Divorce in Houston
When there is no contest with respect to child support, visitation, property division, a fault in the breakup, the legal term that is used is “uncontested divorce.” This type of case can be completed in sixty days. The law of Texas states, that you must wait for a period of sixty days before you can prove up or complete the divorce, so as to prevent the situation where many couples after the divorce get married again a few months later. To file for divorce in Texas, one spouse must be a resident of the state for at least six continuous months and in the county of filing at least 90 continuous days. Uncontested divorce tends to be the quickest, least expensive, and least complicated way to get divorced in Texas.
An uncontested divorce exists when: (1) your spouse agrees to the full terms of the divorce decree (this is accomplished by obtaining his/her signature on the actual divorce decree that will be presented to the court at the prove-up hearing); or (2) your spouse fails to file a written response during the divorce proceeding.
You must first petition the court to dissolve the marriage. In Harris County, Texas, the divorce files are confidential for 30 days. After this 30 day period, they become public records. Once the case is filed, you will consequently need a final decree of divorce, waiver, and a bureau of vital statics form if there are no children involved. If you have children, you may also need a wage withholding order and a medical support order. For property that is to be transferred such as the house, it is recommended that the special warranty deeds and also deeds of trust required to secure assumption be completed. If you have a retirement plan, a specific order known as a Qualified Domestic Relations Order (QDRO), is required to be issued by a court. Once all the paperwork is signed, and then a court appearance is necessary for the spouse who filed the divorce. A series of questions are asked which typically are as follow:
- Please state your full name
- Are you married to your spouse?
- Prior to filing the original petition for divorce were you domiciled in Texas and Resident of the Harris County for the preceding 6 months?
- Where you married on this date and did you cease to live as husband and wife on this date?
- Has your marriage become insupportable because of a discord or conflict of personality that has destroyed the legitimate ends of the marriage relationship?
- Were there any children born or adopted during this marriage?
- Is your wife (to husband) pregnant or are you (to wife) pregnant right now? If children are present, you could be asked following questions also:
- Prior to today, is it true that there were no court orders affecting your child relationship from another court?
- Do you and your spouse have an agreement on all the issues regarding the children?
- Do you think this agreement is in the best interest of your children?
- Have you and your spouse entered into a property settlement?
- Does this property settlement resolve all of the property issues?
- Is the agreement reflects a just and right division of the marital property?
- Are you or your wife is asking for a name change to avoid criminal prosecution or creditors?
- Have you seen your spouse’s signature before?
- Is that your spouse’s signature on the last page of the final decree of divorce?
- Are you asking the judge to sign this agreed decree of divorce today?
If a judge approves the forms, then the divorce process will be complete and binding on both spouses. The time period after which this judgment becomes final is 30 days. This is because either spouse could file a motion for a new trial and challenge the judgment within this time period. We will monitor for the signing and indexing of your decree of divorce and send a copy promptly to you with a letter indicating the close of your case with our firm. Real property documents that transfer titles will typically need to be recorded at 201 Caroline on the 3rd floor in Stan Stuart’s office. If you have divided retirement, then a Qualified Domestic Relations Order will likely be needed. The Qualified Domestic Relations Order is a separate document that the judge signs and it goes with your decree to the retirements account administrator who then divides the account.
Child Custody in Houston
Child Custody is a general term to describe possession, access, rights, and duties to a child. This lawsuit in Houston, Texas is known as a Suit Affecting the Parent Child Relationship. You can ask for a temporary restraining order if you filed a child custody lawsuit. You will have a hearing on temporary orders about two to six weeks after the case has been filed. Cases take up to a year to bring to final trial. If you need an order now, then you need to ask for temporary orders. Parties who are related to the child, such as grandparents, can file this type of suit. The typical child custody lawsuit is contested between mother and father or boyfriend and girlfriend. The parents had a relationship and then perhaps one went to jail or the relationship ended because of personality conflicts. It could happen that when the relationship ends, the involved parties couldn’t work out time with the child or decide on who will watch the child while the other one goes for work. In Texas, the right to determine the child’s residence can be agreed upon by the parties, determined by the Judge, or by a jury of your peers.
Types of Conservatorship
This is the presumption in Houston, Texas that parties are named joint managing conservators. The parties may agree to the designations themselves and the judge rules, otherwise, a jury renders a verdict. There are 10 rights and duties that give rise to conflict after parties are named Joint Managing Conservators:
- Schooling and Education Decision Making
- Invasive Medical, Dental, and Surgical Decision Making
- Psychological and Psychiatric Decision Making
- Religious Decision-Making
- Financial Welfare Decision Making
- Legal Rights and Representation
- Employment Decision-Making
- Involvement in Arts, Camps, Clubs, Sports, and Other Extra-Curricular Activities
- Consent to Marriage
- Consent to Armed Forces Enlistment
These rights could be exclusive to one parent, joint, or independent in nature.
Exclusive- One parent makes all the decisions. It may happen that the exclusive rights parent may have to consult the other parent and then makes the decisions.
Joint– Both parties have to agree to the decisions to be made.
Independent– One party may make the decisions without any consultation with the other parent.
If you are appointed a sole possessory conservator then you will have the rights above exclusively under the Texas family code.
This type of conservator has limited decision-making power when it comes to the children but still can have a standard possession order. Typically, this happens when a parent has done drugs recently or has not participated in the upbringing of the child.
The presumption in Texas is a standard possession order, which typically allows visitation every Thursday from 6 p.m. to 8 p.m. during the school year but not summer, and every 1st, 3rd, and 5th weekend from 6 p.m. Friday to 6 p.m. on Sunday. 30 days in the summers and you rotate all the traditional Christian holidays. You can customize your order for Hindu, Muslim, or Jewish holidays and other faiths but you should review the local school schedule to make sure conflicts with the school’s schedule are reduced. An election can be made to expand out the standard possession schedule by taking the child during the school year every Thursday when school lets out and returning the child Friday after school. On the weekends, you would take the child when school lets out on Friday and return the child to school on Monday. This would give the non-possessory parent 1st, 3rd, and 5th Thursday when school lets out till school resumes on Monday.
How to File Suit
You would need to come to our office and talk with me. A suit is usually filed within a day. You can ask for a temporary order if you believe that the other party is a flight risk, or because of any other reasons that would warrant a need for an immediate court intervention. You typically have these types of hearings in about 3 to 5 weeks. Final trial is in about 10 months. During the time the case is filed and up until the trial, you undergo fact-finding and document production. When this is done and the judge sets you for the final trial, then you go and present your facts and ask judge or jury to rule.
Texas Child Support
Support amounts are based on income and ability to pay according to state guidelines. Texas considers the financial support of children to be a joint responsibility of both parents. However, in determining the amount of child support paid by the noncustodial parent, only the noncustodial parent’s income is considered.
Support is a flat percentage of the noncustodial parent’s income (less allowable deductions) for each child. The courts presume that the custodial parent spends at least an equal percentage of his or her income directly in child support. The income/salary of the custodial parent generally does not come into question unless there is evidence that simply following the guidelines is not in the best interest of the child.
In Texas, child support is based on state guidelines that factor in the paying parent’s net income and other resources, as follows:
- 20 percent of net resources for one child;
- 25 percent of net resources for two children;
- 30 percent of net resources for three children;
- 35 percent of net resources for four children; and
- 40 percent of net resources for five children.
The court considers any child support or alimony payments made by a parent in connection with a previous failed marriage when calculating support for the pending divorce. If one parent is making verifiable support payments that are not court-ordered, the courts consider this in the pending case.
Texas uses a complex set of guidelines and formulas to determine how support should be paid when a noncustodial parent has children in multiple households. It is based on adding a total support obligation for all children as if they lived in one household. The procedure then considers the number of children involved in the current proceeding and applies credits for support to children who are not part of the current proceeding. There is much more involved in this particular aspect of determining support.
Without the aid of counsel or a state caseworker, these amounts are very difficult to calculate. The resources or needs of either parent’s new spouse or dependents may not be used to increase or decrease the child support obligation.
The exception to this is award of additional court-ordered support payments. If the noncustodial parent remarries, has a second family, then divorces again, they can seek a modification based on court-ordered support for the second family.
Support payments, alimony or similar obligations in place prior to the second divorce/support proceeding are considered in modifications. The court cannot set a level of support that totals more than 50 to 65 percent of the noncustodial parent’s earnings when support payments are calculated from all court orders. As a result, a custodial parent (or parents) may only receive a prorated share of their support if the noncustodial parent has multiple support orders.
Either or both parents may be ordered to make periodic, lump sum, or both types of child support payments. There are official child support guidelines set out in the statute and these are presumed to be reasonable and in the best interests of the child. The factors for consideration are:
- the age and needs of the child;
- the ability of the parents to contribute to the support of the child;
- any financial resources available for the support of the child;
- the amount of possession and access to the child;
- the net resources of the parent to pay support, including the earning potential of the parent to pay support if the actual income of that parent is significantly less than what that parent could earn, if intentionally unemployed or underemployed;
- any childcare expenses necessary for the employment of either parent;
- whether a parent has custody of another child and any child support expenses being paid or received for the care of another child;
- the amount of alimony being currently paid or received;
- provisions for health care;
- any educational or health care needs of the child, including college expenses;
- any benefits a parent receives from an employer;
- any debts or obligations of a parent;
- any wage or salary deductions of the parents;
- the cost of traveling to visit the child;
- any positive or negative cash flow from any assets, including a business or investments;
- any provisions for health care or insurance;
- any special or extraordinary educational, health care, or other expenses of the parents or the child;
- whether either parent has a car or housing furnished by an employer or other person or business; and
- any other relevant factor.
The court may order health insurance coverage to be provided for the child. In addition, the court may order income withholding to secure the payment of child support. Child support is described in the Texas Codes Annotated; Family Code, Chapters 154.001 to 154.309.
Once this amount is determined it is essential to take a look at any appropriate Texas child support deviation factors that may be applicable to the situation. Additional information about Texas child support can be found in the Texas state statutes.
When the noncustodial parent fails to pay child support as ordered, the custodial parent can seek enforcement by the court. In Texas, methods of enforcement include wage garnishment, seizure of lottery winnings and tax refunds and suspension of drivers’, business, and hunting licenses. If the support continues to go unpaid, the noncustodial parent can be held in contempt and be sentenced to six months in jail.
More information about Texas Child Support Enforcement can be found on their website.
Generally, the obligation ends when the child reaches 18 years of age or the child graduates from high school, whichever occurs later. However, a court can order the obligation to continue for an indefinite period if the child is disabled. A child will automatically be ineligible for child support if that child marries, is removed from disability status by a court order, or the child dies. If the child turns 18 before he or she graduates from high school, the parent must pay child support until graduation. Child support can terminate earlier if the child becomes emancipated before age 18. Emancipation occurs when the child marries, gives birth to a child of her own or enlists in the military.
Extraordinary and/or non-reimbursed medical expenses may be cause for the court to deviate from the standard support guidelines, but generally are treated as an expense that is allocated between the parents according to their financial circumstances.
Daycare costs are considered after the basic support obligation is determined. The cost of daycare incurred by either parent in order to obtain or maintain employment may be treated as a reason to deviate from the standard support guidelines.
Private school tuition, for instance, is a deviation factor.
Texas Property Division
In Texas the courts generally accept a fair and reasonable property division the parties agree to, but if the parties cannot agree, the property is divided by the District Court within the Judgment of Divorce.
Texas is a community property state. It is a dual classification state, and the appreciation of separate property is separate.
Texas defines community property as all property and debt acquired or earned from the date of marriage until the marital cut-off date that is not separate property. The court starts with a presumption that all property held by either spouse during marriage is community property.
To keep an asset free from division, a spouse must prove by clear and convincing evidence that the asset is his or her separate property. Separate property includes anything that belongs to one spouse before marriage and kept separate throughout the marriage. It could also include property that was given only to one spouse during the marriage – for example, a gift or an inheritance to one spouse alone.
If one spouse receives money from a lawsuit or settlement because of personal injuries, that money remains the separate property of the victim spouse, unless it includes money that is intended to compensate for loss of wages during the marriage. In other words, money to compensate someone for injuries is that person's separate property; money to compensate his or her for lost wages is community property and subject to division.
The division of marital property in Texas is different from those of other community property states. The court divides the community in a just and right fashion that means whatever the judge thinks is fair under the circumstances, so the 50-50 division routine that prevails in other community property states does not apply in Texas.
An unequal division is common in cases involving children. Courts justify a lopsided division because of:
- disparity in the earning capacities of the parties,
- differences in educational backgrounds,
- primary responsibility for raising the children,
- differences in age and/or health of the parties,
- needs of the spouse and children after the divorce.
In a divorce in Texas, all marital property is “up for grabs.”
While some judges punish a party for adultery, psychological abuse of the spouse, or other morally improper conduct, their number is declining. Unless the conduct was intended to harm the other party, the conduct of the spouses does not affect property division.
On the other hand, judges frown on economic misconduct - dissipation, fraud, squandering money, spending money for the benefit of a paramour - are usually punished by a lopsided division of property.
The length of the marriage may result in a disproportionate division of the marital estate, but the real reasons are more economic or financial in nature. Differences in earning capacity become more significant as the ages of the parties advance. For example, it is far less likely that a middle-aged housewife with stale job skills can find gainful employment than her 50 year-old powerhouse corporate executive husband. Likewise, the physically impaired spouse may incur significant ongoing expenses for therapy that the physically fit spouse does not.
Generally speaking, in assigning property, realistic assessments about the future are more important factors than the length of the marriage.
The distinction between separate property and community property is important because separate property cannot be divided or awarded to the other party in a divorce case.
Usually, separate property is:
- owned prior to the marriage,
- acquired as a gift, or
- acquired by inheritance.
There are other categories of separate property, but they are less frequently encountered.
The court assumes that everything the parties own at the time of divorce is community property and, therefore, can be divided. If either party claims something as separate property, he or she must identify the item and prove that it falls within one of the definitions of separate property.
In Texas, vested pensions are marital property.
Usually, the court divides retirement plans equally between the parties.
A number of factors can affect the value of a retirement plan (income taxes, penalties for withdrawal, etc.) and divide the plans down the middle avoids those issues. On the other hand, the judge always approves an agreement of the parties whether it involves an equal division of the plans or not.
A pension vests when all the requirements to receive the pension have been met. Unvested pensions are also marital property. Until the pension has vested, the person under whom the pension is maintained has only an expectancy of interest in the pension.
Several different methods of valuation are used in determining how much a marital asset is worth, depending upon the asset to be valued and the level of agreement between the parties. Courts generally accept the value when the spouses mutually agree on a value of a particular asset. Experts may be retained by the parties or by the courts to determine the value of marital assets if the parties cannot agree. Such experts may include accountants, real estate or business appraisers, or pension valuators. The use of experts adds to the cost of the divorce.
In Texas, the court may include the retirement benefits and plans earned by both spouses as marital assets available for division. Retirement benefits vary greatly but can generally be divided into two groups:
- Defined Contribution Plans: A defined amount of money belonging to the employee. The employee and/or the employer make defined contributions. The balance of the plan is constantly changing, but its value is definable at any given point. 401(k)s, 403(b)s and profit sharing plans fall into this category.
- Defined Benefit Plans: A retirement benefit where an employer promises to pay a benefit to an employee sometime in the future, based on some type of formula. Normally, this formula is based on the employee's salary near the end of his or her career and the number of years he or she worked for the employer before retirement. Defined benefit plans are much more complicated to value and often require the professional evaluation of an actuary to determine exact values.
In Texas, if spouses share in each others retirement or pension plan, a Qualified Domestic Relations Order must be completed. A QDRO is a written set of instructions that explains to a plan administrator that two parties are dividing pension benefits. The instructions set forth the terms and conditions of the distribution - how much of the benefits are to be paid to each party, when such benefits can be paid, how such benefits should be paid, etc.