Mediation is often encouraged to resolve disputes before going to court, but if an agreement cannot be reached, the case will proceed to trial. At trial, both sides present their arguments and evidence, after which the Judge makes a ruling on the contested issues, finalizing the divorce decree.
A contested divorce can be emotionally taxing and financially burdensome, often requiring the assistance of experienced family law attorneys to handle the legal system. Skillern Firm Divorce & Child Custody Lawyers is prepared to provide the necessary legal guidance and representation to protect your interests throughout the contested divorce process.
When parents in Texas share responsibilities and rights concerning their child’s welfare, it is known as Joint Managing Conservatorship. This legal arrangement includes making decisions regarding education and healthcare.
Despite common misconceptions, joint managing conservatorship doesn’t necessarily imply equal physical custody of the child. While the presumption is that appointing both parents as joint managing conservators is in the child’s best interest, this may not be suitable if there’s a history of family violence. The court’s primary concern is always the child’s best interest, guiding the decision on conservatorship and custody arrangements.
Unlike joint managing conservatorship, sole managing conservatorship, also known as sole custody, grants one parent the sole authority to make most decisions about the child. This includes decisions related to their education, medical care, and the determination of the child’s primary residence.
The court may grant one parent sole managing conservatorship due to various factors such as:
- family violence
- child abuse or neglect
- parental substance abuse
- the other parent’s absence
In such situations, the involvement of the non-custodial parent in decision-making is limited and dependent on the discretion of the custodial parent or the guidance of a guardian ad litem.
Possessory Conservator
A Possessory Conservator in Texas is a parent who:
- Does not have primary custody of the child
- Maintains visitation rights
- Is authorized to make decisions regarding the child’s upbringing while they are under their care.
Even if one parent is the sole managing conservator, the other parent, now the possessory conservator, still maintains the right to access and possession of the child. These rights might be limited in the child’s best interests. The rights and obligations of a possessory conservator are detailed in the Texas Family Code 153, providing a legal framework for these arrangements.
Key Terms in Child Custody
Understanding child custody is essential when navigating through family law cases that involve children. In Texas, the concept of ‘best interest of the child’ is the cornerstone in determining custody arrangements. This principle aims to ensure that any legal decisions made will foster the child’s overall development and well-being.
The court considers various factors to establish custody that supports the child’s welfare. The court may grant one parent the exclusive right to decide the child’s primary residence or may order supervised visitation arrangements to safeguard the child’s interests. The emphasis is always on creating a stable and healthy environment for the child.
Custodial Parent
In Texas family law, the ‘custodial parent’ is usually the one granted the exclusive right to decide the primary residence of the child. This parent has the legal right to designate where the child will primarily live.
Typically the custodial parent receives support from the other parent for the benefit of the child.
Non-Custodial Parent
In Texas, the non-custodial parent, is the parent who does not have primary custody of the child. However, this parent is still entitled to visitation according to the parenting plan, which details the schedule for spending time with their children.
As part of their obligations, the non-custodial parent is responsible for some financial support of their children. Texas law ensures the non-custodial parent shares rights with the other parent and specifically sets exclusive, joint, and/or independent rights regarding decisions impacting the child’s health, education, and welfare.
Spousal Support in Texas Family Law
In the context of Texas family law, spousal support is financial assistance that one spouse may be required to provide to the other during or following a divorce. The purpose of spousal support is to ensure that a spouse who may not be financially self-sufficient can maintain a reasonable standard of living after the separation while they re-build.
The Texas Family Code sets specific criteria for the award of spousal support. To be eligible for spousal support, the spouse seeking assistance must demonstrate that they will lack sufficient resources at the time of divorce to provide for their minimum reasonable needs and must meet one of the following conditions:
- The marriage lasted for 10 or more years, and the spouse seeking support cannot earn sufficient income.
- The spouse seeking support has an incapacitating physical or mental disability.
- The spouse seeking support is the custodian of a child of the marriage who requires substantial care and supervision due to a physical or mental disability, making it necessary for the spouse to not be employed outside the home.
- The spouse against whom support is sought was convicted or received deferred adjudication for an act of family violence during the marriage or while the divorce is pending.
The duration of spousal support in Texas is generally limited. Courts will consider factors such as the length of the marriage, the education and employment skills of the spouses, the age, employment history, earning ability, and the physical and emotional condition of the spouse seeking maintenance. Additionally, spousal support is typically reviewed and may be modified based on changes in circumstances.
It is important to note that Texas courts are generally conservative in awarding spousal support, and it is not guaranteed in every divorce case. Legal guidance from a family law attorney can be invaluable while handling spousal support in Texas.
Property Division in Divorce
One of the pivotal aspects of a divorce is the distribution of property. In Texas, any assets obtained during a marriage are classified as community property, meaning they are equally owned by both spouses. This applies to all assets acquired during the marriage, including:
- homes
- cars
- furniture
- income earned during the marriage
Prenuptial agreements, contracts established before marriage outlining asset distribution in case of divorce or death, can significantly impact the division of property upon divorce.
Community Property
Community property includes any property acquired by a couple during their marriage, with certain exceptions. In Texas, it is considered equally owned by both spouses, whether in a traditional marriage or a common law marriage. This means that, in the event of a divorce, both parties have an equal claim to these assets.
Texas is one of nine states in the United States that recognize community property jurisdiction. This significantly influences how assets are divided in a divorce. The Texas Family Code presumes all property possessed by either spouse during or on the dissolution of marriage to be community property, requiring clear and convincing evidence for a spouse to demonstrate that the property is separate.
Separate Property
Separate property refers to any assets that were:
- owned or claimed by a spouse before marriage
- acquired during the marriage by gift, devise, or descent
- recovery for personal injuries sustained by the spouse during the marriage (excluding recovery for loss of earning capacity during the marriage)
During a divorce, separate property is not subject to division. In other words, whatever you owned before your marriage, you get to keep. You must be able to prove such an asset is in fact your separate property by way of financial statements, original deeds, etc.
Just and Right Division of Property
In Texas, a just and right equitable division refers to a fair distribution of property during a divorce, which may not always be equal but is intended to be equitable based on the circumstances. When determining a just and right division, factors such as:
- the spouses’ education levels
- earning capacities
- health
- age
- needs for future support
- custody of children
- the amount of separate property
- the duration of the marriage
- fault in the breakup
are considered.
Judges possess broad discretion in property division; this discretion allows for legal strategies that could potentially favor one spouse over the other.
Alternative Dispute Resolution in Family Law
Alternative dispute resolution (ADR) methods, such as mediation, offer a collaborative approach to family law issues, including divorce, by fostering communication and cooperation to reach a mutual agreement without litigation. Mediation, facilitated by a neutral mediator, is confidential, and gives parties control, focusing on problem-solving to preserve relationships during the divorce process.
In mediation, our attorneys exclusively represent one party, ensuring effective advocacy. Sessions involve separate rooms for each party, with the mediator as the primary communicator, fostering focused discussions for a mutually agreeable resolution.
While not suitable for all cases, especially those involving conflict or abuse, ADR can be effective with cooperative parties, aiming for voluntary, satisfactory resolutions.
Legal Documents and Court Orders
Legal documents and court orders serve as the foundation of any family law case. They provide a structured framework for the proceedings and ensure that the rights of all parties are protected. These documents include Qualified Domestic Relations Orders (QDROs), mediated settlement agreements, and other court orders.
There are an array of different Court orders however, each is legally binding and enforceable. If someone fails to comply with a court order, they may face penalties such as fines or jail time. This is known as contempt of court. It’s crucial to understand the importance of these documents and the role they play in your family law case.
Qualified Domestic Relations Order (QDRO)
A Qualified Domestic Relations Order (QDRO) is a legal order that distributes a determined amount of a retirement plan to give the divorced spouse their share of the asset. This document is crucial for dividing retirement plans and pensions during a divorce.
Language within a QDRO is specific to the Plan Administrator of the retirement or pension account and must be in line with the division as laid out in the divorce decree. Once executed by parties, counsel, and the Judge, a certified copy of the QDRO is sent to the Plan Administrator who will then work with the party on obtaining their specified disbursement.
Mediated Settlement Agreement
A Mediated Settlement Agreement is a legally binding document. It outlines the terms and conditions of a divorce. This agreement showcases the divorcing couple’s preference to settle their affairs without court intervention by outlining mutually agreed-upon terms.
To ensure fairness and mutual agreement during the negotiation of a Mediated Settlement Agreement, the inclusion of a third-party mediator and attorneys is recommended. This helps protect the interests of both parties and ensures that the agreement is equitable.
Court Order Enforcement
Contempt of court occurs when an individual fails to comply with a court order. In Texas family law, this can potentially lead to penalties such as fines or jail time. If a court order is not explicitly clear for enforcement, it may be clarified by the court, providing the non-compliant party with an opportunity to adhere to the order.
Judges can opt for a suspended jail sentence with conditions like payment plans or counseling instead of imprisonment, particularly if jail time could lead to the non-compliant party’s job loss. A suspended jail sentence can involve probation for up to five years with specific conditions, leading to actual jail time if conditions are not met.
