Just about every person living in our state has the potential to be a part of a family law case at some point in their lives. The reason for this is pretty simple: most of us will either have a child, get married or preferably both over the course of our lives. Part of our lives being worth living is our ability to build a family and form relationships. Family laws become involved when those relationships become problematic and begin to negatively impact our lives. Our children can be the most impacted by a failing marriage or other relationship so they are the ones who can truly be caught up in the middle of any family-related issues.
Families are more diverse today than they ever have been in our nation's history. Long gone are the days of the nuclear family- one husband, one wife and a couple of children from that marriage. Mixed families are increasingly becoming the norm nowadays, for better or worse. With those changing family, dynamics come challenges for families, family law practitioners and lawmakers who have to keep up with those changes. The way that courts enforce the laws that are handed down by our state legislature change on a near yearly basis. How can you be expected to keep up with those changes?
That is the question that we are here to discuss with you today. No matter what, you need to be prepared for your own family law case no matter if you are someone who knows a great deal about family law or someone that knows next to nothing. It is not an excuse to say that you aren’t an attorney or don’t have any interest in the subject. If your children, your marriage and/or your property will be at stake in this case then you need to make it a priority to learn about this field of the law in Texas.
Family law cases are all about minimizing instability in the life of your child. You will have your own goals that you want to accomplish, but ultimately those goals pale in comparison to maintaining some semblance of normalcy in the life of your child. If you can anticipate problems and roadblocks to resolving the issues that exist in your case you can begin to problem solve solutions. The alternative is to constantly find yourself surprised by the events of your case, leading to a longer, more expensive and more tumultuous case. Again, if you think the experience has been bad for you to imagine how bad it could be for your child if you do not prepare yourself and your family in advance of beginning your case.
Divorcing your spouse in Texas
Divorce is not just a state of mind. You need to file an Original Petition for Divorce and ultimately have a Final Decree of Divorce signed by a judge in order to be legally divorced. So, the second you hire an attorney to file your divorce you are not divorced. A lot of people seem to think this is the case but it is not true. You are very much still married until the judge tells you otherwise. Until then, conduct yourself as a married persona and act as if the things you say and do can impact your case- either positively or negatively.
You and/or your spouse must be a resident of Texas in order to file for divorce you. You cannot move here from Louisiana, California, Mexico or anywhere else and file for divorce here on your first day in living in our great state. Specifically, you must have been a resident of Texas for at least six months and a resident of the county in which you plan to file for at least 90 days before you are able to file your divorce petition. This is because the court does not have jurisdiction over your case until you meet these residency requirements.
Once your divorce is filed, you cannot (in most instances) go and get your divorce finalized the day after you file. This is true even if you and your spouse have an agreement in writing ready to be filed as soon as your petition was submitted to the court. The reason for this is that Texas law holds that you and your spouse must wait at least sixty days from the date that the divorce petition was filed in order to get divorced. An exception to this rule is if there is violence in the marriage and a speedier divorce is justified due to the continued risk of harm to one or both spouses.
The rationale behind this 60-day waiting period is that the State wants to encourage you and your spouse to attempt to reconcile your differences in that two-month period. I’m willing to bet that if that 60-day requirement were dropped a lot more people would be filing for divorce. Generally speaking, divorce is not a positive thing for society, though it may benefit you and your spouse on some levels.
One thing I want to point out to you all is that even though divorce can get done in as little as 60 days, it is not likely that yours will. Most divorces have disagreements on various subjects that require some extensive negotiation to get past those disagreements. Also, most divorces will require at least two mediation sessions before resolving. That, combined with the time needed to draft final orders, sets a majority of cases past the 60-day minimum.
What happens during that 60+ day period of waiting to finalize a divorce?
A byproduct of having to wait at least a couple months to finish your divorce is that there is a lot of time to fill in that period. Obviously, 60 days (at least) is the amount of time that we are talking about, but that is a long time for a family to operate in the flux of a divorce. For that reason, family courts in Texas will encourage parties to arrive at temporary orders.
Temporary orders basically will provide to you and your spouse marching orders on all aspects of your case. Custody, visitation and support orders for your child will be provided. A breakdown of your household bills and the mortgage will also be divided up between you and your spouse. Which person will be able to remain in the family home will likely be determined by whichever spouse is able to reside primarily with the children.
The first of the two mediation sessions that I referenced in the section prior to this one will occur prior to temporary orders. Most family courts in southeast Texas will require that you attend mediation for temporary orders prior to coming into court for a hearing. This will ensure that you and your spouse get the first crack at attempting to resolve your issues without the intervention of a judge. Mediation occurs at an attorney’s office that you and your spouse select with the help of your own attorneys.
While placing you and your spouse in separate rooms, the mediator will bounce back and forth between your rooms like a ping pong ball in an attempt to help you resolve all issues relevant to your case. If a settlement is reached, temporary orders will be drafted based on your mediated settlement agreement. Importantly, any reason for attending a temporary orders hearing will be erased.
Again, the purpose of temporary orders is to allow you and your spouse to understand what your responsibilities are to your children and each other during the divorce. Importantly, if you do have children it will allow you a series of practice months to learn how to adapt to a visitation schedule, child support payment schedule and the changes that will be inherent in getting a divorce and raising a child. Co-parenting is a term that is often used to refer to this process.
Property issues in conjunction with Texas divorces
While not as much of an issue in the temporary orders phase of a Texas divorce, the property will certainly become an issue in your case by the time you reach negotiations for final orders. Dividing up property in a divorce can often time be an extremely contentious subject that results In bad feelings being exchanged. With that in mind, it is a good idea to learn a little about how the law treats the property for married people before you actually get involved in a divorce.
Texas is a community property state. All property that is not separate property is considered to be community property, under Texas law. That explanation does not do much to tell you what property you have in your living room is separate and what is community property. All I did was introduce a couple of terms to you and not define them. Let's define the terms that we are using before we proceed any farther.
Separate property is defined in the Texas Family Code as a property that was owned prior to your marriage or property that was acquired during the course of your marriage by gift or inheritance. Now that we know what separate property is, we can know what community property is: everything other than the property we just listed is considered community property? Pretty simple, eh? Not so fast. We will see how things can get complicated despite a seemingly simple designation that exists in the law between the community and separate property.
Child custody and Texas divorce cases
It is presumed that you and your spouse will be named as joint managing conservators of your child once your divorce has been finalized. Being named a conservator of a child means that you are responsible for certain rights and duties associated with your child as their parent. You are a conservator of your child as we speak but just have not been designated in writing by a court regarding those rights.
Joint managing conservators can share in the rights and duties of raising a child in an equal fashion in most regards. The exceptions to that statement are that only one of you will be able to reside with your children primarily and select where that is, and only one of you will be able to receive child support from the other. These are rights that are held in tandem: if you win the right to determine the primary residence of your child then you will also be able to receive child support.
As far as time with the kids is concerned, we typically refer to that as "possession" in the world of family law. Just because you share somewhat equally in the rights and duties associated with your child does not mean that you are both able to share equally in your child's time. The parent with the right to determine the primary residence of your child will have more time most likely. In tomorrow's blog post from our office, we will discuss this topic in greater detail and introduce other topics in custody law such as summertime and holiday visitation.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan
If you have questions about your family situation or are seeking clarification on anything that we discussed in our blog post today, please consider contacting the Law Office of Bryan Fagan. Our licensed family law attorneys work on behalf of our clients to achieve their goals in courts across southeast Texas.
Our attorneys and staff pride themselves on putting the interests of our clients first and advocating tirelessly for them in courts across southeast Texas. A free of charge consultation with our office is only a phone call away. These consultations are a great opportunity to ask questions and receive feedback about your specific circumstances.
We invite you to take some time to browse our website to learn more about our office. We also have blog posts that cover every area of Texas family law. Feel free to read as much as you would like and we appreciate your consideration and time that you spend with us here on our blog.