After a final order is entered in a divorce or child custody case, there may be reasons down the road that one party or the other wishes to modify the order.  The Texas Family Code provides four grounds for modifying a child custody order:

  1. The parties have agreed to the terms of the modification and the court finds it is in the best interests of the child;
  2. A child 12 years old or older expresses to the court in chambers who the child would prefer to be the primary parent and the court finds it is in the best interests of the child;
  3. The primary parent has voluntarily relinquished primary care and possession of the child to another person for at least six months and the court finds it is in the best interests of the child; or
  4. The circumstances of the child, a parent, or another party affected by the order have materially and substantially changed since the earlier of the order was rendered or the settlement agreement on which the order was based was signed, and the court finds it is in the child’s best interests.

As you can see, all of the grounds require a finding by the court that the modification is in the best interests of the child.   There are a variety of factors courts consider in determining best interests.  In my experience, when the modification is based on the agreement of the parties, the court typically approves the agreement based on the parties’ representations that it is in the child’s best interest.  The court has to dig deeper into this inquiry when the parents are do not agree about a modification.

The standard for modifying a custody order is higher if a conservator wishes to flip who has primary custody (change the conservator who has the exclusive right to designate the primary residence) within one year of the prior order.  In that case, the party requesting the change must file an affidavit showing that the child’s present environment may endanger the child’s physical health or emotional development.  If the court does not believe the affidavit meets the burden, the court can dismiss the modification without ever holding a hearing.  This rule exists to try and keep parties from constantly going back to court.

In order to determine whether or not your specific circumstances would warrant a change to your child custody order, speak with an experienced family law attorney.

CPS

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In Texas, the grounds to have a marriage annulled are extremely narrow.  Specifically, a court can grant an annulment only if one of the following applies:

  1. One of the spouses was under the age of 18  and did not have the appropriate consent or a court order;
  2. One spouse was under the influence of drugs or alcohol at the time of the marriage, lacked the capacity to consent as a result, and the parties never lived together after the effects wore off;
  3. A party was permanently impotent at the time of marriage, the other spouse did not know, and the parties did not voluntarily live together after the other spouse learned of the impotency;
  4. The respondent used fraud, duress or force to induce the petitioner into marriage, and the petitioner has not voluntarily lived with the respondent since learning of the fraud or being released from the duress or force;
  5. One of the spouses is mentally incompetent, lacked the ability to consent to the marriage, and the parties have not lived together since the discovery of the mental disease or defect;
  6. The respondent divorced a third party within 30 days before the date of marrying petitioner, at the time of marriage the petitioner did not know of the divorce, and since discovery the divorce, the parties have not lived together; or
  7. If the parties were married less than 72 hours after issuance of the license, the marriage can be annulled only if filed within 30 days after the marriage.

If none of the above grounds apply, the parties cannot annul the marriage.  Although there are a few other situations where a marriage can be voided (incest, bigamy, a party is a minor, or one party is a current or former step-child of the other), most people looking to dissolve a marriage who cannot get it annulled will need a divorce.

Divorce

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Under the Texas Family Code, a party can modify child support in three situations:  (1) the parties have agreed to modify child support; (2) when the parties meet the three-year modification rule; and (3) when there has been a material and substantial change to justify a modification.   Parties can accomplish child support modifications either through a private attorney (generally much quicker but attorney’s fees are involved) or through the Attorney General (free but the process can take 6-9 months to even get started once a request is made.)

If the parties agree to modify child support and the court finds the modification to be in the best interests of the child, it is quick and easy to get child support modified with an attorney.

The three-year modification rule provides that the court can modify a child support order without a material and substantial change if it has been three years since the prior child support order and the new amount would differ from the prior amount by either 20% or $100 under the current child support guidelines.  Even if the 20% / $100 difference is not met, the Court could still modify child support if it feels it is in the best interest of the child.  If the prior order was based on the agreement of the parties and was not based on the child support guidelines at the time, the Court cannot use the three-year modification rule to modify child support.  In that situation, child support can only be modified by agreement or by proving a material and substantial change.

Finally, the Court can modify the amount of child support if the circumstances of either a parent or the child have materially and substantially changed since the prior order (or since the date of the mediated settlement agreement or collaborative law agreement on which the prior order was based).  The person requesting the modification has the burden of proving a material and substantial change.  If the change was anticipated at the time of the prior order, it does not justify a modification.  The court will look at a variety of factors such as changes in jobs, increases or decreases in pay, changes in financial circumstances, the birth of another child, etc. to determine if a material and substantial change has occurred.   The party requesting the change must show what the conditions were at the time of the order as compared to the conditions at the time modification is sought.

Child Support

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Unfortunately, the state of Texas is not very kind to stay-at-home parents in divorce.  Texas is a community property state, so anything made by the working spouse during the marriage is subject to being divided (usually 50/50).  This is great if the couple has been good about saving during the marriage.  If not, the stay-at-home-parent is really going to be in a bind.

Texas does not have alimony absent an agreement for contractual alimony between the parties.  Spousal maintenance exists, but it is very hard to get.  In order to receive spousal maintenance, a stay-at-home parent would have to prove that s/he lacks sufficient property to meet his/her minimum reasonable needs and s/he meets one of four statutory bases for spousal maintenance: (1) the spouses have been married for at least ten years and s/he is incapable of earning a sufficient income to meet his/her minimum reasonable needs; (2) his/her spouse was convicted of or received deferred adjudication for a criminal offense that constituted family violence against him/her or his/her child; (3) s/he is disabled and lacks the ability to earn sufficient income; or (4) s/he must care for a disabled child, which prevents him/her from earning a sufficient income.

As you can see, the criteria above are very specific and most stay-at-home parents do not meet any of them.  Did you give up your career so your husband could take a new job?  Not a reason for spousal maintenance.  Did you give up your career because your wife made enough money to support the family and you decided together that you would stay home?  Also not a reason.  Did you giving up your career years ago to raise the children mean you can never get back into that position again?  Not a reason.

A stay-at-home parent can expect to receive child support, assuming s/he is going to be the primary parent after the divorce.  However, child support is rarely enough to support the family.  The stay-at-home parent will almost certainly need to start working in order to have sufficient income to support him/herself and his/her children.

Divorce

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Child support is a critical element of a child custody case in Texas.  In the majority of cases, one party or the other does end up paying child support.  Here are several important factors to consider in determining whether or not you would have to pay child support (or if you would receive it) and, if so, how much that would likely be:

  1. What is the possession schedule?  If Parent A has primary custody and Parent B has a standard possession order or expanded standard possession order, then Parent B will almost universally pay guideline child support.  However, if Parent A and Parent B have a 50/50 schedule, then the issue of child support is not as clear cut.  If they have some other unique possession schedule, we would look at the percentage of time the child has with each parent and go from there.
  2. If there is a 50/50 possession schedule, what are the incomes of the parties?  There is nothing in the Texas Family Code about 50/50 possession or about what to do with child support when the parties have a 50/50 schedule.  However, I see 50/50 possession schedules on a very regular basis.  If Parent A earns a very high income (well over the child support cap of $8,550 per month in net resources) and Parent B earns a very low income or no income, Parent A will likely still pay guideline child support, even with a 50/50 schedule.  If Parent A’s income is not super high but Parent A makes more than Parent B, then we will usually see a child support offset.  That means we would calculate what Parent A would pay under the guidelines, calculate what parent B would pay under the guidelines, and the parent who makes more (Parent A) would pay the difference.   Sometimes with 50/50 schedules, parties will reach agreements on splitting expenses (daycare, extracurricular activities, etc.) instead of having one party pay child support.
  3. What are the child support guidelines?  The Texas Family Code provides guidelines for calculating child support.  To calculate child support, you simply multiple the paying parent’s net monthly resources (up to the cap of $8,550) times the percentage applicable.   The guideline calculations are easy if the paying parent has no other children to support.  Those guidelines are as follows:  1 child (20%), 2 children (25%), 3 children (30%), 4 children (35%), and 5+ children (40%).  If the paying parent has other children to support, there is a chart that shows the various percentages based on the numbers of children.  For example, a parent with one child in the current case and one other child to support would pay 17.5% under the guidelines instead of 20%.
  4. Can we agree to no child support?  That depends on a few factors, such as the possession schedule, the income of the parties, and whether there are extenuating circumstances that would weigh in favor of no child support.  I have seen many parties agree to no child support, but I have also seen a few judges balk at it.

The best way to determine whether or not you would need to pay child support (or whether or not you would receive child support) in any particular case is to speak with a knowledgeable family law attorney.

Child Support

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This is one of the most frequently asked questions I hear during divorce consultations.  The answer is much more complicated than a simple yes or no.  There are several questions that need to be answered first:

  1. Is the house community property or separate property?  If the house was purchased by either one of you before the date of the marriage, or if either one of you entered into the contract to purchase the house before marriage, then it is separate property.  If your spouse is the one who purchased it before marriage, you are almost certainly not going to be able to keep the house, no matter how long you have lived in it.  If you purchased the house during the marriage, then it is community property.  If the house is your separate property, you can almost certainly keep it (provided you can buy out any reimbursement claims your spouse may have).  If the house is community property, you may be able to keep it, depending on your answers to the following questions.
  2. How much equity is in the house?  It is very important to know how much equity is in the house.  This is determined by how much the house is worth minus how much is owed on the mortgage.  If you purchased the house a year ago with very little down, then there is probably very little equity in the home.  If you purchased it 20 years ago, the equity is probably significant.
  3. Can you afford to buy out your spouse’s share of the equity?  Most of the time, the community estate is going to be divided 50/50, so your spouse is probably entitled to 50% of the house.  That money does not necessarily have to come from the house, though.  For example, if the equity in the house is $100,000, you need to have $50,000 somewhere to put on your spouse’s side of the ledger.  Perhaps there is an investment account that has $50,000 in it that can be awarded to the spouse.  If there is not another $50,000 out there, can you cash out enough money on the refinance to buy out your spouse’s share?  If you cannot afford to buy our your spouse’s share of the equity one way or another, the odds are very slim you will be able to keep the house.
  4. Can you refinance the mortgage into your own name?  In order to keep the house, if the mortgage is not solely in your name, you would have to be able to refinance it into your own name within a certain period of time.  I normally see anywhere from 90 days to 6 months after the date of divorce, although in certain rare situations I have seen parties agree to a longer period of time.  If your income is not sufficient to qualify for the refinance on your own, you will not be able to keep the house.  If you have been a stay-at-home parent, even if you recently started a job, you will most likely not have a long enough work history to qualify to refinance within the necessary amount of time.
  5. Can you afford to pay the mortgage on your own?  I always recommend against including expected child support in the budget when trying to determine if you can afford the house.  Too many people fail to pay child support in a timely fashion, and the child support could be modified down the road for a variety of reasons.

In the majority of cases, I see divorcing couples selling the house.   Sometimes, parties sell the house because everyone wants a fresh start.  Sometimes parties sell the house based on the answers to the questions above.

house pic

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Texas is a community property state, and all property belonging to either spouse is presumed to be community property.  Property that either spouse had before the marriage, along with any property either spouse received as a gift or through inheritance, is the separate property of that spouse.  The burden is on the spouse claiming separate property to prove it.  Although there are a number of ways of proving separate property, below are a few issues that commonly arise.

The longer a couple has been married, the harder it can be to prove what one spouse had before the marriage.  Most people do not keep financial records when they get married thinking, “I’d better keep this statement so I can show how much was in my 401(k) at the time of marriage just in case we divorce in 20 years.”  Often people switch jobs and 401(k)s get rolled over, sometimes multiple times, which can make tracing back to the beginning of the marriage a challenge.  The spouse trying to prove separate property will need to show how much was in the account at the time of marriage and that it never went below that amount during the marriage.

Certain types of property are easier to trace than others.  For example, if one spouse owned a home before the marriage, it is easy to look at the property records and show that he or she purchased the house before marriage.  Be warned, though, that if you ever add your spouse to the deed, it will likely be presumed that you gifted your spouse half of the house.  This seems to happen regularly when a couple wants to refinance a separate property house.

When one spouse receives a gift or inheritance during the marriage, that spouse will also need to trace the money in order to confirm it as separate property.  If separate property is co-mingled with community property, this can become more difficult to do.

Example A:  In 2004, Husband receives a $10,000 inheritance.  Husband puts it into a bank account in his name alone and never puts other money in that account.  In 2014, money from the account is used as a down payment on a house for the couple.  In 2017, the couple divorces.  Husband should easily be able to trace the down payment back to his separate property account with a cancelled check or confirmation of a wire transfer, plus proof of where the funds in that account originally came from.  His chances of receiving his money back from the down payment are high.

Example B:  In 2004, Husband receives a $10,000 inheritance and puts it into a joint bank account. Over the years, the parties deposit their paychecks into the account and pay their bills and various other expenses out of the account.  In 2014, money from the account is used as a down payment on a house.  In 2017, the couple divorces.  Husband will have a much more difficult time proving that the down payment came from his separate property inheritance.  He would need to hire a forensic accountant to trace the funds in the account, which could cost just as much as the separate property at issue.

Establishing separate property can be a difficult task if the parties do not keep good records or if they co-mingle funds.

The Draper Law Firm, P.C.

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In most courts in Collin, Denton and Dallas counties, mediation is required before you can have a final trial in a family law matter.  In some of the courts it isn’t required but is “strongly encouraged.”  In my opinion, almost every case is appropriate for mediation before you have a final trial.

Mediation is a confidential process that takes place outside of the courthouse.  The parties hire a neutral, third party mediator to help try and get the case settled.    Although some mediations occasionally involve an opening session with all parties, I have not seen that happen in a family law mediation in many years.  Each party sits in a separate room with his or her own attorney.  The mediator goes back and forth between the rooms to help the parties reach a settlement.  The parties usually won’t even see each other, unless they happen to cross paths walking to the restroom or the parking lot.

Mediation can be a very slow process.  Most divorces involving child custody issues will take a full, eight hour day.  Sometimes they can last well beyond eight hours if there are a lot of issues in dispute.  Cases involving only property issues can take less time unless there are significant property issues to address.  Although many mediators offer half day (four hour) mediations, it is extremely rare for a family law case to settle in that short of a time.

Although mediation can get expensive when you add up the mediator’s fees and attorney’s fees on both sides, it is usually a lot less expensive than going to trial.  Further, it is a great way to help get cases settled in creative ways.   Judges are limited in what they can order in a trial, but the parties can agree to all kinds of arrangements at mediation.

The vast majority of my clients are convinced that their cases  have no hope of settling at mediation, but the vast majority of those cases do actually settle at mediation.  Parties tend to think that if they cannot settle the dispute on their own, why would it settle at mediation?  But the reality is that mediators have jobs for a reason.  Their help can be critical to getting cases settled.

gavel

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When a couple divorces, one of the key issues is determining how property and debt should be divided. Often, one spouse or the other has handled the finances in the family and the other spouse has little or no idea what assets and debts actually exist.  In the vast majority of divorce cases, we will have the parties exchange what is known as a sworn inventory and appraisement.  Sometimes you will hear this referred to as an “inventory” or an “I&A.”

An I&A is a super long form that lists out all the assets and all the debts for the community estate and each party’s separate estate.  The list includes everything from real estate to retirement plans to jewelry to airline miles and everything in between.  It also includes all types of debts, such as mortgages, car loans, student loans, and credit card debt.  For most people, many sections on the list will not apply.

An I&A is more than just a list.  It details how much the asset (or debt) is worth on a given date, how much it was worth at the time of marriage (if it existed then), identifying information for an account, the nature of the account, etc.  Often we will have the parties included supporting documents to backup the information on the inventory.  This could include the most recent statement, a current snapshot of an account, an appraisal, etc.

Each party will swear that the I&A is accurate to the best of his or her knowledge before a notary, and then the attorneys will exchange them.  Because the inventories are usually very long,  I then take the information from both inventories and put it into an excel chart.  This allows everyone to easily compare the inventories and easily move assets or debts into different columns for dividing the estate.

Child Support

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In Texas, grandparents have rights only in very limited circumstances.  The general rule is that the parents have a fundamental right to decide how much, if any, access a grandparent should have.  There are two different issues when dealing with grandparent cases:  (1) When does a grandparent have the ability to sue for custody? and (2)  When does a grandparent have the ability to sue for visitation?

Under the Texas Family Code, a grandparent has standing to sue for custody in a variety of ways.  First, the grandparent can sue for custody if any of the general standing requirements are met under Section 102.003(a) of the Texas Family Code.  These general standing requirements apply to all adults, not just grandparents, so in these situations the person’s status as a grandparent is not relevant.  Those grounds include: (1) a person with court-ordered visitation in another state or country; (2) the child’s guardian; (3) a person who has had actual care, control and possession of the child for at least six months; (4) a person designated as a managing conservator in an affidavit of relinquishment or given consent to adopt; or (5) a person who resided with the child and a recently deceased parent.  A grandparent also can gain standing under section 102.004(a) of the Texas Family Code if she has satisfactory proof that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  The significant impairment must exist at the time suit is filed.

The standing rules are different when it comes to a grandparent just wanting visitation of a child.  In order for a grandparent to file suit for possession and access, the grandparent must prove that her son or daughter who is the child’s parent is unavailable.  This prong is met if the parent: (1) has been incarcerated for at least three months before the petition was filed; (2) has been judicially declared incompetent (3) is dead; or (4) does not have actual or court-ordered possession of or access to the child.  Essentially, it is presumed that if the grandparent’s child is in the picture, that person has the right to determine if the grandparent has access or not.  It is only when the child of the grandparent is out of the picture that the grandparent now has a right to file suit for possession and access.

If the grandparent can sue for possession and access under these terms and the child is with a parent, the grandparent must then show that the child’s physical health or emotional well-being would be significantly impaired if the grandparent is not given possession and access.  If a non-parent has custody, many courts have held that significant impairment need not be shown.  The grandparent must also prove that the parent or non-parent managing conservator intends to completely deny possession and access to the grandparent.

Grandparents' Rights pic

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