FAMILY LAW - FREQUENTLY ASKED QUESTIONS:

WHAT IS A COMMONLAW MARRIAGE?

A common law or informal marriage can occur by filing a declaration of informal marriage or by entering into an agreement to be married, cohabitating thereafter, and representing to others that the relationship is that of husband and wife.  Persons under the age of 18 cannot enter into a common law or informal marriage.  Unless a divorce action is commence within two years of separation, there is a presumption that a marriage was not intended by the parties.  Common law marriages afford spouses the same rights as a formal marriage.

CAN WE BE LEGALLY SEPARATED?

Texas law does not provide for ''legal separation.''  Usually parties file a divorce action and enter into temporary orders which will govern their behavior, child care issues, and property pending the resolution of the divorce action.  Occasionally parties will enter into Rule 11 agreements which can have the same effect as legal separation. 

HOW IS CHILD SUPPORT CALCULATED?

Texas child support is governed by guidelines established by the legislature and based upon the income of the obligor.  The guidelines call for child support of approximately 20% of the obligor’s net income for one child; 25% for two children, and so on.  Percentages vary in cases where the obligor supports children in different households.  Courts have the ability to deviate from the guidelines for good cause.  The guidelines presume that the obligor will also provide health insurance for the children. 

HOW MUCH ACCESS WILL I HAVE TO MY KIDS?

The courts have wide discretion in setting visitation and access to children based upon the best interest of the child.  The legislature has established guidelines to assist the courts and promote the state policy of ensuring frequent and continuing access by the child to both parents.  The clear trend is for both parents to have nearly equal access to the children and co-parenting is strongly encouraged.

WHAT IS A TEMPORARY RESTRAINING ORDER?

A temporary restraining order is usually issued when a case commences and prohibits unilateral actions by either party until a hearing can be held: usually within two weeks.  Its purpose is to prevent parties from unilaterally liquidating, encumbering, hiding, or transferring property or monies in order to obtain an advantage.  TRO’s also prevent parties from relocating children or disrupting their schools and daycares.  They cannot be used to evict a party from the marital residence except in extreme circumstances.

IS MEDIATION AN OPTION?

Yes. Indeed most family law matters are settled without a trial.  Most courts recognize that parents are in a much better position to make life altering decisions affecting their children than the Judge.  Many courts order the parties to attend mediation prior to setting a trial date.  Mediators generally cost between 50 and 400 dollars per half day sessions. 

WHAT IS COMMUNITY PROPERTY?

Community property consists of the property, other than separate property, acquired by either spouse during the marriage.  Separate property is that acquired by gift, devise or descent (inheritance) or which was acquired before or after the marriage or a traceable mutation thereof.  All property is presumed community unless and until proven to be separate property by clear and convincing evidence.  Wages and retirement benefits earned during the marriage are community property.  Premarital agreements and post marital partitioning agreements can be utilized to avoid aspects of the community property laws.