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Basic Divorce Information

You may have many questions when you begin considering a divorce. The following information can help you understand some of the basics that are part of the process. Please review the below information and feel free to schedule an appointment with my firm as soon as you are ready. I am family lawyer Bruce C. Zivley, and I am here to help you. Call 281-506-0047 or toll free at 888-837-2157, or contact my office online.

The Divorce Lawsuit

A divorce is a lawsuit which is initiated by one spouse filing an Original Petition for Divorce, generally in the county where they reside. To be eligible to file for divorce in our state, a party must have resided in Texas for the preceding six-month period and have been a resident of the county where the lawsuit is to be filed for the preceding 90-day period. If these residency requirements are satisfied, a divorce lawsuit can be filed.

In Texas, the marriage and more importantly the marital estate continue to exist until a court has signed a Final Decree of Divorce, which dissolves and terminates the marriage relationship. A divorce lawsuit can be filed while the parties are still residing together. While the primary purpose of a divorce is to dissolve and terminate the marriage relationship, all divorces also involve issues concerning how to divide the property and liabilities which the parties have accumulated during the marriage. In the event that the parties have had a child born or adopted during the course of their marriage who is still a minor, then the divorce will also involve issues pertaining to the minor child, such as custody, visitation and support.

Statutory Waiting Period

A divorce lawsuit in Texas does have one unique characteristic: no divorce can be granted in any case until at least 60 days have elapsed since the date the Original Petition for Divorce was initially filed.

Notice To The Nonfiling Party

As with any other lawsuit, formal notice must be given to the other spouse that the lawsuit has been filed, and some form of proof of that notice must be contained in the court's file for the case to proceed forward. The most common method for providing notice of the lawsuit to the other party is to have personally delivered to the other spouse a copy of the papers filed by an officer or individual authorized to serve such court papers. The person delivering those papers will complete a return of service form, which will be filed with the court and which will serve as evidence in the court's file that the proper notice has been afforded to the nonfiling party.

Alternatively, if the nonfiling party retains an attorney to represent them, that attorney will likely file with the court a document entitled Respondent's Original Answer, which will serve as evidence in the court's file that the proper notice has been afforded to the nonfiling party.

Finally, a unique method of dealing with the notice requirement in a divorce case is the completing and filing of a sworn statement entitled a Waiver of Citation. This method is frequently used in cases where an agreement has been reached or is highly likely to be reached on all issues involved in the divorce. By executing a Waiver of Citation, the nonfiling party represents that they have been provided a copy of the lawsuit which was filed and that they expressly waive the requirement of having a copy of those same papers being formally delivered to them by a person authorized to deliver such papers. The Waiver of Citation will also contain certain contact and biographical information for the nonfiling party, and the document must be signed and notarized before it is filed with the court. Once filed, that document will serve as evidence in the court's file that the proper notice has been afforded to the nonfiling party.

Temporary Orders

At the outset of the case, either party can request that the court schedule a hearing for the purpose of entering temporary orders pertaining to the property and the parties during the pendency of the case. Many divorces are filed with a mutual temporary restraining order, so as to attempt to freeze the status quo until the day the hearing arrives and the court can get more deeply involved. Not all cases will need to involve the court for the entry of temporary orders; however, it is highly recommended for divorces involving minor children. After notice and hearing, the court can enter temporary orders for such child-related issues as conservatorship/custody of the children, child support, providing for health insurance and visitation for the noncustodial parent, and also for such property issues as which party has the right to possess and use the home and vehicle while the case is pending, which party should be responsible for certain liabilities while the case is pending, and whether one party should be ordered to pay spousal support to the other party during the pendency of the case.

Division Of Property

As part of the divorce lawsuit, the property which the parties have accumulated during their marriage must be divided and allocated between them. Texas is a community property state. As such, our laws provide that we classify, or characterize, property into two categories: community property and separate property.

There is a legal presumption that all property and liabilities accumulated during the course of the marriage is community property, subject to division upon divorce. Separate property is property or liabilities accumulated prior to the marriage, and property received by either gift or inheritance either before or during the marriage. While very rare, the recovery for personal injuries sustained by a spouse during the marriage would also be the separate property of that spouse.

The first step in dividing the property in a divorce is to characterize each asset or liability as belonging to either the community or separate estate of the parties. This initial step is vitally important because the court can only divide the parties' community estate. The separate property belonging to either party, notwithstanding how much or how little, cannot be divested or taken away from that party during a divorce. Therefore, it is important to properly characterize property as either separate or community, and the actual date of acquisition, except for gifts or inheritance, is the key component for making that proper characterization.

Once assets and liabilities have been properly characterized, the next step in property division is to determine the value of the individual assets and liabilities. Certain assets, and almost all liabilities, have an easily ascertained value. The debt owed to a particular creditor, or how many funds are in certain financial accounts on a given day, should be easy to determine, and that value can be assigned to the particular asset or liability. Other assets, such as real property and vehicles, have an inherent subjective element to determining their value, although there are routine methods for determining such. The fair market value is always considered by a home seller when they decide at what price to list the home for sale. Additionally, furniture and household effects are valued according to their present fair market value, rather than the actual cost or replacement cost for the item. Once you have a value assigned for all of the significant assets and liabilities, you are able to add together and calculate the net total value of the community estate of the parties.

The final step to the division of property involves determining the percentage of the net total community estate each party is to receive. Some estates are divided equally, while in other cases, a disproportionate division of the property may be awarded to one party based upon certain factors which the court is empowered to consider. If the percentages can be agreed to, then the property is allocated between the parties based on the assigned values of the assets and liabilities, in a manner designed to achieve the desired percentage split. In this instance, each party can have input into which items should be awarded to whom.

I have attempted to provide a simple explanation of how property is divided generally, and the applicable law thereto. There are obviously certain complicated assets where it is generally difficult to easily determine the value of the property interest, and those must be considered on a case-by-case basis.

Custody Of The Children

Frequently, the custody of the children is the most important issue in a divorce case. The primary standard applied by the court in all cases is the best interests of the child. The statutes of Texas, for the purposes of custody, have created certain labels to describe the custodial rights and duties.

The primary designation is that of joint managing conservators. Unless the court can be shown a compelling reason not to appoint a parent as a joint managing conservator, the court will generally designate both parents as joint managing conservators of their minor children. The alternative is to appoint the custodial parent as the sole managing conservator and the noncustodial parent as the possessory conservator.

In my experience, it is not the designated label that is important, but rather the specific rights and duties assigned or allocated to each specific parent that will actually define one to be the custodial parent and the other to be the noncustodial parent. The one right which cannot be shared jointly by the parties is the sole and exclusive right to determine the domicile and residence of the children. The particular parent possessing that exclusive right will be the custodial parent with whom the children primarily reside.

In many cases, the court will grant the request of the noncustodial parent and order that the exclusive right to determine the domicile and residence of the children be geographically limited to a certain area, convenient to visitation of the children by the noncustodial parent. I have seen geographical restrictions as limited as a certain address or the boundaries of a particular school or school district, but generally the limitation is for a particular county and counties contiguous thereto. This geographical restriction does not absolutely bar the custodial parent from moving beyond the limited area at a future point in time, but requires either the written agreement of the noncustodial parent to be filed with the court or specific permission from the court before the relocation can take place.

There are other statutory rights and duties that all parents possess either at all times or while they respectively have possession of the children, notwithstanding the custodial designations referenced above. Finally, there are approximately eight rights which are sometimes allocated only to the custodial parent, but frequently it is provided that each parent shall have the joint and independent ability to share those rights.

Child Support

For a number of years, Texas has set and determined child support according to a statutory formula which takes into consideration the number of children involved and the net disposable resources available to the party paying child support. The percentages to use for the calculation are as follows:

  • 20 percent for one child25 percent for two children30 percent for three children
  • 35 percent for four children

  • 40 percent for five or more children

The applicable percentage is multiplied by the net monthly resources available to the paying party (up to a maximum of $8,550 per month), and the result is the amount of child support the court will likely order to be paid.

The percentages will be slightly lower if the child support obligor has additional children in another family for which they owe a duty of support. There is an additional statutory table with percentages to use based upon the total number of children involved in each of the obligor's respective families. Additionally, the obligor is allowed to deduct the actual cost of providing health insurance coverage for the children from the net resources per month, before multiplication by the percentage, if the obligor is the party providing the health insurance coverage. The resulting figure from all of these considerations and calculations is the presumptively proper amount of child support to be ordered, and is further considered to be in the best interests of the child.

However, in certain limited situations, the court can order child support in excess of the guideline-calculated amount, if the evidence presented rebuts the presumption that application of the guidelines is in the best interests of the child and justifies a variance from the guidelines. Child support will be payable until the child turns 18 or until graduation from high school, whichever occurs later. In the event of an adult disabled child, the court can indefinitely order support as the facts and circumstances justify. For families with multiple children, it is customary for the amount of child support to decrease upon the occurrence of each child turning 18 and graduating from high school.

A Wage Withholding Order must be entered by the court in any case involving child support. This is an order which can be sent directly to the child support obligor's employer, whereby the employer will thereafter be ordered to withhold child support from the employee's wages and to submit the amount withheld to the child support office directed by the order. The order must be sent to the child support obligor's employer unless the parties agree otherwise that it should not be sent out to the employer. Most courts require that child support be paid through the Texas Child Support Disbursement Unit, and thereafter it is transmitted to the child support obligee. Arrangements can be made to have these funds transferred via wire transfer, rather than through the mail, which will speed up delivery time for the funds.

Health Insurance

Most courts will require that the Final Decree of Divorce contain provisions concerning which parent has the responsibility to provide health insurance coverage for the children. Under Texas law, the responsibility to provide the health insurance coverage for the children is a duty placed on the noncustodial parent, in addition to the child support ordered.

If the noncustodial parent has access to group health coverage for the children, they will be ordered to enroll and maintain such health insurance coverage for the children as long as child support is payable and to wholly pay the cost for such coverage. If there is no group health coverage for the children available to the noncustodial parent, but there is such coverage available to the custodial parent, the court will order the custodial parent to enroll and maintain such health insurance coverage for the children as long as child support is payable and to wholly pay the cost for such coverage, with the noncustodial parent ordered to reimburse the custodial parent on a monthly basis for the actual cost of providing the health insurance coverage for the children.

If there is no group health coverage for the children available to either parent through their respective employment, the court will order the noncustodial parent to procure and maintain health insurance coverage for the children as long as child support is payable and to wholly pay the cost for such coverage. In certain instances, Medicare or state CHIPS coverage may be available for health insurance coverage for the children. Additionally, as a general rule, the court will order each parent to be responsible for 50 percent of the cost of any non-reimbursed health care expense incurred by or on behalf of the minor children which is not covered by insurance.

Visitation

Under Texas law, the noncustodial parent shall have access and possession of the child or children at all times mutually agreed to in advance by the parties, and failing mutual agreement, pursuant to the times and provisions as set forth in the statutory Standard Possession Order. This approach allows divorced parents to vary from the Standard Possession Order in any way they care to do so, as long as there is mutual agreement for the variance. In the absence of such agreement, the provisions of the Standard Possession Order will prevail and control.

Under the normal weekend and weekday provisions of this order, the noncustodial parent shall have possession and access to the child or children on the first, third and fifth Fridays of each month beginning at 6 p.m. and ending at 6 p.m. on the following Sunday and on Thursday of each week during the regular school year beginning at 6 p.m. and ending at 8 p.m. At the option of the noncustodial parent, the starting and ending times can provide for weekend visitation to begin at the time the child's school is dismissed on Friday and ending at the time school resumes on Monday morning, and for Thursdays can begin as early as the time the child's school is dismissed on Thursday and ending at the time school resumes on Friday morning. This normal weekend and weekday possession is subject to being negated if it conflicts with any special holiday possession as set forth in the Standard Possession Order.

Under the normal holiday provisions of this order, the parents shall have possession and access to the child or children is as follows:

  1. Thanksgiving: The noncustodial parent shall have the Thanksgiving holiday in odd-numbered years, beginning at 6 p.m. on the day school is dismissed for the Thanksgiving holiday and ending at 6 p.m. on the following Sunday, and the custodial parent shall have possession for the same time period in even-numbered years.

  2. Christmas: The noncustodial parent shall have a portion of the Christmas holiday in even-numbered years beginning at 6 p.m. on the day school is dismissed for the Christmas holiday and ending at noon on December 28, and the custodial parent shall have possession for the same time period in odd-numbered years.

  3. Spring Break: The noncustodial parent shall have the Spring Break holiday in even-numbered years, beginning at 6 p.m. on the day school is dismissed for the Spring Break holiday and ending at 6 p.m. on the day before school resumes after that vacation, and the custodial parent shall have possession for the same time period in odd-numbered years.

  4. Father's Day: The father shall have possession every year beginning at 6 p.m. on the Friday preceding Father's Day and ending at 6 p.m. on Father's Day.

  5. Mother's Day: The mother shall have possession every year beginning at 6 p.m. on the Friday preceding Mother's Day and ending at 6 p.m. on Mother's Day.

  6. Summer: The noncustodial parent shall have possession during the summer school holiday for a period of 30 days, which cannot begin earlier than the day after the child's school is dismissed for the summer vacation and must end at least seven days prior to the resumption of school at the end of the vacation, to be exercised in no more than two separate periods of at least seven consecutive days each. The noncustodial parent shall have the choice of the dates of access, so long as they advise the custodial parent in writing by April 1 of each year of the dates so chosen. If no written notice has been received by the custodial parent by April 1, the summer possession for the noncustodial parent shall begin at 6 p.m. on July 1 and ending at 6 p.m. on July 31.

  7. Summer: The custodial parent also has some exclusive summer possession, which involves two components. First, the noncustodial parent shall have a weekend of possession, from 6 p.m. on Friday to 6 p.m. on Sunday, during any weekend of the noncustodial parent's extended summer possession. Additionally, the custodial parent has the ability to designate a weekend period of possession by the noncustodial parent during the summer school vacation where possession by the noncustodial parent shall not occur, so long as the weekend designated does not conflict with the noncustodial parent's designated period of summer possession or with Father's Day weekend. This will have the effect of creating an approximate three-week window where the custodial parent shall have exclusive possession of the children.

The provisions of the Standard Possession Order as set forth above are for when the divorced parents reside within 100 miles of each other. For those occasions where divorced parents reside more than 100 miles from each other, the noncustodial parent would have possession for the Spring Break holiday every year, and additionally would have possession for 42 days during the summer rather than 30 days. Otherwise, the provisions are essentially the same whether divorced parents live within or more than 100 miles from each other.