Many complex legal issues are involved and considered when litigating a divorce case, such as whether the marriage was valid one (especially when one party is claiming the marriage was informal or common law), the characterization and division of the community property owned by the spouses at the time of divorce, spousal support for the financially disadvantaged spouse, and claims for reimbursements from one marital estate to another. These legal issues are further discussed in further detail down below.
For the Courts to grant a divorce would require the Court’s determination that the marriage in question is a valid one from the very outset. Informal marriages (otherwise known as “common-law” marriages) have fact specific elements to be proven to for such an informal marriage to exist. The parties to the informal marriage must (1) agree to be married and (2) living together in Texas representing to others that the parties are married. Any claims of an informal marriage in a divorce proceedings must be brought no later than the second anniversary from the date of the alleged separation or from the date the parties began residing in different households.
It is a misconceived notion that the division of marital property is always split right down the middle in equal portions to be distributed between the parties. The fair and equitable division of marital property in a divorce proceeding requires an experienced family law attorney with the knowledge of the relevant law and familiarity of the fact specific nuances recognized in prior similarly published cases by the higher appellate courts and the Supreme Court in determining and evaluating the marital property in question. Serious tax consequences may arise from the improper classification and evaluation of the property, which may further result in an unequitable division of the marital estate and other significant financial burdens on the disfavored party.
The state of Texas is recognized as a “community property” state. Characterizing property as either community or separate is determined by the inception of title to the property, or the initial point in time of which a party has a legal claim to the property. The basic general rule is that community property consists of property, other than separate property, acquired by either spouse during the course of the marriage. Property in dispute during divorce proceedings are generally presumed to be community property until one party can prove the property’s separate character by clear and convincing evidence that the property was (1) acquired prior to the marriage; (2) acquired by any individual by gift, devise, or will, and/or (3) the recovery of monetary damages for personal injuries sustained during the course of the marriage, with the exception of recovery of lost wages or loss of earning capacity. The party’s inceptions of title of the property in dispute is very nuance specific and fact intensive.
Many spouses who find themselves at a significant financial disadvantage against the opposing spouse can further seek remedies through spousal support or spousal maintenance. A situation like this would arise after the marriage has lasted at least 10 years, the financially disadvantaged spouse’s ability to earn a living to meet his or her basic and reasonable needs have deteriorated over time as a result of being the “stay-at-home” spouse or “housewife” with the intent staying home to maintain the upkeep of the marital residence and raising the children while the other spouse was the “breadwinner.” The male husbands of the marriage were historically the financial “breadwinner” for the household, assuring the female housewives with a false sense of security their basic needs and the needs of their children were financially provided for through the husband’s sole income alone, especially during the early 1900’s. However, over the decades as the American culture begins to grow more and more progressive each decade, that trend begins to decrease rapidly.
Reimbursement is a cause of action requested in certain divorce proceeding in situations where the funds or assets of one marital estate for the enhanced benefit of the other marital estate. There are many different scenarios in which this may occur, including the funds of one party’s separate property to enhance the benefit of the other party’s separate property. Conversely, a party can further seek the reimbursement of the community property estate for the community funds and assets to enhance the value of the other party’s separate property.
Our office offers legal services to spouses for a flat fee who are in agreement to dissolve the marriage without disputing any legal issues as to the division of any community property and/or the terms and conditions with respects to conservatorship, child support, and possession and access regarding the children of the marriage. So long as the case remains undisputed between the parties and a waiver of citation of service is signed by the Respondent, the case shall remain charged as a flat fee from the filing of the petition to the prove up of the agreed divorce decree to finalize the case.
Divorces which involving children born during the marriage are automatically included in the divorce proceedings. However, there are circumstances of which a child was born out of wedlock. Child custody proceedings, filed initially, including divorce cases are known as Original Suits Affecting the Parent-Child Relationships. The basic legal issues in a child custody proceedings, regardless of whether it is a divorce case or not, are appointments of conservatorships awarding the parents with certain specified rights and duties, child support, medical and dental support, and possession and access. Family court judges quite often times have subjective view points as to what would be in the best interests of the children. As such it is always strongly encouraged by the Courts all parents or nonparent parties seeking custody reach a resolution through an agreed written parenting plan to resolve all these issues and have better control of the outcome, whether it be an informal agreement between the parties themselves or through an alternate dispute resolution such as mediation. These legal issues in all child custody cases are discussed in further detail below.
It is a legal presumption that best interest of the children involved that both parents of the child be appointed joint managing conservators with certain rights and duties ordinarily granted to other parents as a matter of law. Such rights include the right to consent medical treatment involving invasive procedures or in an emergency, psychiatric treatment, consent to marriage and to join the armed forces of the United, and the right to represent a child in a legal action of substantial legal significance concerning the child, as well as many more. However, one parent is typically awarded as a “custodial parent” over the other “non-custodial” parent the exclusive right to determine primary residence of the child and the exclusive right to receive monthly payments of support for the benefit of the child. However, evidence of maltreatment through family violence, sexual abuse, or child abuse weigh heavily against the perpetrating parent and rebut the legal presumption. In such situations, the Court could appoint that parent as a possessory conservator with limited or restricted access to the child.
Issues concerning possession and access to the child subject of the suit or marriage are typically one of the more contested issues in child custody proceedings and/or divorces. Depending on the circumstances of the case, the Courts would ordinarily award the parents a standard possession order which is a visitation schedule the legislature deemed to be fair for all parties involved, taking into consideration the schedule of the school in which the child is enrolled and any holidays during the calendar year. The Standard Possession Order takes into effect only during such times the parties can not agree to a specific schedule amongst themselves. It serves as a safety net to protect all parties who would be entitled to possession of the child during specific periods. Circumstances that give rise to the conception of the case may be considered by the Court to enter orders of possession and access to protect the safety and welfare of the child in cases involving allegations of child abuse and/or neglect.
Child Support proceedings are sometimes brought and filed by the Office of the Attorney General of Texas. The noncustodial parent, also known as the “obligor” under a child support order is required to pay 20% of his or her calculated monthly net earnings. It would be an extra 5% for each additional child subject of the suit. However, if the noncustodial parent has other children with another parent that are not part of the lawsuit, then the outside child would be taken into consideration when calculating the decreased amount the custodial parent (otherwise known as the “oblige”) in the current proceedings would receive per month.
Regardless of which parent is the noncustodial parent obligated to pay child support to the other custodial parent, at least one of the two parties are required to maintain medical and/or dental insurance coverage for the child subject of the suit. If the noncustodial parent is unable to maintain such insurance coverage at a reasonable cost, then the noncustodial parent may be required to pay additional cash medical support to reimburse the custodial parent to maintain medical coverage not to exceed 9% of the noncustodial parent’s annual resources and not to exceed 1.5% of those annual resources for dental coverage. Although child support and cash medical support are normally calculated by the present earnings of the noncustodial parent, the Court may still consider that parents other assets to consider in the noncustodial parent’s “ability to pay.”
Texas family law courts also order a division of how uninsured and uncovered medical expenses will be covered. These uninsured expenses include medical payments to reach an annual deductible and copays. Consider the amount of money that is expected to be paid before the person who carries the health insurance meets the deductible. That amount of money is considered “uninsured medical expenses” for purposes of this determination. The court will look at the financial situation for each parent and will make a determination on how each parent will be able to pay when coming up with this division of responsibility. The parties are always able to come to an agreement on this division, as well. Many parents will agree to each pay 50 percent of the child’s uninsured medical expenses, but if one of the parents makes significantly more than the other parent, the division of how much each person pays will differ.
In Texas, a final order providing for conservatorship, possession and access, and child support can be modified upon a showing of a material and substantial change in circumstances with respects to the conservators or the child. If a request for a modification is made within one year of the date the prior final order was signed, the petition for modification must be supported by sworn affidavit to show the continued appointment of the parent as sole managing conservator or managing conservator with the exclusive right to determine the primary residence of the child would significantly impair the physical and emotional development of the child.
Enforcement proceedings are intended to enforce compliance of a court order pertaining to either the payment to child support or for possession and access. The remedies available for a motion for enforcement includes court order compliance of the order to be enforce, jail time for contempt of court if requested, and attorneys fees. For child support enforcements, the Court can grant the party bringing forth the motion before the Court a lump sum award of all child support that is owed, or compel the obligor to pay a specific amount per month until the awarded judgment is satisfied, including 6% interest on the balance owed.
With respects to enforcing possession and access, if a parent who is entitled to access under the court order and is being denied access by the other parent, one remedy that can be sought by the parent with superior right of possession of the child can request a filing for a Writ of Habeas Corpus. The Writ of Habeas Corpus in the family law context is used by a parent with superior right of possession in an effort to regain physical possession from a person wrongfully retaining the child. In latin, it is translated as “bring the body” of the individual subject of the Writ. An order by the Court to issue the Writ of Habeas Corpus compels the person who unlawfully has custody of the child to “bring the body” of the child to the court to determine the parties’ right of possession. In some situations where the wrongful party is uncooperative even with the Court order, the Court’s would sometime issue what’s called a “Writ of Attachment.” The Writ of Attachment can be viewed as a warrant for law enforcement to go physically take custody of the child from the party unlawfully keeping the child in possession. An enforcement action on possession and access can also provide for jail time against that individual for unlawful possession as a deterrent against future violations.
The Texas Department of Family and Protective Services (DFPS) is also known by the public Children’s Protective Services (CPS). DFPS is vested with the unilateral authority to seek an emergency court order to remove your children from your custody if there are facts supported by sworn affidavit to support allegations of the children being in imminent danger to their physical health and safety in their current home environment. DFPS is required to make all reasonable efforts to prevent the necessity of the child’s removal from your home, and can only file a petition for temporary custody of the children only as a last resort to protect the safety and welfare of the children. DFPS caseworkers are specially trained to conduct child abuse investigations that will often put the alleged perpetrator in a false sense of security that the Department has every intent of returning the child in order to open up a dialogue in making admissions of wrongdoing. It is always advisable to cooperate with the Department, but only if represented by counsel. It is no different from retaining a criminal law attorney when being investigated by law enforcement for an alleged criminal act. If you or someone in your family is accused of abusing or neglecting the children subject of a CPS investigation, the parent has a very narrow window of time to respond to the allegations in order to regain reunification with the child.
As a former CPS prosecutor during his 8 year tenure with the Harris County Attorney’s Office, attorney Dan-Phi Nguyen is well equipped with the policies and procedures DFPS workers are required to abide by, and further knows that their inability to follow those procedures to the letter can often times be their greatest weakness. When under investigation by CPS for abuse and neglect of your children, please call a knowledgeable CPS defense attorney to ensure that your due process rights are not being violated to prevent your parental rights from being unfairly restricted or even terminated.
Aside from DFPS cases, private individuals can also petition for the termination of parental rights for the purposes of seeking adoption for the subject child. Termination of parental rights is a two prong test that requires at least one statutory ground enumerated under Chapter 161 of the Texas Family Code, as well showing that the termination is in the child’s best interest. Termination suits can be brought by any party with standing to file suit. The most common type of termination suits are brought by one parent requesting to terminate the parental rights of the other parent in anticipation of having the child’s stepparent adopt the child as his or her own.
The petition for adoption can be filed jointly with the termination suit or filed separately under a different cause number to preserve the confidentiality of the parties in the adoption suit. The adoption process requires a home study and FBI criminal background checks for the potential adoptive parent. Please call our office for a free consultation for a more detailed discussion of the termination and adoption process.
Child custody proceedings may be brought by other persons who are not parents of the child. However, there are statutory grounds under Section 102.003 of the Texas Family Code of which a nonparent petitioner has standing to file a suit for custody of the children. Nonparent parties with standing to file suit includes DFPS, grandparents, relatives within the third degree of consanguinity, foster parents who had children placed in their home by DFPS for at least one year, just to name a few. Standing pertains to original suits, modifications, or even interventions on pending suits.
If you or anyone in your household has been a victim of family violence, a request from the Court for a protective order may be available. Protective Orders are typically granted by the criminal courts almost immediately upon the filing of criminal charges against the alleged aggressor of the family violence that last between 60 to 90 days from the date the protective order is granted by the magistrate upon request by the Assistant District Attorney. The document is also known as the Magistrate’s Order of Emergency Protection (MOEP). However, there are situations in which law enforcement response does not move quickly enough in pressing charges against the aggressor, and no arrests have been made; family violence victims can still independently seek emergency orders for protections on their own without the assistance from the district attorney’s office.
The protective orders are intended to protect the applicant and any of the children named in the application, as well as any of the property within the home. The protective orders can also be used to kick out the aggressor from the home on a temporary basis up to two years while divorce or child custody proceedings are anticipated. Further, any orders providing for possession and access in a family law court proceeding may be temporarily suspended while a protective order is in force and effect. All respondents subject of the protective order who have any license to carry firearms would have those licenses suspended unless they are required to as part of their employment as law enforcement officers. If you are currently a victim of continuing family violence, it is urgent that you take action to protect yourself as well as your vulnerable children from further harm. Do not wait until it is too late to act. Please contact our office immediately if you need protection from family violence.
DISCLAIMER: The discussion provided above is a broad and general synopsis of the basic fundamentals in family law and is not be misconstrued as legal advice. Each case being different and fact specific requires the consultation of a knowledgeable family law attorney to assess the unique circumstances and nuances of your case to make an informed determination as to what legal course of action to take. Please call our office for a free consultation.
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