What is the most common concern you encounter regarding conservatorship (often referred to as “custody”) of children? ?
People often express fear that, should they divorce their spouse, their children will be “taken away” from them or they will “never see them.” However, unless a parent is found to be dangerous to the child’s immediate health and welfare, the fear of losing regular and normal access to your children in a divorce is a myth. The legal presumption in Texas is that it is in the best interest of a child that both parents be appointed “joint managing conservators” (often referred to as “joint custody”). The reality is that, in most cases, the court is going to award joint custody, where both parents share equally or independently in most parental rights. In the modern world of divorce, it’s rare for a parent to be awarded sole custody. .
Does “joint custody” mean all rights and possession are equal to both parents?
Although Texas is slowly moving toward more equality in co-parenting, joint custody doesn’t mean all things are always equal. One parent may be granted certain decision-making rights over the other parent, and although equal (or 50/50) possession schedules are ordered by the court under the proper circumstances, Texas statutes that govern family law provide for a specific default possession schedule (referred to as a “Standard Possession Order”) that is not quite equal, although very close if the expanded version is ordered. Many parents perceive this lack of total equality as unfair. However, the issue is not fairness to the parent — it is what is in the best interest of the child under the specific circumstances.
What do you look for when you’re going out to hire a divorce attorney?
How much should I expect to pay or to receive in child support each month?
The monthly child support obligation is generally based on a certain percentage of a person’s net monthly income (commonly referred to as “guideline child support”). This percentage varies depending upon the number of children for which there is a legal obligation to provide support. The monthly net amount upon which the child support calculation is based is usually capped at a percent- age of the first $7,500 net available funds per month. However, like many issues that arise in family law, the court has the discretion to deviate from the standard guidelines under specific circumstances. Medical insurance for the children is also a child support obligation, but in addition to the guideline child support. It is also very common to require that the person paying the child support (referred to as the “obligor”) name the children as beneficiaries on a life insurance policy insuring the obligor’s life that will pay out an amount sufficient to satisfy the remaining child support obligation.
As for property, everything is divided in half, right?
Equal division of community property happens a lot, but it is not a legal rule. Texas is a community property state, so the initial legal presumption is that everything owned by the spouses is community property until proven otherwise. As the case progresses, the attorneys gather information to assist them in determining whether the property is possibly separate, community, mixed in character, owned or affected by an entity or trust or otherwise subject to other claims, such as offsets or reimbursement. This process (often referred to as characterization and tracing) can be very complicated and complex depending upon the content of the estate. At the end of the case, if the parties are unable to reach an agreement, the court will divide the community in a way the court deems just and right under the particular facts and circumstances of that case. So, a just and right division might be 50/50, or it may be disproportionately in favor of one spouse, depending upon the underlying circumstances as presented to the court.
Does Texas have alimony?
Alimony is governed by the Internal Revenue Code (federal law), not the Texas Family Code, and in Texas, alimony only occurs by contractual agreement between the spouses. In other words, one spouse must contractually agree to pay alimony to the other. However, Texas law does contain provisions that give the court discretion to award spousal maintenance after divorce under very specific facts and circumstances, if the spouse qualifies to receive it.
How are family finances handled while my divorce is pending?
In most larger counties, a contested divorce can take up to a year or longer to complete. In some counties the court system provides associate judges to assist district judges to help protect the children, the parties and the marital estate while the divorce is pending through temporary orders that govern temporary custody, temporary child support and temporary use of property, among many other things.
Does my case have to go to trial?
Although many divorces begin as contested and court appearances are often necessary during the litigation process, most cases ultimately do not go to final trial, but rather settle through mediation or settlement negotiations. The collaborative law process is also an option. Only a very small percentage of divorce cases actually go to trial, in which case the judge will hear the evidence and make all the decisions for you regarding the issues you are unable to agree upon.
Ike Vanden Eykel is the CEO and managing attorney at KoonsFuller, P.C. Family Law firm. He is board certified in family law by the Texas Board of Legal Specialization.