Have a question?
In a divorce or new custody case
The ideal time to talk with a lawyer is BEFORE the situation is dire or BEFORE you have taken any action towards separating or filing a lawsuit. Knowledge is power. Knowledge helps you to make good, educated decisions. The opposite is fear. The worst thing you can do to yourself and your family is nothing because you are afraid of what MIGHT happen, particularly when that fear may be completely unfounded.
In a modification case
The courts prefer to minimize conflict and change for children. As such, once orders are in place, it can be difficult to change them. If the Court decides to change the orders, then it must find that the change is in the Best Interest of the Child AND
- the circumstances of the child or parent have materially and substantially changed since the original child custody order, or
- the child is at least 12 years old and has told the court that she or he wants a change, or
- the primary parent has voluntarily let someone else raise the child.
If you want to modify a child support order, generally the courts require you to wait 3 years before coming back to court. However, if the parent’s income has changed significantly, then that may be reason to change it sooner. Specifically, if the projected child support is 20% or $100/month higher or lower than the current child support obligation, then you may be eligible to change the amount of child support sooner.
Texas law requires parties to wait a minimum of 60 days from the time that the petition is first filed before the divorce can be finalized.
It is important to consider the idea that Divorce is a PROCESS, not an event. There is a grieving process that the parties go through, and rarely do the parties go through each stage at the same time.
Usually when a couple files for divorce, at least one of the parties is angry. This anger by one or both parties can cause great difficulty and delays in the ability to work out their differences. As a result, the parties may have to have a hearing or two.
Furthermore, after temporary orders are either agreed to or ordered by a court, it takes some time to see if that particular arrangement is going to work out well for the parties and the parents.
It often takes six months or longer to work through and finalize a divorce, particularly if there are children involved. If the divorce takes a year or longer, then that is an indication that there are some serious issues that are being fought over.
In Texas, there is no such thing as “legal separation.” In other states, there is an actual legal status of being “separated”, but not in Texas.
Here, you are married until the day the judge verbally declares you divorced, which is usually also the day the judge signs the Final Decree of Divorce.
In Texas, you don’t need a marriage license or even a declaration of marriage.
You need all 3 of these to be considered married in Texas:
- You live together as husband and wife (even for one day).
- You agree to be married.
- You tell others that you are married. Do you call each other husband and wife? That’s enough. If you file tax returns as a married couple, that is another way to tell others that you are married.
That’s all you need to be legally married in Texas.
What most people refer to as custody is called “Conservatorship” in Texas.
Basically, it’s what rights and duties each parent has towards a child. Some of the more frequently disputed ones include: who makes educational decisions, where the kid lives, and who pays child support.
Conservatorship also refers to which parent gets to see the children: when, where, and under what circumstances.
“Joint Managing Conservatorship” is what the courts assume is in the best interests of the child, and this is what most separate parents have. Usually in these situations, one parent is given the exclusive right to receive child support and the exclusive right to designate the primary residence of the child within a specific geographic area. And for all other decisions about the children, both parents must agree on the decisions, including but not limited to:
- non-emergency invasive medical procedures,
- psychiatric and psychological treatment,
- whether the child can join the military or marry before becoming an adult,
- and a few other issues.
“Sole Managing Conservatorship” generally means that one parent is given the exclusive right to make all decisions about the child.
Texas has child support guidelines that are generally followed when parents split up. The parent who is not the primary caretaker of the child is usually required to pay child support according to these guidelines.
The Courts take the parent’s gross monthly income and deduct federal (and state, if any) income tax, social security and Medicare taxes, health insurance premiums, and union dues to obtain a net income. Then the Courts use a chart with the total number of children this parents has, and the number of children in this particular case, to determine what percentage of the parent’s income to multiply by to obtain the guideline child support amount.
I encourage you to input your information in the child support calculator on our website to find out how much guideline child support is for your situation.
If a person is not working, the Courts will make the assumption that the person has the ability to get a job paying at least minimum wage.
There is also a cap to these guidelines, where if a parent makes over a certain amount per month, the amount of child support the parent pays is capped off at a certain income level. However, depending on the judge, the Courts may choose to ignore the cap and order the parent to pay more than the capped guideline.
She picked up the kids from school and will not give them back.
First, you should track in writing each and every time the parent refuses to follow the agreement. Second, you should keep records of your attempts to resolve the issue with the other parent. Finally, you should speak with your lawyer about when it would be appropriate to file an action in court to force the other parent to follow the orders.
She is insisting that she have the kids during a vacation that I planned months ago.
If there is a vacation that you have planned, then check your orders to be sure that you followed the necessary notice and time-frame provisions. Then you should speak with your lawyer about whether it would be appropriate to file an action in court to force the other parent to follow the orders.
The quickest way to rack up expenses is to fight with your spouse or ex. However, we understand that you do not always have much control over this.
Ways that you can control costs include:
- by being responsive to your attorney
- by being completely honest with your attorney,
- by listening to and following your attorney’s advice,
- by letting your attorney be the go-between if communication with your spouse or ex is poor
- by working out your differences directly with your spouse or ex if communication is okay
There is also a type of representation called Unbundled or Limited Scope, where the attorney acts more as a guide and advisor. There are many possible variations to this type of representation depending on the facts of your situation, and your needs, resources, and goals. If you have more time than money, and you are willing and able to take on more responsibility and duties, then this may by appropriate for you.
You have hired an experienced family lawyer to help you through this process. Do NOT attempt to communicate directly with your spouse or ex until you have run it by your attorney first.
Though we certainly want to encourage you to begin a new business relationship with your spouse or ex, there is a proper way to do so.
The main reason for discussing this potential communication with your attorney BEFORE your spouse or ex is that you do not want to derail the plans and strategy you are creating with your attorney. You might agree to something that you may not really want. You might say something that inflames the other person and causes unnecessary strife and expense in the process. You might open yourself up for criminal or other civil liability or put yourself at risk of being set up for a trap that the other party has laid for you.
Hopefully none of that will happen, but why risk it? At Margaglione Law, we help you take emotion out of the equation and get down to the real issues.
Before you move out, you should really stop and consider the situation. It is a VERY good idea for you to talk with an attorney BEFORE you move out, so that you understand all the consequences of such an action.
If you are being physically abused, then certainly you need to get yourself to safety as soon as possible. You should also involve the police, doctors and therapists.
But if you move out and leave your children with the other person in the house, then you need to understand that you are setting the “status quo,” or what the courts will presume is in the best interest of the children. The other person will likely be granted the exclusive right to designate the primary residence of the children, and you will likely be required to pay child support. You are also setting up a visitation schedule that will likely be continued.
If you do move out of the house, then you should make sure that you take all of the items that you really care about, including important documents (or least copies of them), family pictures (or copies), your jewelry and other personal items that only you use, any furniture or personal items that are your separate property. As for the items that are truly shared, you should discuss who is taking what and agree to this division, rather than just take half of the items in the house. If you are unable to agree to a division at this time, then it is important to make that clear to your attorney and the other party.
There are some things that you cannot prevent; however, there are some precautions that you can take to be sure that you are not put in a bad situation. For example, you can make sure that you exchange the children in a public place so that you have potential witnesses for any false claims of violence or abuse. Furthermore, if the spouse or ex contacts your coworkers or your boss, your attorney can contact your spouse/ex to let her know that she may not take such actions, and to explain the consequences of such continued actions.
In general, grandparents do not have any legal rights to see their grandchildren. If the parents (or a parent) of the children are not allowing the grandparents to spend time with their grandchildren, there is not a lot that the grandparents can do from a legal standpoint.
On the other hand, if a grandparent, or any other person, is the primary caretaker for the children, they may have the right to file a suit to obtain legal rights to the children.
The short answer is Yes. The longer answer is that you want to listen to the child’s concerns, but you also need to encourage his/her relationship with the other parent. You have a court order that states that what each parent’s times with the children are. If you do not follow that court order, then you run the risk of having the other parent file a suit against you to make you deliver the child. If you believe that the order needs to be changed for the child’s safety or other reasons, then you need to talk with an attorney to determine whether you need to modify the current visitation order.
After your child turns 12, if a party requests it, the judge is required to talk to your child. However, the child never makes the determination of whom he or she will live with. It is always the judge’s decision! Another important factor to keep in mind is that the courts generally prefer that you leave the children out of your fight, and so asking the court to speak with your child should generally not be your first move.
In Texas, the Courts highly encourage, and may even require, that the parties to go to mediation before they can have a trial or a hearing.
At Margaglione Law, we work hard to help our clients come to an agreement without having a public fight in court. We have found that our clients and their families tend to be happier when they have input on what the orders are regarding their lives. However, sometimes a hearing or trial is not only unavoidable, it is necessary to help our clients achieve their goals and needs, particularly when one party is being unreasonable.
If you know that your child is in danger or is being abused, then you have a legal obligation to report it to Child Protective Services and/or the police.
If you are able to get your children without incident (or with police assistance), then you should do so as soon as possible. You will likely then need to get into court quickly to change any orders regarding the child.
However, if you do not have personal knowledge of this danger, then your situation is a bit more precarious. If you suspect, but do not have personal knowledge of what is going on, then you need to talk to an attorney to discuss your options.