Fort Bend County Family Law Attorney

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When we get divorced, do I have to give half of everything I have to my spouse?

Generally, no. Many people have heard stories in the press about celebrities who are forced to give half of their assets to their spouse when they get divorced. In reality, the situation is much more complex.  Our Ford Bend County divorce attorney can help you sort through all of the issues involved.

When you get divorced, you get to keep all of your separate property. Generally, your community property is split equally between you and your spouse.

What are the differences between community property and separate property?

Community property encompases the vast majority of assets collected by a married couple during the course of their marriage. Common examples of community property include the following:

Wages and salaries earned during the marriage by both spouses (including property purchased with those funds)

Most assets purchased during the marriage using community funds or separate funds.

Separate property generally includes most assets brought into the marriage. If you owned a car, house or other property before you were married, those items remain your separate property unless or until you commingle them with community property to give part or all of them to your spouse as a gift. In addition, any property or funds you inherit, even while married, remain separate property so long as you avoid commingling them with community property or funds.

Wait a minute are you saying that just because my spouse purchased a home right before we got married, that I don’t have any claim to the home despite all of those payments I helped to make?

The situation described here is all too common. Today, many married couples bring various assets into the marriage, including vehicles and homes. In most cases, however, those same people have financed those assets and are continuing to make payments on them. Remember that all earnings during the marriage are community property, and therefore owned equally by each spouse. Therefore, payments made toward a vehicle or a house using earnings during the marriage are considered economic contributions from community property to separate property.

Anytime the community property contributes to separate property, a spouse may be entitled to reimbursement of those contributions upon a divorce. The property continues to be characterized as separate property, but the spouse owning that property must reimburse the community estate for the payments made into that property.

The house and cars are in my spouse’s name. Doesn’t that mean it is hers (or his)?

When it comes to determining whether property is characterized as community or separate property, it is mostly irrelevant to look at whose name is on the title. What matters is when those assets were purchased or how your spouse managed to pay for those assets.

Don’t let your spouse bully you by saying, Well, it’s in my name anyway. That doesn’t matter. If it was bought during the marriage, you probably own half of it.

Can my spouse and I agree on how to split up our property?

Absolutely. In fact, you will both be better off if you can decide exactly how to split up the community property before getting divorced. Although child custody is the most highly contested aspect of any divorce involving children, the battle over property comes in a close second in terms of the stress and combativeness of spouses seeking a divorce.

If you can figure out a way to divide your assets without selling them, you will usually come out ahead. This is especially true when it comes to real estate. It often takes several years for a home to accrue enough equity to offset the closing costs and other expenses associated with the sale of the property. Unless you have lived in a house for several years, you might be better letting one spouse take the house in exchange for allowing the other spouse to have other community assets in order to divide the community estate equally.

My spouse was at fault for the divorce. Shouldn’t I be compensated for that?

Texas divorce courts are allowed to consider fault in the breakup of the marriage as one of several factors in dividing the community estate between spouses.  Our Fort Bend County divorce attorney can assist you in determining how strong your case may to obtain a disproportionate share of marital assets under Texas law.

When my spouse and I get divorced, how is child custody determined?

Child custody is one of the most complex and stressful parts of any divorce involving children. There are several reasons for this. First, emotions run their highest in any situation in which a person’s children are involved. Second, child custody aspects of a divorce are frequently difficult to settle and involve complicated language which many people don’t fully understand.

Courts in Texas base their legal rulings involving children on what is in the best interests of the child. This is a very fluid and arguably vague standard, giving courts significant discretion to determine how to deal with child custody matters. The court will consider various factors, such as the childs needs, each parents skills at caring for a child, the proximity of each parent to other family members, each parents past conduct, and in some cases, the child’s preferences.  An experienced child custody attorney can assist you in navigating this difficult system.

What are the differences between possessory conservatorship and managing conservatorship?

The terms, possessory conservatorship and managing conservatorship refer to the rights and duties that parents (and in some cases, non-parents) may have in regard to raising a child under a court order.

A managing conservator possesses the vast majority of rights that parents tend to possess in regard to their children, such as the right to direct religious training, medical treatment, consent to joining the armed forces, and act as the child’s legal representative.

A possessory conservator has fewer rights than a managing conservator, and those rights usually depend on whether the conservator has the child in his or her possession at the time.

Generally, most parents who have divorced tend to be named Joint Managing Conservators. In fact, Texas law creates a rebuttable presumption that biological parents should be named Joint Managing Conservators, unless one of the parents can show that it would not be in the best interests of the child for the other parent to be named a managing conservator.

What is a standard possession order?

The standard possession order is an order developed by the Texas Legislature which is legally presumed to be in the child’s best interests unless proven otherwise. The entire standard possession order can be found in the Texas Family Code § 153.311 et al.

Many people may already be familiar with the standard possession order when they hear people say, I have my son every 1st, 3rd and 5th weekend or when someone may say, My daughter is spending spring break with me this year.

The standard possession order, however, merely contains the provisions that apply when parents cannot agree on possession of the child. Parents can always decide to deviate from the standard possession order at anytime they mutually agree to do so.

I’ve heard that courts immediately presume that the child’s mother should get primary custody of children. Is that true?

This is absolutely false. This concept comes from an old legal doctrine known as the tender years doctrine. This outdated concept assumed that it would be best for children to spend their formative years with their mother. Over the years, however, we have discovered that gender is not a factor that should be considered when determining which parent shall determine the residence of the child.  Our Fort Bend County child custody attorney is very experienced in evaluating and preparing a case to overcome any preconceived notions about gender in child custody cases.

Instead, courts will turn to the best interests of the child and look toward other facts, such as those factors described above.

Will I have to pay child support? If so, how much will I pay?

Once the court has determined which parent will be the primary managing conservator that is, the parent with whom the child will live with most of the time then the court will award child support to assist the primary managing conservator in paying the expenses normally associated with raising a child. Therefore, if you are a possessory conservator or a managing conservator without the right to determine the residence of the child, you will almost certainly be required to pay child support.

The amount of child support paid is determined by a chart mandated by Texas Family Code § 154.125. A certain percentage of your net resources will be calculated. In most cases, these are the percentages:

1 child: 20% of Obligors Net Resources

2 children: 25% of Obligors Net Resources

3 children: 30% of Obligors Net Resources

4 children: 35% of Obligors Net Resources

5 children: 40% of Obligors Net Resources

6+ children: Not less than the amount for 5 children

These percentages only apply to the first $7,500 of your monthly net resources. Any additional net resources available from a child support obligor may be considered by the court, along with the child’s proven needs, in awarding additional support.

What, exactly, are considered to be my net resources?

Net resources include various forms of income, including wages/salary, severance pay, retirement, social security benefits, unemployment, gifts, prizes, etc. This list, of course, is not exclusive. You may find a more comprehensive definition in Section 154.062 of the Texas Family Code.

Some forms of income don’t count as net resources, such as the return of capital or principle from an investment, accounts receivable, and certain welfare benefits.

In addition, certain expenses are subtracted from the calculation of net resources, including federal and state income taxes paid, social security taxes, union dues, and expenses for a child’s health insurance.

I’m very dissatisfied with the current child custody situation. When can I change it?

As a general rule, a conservator seeking to modify an order regarding conservatorship must show one of the following:

  • The circumstances of the child have substantially changed since the signing of the order or the mediated settlement agreement leading to the order;
  • The child is at least 12 years of age and expresses a desire to live with the other parent; or
  • The conservator with the exclusive right to designate the residence of the child has voluntarily relinquished care and custody of the child to another person for at least six (6) months.

How much will my child custody case cost?

This is an extraordinarily difficult question to answer. Because of the emotions involved, child custody lawsuits can be very lengthy, and therefore rather expensive. It can be reasonable to expect to spend a minimum of $2,500, with the possibility of spending $4,000 to $6,000 or more, depending on the situation.

The good news is that by utilizing mediation early in the process, keeping an open mind, and putting aside hard feelings for one another, parents often find that they can significantly reduce the expense associated with challenging or defending a child custody order.