Q. What is community property?
Property acquired during a marriage is presumed to be community property unless it is property received by one party as a gift or inheritance. There are other exceptions as well which your attorney can explain.
Q. What is separate property?
Separate property is property one party acquired before marriage or after marriage by gift or inheritance. Separate property is not considered part of the marital estate, and therefore is not divided and shared with the other spouse. However, separate property may be commingled into community property during marriage.
Q. How is community property divided in Texas?
Unless there is a written agreement (or an oral agreement made in court) between the parties, the court will usually make an equal division of all community property assets and debts. Equal division does not necessarily mean that each party gets exactly half of the property. For example, the court can give a couch worth $500.00 to one spouse but balance it out by ordering that spouse to pay a $500.00 credit card bill. The court can also order property to be sold and the proceeds from the sale divided between the parties.
Q. My circumstances have changed since my divorce was final. What can I do about this?
If the children have not reached the age of 18, the court usually retains jurisdiction over the child support, custody and visitation aspects of the case after the divorce is final. Either spouse may modify the orders after the date of divorce by bringing a motion before the court showing a change in circumstances.
Q. How does the court decide what is in the best interests of the children when making custody decisions?
The primary considerations are the health, safety and welfare of the child. To determine which parent is most fit to ensure this, the court will hear evidence presented by the parties and may refer the case for a custody evaluation. If referred, a psychologist, family therapist or child development specialist will interview all persons and professionals involved in the child’s life and report his/her findings to the court. The evaluator may meet with parties together and/or separately to be able to evaluate their interaction and will assess the relationship of each parent to the child. The evaluator may order psychological assessment if it is believed necessary. The court will typically give great weight to the evaluator’s findings. The court may order the evaluator’s fees split by the parties or apportion the fees according to each party’s ability to pay.
Q. My spouse filed for divorce. I was granted sole legal and physical custody of our child. I am interested in taking our child and moving out of the area. Can I do this?
In the past, the parent with physical custody of the child had the presumptive right to change the child’s residence unless the court ordered that the child’s domicile be restricted to a specific geographic area (e.g. such as Dallas County or contiguous counties).
However, more recently if the noncustodial parent can prove that the move would cause significant detriment to the child, the court must grant a full trial to decide whether custody should be given to the parent who remains. The court considers:
- The child’s interest in stability and continuity in the custodial arrangement
- The distance of the move
- The age of the child and the child’s relationship with both parents
- The relationship between the parents including their ability to communicate and cooperate effectively and their willingness to put the interests of the child above their individual interests
- The wishes of the child if they are of an appropriate age
- The reasons for the proposed move, and the extent to which the parents currently are sharing custody
Q. What is “standard” possession of children?
Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) “Standard Possession Order”. The possession is spelled out in great detail in the statute (Texas Family Code Section 153.312) and should also be spelled out in detail in the Final Decree of Divorce.
A brief version of a typical possession order where both spouses reside within 100 miles gives the noncustodial parent:
- the 1st, 3rd, and 5th Friday of every month from Friday (beginning at either school dismissal or 6:00 p.m.) until the following Sunday at 6:00 p.m.
- every Thursday beginning at either school dismissal or 6:00 p.m. and ending either at 8:00 p.m. that night or when school resumes the following morning)
- 30 days in the summer
- additional possession periods for Spring Break, Thanksgiving and Christmas, based on odd or even numbered years.
While the Standard Possession Order is the most common visitation schedule, it may be inappropriate depending on the particular case.
Q. What are temporary orders?
Temporary orders are orders issued by a court, after either a hearing or an agreement by the parties, which are designed to last until the divorce is final. Temporary orders commonly address issues such as child support, custody and visitation of the children, exclusive use of the marital residence, exclusive use of vehicles, alimony, and interim attorneys fees.
Q. Where can I file for divorce?
You can file for divorce in a county in which either you or your spouse has lived for at least 90 days, as long as that same person has lived in Texas for at least six months.
Q. Do I have to show fault to get a divorce?
Texas is a no-fault divorce state, which means that it is unnecessary to show that either party was at fault in order to obtain a divorce. It is only necessary to show that there is marital discord and there is no reasonable expectation of reconciliation.
