What is Collaborative Law?

Collaborative law is a process where all parties commit to resolving their differences fairly instead of through what can be an emotionally, and financially, expensive process of divorce trials (contested hearings) and courtroom legal wrangling.

What factors will the Texas court consider when determining how much spousal support to award to a party?

The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The court will also consider whether the person seeking spousal support is disabled or is the full-time caregiver of a disabled child. And the Texas Court will additionally consider the health and age of the party’s ability to work, responsibility for children, availability of funds, and the length of the marriage.

On what basis does a Texas court decide how marital property is divided?

Texas is a so-called “equitable distribution” state. All property gained during the marriage is considered marital property regardless of who owns the property. Community property is normally divided between the spouses. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.

What is "separate property"?

The Texas Constitution defines “Separate Property” and “Community Property.” While the definitions are straight-forward, applying them to a particular marriage can be tricky and complicated, expecially if the marriage is a long one; if gifts and inheritances have been received by the parties,if monies were not kept in separate accounts, and if separate property was productive (i.e. it earned interest or income). Additionally, there can be issues of “Equitable Reimbursement” which arise from certain uses of Community or Separate Property.

What happens to that "separate property" during a divorce case?

This question concerns whether property owned by one of the parties should be included in the marital estate for purposes of the court’s property division. Generally, property is “separate” if it was acquired before the marriage, or by gift or inheritance at any time. Sometimes, one or more items of property “mutate” to another item or items of property. “Separate Property,” once proven to be such, is excluded from the marital estate unless it has been ‘co-mingled” with community property to the extent that it is no longer distinguishable from the community property.

There are a lot of tricky considerations concerning Texas Community Property Law, such as whether income from separate property is separate or community property, or whether the parties may agree between themselves to alter the character of certain items or classes of their property. An experienced Texas Family Lawyer can explain these issues to you.

I have heard that the presumption in Texas is that the parents of a child should be appointed as "joint managing conservators." Does that mean that the parents split time with the children 50-50?

No. “Joint Managing Conservators” means that the parents share rights and duties to to their children. This means that both parenst should be involved in the making of important decisions for their child, such as school issues and when a medical decision is needed. The “Standard Possession Order” awards possession and access to the children. And, it is presumed to be in the best interest of a child who is 3 years of age or older.

What is Managing Conservatorship (custody) and possession and access (visitation)?

In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children (see above). In Texas, “Conservatorship” is the equivalent of “Custody” of the children. Those two terms are not identical in meaning. “Conservatorship” recognizes that parents have duties to care for their children rather than merely the right to temporarily “own” them, such as with property.

The right to Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child’s domicile must be established in the final Court orders, so that each parent will be able to be involved in the children’s lives. “Possession and access” speaks to when each parent has the right to visit with and spend time with children from the marriage.

If the parents cannot agree on conservatorship and access issues, on what basis will the court decide those issues?

These matters, like all of those pertaining to children, are based upon a finding by the court of the children’s best interest. As discussed above, the Texas Family Code contains a “Standard Possession Order” which is presumably in the children’s best interest. While the court does not have to follow that order, that is where the discussion starts, and often, where it ends.

What is "child support"?

Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the children. There are main reasons and factors that require child support. Basic necessities such as food, clothing, and shelter set the minimum amount of child support needed. Most stares require divorced parents to have some form of health insurance for their children. The parent with the better employee-covered benefits will require a medical, dental and/or vision plan. There are uninsured or “extraordinary” medical expenses such as out-of-pocket medical costs, dental braces, casts, eyeglasses and other expenses. Other expenses such as transportation, entertainment, extracurricular activities, and college are included.

To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?

The Texas Family Code contains guidelines for the computation of child support. The guideline amount is presumably the minimum amount which should be awarded as support for the children. If any child has “special needs,” then additional child support may be awarded.

When does the duty to pay child support end?

Unless the child marries sooner than age 18, joins the military, or does something else to become “emancipated”prior to turning 18 years of age, child support orders continue until the child reaches age 18. But if the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period. Texas law makes no provision for support during college, or the payment of college expenses. But the parties may provide for the payment of those expenses by contract.

For how long must a person live in Texas before he or she can obtain a divorce in Texas?

The wife, the husband, or both spouses must have lived in Texas for at least the most recent six months (this is referred to as “being domiciled in Texas”). And had a home for at least the last ninety days, in the particular county in which the divorce case will be filed (this is what is meant by “being a resident” of that county).

What do some terms commonly used in Texas divorce proceedings mean?

Equitable distribution is the division of property between the spouses and usually that property if bought or acquired by one or both spouses during the marriage.

Fault grounds where marital misconduct giving one spouse a legal reason to sue for divorce, such as abuse, abandonment and adultery.

Pendente Lite is a temporary arrangement for custody, child support, child visitation, alimony, and possession of the family home until a final hearing.

The spouse who initiates the case, by filing an Original Petition for Divorce, is known as the “petitioner.”

The other spouse is designated as the “respondent.”

When “venue” is proper for the divorce case, that means that the divorce is filed in the right county. In Texas, proper venue for the divorce action is in the District Court within a county in which the residency requirements (discussed above) are met.

How long does a divorce case have to be on file with the court before a divorce can be granted?

Once the divorce case is filed, there is a minimum sixty-day waiting period prior before the court has the power to grant the divorce, except in cases of family violence. But most contested cases are on file longer than sixty days, because it usually takes more than sixty days to learn what issues remain contested and what the evidence is for those issues. Also, if a trial will be necessary, the court often requires the parties to mediate the case prior to trial. Drafting and having final documents entered also will usually take awhile.

I have heard people talk about "having grounds for divorce." What does that mean?

“Grounds for divorce” means simply a basis on which the court may grant a divorce. In most cases, the grounds used are so-called “No Fault” grounds.

What are the recognized grounds for divorce which are recognized in Texas?

No Fault—this means that the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimate ends of the marriage and, there is no reasonable expectation that the spouses will reconcile with one another. There are also fault grounds for divorce. These are grounds for which one of the parties is at fault for the failure of the marriage. Cruelty, adultery, confinement in a mental hospital, and concealed divorce are fault grounds recognized in Texas.

Is spousal support available while the divorce is pending in court, or only after the divorce has become finalized?

Alimony is court-ordered payment from one former spouse to the other after divorce. This can be paid before or after marital separation or divorce. The court may order that one spouse pay spousal support to the other spouse while the divorce case is ongoing, as well as after the case ends. There are different standards which apply to each of those types of spousal support payment programs.

What is Spousal Support under Texas Law?

“Spousal support” (sometimes informally called “alimony”) is money paid by one spouse to the other to compensate a spouse for the loss of income which will be experienced by the spouse who will receive the spousal support.

For short-term marriages that last under ten years, alimony lasts no longer than half the length of the marriage. Marriage is defined as the time between the date of marriage and the date of separation.