Justia Lawyer Rating for Jose Noriega
AVVO Top Contributor - Criminal Defense
Superlawyer Badges
AV Preeminent Badge
BBB

Texas child custody laws are continually evolving, and courts must conduct a thorough analysis before making any determinations. The state recently replaced a significant amount of the language in their statutes to lessen the entire process’s negativity. For instance, custody is now referred to as “conservatorship,” that and “managing conservatorship” and “possessory conservatorship” replace “legal” and “physical” custody. Possession and access to the children refer to when the parents have physical custody or visit their children. Generally, Texas maintains two custody schedules, standard and extended standards, which dictate how and when each parent sees their children.

The Texas Family Code, Section 153, explains that child custody determinations should be viewed under the lens of “the best interests of the child.” While the Code presumes that joint custody is ideal, that arrangement does not always comport with the child’s best interests. Courts typically make their decisions per the state’s public policy concerns. The primary factors revolve around assuring that the:

  • The child will have continuing and frequent contact with parents who have established the ability to act in the child’s best interest,

A Texas appeals court recently considered a Texas divorce case in which the trial court had unequally divided the parties’ pensions. In that case, the trial court had granted the divorce and divided the community property. In dividing the community property, the trial court awarded each of the parties 100% of their pensions. The husband appealed, arguing that the trial court abused its discretion in dividing the parties’ retirement accounts by awarding the wife 100% of her FERS pension because her pension was more valuable than the husband’s. The husband argued that as a result, the wife was awarded a disproportionate portion of the community estate. The husband argued the division was unfair because it created an overall division of the estate of 62% to the wife and 38% to the husband.

Division of Community Property Under Texas Law

Under the Texas Family Code, a trial court must divide the estate of a married couple in a way “that the court deems just and right.” However, a trial court does not need to divide a community estate equally. An estate may be divided unequally as long as there is a reasonable basis to do so. A court can consider a number of factors, including the difference in the parties’ incomes and earning capacities, the nature of the property, the parties’ physical condition, the parties’ financial obligations, fault in the dissolution of the marriage, their ages, their business opportunities, the size of their separate estates, and their need for future support.

A Texas appeals court recently decided a Texas family law case involving a court’s jurisdiction to issue a protective order while a divorce proceeding is pending before another court. In that case, the wife filed a petition for divorce from the husband. The following year, while the divorce petition was pending, the wife filed an application for a protective order. The court issued a final protective order in favor of the wife, and the husband appealed the order. The husband argued in part that the protective order was void because the court lacked subject matter jurisdiction over the case. The husband argued that because a divorce proceeding was pending in a different court, the court could not issue a protective order.

Subject-matter jurisdiction refers to a court’s ability to hear and determine a certain type of case. Some courts only have subject-matter jurisdiction over certain types of cases, such as traffic courts and juvenile courts.

In this case, the wife filed the application for a protective order in the 280th District Court, which is designated as the domestic violence district court for Harris County, and which gives preference for domestic violence cases. The wife resided in Harris County, which is why she filed in that county. However, the husband argued that the application for a protective order must be filed in the court in which the divorce proceeding is pending, according to Texas’s Family Code.

In the U.S., states can follow one of two methods of distributing property during a divorce; equitable division or community property. Texas is one of nine jurisdictions that follows the community property doctrine. Under this theory, the law presumes that all of the property a couple acquired during the marriage equally belongs to both spouses. Spouses who wish to assert separate ownership over a piece of property must prove sole ownership.

Under Texas Family Code Ann. § 3.0001, separate property is anything one spouse owned before marriage. Further, separate property includes certain property a spouse acquired during the marriage. For example, separate property may include:

  • An inheritance one spouse received.
  • Property gifted from the husband or wife.
  • Compensation for personal injuries.

However, it is essential to note that courts do not consider personal injury damages related to earning capacity loss as separate property. A party contesting community property presumption over an item must prove ownership by a preponderance of the evidence.

Continue Reading ›

What is intentional underemployment?

Bob has a child with Mary. Bob makes $10,00,000 a year as a professional baseball player. Mary takes Bob to court for child support. Bob is in his baseball prime and could still play if he wanted. But Bob decides to retire from baseball and take up a job as a Tik Tok dancer that pays $10,000 a year. 

Bob believes that Texas child support calculations are based on income. Bob is mad about having to pay child support and wants to reduce the amount he pays to Mary. Bob thinks he would pay much less in child support on $10,000 a year vs $10,000,000. 

Terrell Texas Divorce Lawyers

Terrell, Texas, is located in Kaufman County. If you are considering filing for divorce, it is important to understand the local legal system. Kaufman County has four courts, all of which handle family law cases and hold family law hearings. Kaufman County has only one full-service law firm that is more than just one or two lawyers, and that is Guest and Gray Law Firm. We are the biggest firm in the county. As the county has grown, so have we. We fight and win the toughest cases, but we also know how to help our clients reach amicable solutions when it’s in their best interest. We are ready to help you with a divorce or family law case, and we have the resources to get the best result in your case. 

We understand the community and what it’s like to have a family law case in Kaufman County. When we meet, we will discuss the process and understand the dynamics of your family. We know what it’s like to raise children in Terrell. We have employees with families who live in Terrell. We get it. Terrell is a unique place. Lots of people commute to work and are concerned about their children’s future. Terrell is growing with lots of new opportunities. It’s one of the oldest and largest communities in Kaufman County. Jamie Foxx is from Terrell. We get Terrell.

So you want to get married? Or you think you are married? If you are in Texas, there are two different ways to be married. The first is called a ceremonial marriage. It’s what you think of when you picture a traditional wedding or a couple saying their vows in front of a justice of the peace.

What is a ceremonial marriage in Texas? 

The last thing you want to do is have a wedding and not be married. To make sure that doesn’t happen let’s go over the rules for a ceremonial marriage. In Texas, a valid ceremonial marriage requires four things.

What is a Will?

We are all going to die someday, and that means we all need a will. But what is a will? A will defines what you want to happen after you die. In other words, a will is a legal way to declare your intentions upon death. We call it a will because it’s what you will, or desire to happen. It expresses your will or intent. 

 “A will is generally defined as an instrument by which a person makes a disposition of his property to take effect at his death, and which by its own nature is ambulatory and revocable during his lifetime.” In re Estate of Brown, 507 S.W.2d 801, 803.

Texas Divorce Law is changing in 2021. Starting on 1/1/21 there will be new discovery rules that will apply to all family law cases, including child custody and divorce. What does this mean for people starting the process? It means it’s time to get organized. If you are going to meet with a Texas Family Lawyer in 2021 you must have certain documents and information ready from the start.

What’s changed?

Starting in January 1st, 2021 all parties to a divorce will be required to turn over certain documents within 30 days. So as soon as you are served with a divorce or child custody case you will have 30 days to respond, and as soon as you file a divorce case you will have 30 days to turn documents over to the other party.

Appealing a Court’s Ruling on the Division of Property in a Divorce Case

Upon granting a divorce, a trial court must order the division of the parties’ community property and determine any claims for reimbursement by any of the martial estates in a manner it deems “just and right.” TEX. FAM. CODE ANN §§ 7.001, 7.007; see also Vallone v. Vallone, 644 S.W.2d 455, 459 (Tex. 1982). The party claiming the right of reimbursement bears the burden of pleading and providing the expenditures were made and are reimbursable. Chavez v. Chavez, 269 S.W3d 763, 768 (Tex. App.—Dallas 2008, no pet.). For purposes of the division of the parties’ community estate, community property consists of property, other than separate property, acquired by either spouse during marriage. TEX. FAM. CODE 3.002. Separate property consists of property owned or claimed by either spouse before marriage. 

In the case below, I go over what the law is for the division of property challenges on appeals and why the court affirmed the trial court’s decision. 

Contact Information