Family LawDivorce The dissolution of a marriage is a traumatic and emotional experience to all parties. Texas has adopted a "no fault" concept of divorce. The usual language and grounds are "the marriage has become insupportable because of discord or conflict or personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation". Though other grounds exist it is often not necessary to plead those grounds, such as abandonment, cruelty, etc. Many divorce matters may be resolved by agreement of the parties, and though that reduces the emotional and traumatic issues, it does not remove the legal complexities. For a divorce to be filed in Texas a party must have been a resident of Texas for at least 6 months and a resident of the county in which the divorce is to be filed for a minimum period of 90 days. Once the divorce is filed there is a statutory waiting period of 60 days before the divorce can be granted. Upon the granting of divorce after the 60 day period, there then remains a period of 30 days from the date of the decree until a party may remarry. If the parties agree to the terms of the divorce, and the divorce is essentially a mutual understanding, and the opposing party is not going to require that they be served by a process server, the opposing party may execute a "waiver of service." The content and extent of the waiver is individual to each case and to the agreements of the parties. Often many issues of the divorce can be agreed upon either mutually or by the facilitation of a mediator, such that if any matters remain, the issues to be put before the court for trial will be narrow and specific, and thereby reduce the legal expense of the parties. The issue of property is a sensitive area in a divorce and is either one of agreement or one of hotly contested issues. Property in Texas is classified as "community" or as "separate". Community Property includes generally all of the property acquired by either spouse during the marriage other than "separate property". That community property includes for instance, generally the equity value of a home acquired during the marriage, and also will usually include retirement accounts, pension plans etc. that were set up or contributed to during the marriage. Separate Property can be generally described as (a) the property owned or acquired before marriage (b) property acquired by descent, i.e. inheritance, (c) and some elements relating to the recovery made for "personal injury". Child Custody Texas courts will generally tend to resolve the issue of custody of the children of a marriage wherein the parties are appointed "Joint Managing Conservators" with each party essentially sharing in the rights to the child equally. The "Joint Managing Conservatorship" can be expanded or limited to provide one parent as a "Joint Managing Conservator" with more or less rights to the child. Child Support In a divorce proceeding in Texas where minor children of the parties are involved, the parent with whom the child does not primarily reside, will be required to pay reasonable child support. The guidelines for child support are for one child, 20% of the obligor's net resources, and that amount increases if more than one child is involved. Generally the child support is paid by means of a "wage withholding order" that is the support is withheld by the obligors employer from the pay of the obligor and sent directly to the child support office for disbursement to the obligee. The standard decree provides generally that the parents will share the expenses of "uninsured medical costs" that is those medical cost not covered by insurance on a 50/50 basis. Visitation Possession and Access After Divorce Texas provides that possession and access to the children by the parents shall be by mutual agreement and in the lack of mutual agreement that a "standard possession order" should apply. The standard possession order provides generally, that the non primary conservator, that is the parent the child "does not" live with has a "superior right of access and possession" at the following times: On the first third and fifth weekends, beginning at 6:00 PM on Friday until 6:00 PM on the following Sunday. Optionally the order can be written such that possession begins at school out on Friday and ends at school beginning on Monday. On each Wednesday night from 6:00 PM until 8:00 PM and optionally as overnight on each Wednesday from school out until school begins on Thursday night. The major holidays are alternated, such that there is a sharing of the holiday periods between the parents. There is generally provided an "extended" summer possession period over and above the weekend provisions. If the parent resides greater than 100 miles apart the periods change slightly with the most significant being the extension of time in the summer. Choice of Managing Conservator By a Child A child that is the age of 10 or older may make an election of which parent they choose to be the primary managing conservator, that is the parent they choose to reside with. Generally in the lack of a showing of risk or harm for a child to reside with the parent of their choice, the court will permit such election. The overriding interest of the court in considering with which parent the child shall primarily reside, is "what is in the best interest of the child". Can Residence be Restricted? A court may include in an order a restriction that without permission of the court that the child's permanent residence may not be changed from the jurisdictional limits of the court. This is sometimes waived by mutual agreement of the parties and with approval of the court. The intent of this provision is that one parent will not attempt to intentionally relocate to such a far distance so as to make visitation impossible or highly restrictive on the other parent. Post Divorce Spousal Support in Texas Texas law does provide under limited circumstances that "post divorce spousal support" may be ordered only for a limited time, and only if several underlying conditions are satisfied, and then only for a limited amount of time. Modification of Final Decree of Divorce or Other Orders The rendition of the final decree or other orders of the court generally provide for the payment of child support, as well as certain visitation or possession issues. As time passes after the rendition of the original decree, the financial situation of the party, as well as the opposing party's financial situation may change as well. Those financial changes may precipitate the need to modify the child support orders. Situations of possession and access may change as well after the rendition of the final decree. The best interest of the children must by considered, and in some cases where restrictions were placed upon possession and access it may be appropriate to narrow the possession and access. The court will consider foremost the best interest of the child. Enforcement of Final Decree or Other Orders Proceedings in Texas family law matters may be taught to enforce the terms of a final decree or other orders of the court. Those provisions enforced may relate to possession and access, i.e. one parent is denying the other their rightful possession and access to the children, or enforcement may be brought for other reasons, child support, medical support and conceivably enforcing the property division of the divorce decree. The actions required to enforce a decree or other order are unique to each situation and professional legal advice should be sought to understand your rights, duties and responsibilities. Paternity Actions The necessity of filing paternity actions, that is a legal action to determine and declare the father of a child have risen dramatically in recent years. The establishment of paternity provides the mother of the child a mechanism to secure support due the child, and as well establishes for the father, definitive orders for his possession and access to the child. If the issue of paternity is contested, a "DNA" test may be ordered. Essentially the test will calculate after medical analysis the probabilities of a person being the father. To establish paternity the court will generally consider a test which excludes 99 percent of the remaining population as being the father. Back To Practice Areas | 
