse obtains a second owelty mortgage on the house and makes monthly payments on both mortgages. Refinancing may be possible. A less desirable method is for you to retain an interest in the house, to be paid off in periodic payments, or upon the occurrence of a certain event — like the youngest child moving out, or upon sale, or in ten years, etc.