Do you have a right to a jury trial in a Texas divorce?

Many clients have questions about whether a jury will decide their family law case. In Texas, the Family Code limits the issues that a jury can hear. Jury trials are relatively uncommon in family law cases, and generally, a judge will decide all issues.

A jury trial must be requested by one of the parties.  The following issues are issues that a jury may hear, if either party requests.  Continue reading Do you have a right to a jury trial in a Texas divorce?

No Legal Separation in Texas

In many states, it can be optional or even required for couples to go through a period of legal separation before a divorce.  In Texas, there is no separate status of “legal separation”–until the day a judge signs a divorce decree, a couple is fully married.  This can impact divorcing couples in several ways. Continue reading No Legal Separation in Texas

Why I Don’t Like the Phrase “Full Custody”

One of the first questions I often hear from a new client is, “how can I get full custody?”  Or, “I’m afraid the other parent is going to try to get full custody.”  In Texas law, the term “full custody” means too much and too little at the same time, so I try to avoid it completely.

A Texas order relating to children is generally going to cover the following four topics:

  1. Possession schedule (whether that be the standard possession order, a 50/50 possession schedule, or some other customized schedule that the parents may agree on);
  2. Child support (including payment of health insurance and other health care expenses);
  3. Decision-making (will parents have to agree on certain important decisions, or will one parent have the right to make a decision); and
  4. Geographic restriction (where will the child be able to live).

When most people think of “full custody,” they are likely picturing a possession schedule where the child resides primarily with one parent.  However, under Texas law, children will spend significant time with both parents, unless there are particular concerns about a parent’s safety.  Therefore, our work in any custody case is to negotiate the specifics of each of the four areas listed above.  The term “full custody” implies too much and doesn’t provide the details that we need.

Does ‘Sperm Donor’ Mean ‘Dad’?

The Jason-Patric-assisted-reproduction story has been in the news, and earlier this week, the New York Times did a lengthy story on it.

The actor Jason Patric dated Danielle Schreiber on and off for many years. During a time when they were “off” but friendly, they agreed to use his sperm so that she could have a child, Gus. After Gus was born, they reconciled, and then eventually broke up when Gus was about two years old. Jason sued for custody, while Danielle claimed he was merely a sperm donor with no parental rights.

In a similar Texas case, In re Sullivan, an unmarried man and woman agreed to conceive a child through assisted reproduction, and signed a “co-parenting agreement.”  When the man later tried to claim parental rights, the woman moved to dismiss his case because a donor is not a parent under Texas law.  Continue reading Does ‘Sperm Donor’ Mean ‘Dad’?

NYTimes on the Power of the Prenup

The “Room for Debate” feature in the New York Times focused on premarital agreements recently. The feature works by taking six experts from different aspects of a field and having them write short pieces. I found this one interesting, but I would have liked to have seen more detail. The Power of the Prenup

Dallas Appeals Court Reverses Same-Sex Divorce Filing

Does a Texas district court have subject-matter jurisdiction over a divorce case arising from a same-sex marriage that occurred in Massachusetts?

The trial court held that it had jurisdiction and that article I, section 32(a) of the Texas Constitution and section 6.204 of the Texas Family Code, which limit marriage to opposite-sex couples, violate the Equal Protection Clause of the Fourteenth Amendment.

The Dallas Court of Appeals held that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case. Texas’s laws compelling this result do not violate the Equal Protection Clause of the Fourteenth Amendment. They reversed the trial court’s order and remanded with instructions to dismiss the case for lack of subject-matter jurisdiction.

Full text here

Basic Divorce Process

This post contains general information about the divorce process, and not specific legal advice.

First, one person will file for divorce. It doesn’t matter who files – there’s no advantage.

Then, they’ll have their spouse served with the papers. If they want to avoid this step, they can give their spouse the papers together with what’s called a waiver of service. Do not sign this waiver before showing it to an attorney. Sometimes they can be sneaky.

Attached to the divorce papers will be something called “Standing Orders.” It’s important to read these carefully. They state important ground rules that you must follow during the divorce, relating to kids, property, money, harassing behavior, and more.

Next, one party can set a hearing for Temporary orders. These are the ground rules that will be in place until the final divorce decree is entered. In temporary orders, a court can order who gets to live in the house, who pays what bills, a possession schedule for the children, temporary child support, temporary spousal support, and more. Temporary orders are like a mini-trial on very short notice. They are extremely important because they can set up a status quo that can be hard to change later.

The next step is to exchange information. This is done through a formal process called discovery. Parties request documents and other information from each other. Then, the parties prepare and exchange what’s called an “Inventory and Appraisement” form. This lets everyone know what property is on the table.

Once the inventories are exchanged, it’s a good time to settle the case. This can be done through the lawyers, or through mediation. I’ll talk more about mediation in another video.

If a case settles, the lawyers will draft all the final paperwork, including the decree, any deeds or title documents, and any orders for the retirement plans.

The last step is to take the agreed decree down to the courthouse and do a “prove up.” Standing in front of a judge, your lawyer will walk you through a script stating the required legalese. The judge will grant the divorce and wish you good luck.

If there is child support, you’ll have to set up an account with the state to make and receive payments.

In the rare occasion that no agreement is reached, you will have to have a trial in front of a judge to divide the property and decide the kid issues. That complicated process is outside the scope of this video, but your lawyer will be able to help you.

This video was intended as a quick overview of the Texas divorce process. It is not intended as legal advice. If you have specific questions, please contact me at 972-769-2727 to set up a consultation.

Basic Property Issues

This is the second “script” I’m posting to support my new series of under-3-minute videos on the basics of a Texas divorce. The videos are available on my YouTube channel.

After kids, the second most important issue in a divorce is money. Texas is a community property state. That means that no matter whose name is on property or debts, courts presume it to be shared by the husband and wife. People are often surprised that if one spouse has racked up credit card debt completely in their own name, the other spouse can still be responsible for it.

That said, courts do not necessarily divide property 50/50. Courts try to make a “just and right” division. Courts can potentially give a spouse more or less than half due to factors including earning capacity, health, adultery, fraudulent behavior, and others. When a couple doesn’t own much, it’s harder to split things exactly 50/50, while with a larger estate, it’s more likely to be closer to 50/50

Courts can only divide community property, not separate property. Your separate property is anything you owned before the marriage, or anything you got during the marriage by gift, inheritance, or personal injury settlement. However, since all property is presumed to be community property, it will be your job to prove by evidence that you have separate property.

Lastly, there is no alimony in Texas. If a spouse or child is disabled, the court can award monthly maintenance payments for their care. If a spouse is totally unable to earn enough to support their basic needs (basically if they’ll be on public benefits) the court can award payments of a maximum of $1,500 per month for 3 years. Even though courts cannot award alimony, sometimes couples will agree to make a contract for alimony as a way of paying out the property division over time.

The property issues can be quite complex, especially if there is a family business involved. This video was intended as a simple overview of the property issues in a Texas divorce. It is not intended as legal advice. If you have specific questions, please contact me at 972-769-2727 to set up a consultation.

Basic Child Issues

I’m posting a series of videos on the basics of a Texas divorce on my YouTube channel. I’m also posting the “scripts” here on my blog. Here’s the first one:

Divorcing parents are most often concerned about what is going to happen with the children. First of all, except for severe cases like abuse or addiction, a court will not award “sole” custody. The rules that courts must follow state that it is in the best interests of children to have continuing contact with both parents. That alone will alleviate a lot of worry that parents, especially fathers, can face when divorcing.

Now, I’m going to give a very quick overview of the child-related issues in divorce. There are three main areas: (1) Visitation schedule, (2) Child support, and (3) What we call “rights and duties.”

Visitation

Courts will rubber stamp any schedule that parents can agree on. I’ve had parents do a week-on-week-off schedule, an every-weekend schedule, and lots of other creative schedules.

If the parents can’t agree, the court will go to the “standard possession schedule.” One parent will be considered “primary.” The other parent will have possession on the 1st, 3rd, and 5th weekends, Thursday night, and alternating holidays. That parent may also elect an “expanded standard possession schedule” where their possession goes from the time school lets out until the next time school starts.

Support

If one parent has primary possession, the other parent will pay child support. In Texas, child support is calculated according to certain specific guidelines based on the paying-parent’s income. For example, one child is 20% of after-tax income, while 2 children increases that to 25%. Courts only look at up to $7,500 of a parent’s net income, so for two kids, the maximum amount of child support would be $1,875 per month, unless a child has special needs.

Even if the parents agree to a schedule with exactly equal possession, the court will still order the higher-earning parent to pay child support, however, they’ll usually offset it with credit for what the other parent earns.

Rights and Duties

This last issue has to do with decision making for the children. It includes things like who can make decisions regarding a child’s education, mental health treatment, invasive surgery, and more. The right that’s usually most fought over is which parent has the right to designate the child’s primary residence.

These rights can be assigned to one parent exclusively, to each parent independently during their times of possession, or can require the agreement of both parents.

This video was intended as a quick overview of the child issues in a Texas divorce. It is not intended as legal advice. If you have specific questions, please contact me at 972-769-2727 to set up a consultation.