Texas Divorce Center
Frequently Asked Questions About Child Custody
Q: Legal vs. physical custody?
A: The Texas Family Code doesn’t use the term child custody in describing a parent with whom a child primarily resides. Parents are labeled conservators and usually will be appointed Joint Managing Conservators of the children. One of those parents will be named the parent with the “right to designate the primary residence of the child”, which is usually interpreted to mean that parent has primary custody. Legal rights and duties are then determined as to each parent to deal with the decision making responsibilities associated with a child’s healthcare, education, and general welfare.
Q: How do courts decide with whom the children should live?
A: If parents cannot agree on which parent will designate the primary residence of a child, the court will make this determination based on the best interests of the child. Many factors are considered by the Court in making this determination, such as the mental health and physical abilities of the parents, whether there is a history of family violence or domestic abuse, the child’s age, which parent has been the primary caretaker of the child, and depending on the age of the child, the child’s wishes.
Contemplating divorce is always difficult. Including an experienced Texas family law attorney as soon as possible in the divorce process is one of the best ways to preserve your own long-term financial and emotional health.
Grounds for Divorce
A divorce is a method of terminating a marriage contract between two individuals. In Texas, divorce can either be “no fault” or fault-based. No fault divorce is a marital termination proceeding where the divorce is granted without either party being required to show fault (show that the other party caused the breakdown of the marriage). Under no fault rules, either party may obtain a divorce, even if the other spouse does not consent to the divorce. Married people can get a no fault divorce if their marriage has become “insupportable”.
Texas divorces can also be fault-based, requiring one person to give a legal reason in order to get a divorce. In Texas, divorces can be granted on the grounds of (1) adultery (2) abandonment, (3) incurable insanity, (4) imprisonment for a felony conviction, or (5) cruel and inhuman treatment. Typically, a fault-based divorce is pursued if the couple cannot reach a satisfactory settlement about property division, child support, or custody, and one party wants the court to consider the conduct of the other party when deciding the issue. Our firm can help you determine if you should pursue a fault based or no fault based divorce.
Before a divorce may be granted, there are two (five if there are children involved) basic issues that must be resolved. They are:
- Alimony or spousal support
- Property division
- Child support
If a divorcing couple agrees on all five of these issues in writing, they will be granted an uncontested divorce and will avoid adversarial divorce litigation.
If there is disagreement, the divorce is contested. This means it may end up in trial before a judge or jury, or in another form of dispute resolution. It is important to consult with an attorney before deciding which method is right for your situation.
Divorce litigation involves a series of document exchanges and court appearances. In some instances there are questions or situations that need to be resolved temporarily before the final divorce agreement is reached or ordered by the court. Temporary orders on support, custody or other matters generally remain in effect until the final decision is made at the end of the divorce process. The judge’s final decision provides the court’s rulings on all the issues raised by the parties.
Alimony, Spousal Support & Maintenance
Alimony, known in Texas as maintenance, is financial support paid by one spouse to another. In Texas, a court awards maintenance in certain limited circumstances. If the court finds maintenance should be awarded, then the court will determine the appropriate amount based on the factors set forth in the Texas Family Code.
Division of Property
Texas uses the “community property” system to distribute marital assets. Property acquired by either spouse during the marriage is community property to be divided upon divorce. Under Texas law, the division of property does not have to be equal. The courts are only required to divide the community property between the parties “in a manner that the court claims just and right, having due regard for the rights of each party and any children of the marriage.” If either spouse acquired property outside of the state, a court can also divide that property using community property rules if they divorce in Texas. Individual spouses may also own separate property which is not divided in a divorce. Because classification of property and its division can become one of the most contentious issues in a divorce, you need the advice and assistance of a family law attorney familiar with Texas family laws and procedures.
Reaching the decision to end a marriage is difficult. Once you do make the decision, it is in your best interest to approach the divorce process from a rational, businesslike perspective, which is hard given that there are also emotional issues with which you must cope as well. Working with a Texas attorney, such as those at KennonLegal Ltd. LLP, who is experienced in family law will ease your stress and help you get through the process to begin your new life.