When facing a divorce or separation there is really no time to wait before hiring a divorce lawyer. These situations are often more complex and need a more detailed game plan than you may have realized to reach a resolution that also protects your property and rights. We simply cannot stress how important it is for you to have a clear understanding of the law, and use that to make an informed decision about your future. While we are open to representing either spouse, our practice has focused primarily on men’s and father’s rights.
Unfortunately, the criminal justice system is often used a leverage as part of the divorce process in an attempt to gain in terms of property or custody. It is important that you have a lawyer who has experience in investigating and handling allegations of domestic abuse, protective orders, and even assault. Our practice routinely handles the exact type of criminal cases that make up such allegations.
In Texas divorces are granted without regard to any fault if the marriage “has become insupportable because of discord or conflict of personalities that destroys the legitmate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” Usually all divorces are sought on grounds of insupportability. However, one may choose to allege fault grounds in an effort to secure some advantage in deciding property division or custody rights.
There is a vested interest in the public policy of increasing chances of reconciliation that directs divorce pleadings to contain allegations of the grounds a party is relying on by using the language in the statute and not contain some detailed statement of evidentiary facts.
Six Other Grounds for Divorce that are rarely used
Cruel Treatment where the other spouse is guilty of cruel treatment, but does not require physical cruelty.
Adultery may be alleged to obtain a divorce decree in favor of the spouse if the other spouse committed adultery.
Conviction of Felony with Imprisonment for at least One Year
Abandonment for More than One Year – if the other spouse left the spouse, remained away for at least one year and with the intention of abandonment.
Living Apart for at Least Three Years – a divorce may be granted in favor of either spouse if they have lived apart for at least three years.
Confinement in Mental Hospital – assuming the condition is such that the spouse’s mental disorder is of such a degree that they are not likely to adjust or if they do adjust but it is probable that they will suffer a relapse.
There is a general rule that a petition for divorce cannot be filed unless (1) the petitioner spouse or respondent spouse has been domiciled in Texas for the preceding six months AND (2) either the petitioner and/or respondent has also resided in the County where the divorce petition is filed for the preceding 90 days.
Divorces shall not be granted until at least 60 days from date the suit was filed have elapsed. Often time, the court will not even let you schedule any hearing to prove up the divorce until such time has passed.
Any cause of action for divorce is personal and such will become moot and abates upon the death of either party.
In Texas a person can seek a divorce, annulment or suit to declare the marriage void.
After a petition for divorce or annulment is filed, any transfer of community property or obtaining any community obligation or debt will be “void with respect to the other spouse if such is made with any intent to injury the rights of the other spouse.”
Courts may impose Temporary Restraining Orders (TRO) to ensure communication is appropriate and that property interests cannot be adversely affected.
Either party can demand a jury trial in a suit for divorce, annulment or to declare a marriage void. The jury’s findings will be advisory on all issues except child custody.
The starting point for any property settlement is for community property to be divided equally. However, such equal division is then decided by the court “dividing the estate of the parties in a manner that is JUST AND RIGHT, considering property rights of each party and any children of the marriage.” This “Just and Right” division is for the community property of the marriage, but not for the separate property that either party owned prior to marriage or received by gift, devise or descent.
No, Texas law does not recognize court-ordered alimony for support of a spouse after divorce. There can be some limited provisions for SPOUSAL MAINTENANCE if the parties were married for at least 10 years.
If the parties are parents of a minor child, any lawsuit filed for divorce, annulment or to declare the marriage void must also include a SAPCR. The SAPCR will address questions of child custody and support obligations for the corollary divorce, annulment or suit to declare the marriage void. The SAPCR seeks to decide what is in the child’s best interest, as opposed to the best interests of the parents. Further, a SAPCR is not included if there are no common children born to both spouses – for example, a child by a previous relationship.
Test used to decide possession, access and support of the child. Often factors to be considered are the desires of the child, both present and future emotional and physical needs of the child, present and future dangers to the child, the parental abilities involved, available programs, stability of the home environment and any acts or omissions that indicates the current parent-child relationship is not appropriate.
Minor Child is a person under 18 years of age.
A man is presumed to be the biological father of a child when a child is born during the marriage or is born within 300 days after the marriage ends by death, divorce or annulment. A man is also presumed to be the father if he attempted to or married the child’s mother after the birth of the child and either: filed a written acknowledgement of paternity; is under an obligation to support the child (by voluntary written promise or court order); OR consented in writing to be named as the child’s father on the birth certificate. Such presumption may be overcome with clear and convincing evidence and a paternity test.
All divorce lawsuits with minor children often will focus on who is awarded custody, who is paying child support and the visitation rights of the parent who did not get custody. The parent who is awarded custody is called the Sole Managing Conservator. The “noncustodial” parent who is only given visitation rights is called the possessory conservator. When both parents are awarded custody they are called joint managing conservators and the best interests of the child will dictate which one is the primary residence with the idea that joint managing conservatorship does not require equal possession. Further the court will specify which rights, duties and powers are held by both parents versus which can be decided exclusively by one.
In all cases each parent has the right to know information from the other parent concerning the child’s health, education and welfare and to consult with the other parent in decision making for the child’s health, education and welfare.
The Texas Legislature mandated a uniform custody order to avoid large variations across Texas different counties. It must be incorporated into a decree unless the parties both agree to different custody arrangements or the court determines that the standard order would not be appropriate. It specifies that for children 3 years and older with parents living within 100 miles, the noncustodial parent has possession of the child 6 p.m. Friday to 6 p.m. Sunday the first, third, and fifth weekends each month, from 6-8 pm every Wednesday during the school year, and 30 days during the summer. Such guidelines are presumed to be the minimum possession in a child’s best interest.