Texas Family Law FAQs
WHAT IS A COMMONLAW MARRIAGE?
A common law or informal marriage can occur by filing a declaration of informal marriage or by (1) entering into an agreement to be married, (2) cohabitating thereafter, and (3) 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 commenced 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 the 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 (agreements made between attorneys or parties to a suit) 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 parent who is paying child support). 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, either by covering the children directly or reimbursing the other parent for their coverage.
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 at the request of a party when a case commences and prohibits unilateral actions by one or both parties 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, or, in certain cases, from having any contact with the other party until a hearing can be held. They cannot be used to evict a party from the marital residence except in extreme circumstances.
IS MEDIATION AN OPTION?
Yes. Most family law matters are settled without a trial. Courts recognize that parents are in a much better position than the judge to make life-altering decisions affecting their children. Parents can agree to arrangements that are customized to their particular family, but that the judge would have no power to order. 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, under Texas law, consists of all 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 the marriage, even if it has “mutated” (been transformed from, say, cash to some tangible property such as a house or vehicle), as long as it hasn’t been mixed with community-property funds. One of the most common separate-property issues that comes up in a divorce is the wedding ring; the rings were gifts, so they’re the separate property of the person who received the gift. All property is presumed to be 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. Only community property can be divided by the court in a divorce; separate property belongs exclusively to the owner, and the court cannot order that one party’s separate property be given to the other party. Premarital agreements and post-marital partitioning agreements can be utilized to change community property to separate property or vice versa, but only by agreement of both parties in the form of a legal document.
The law offices of Bailey & Galyen provide skilled legal representation to individuals across the State of Texas including the Dallas-Fort Worth communities of Arlington, Bedford, Dallas, Fort Worth, Carrollton, Grand Prairie, Mesquite and other cities in Texas including Houston Clear Lake / NASA, Texas.