November 9, 2020

All About Texas Divorce – Quick Guide (Information Purposes)

All About Texas Divorce – Quick Guide.

There are Five major issues in Texas Divorce.

Custody
Child Support
Spousal Support
Property Issues (including business)
Mental Health

CHILD CUSTODY and CHILD SUPPORT

If you have a child under the age of 18 or has not graduated from high school, create a parenting plan with the following information.

Conservatorship: how the parents will share decision-making rights relating to their children.
Possession and Access: how the parents will share the children’s time.
Child Support: how the parents will financially and medically support the child.

Other issues include, but are not limited to:

Passport provisions and provisions for international travel.
Long-distance travel provisions when parents are living more than 100 miles apart.
When and where to exchange possession of the child.
Electronic communications with the child via phone or video.
Right to watch the children when the parent in possession of the children is absent.

Conservatorship

The law in Texas encourages both parents to have meaningful relationships with their children. To work toward that goal, the Texas legislature has created a concept known as “Joint Managing Conservatorship,” abbreviated as “JMC.”

Joint managing conservatorship usually means that both parents have similar rights and duties concerning the children, although the children may live most of the school year with one parent or the other.

An exception to this general rule is that the parents can agree to a geographic restriction the children’s primary residence. Having this one right is what is meant when someone is the “primary parent.” It just means that a parent chooses where the child lives. Many parents fight over who gets to be called the ‘primary parent’. Ironically, this title can affect tax provision – such as who files using the child as a dependent.

Also, parents fight and spend a lot of money on the designation because of child support. In the end, the focus should be on what is best for the child. For example, if mom has been the primary caretaker – feeding, clothing, caring for the child while dad went to work; then, it makes more sense (legally and factually) to designate Mom as primary. This applies vice versa – if Dad was the primary caretaker of the child in the home.

Both parents can decide that no one should be designated primary too.

Possession and Access

Standard Possession Order is the default rule. But parents can negotiate and agree to completely different provisions based on their work and travel schedules and what they believe is in the best interest of their children.

Under the standard possession order, the children live with one parent most of the time during the school year, with the other parent having possession of the children on the first, third, and fifth weekends and on Thursday evenings.

It may seem like one parent gets a lot more time with the children than the other; however, it may be more even. Under the standard possession order, over a two-year period, each parent will have the children to himself or herself nearly equally.

NOTE: the standard possession order does not automatically apply to children under the age of three years. A modified possession order applies.

Child Support

When the Court orders a parent to pay child support in accordance with these guidelines, it is called “guideline support.”

Guideline Child Support = Net Resources X Support Factor

1 child before the court = 20%
2 children before the court = 25%
3 children before the court = 30%
4 children before the court = 35%

How Must I Pay Child Support?

You must pay child support as long as the minor child is under the age of 18 or still in high school, whichever is longer.

If the child dies, gets married, joins the armed services, or begins to live on his or her own as an emancipated minor, then the parent who pays no longer has to pay..
Also, if the parent that is receiving child support (the OBLIGEE) dies, the paying parent (OBLIGOR) must still pay child support.

But, if the obligor dies while child support is still payable, your final order or divorce decree controls whether the obligor’s estate still pays (and how). A well-drafted decree or order will specify that child support is an obligation of the obligor’s estate.

When the child is disabled, you pay child support for a longer period of time. In other words, the disabled child needs support for longer time. Also, parents can agree that child support will be paid for a longer time; however, the court enforces this type of agreed child support differently.

Step Down Provisions

If you have more than one child, the amount of child support will change over time. For example, if you have two children, the obligor parent will most likely pay 25% of his or her net resources as child support. When the first child graduates from high school (or child support is no longer payable for that child for another reason), the obligor parent would start paying 20% of his or her net resources as child support. Therefore, as the children reach the age where child support terminates, the amount reduces.

NOTE: An obligor (or parents can agree) to an amount that is below the child support guideline; likewise, a court may order the obligor to pay above the child support guideline.

How Is Child Support Collected?

When the Court orders child support, it will also sign a wage-withholding order. The wage withholding order can be filed with the obligor’s employer so that child support is directly deducted from the obligor’s paycheck. Sometimes divorcing spouses agree that the wage withholding order will not be sent to the obligor’s employer UNLESS and until the obligor gets behind on his or her child support payments.

Whether you are the obligor (person paying support) or the obligee (person receiving support), you should insist that all support payments be made directly through the State Child Support Disbursement Unit. The state disbursement unit acts as a neutral third party that records each payment from the obligor and send it to the obligee.

If you are an obligor, then remember that INFORMAL PAYMENTS DO NOT COUNT. If you hand the other parent some cash instead of making your payment through the disbursement unit, that cash is simply a gift. It will not be credited towards your support obligation. Therefore, don’t simply give cash to the other parent.

What if the Obligor Does Not Pay?

You can enforce the court order.

First, you can hire a private attorney to assist you with the enforcement action. This is the faster approach. You may be able to recover attorney ‘s fees from the other parent for bringing the action.

Second, you can contact the Office of the Attorney General Child Support Unit and ask them to enforce the order. Although this approach is free, it is very slow because of OAG’s heavy case load.

Third, you can enforce it yourself, using self-prepared forms from Texas Law Help.

Spousal Support

Spousal support provides for the receiving spouse’s basic needs while that spouse is looking for work or in school to increase his or her chance of employability.

There are two ways to be eligible:

Family Violence: When paying spouse is convicted of (or received deferred adjudication for) a criminal offense; this offense must be family violence within the last two years (within time of filing), then receiving spouse may be eligible for support.

Length of Marriage: If the marriage lasted at least 10 years and the spouse seeking support lacks sufficient property (including property received in the divorce settlement) to provide for his or her minimum reasonable needs, the spouse seeking support may be eligible if one of the following is also true:

He or she is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability; OR
He or she is the custodian of a child who requires substantial care and personal supervision because a physical or mental disability, taking into consideration the needs of the child, prevents the custodial parent from being employed outside the home; OR
He or she clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs.

When a court finds that a spouse is eligible for court-ordered spousal support, it must also determine the nature, amount, duration, and manner of payments by taking into consideration all relevant factors, including:

financial resources of the spouse seeking maintenance and ability to meet the spouse’s needs independently;
education and employment skills of the spouses;
duration of the marriage;
the age, employment history, earning ability;
physical and emotional condition of the spouse seeking maintenance;
acts by either spouse resulting in excessive or abnormal expenditures or fraudulent disposition of community property;
financial resources of the spouses;
contribution by one spouse to the education or training;
the contribution of a spouse as homemaker; and
marital misconduct of the spouse seeking maintenance;

Overall, the court may not order payments of more than $5,000 per month or more than 20% of the paying spouses average gross monthly income.

Less than 10 years – varies (case by case / family violence or other legislative rule)
10 – 20 years = 5 years
20 – 30 years = 7 years
30 years and more = 10 years.

A disabled or incapacitated spouse may receive spousal support for an indefinite longer period.

Presumption Against Spousal Support

Texas law presumes that receiving spouse does NOT need maintenance. The exceptions are:

the receiving spouse is disabled;
spouse seeking maintenance has exercised diligence in –
- (a) seeking suitable employment; or
- (b) developing the necessary skills to become self-supporting during separation.

A Court can terminate spousal support if:

Either party dies;
The recipient gets remarried;
The recipient lives with another person with whom he/she has a romantic relationship (i.e. boyfriend/girlfriend or fiancé).

Spousal Support by Contract

Even if court-ordered spousal support is not available in your case, you and your spouse can enter into a contractual agreement for spousal support. Contractual agreements are enforceable as contracts. That means that if your spouse does not pay, he or she cannot be punished; but, he or she can be ordered to pay and have assets seized and sold to meet his or her payment obligations.

Division of Properties

Texas legislature intends for a couple going through divorce to divide their properties in a “just and right” manner. This standard does not mean the spouses must divide their properties equally. The division of a couple’s properties is dependent on several factors, including but not limited to:

ownership of properties;
control of the properties (who has primary control of the property?)
contribution of the other spouse to the properties, including home management (as a homemaker);
what type of property it is; for example, retirement account, residential housing, life insurance, cars, and bank accounts, etc.
if fraudulence or mismanagement of community funds is involved;
personal injury is community property.

Texas is a community-property state. In other words, any property bought or acquired during marriage belongs to both parties.

Any property purchased before marriage is that spouse’s separate property. Also, gifts or inheritance are separate property too. Most spouses fight over their retirement accounts, which requires a Qualified Domestic Relations Order (QDRO) for division. A private attorney can help with making sure you get your fair share of the marital properties.

Tax Issues

Our experience is that divorcing couples can face some complex tax issues, whether pertaining to prior years’ tax returns, pending refunds, or whether to partition income for the year of the divorce. The attorneys at Aminu Law Firm, PLLC do not give tax advice and you are encouraged to consult with a CPA in order to understand the tax issues you face. If you do not have a CPA, we can refer you to some accountants and/or tax attorneys. Also, ask for our divorce checklist.

Mental Health – Family Counseling and Therapy

Divorce takes a toll on the body, mind, and spirit. It takes energy, time, and emotions as you put together paperwork, attend hearing, and adjust to the reality of a new family life.

At Aminu Law Firm, we do the leg work of advocating for your interest so you can sleep better at night. For your peace of mind, we help you in making the process a smooth transition. We understand why no one should go through a divorce alone.

Figuratively and literally, divorce is the death of a family and intimate relationship. Therefore, it is not unusual when people experience grief or build a drinking habit; others celebrate and see it as a new chapter. It all depends on the person going through it.

It is important to get help from a mental health or family counselor, especially when a child is involved. Even though a parent can tolerate the child, a child may struggle. For a child, his or her world has changed drastically; it may affect him/her academically and personally. He or she may feel as if she is responsible. Therefore, it is crucial to take the child to a counselor – during and after the divorce process. Although we do not provide mental health counseling or therapy, We can provide you with a list of referrals.

Don’t wait until something is wrong before you see a family counselor or therapist.

Post-Divorce (After Final Orders, Now What?)

Once your Final Decree of Divorce is signed, get a certified copy from the clerk of the court. You may be able to purchase a copy online (ex: Harris County). You will need these copies to make certain changes – such as a name change with the social security administration, passport, and other government agencies.

Child Support: Send a copy to the State Disbursement Unit; the address is Texas State Disbursement Unit PO Box 659400, San Antonio, Texas 78265-9400.

Visitation: Talk to your child and any other relatives or friend who may be designated as an adult to pick up or drop off your child during visitation periods. Furthermore, sign up for co-parenting website if it is required. This is generally recommended for contested cases or in domestic violence cases. Co-parenting websites are: ourfamilywizard, talkingparents, and appclose. You can download one of these apps (look at your court order) for record on communication.

Also, inform your child’s school about the changes in your family, such as who may pick up your child.

Finances and Properties: If there are any other changes that you need to make to your financial accounts, complete it. Divorced couples sometimes make the mistakes of not changing their life insurance beneficiaries and other pay upon death account provisions. Exchange other properties, including keys and personal items that need to be sold or exchanged.

Your court order should be specific enough to tell you what needs to be done and the deadline.