The Top Six Family Law Myths in Texas

All of us must deal with different rumors, myths, and misconceptions in our lives from time to time. We hear things second and third hand and then our minds take what we hear and run with it. When it comes to important issues which affect our daily lives that can be troubling. What information about family law can you trust? Where can you go for trustworthy information? At the Law Office of Bryan Fagan, we want you to know that you can trust our attorneys in difficult times. 

That said, we want you to be aware of a few different myths that exist in the world of family law that may be impacting you at this stage of your case. Whether you are thinking about a divorce or family law case these myths could be impacting your willingness to file a case or could be contributing to your anxiety about responding to a lawsuit filed by your spouse or co-parent. Whatever your situation, we at the Law Office of Bryan Fagan have your back.

Myth #1: Common law marriage is established automatically once you are married for a certain length of time

Tell me if you’ve heard this one: once you are living with another person for “X” number of years you are automatically common law married. What common law marriage even means is up for debate in these kinds of conversations with people who don’t know what they’re talking about. We see people come into our offices for free-of-charge consultations all the time with the idea that common-law marriage is easily established in Texas. If you are in a long-term relationship as an adult then you are effectively common law married under this myth. 

What does this mean for you? Well, married people who want to break up must go through a divorce. A divorce carries with it certain rights for both spouses, but specifically, I am thinking about community property rights and how that will impact your property. You may end up having to divide up significant portions of your property if you are found to be in a common-law marriage. 

When you break up with someone that you are dating then there is no division of property beyond perhaps household items. Even then, a family law court would have no jurisdiction over your dating relationship if you wanted to keep that nice couch when the relationship ends. 

Common law marriage means that you would need to establish three factors all at the same time for you to be able to assert a marriage. Those three factors are: 1) an agreement to be married, 2) cohabitating in a single residence, and 3) holding yourselves out to the community as husband and wife. The moment that all three of these factors exist at the same time you are in a common-law marriage. Review your situation carefully before making an assumption one way or another about being common law married.

Myth #2: Mothers always win primary custody

This is the most pervasive myth in the world of Texas family law. Countless fathers have confided to our attorneys over the years that they believe they have no chance of success in a child custody or divorce case when it comes to being named the primary conservator of their children. Why do they believe this, you may be asking. It’s not because these dads don’t get involved in the lives of their children, that they have a criminal record, or that they are drug or alcohol addicts. Not even close. 

The reason that many fathers believe that they have no chance when it comes to being named as the primary conservator of their children in a Texas family law case is because of this myth that mothers always win primary custody in Texas family law cases. Even further, this myth is based on another myth that the Texas Family Code explicitly favors women over men, and mothers over fathers when it comes to naming primary conservators of children. In other words, many fathers believe that the law instructs family court judges to favor women when it comes to naming primary conservators of children. 

This is not true. The Texas Family Code is gender-neutral when it comes to this question. There are no preconceived notions in the law that explicitly favor mothers or fathers when it comes to the issue of primary custody. A myth like this one impacts cases a great deal because dads do not push as hard for primary custody as they otherwise may have. You hear from fathers all the time who simply want to have “split” or 50/50 custody with their co-parent once the family law case is over. 

In reality, fathers are often passed over for mothers on this question of primary custody because the nature of their relationship with their children is not as child-focused. If you are a dad then you undoubtedly love your children but have probably not been as focused on the day-to-day lives of your children when compared to their mother. You are likelier to work outside the home, for longer hours and in a way that drains your energy and time. By the time you get home, you are fortunate if you can speak to your children before bed about their day and yours. 

In actuality, the standard that a family court will use in a child custody or divorce case when it comes to issues related to your children is the best interests of the child. In other words, a court will look at the totality of the circumstances before deciding about your kids. Of all the factors that make the list of criteria a judge can and should use to make this determination, the gender of the parent does not make the cut. If you are an involved dad who loves his children, there is no reason why you cannot be named as the primary conservator of your children in a family law case. 

Myth #3: Property in a Texas divorce is always divided right down the middle

Texas is a community property state, and the assumption follows that all property in a Texas divorce is divided right down the middle. While this certainly can be the case it is not the rule that it must be divided in this way. On the contrary, a judge in Texas has a wide amount of discretion when dividing up your community property. A just and right division of the property is what must be undertaken during a divorce. Just and right does not necessarily mean splitting property right down the middle. It can look like this, but it is not a requirement. 

The health of you and your spouse, your ages, your income history, your employment histories, your separate estate statuses, and a handful of other factors will be what the court looks to when it comes to dividing property. You may end up with a disproportionate (unequal) division of your property or your spouse may end up in that position. Whatever the case may be, being prepared for a final hearing on this matter is critical. Do not assume that your property will be divided right down the middle every time. This is not necessarily true and operating under a mistaken assumption like this can cost you dearly in a divorce. 

Rather, you should take the time to inventory and appraise all your property from the beginning of your divorce, so you know better what you are working with. From there you can know how much your property is worth and what column the property belongs to: community estate, your spouse’s separate estate, and your separate estate. This will inform you of how your property may end up being divided and what plan of attack you need to implement to keep these items.

Myth #4: One spouse is always entitled to alimony

Alimony is one of those terms that we hear used in our culture all the time. Movies and television shows must find it an interesting subject given how frequently you hear the word alimony utilized. What we need to figure out, then, is whether alimony is a realistic option for you or your spouse. 

We can start with the idea that a family court judge can order temporary spousal support as well as spousal maintenance. These are payments of money from your spouse to you if you can show a judge that you are unable to meet your minimal, basic needs without additional support. Next, you would need to show that you and your spouse have been married for at least 10 years. An exception to this rule is if your spouse has been convicted of or has received deferred adjudication for a crime related to family violence. 

Spousal maintenance is far from a sure thing in a Texas divorce. Moreover, you can receive something called contractual alimony in a divorce. However, that sort of financial support can only be agreed to between you and your spouse in mediation or informal settlement negotiations. A family court judge cannot order contractual alimony. While multiple forms of post-divorce spousal support can be paid in a divorce, they are anything but automatic.

Myth #5: Prenuptial agreements are only for the rich and famous

Speaking of family law terms which we hear quite a bit in our daily lives, prenuptial agreements are one of the top six family law myths that we hope to dispel here on our blog. Prenuptial agreements are common for entertainers, athletes, and other rich people. So, it isn’t as if we never hear about prenuptial agreements. On the contrary- we hear about them all the time and so much about what we hear is wrong. 

That is a shame given that prenuptial agreements can be an incredibly effect tool at helping you and your spouse avoid some of the hardships that often come along with divorce in Texas. A prenuptial agreement is a property agreement that you and your fiancé can come to before your marriage. You can agree to the same kind of arrangement after your marriage has begun. The only difference in this scenario is that your agreement is now a marital property agreement since it was arrived at after you were already married.

People in your shoes benefit from the signing of a marital property agreement because it can take away a lot of the emotion of a divorce. Think about sitting across the negotiating table from someone when you need to be able to divide up all your community property and handle other matters related to child custody. That is a lot to take on. Rather than position yourself this way, you could work to negotiate a prenuptial agreement that removes a lot of the subject matter that people going through a divorce typically haggle over.

A prenuptial agreement is incorporated into your petition for divorce by referencing the prenuptial agreement and attaching it to the petition as an exhibit. When you negotiate a prenuptial agreement, you should consider working with an experienced family law attorney. Doing so ensures that you will not be taken advantage of in these negotiations and that your interests are going to be protected. 

Myth #6: Your case is destined for litigation

The assumption that most people have at the beginning of a family law case is that it is unavoidable that you must see the judge to decide your case. All of the work that you and your spouse do before a trial is window dressing at this point. What matters is that a judge will assess all admitted evidence and will issue a decision based on their review of the evidence. 

What the reality looks like can be quite different than the perceived outcome that many people have when it comes to a legal case in the world of family law. Again, I think that the narrative about going to court is based almost entirely on what we see in movies and television shows. It isn’t negotiations that make it onto the big screen. Rather, we see couples fighting tool and nail over property and their kids in a courtroom. This is more entertaining. There is something about these shows that gets into our psyches and then the next thing we know we interpret entertainment to be reality. 

That would be a mistake when it comes to family law cases. More family cases are decided in mediation rather than litigation by a factor of 3:1. For those of you who do not know, mediation involves you and your opposing party agreeing to appoint a third-party mediator who can help the two of you arrive at a settlement for your case. Most family courts will require that you attend at least one session of mediation both before a temporary orders hearing as well as a trial. You should expect this outcome for your case, as well. Whether you can settle your case before a trial is anyone’s guess, but to assume that you will leave the case up to a judge would be a mistake. 

I think that this is the biggest issue when it comes to this myth as well as the other five that we have covered today. If you buy into the myth and take it at face value, then you are hindering yourself. Rather than believing that you control the outcome of your case, you are leaving it up to a set of factors that are outside your control. If everything is a foregone conclusion in a family law case why put forth any effort at all? Rather, you should just pay an attorney to show up to court and let the chips fall where they may. 

Rather, you should take heart in knowing that you can have a dramatic impact on your case for better or worse. The more prepared that you are the better the outcome will likely be for your case. Putting forth effort is a good thing in all areas of life. A family law case is no exception. We at the Law Office of Bryan Fagan want you to know that these myths are pervasive and can be harmful to your case. Do not sell yourself short. 

Thank you for spending time with us here on our blog today. We aim to produce interesting and informative blog posts each day for you to read through. If you are concerned about any of these myths or just have a question about Texas family law, please reach out to the Law Office of Bryan Fagan today. We are here to serve our community and have the track record to prove that we have what it takes to advocate on behalf of you and your family. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material presented in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family’s circumstances may be impacted by the filing of a divorce or child custody case. 

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