Newsletter

What is an Informal (Common Law) Marriage?

An informal marriage is created when a man and woman sign a declaration of their marriage as provided by the Texas Family Code; or a man and woman agree to be married and thereafter live together in Texas as husband and wife and represent to others in Texas that they are married. The man and woman must both be at least 18 years of age. The man and woman cannot enter into an informal marriage if either is married to someone else. There is no time period required.

MARITAL PROPERTY RIGHTS

What is separate property?

A spouse's separate property consists of the property owned or claimed by the spouse before marriage; the property acquired by the spouse during marriage by gift or inheritance; and the recovery of personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during marriage, which would be community property.

What is community property?

Community property consists of the property, other than separate property, acquired by either spouse during marriage. Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.

How does the court divide the community property between the spouses at the time of divorce?

The assets and liabilities belonging to the community estate are divided by the court in a "just and right" manner. This does not mean that property (and debts) are necessarily split 50/50. The Court will consider many factors when awarding assets and/or liabilities to one spouse or the other.

DIVORCE

How long does it take to get a divorce?

A divorce can be finalized 60 days after the date the suit is filed if the spouses can agree on all issues. If the divorce is contested the divorce could take much longer.

What if I need some relief from the court before the divorce can be finalized?

You can request temporary orders from the court. A hearing on temporary orders can usually be obtained within 2-4 weeks after filing the Petition for Divorce depending on the court's schedule. Your spouse will have to be served with citation prior to the temporary hearing. The court can enter temporary orders regarding temporary use of property (house, car, etc.) during the pendency of the divorce and can make custody and support orders.

THE PARENT-CHILD RELATIONSHIP

How is child support determined?

Child support is based on the payor's net monthly resources. "Monthly resources" includes 100% of all wage and salary income, including commissions, overtime pay, tips, and bonuses, interest, dividends, and royalty income, self-employment income, net rental income and all other income actually being received. The Court will deduct from the "monthly resources" social security taxes, federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction, state income tax, union dues and expenses for health insurance coverage for the payor's child to arrive at "net monthly resources". The court will then use guidelines set out in the Family Code to set support. For example, if there is only one child of the marriage and the payor has no other children (from a previous marriage for example) the payor will pay 20% of his/her "net monthly resources" in child support.

Does the court have to follow the child support guidelines?

The Court may consider additional factors when setting support. Additionally, the guidelines are generally applicable only to "net monthly resources" of $7,500 per month or less.

Does joint custody mean the children live with both parents for equal time periods?

No. Joint custody ( joint managing conservatorship) refers to the sharing of parental rights, duties and powers.

What is a Standard Possession Order?

In general "standard visitation" refers to the 1st, 3rd and 5th weekends, Thursday evenings during the school year, alternating holidays, and an extended period of possession of the child during the summer.

MEDIATION

What is mediation?

Mediation is a process facilitated by a trained Mediator who meets with the parties to a lawsuit and their attorneys to assist in a settlement of the issues involved in the suit.

Is mediation required by the family law courts?

Generally it is. The majority of family courts will require mediation prior to the case going to trial. Some courts require mediation prior to a temporary orders hearing if conservatorship (custody) of the children is an issue.

What are the advantages to mediation?

Mediation, as opposed to going to a trial, gives the parties more control over their case. It is a friendlier, less stressful process. Mediation gives each party the opportunity to say what's on their mind without objection from the other attorney. It is less expensive than trial. In mediation there is more flexibility in crafting an agreement that meets the needs of the parties.

Who pays the mediator's fee?

Generally the parties each pay 50% of the fee of the mediator. There are some agencies who perform free mediations for low-income families. Mediator's fees range from approximately $400 to $1200 per party depending on the qualifications and experience of the mediator and on whether the mediation is schedule for a half day or a full day.

What happens if my case settles in mediation?

The mediated settlement agreement will be presented to the Court for approval. The court will approve the agreement, and it will become the order of the court, except under the most extraordinary of circumstances.

What if the case does not settle in mediation?

The case will then proceed to trial and the judge or a jury will hear the case.

What if I entered into a mediated settlement agreement then change my mind?

If the Mediated Settlement Agreement meets the requirements of the Texas Family Code, it is not revocable.

May I object to having my case mediated?

Yes, but only on the basis of family violence.