Top 5 Issues in a Texas Divorce

You and your attorney will have to work through many small issues and problems during the divorce process. However, almost all of them tend to fall into one of three broad categories:

  1. Child Issues
  2. Spousal Support
  3. Property Issues

In the sections below, we have provided an overview of these issues. Your divorce attorney will help you understand how these apply to your divorce case.

CHILD ISSUES

If you have children under the age of 18 or who have not graduated from high school, the Texas Family Code requires that the final decree of divorce contain a parenting plan. The main elements of a parenting plan are:

  1. Conservatorship, which explains how the parents will share decision-making rights relating to their children.
  2. Possession and Access, which provides the default rules for how the parents will share the children's time.
  3. Child Support, which sets out how the parents will provide for the children's financial and medical needs.

There are other issues covered in a parenting plan, depending on the facts in your case, such as:

  1. Passport provisions and provisions for international travel.
  2. Provisions for long-distance travel when one parent will live a long way from the child's primary residence.
  3. When and where to exchange possession of the children.
  4. Electronic communications with the children.
  5. Right to watch the children when the parent in possession of the children is absent.

and other issues.

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.

Although joint managing conservatorship is the preferred arrangement in Texas, it is not the only arrangement. If one parent is in prison or has a history of violence or drug abuse, the other parent may be designated as the "Sole Managing Conservator," meaning that he or she holds all the rights listed below and holds them exclusively.

The rights and duties that Texas law recognizes include:

Rights That All Parents Get

  • the right to receive information concerning the health, education, and welfare of the children;
  • the right to confer before making a decision concerning the health, education, and welfare of the children;
  • the right of access to medical, dental, psychological, and educational records of the children;
  • the right to consult with a physician, dentist, or psychologist of the children;
  • the right to consult with school officials concerning the children's welfare and educational status, including school activities;
  • the right to attend school activities;
  • the right to be designated as an emergency contact on the children's records;
  • the right to consent to medical, dental, and surgical treatment during an emergency;
  • the right to manage the estates of the children;
  • the right to consent to medical and dental care not involving an invasive procedure;
  • the right to direct the moral and religious training of the children;

Rights That Attract Litigation

  • the right to designate the primary residence of the children;
  • the right to receive child support;
  • the right to make decisions concerning the children's education;
  • the right to consent to medical, dental, and surgical treatment involving invasive procedures;
  • the right to consent to psychiatric and psychological treatment of the children;

Rights That are Often Shared and that Do not Attract Conflict

  • the right to represent the children in legal action;
  • the right to consent to marriage and to enlistment in the armed forces of the United States;
  • the right to the services and earnings of the children;
  • the right to act as an agent of the children in relation to the children's estates if the children's action is required by a state, the United States, or a foreign government.

These rights can be either exclusive, independent, or joint.

Exclusive: You can exercise the right without conferring with the other parent and do not need the other parent's consent. The other parent cannot exercise this right at all. The rights to receive child support (if any) and the right to designate the primary residence of the children (if given) are always exclusive.

Independent: Either you or the other parent can exercise the right without conferring with each other and neither of you needs the other's consent. The rights to receive information about the children, consult with physicians and teachers, and direct the moral and religious training of the children are almost always independent.

Joint: A joint right is one that you can exercise subject to the consent of the other parent. The right to consent to marriage or enlistment in the armed services is frequently a joint right. If possible, where a right is held jointly by both parents, it's a good idea to include a tie-breaker provision so that the parents are not forced to sue each other if they can't agree.

Duties

With rights, come duties. The duties recognized by the Texas Family Code are:

  • the duty to inform the other parent of significant health or educational issues concerning the children;
  • the duty to inform the other parent if you begin to live with a registered sex offender;
  • the duty of care, control, protection, and reasonable discipline of the children;
  • the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
  • the duty to provide medical support for the children (health insurance);
  • the duty to notify the other parent of changes of address or employment, if you are ordered to pay child support.

Geographic Restriction on the Primary Residence of the Children

The Family Code provides that the judge must designate one of the parents as having the exclusive right to designate the primary residence of the children UNLESS 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 parent chooses where the child lives. A lot of money gets spent fighting over this designation and it's rarely worth it. However, this is tied to child support in most cases and that is why it is so hotly litigated.

Possession and Access

The Texas Family Code insists that, unless there are good reasons to deny one parent access to the children, the parents are free to exchange the children between them in any manner that they can agree to and which is also in the best interest of the children. However, if the parents cannot agree, then they must follow the detailed rules set out in their final decree of divorce. These detailed rules are usually the "Standard Possession Order" supplied by the Texas Legislature. Even though the Standard Possession Order is the default rule, 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. The standard possession order also provides that the parent who has less time with the children during the school year gets up to 30 days with the children during the summer, every other spring break, and every other Thanksgiving, with the Christmas holiday shared between the parents.

It may seem like one parent gets a lot more time with the children than the other, it works out more even than that. Under the standard possession order, over a two-year period, each parent will have the children to him- or herself about 180 days per year with all the other days being shared. (You look at it over a two year period because some holidays such as Spring Break are alternated between parents every other year.)

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

Child Support

In most cases, child support is calculated according to guidelines set up by the state legislature. When the Court orders a parent to pay child support in accordance with these guidelines, it is called "guideline support."

(Related: Child Support Guidelines)

Computing Guideline Support

The exact formula is complicated but you can estimate guideline support as follows:

Net Resources =     Monthly Gross Income
          less  Federal Income taxes (single, one deduction)
          less  Union Dues
          less  Medicare and Social Security Taxes
          less  Insurance premiums paid for children
Number of Children Support Factor
1 20%
2 25%
3 30%
4 35%
5 40%
Guideline Child Support = Net Resources X Support Factor

How Long is Child Support Paid?

Child support is paid 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, child support is no longer payable.
If the spouse that is receiving child support (the OBLIGEE) dies, child support is still paid by the other parent (the OBLIGOR).

If the obligor parent (the parent paying child support) dies while child support is still payable, your divorce decree controls whether the obligor's estate pays child support or not. A well-drafted decree will specify that child support is an obligation of the obligor's estate.
Child support can be paid for a longer period of time if the child is handicapped and needs support for a longer period. The parents can also agree that child support will be paid for a longer time, even without a court order, but agreed child support is enforced by the Court 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.

Child Support Above and Below Guidelines

If a child's provable needs are greater than can be met by guideline support, the child may be entitled to greater than guideline support. Examples of circumstances that might result in provable needs being greater than guideline support are special healthcare or educational needs of a child.

Some parents agree to a possession and access order that either splits the children between the two parents (e.g. son lives with dad, daughter lives with mom) or provides for almost equal time between the two parents on a week-on/week-off basis. In these situations, the parents can agree that each would pay guideline support for one child to the other parent, with the net actually being paid as cash support.

For example, suppose mom has net resources of $5,000/month, dad has net resources of $4,000/month, and that they have two children. If guideline support was appropriate, mom would have a support obligation of $1,000/month while dad's would be $800/month. The difference is $200/month, so mom (the higher wage earner) would pay dad child support of $200/month. (NB: I think this formula is wrong and short-changes parents, but it's easy to apply and it takes a combination of luck and skill to convince people, including judges, otherwise. /tjd/)

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. If you are the obligor, this protects you in the event that you make your full payments on time but your ex-spouse claims not to have received them. If you are the obligee, this protects you in situations where you have not received support payments but the obligee insists he or she has made the payment. The state disbursement unit acts as an impartial intermediary that records each payment received from an obligor and each payment sent to an obligee.

If you are an obligor, you need to understand that INFORMAL PAYMENTS DO NOT COUNT. If you hand your ex-spouse some cash instead of making your payment through the disbursement unit, that cash is simply a gift to the ex-spouse and will not be credited against your support obligation. DO NOT MAKE INFORMAL PAYMENTS OF CHILD SUPPORT.

What if the Obligor Does Not Pay?

Sometimes obligor's do not make the child support payments they have been ordered to make. If you are the obligee, you have two choices for enforcing the child support order.

First, you can contact the attorney who handled your divorce (or any other family law attorney) and ask them to sue your ex-spouse for enforcement. This is the quickest way to enforce a child support order, but you will have to pay some legal fees and court costs. You may be able to recover these from the non-paying obligor, but you should not count on that outcome.

Second, you can contact the Office of the Attorney General Child Support Unit and ask them to enforce the order. They will do so at no cost to you, but that process can be extremely slow due to the huge number of cases the OAG's office handles.

If you are in a hurry and you believe the obligor actually has the money, enforcement through a private attorney is your best enforcement mechanism.

(Related: Child Support Enforcement)

Spousal Support

Except for certain limited circumstances, explained below, spousal support in Texas is meant to be rehabilitative in nature rather than a long-term stream of income. What that means is that the operating principle behind the legislative rules is that spousal support is supposed to provide for the recipient spouse's most basic needs while that spouse is looking for work or actively pursuing training to become more marketable in the workplace.

Eligibility

A court has the authority to order spousal maintenance under a few limited circumstances, summarized into two scenarios as follows:

I. Family Violence

If the spouse who is to pay spousal support was convicted of (or received deferred adjudication for) a criminal offense that also constitutes family violence within the last two years, the spouse seeking support may be eligible for support.

II. Long 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.

If one of the two scenarios above applies to your situation, court-ordered spousal support may be a possibility.

Limitations on Spousal Support

Court-ordered spousal support is limited, even where appropriate. 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:

  • the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;
  • the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
  • the duration of the marriage;
  • the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
  • the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
  • acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
  • the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
  • the contribution by one spouse to the education, training, or increased earning power of the other spouse;
  • the property brought to the marriage by either spouse;
  • the contribution of a spouse as homemaker;
  • marital misconduct of the spouse seeking maintenance; and
  • the efforts of the spouse seeking maintenance to pursue employment counseling.

Once the court makes these determinations, in most cases, it may not order spousal support payments that last more than 5-10 years from the date of divorce and it may not order payments of more than $5,000 per month or more than 20% of the paying spouses average gross monthly income.

Length of Marriage Duration of Maintenance Order
Less than 10 years None*
At least 10 years but less than 20 years 5 years
At least 20 years but less than 30 years 7 years
30 years or more 10 years

*Unless maintenance is based on family violence.

The time limit can be extended if the receiving spouse is unable to support himself or herself because of an incapacitating physical or mental disability. Where such disabilities are found, the court can order maintenance for an indefinite period as long as the disability persists, subject to periodic review by the court.

Presumption Against Spousal Support

Unless a spouse has an incapacitating physical or mental disability, Texas law presumes that maintenance is NOT warranted unless the spouse seeking maintenance has exercised diligence in (a) seeking suitable employment; or (b) developing the necessary skills to become self-supporting during a period of separation and during the time the divorce is pending.

Early Termination of Court-Ordered Spousal Support

Court-ordered spousal support is subject to early termination if:

  • Either party dies;
  • The recipient gets remarried;
  • The recipient lives with another person with whom the recipient has a romantic relationship.

Very oddly, the provision seems designed to keep maintenance recipients from replacing their former spouse. There is no provision to automatically terminate maintenance if the recipient has a roommate who is helping pay the bills. One might assume that if the reason for termination of maintenance were based on the recipient not needing it, these last two limitations would not exist. /tjd/

Contractual Spousal Support

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 contractual support, he or she cannot be punished, but can be ordered to pay and can have assets seized and sold to meet his or her payment obligations.

Division of Property and Debt

Division of property and debt is covered in greater detail in the articles on property division and tracing.

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 Power Daley 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.

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