What is the process for obtaining a divorce?

The legal process may seem complicated and confusing, however it usually follows a rational and reasoned course. Most issues can be resolved by using an attorney who can be objective while sorting through issues regarding how property is divided, how debts are divided, how legal and physical custody of children will be arranged and setting a visitation schedule. Other issues that may arise when children are involved are child support, and medical and childcare expenses. In longer-term marriages, the issue of spousal support may need to be addressed, and the terms of any prenuptial agreement will be analyzed.

The first step is that one spouse or both spouses make a decision to initiate a termination of their marriage. While generally not considered part of the legal process per se, how this decision is made may have significant legal consequences. Persons making this decision should consult first with a trusted attorney, a marriage counselor, a financial consultant, and/or any other trusted persons before taking this step.

Once the decision has been made to move forward with a divorce a petition for divorce is drafted and filed. The other party is served with the petition or waives service. At times, the parties can work out an agreement regarding all issues which is drafted into a divorce decree. When the parties do not reach an early agreement, there are numerous other steps that may be necessary including:

• Temporary Orders

• Inventories and Appraisements

• Written discovery

• Depositions

• Consulting with experts both consulting and testifying

Can a divorce decree be changed?

Whether a divorce decree can be changed depends on many factors. To determine whether it is possible to change something in your divorce decree, you need to consult with an experienced attorney. In general, any modification having to do with the property division cannot be changed unless it was based upon significantly incorrect information that was provided by or intentionally withheld by the other party. If you are seeking modification of the provisions regarding child support, child custody or visitation, a court will make modifications when there has been a significant change in circumstances since the entry of the decree that warrants a change.

How is child support calculated?

Because of child support guidelines, a determination of child support generally requires only entering the paying party’s income into a formula to arrive at a solution.  Because of this formula, parties sometimes find themselves in a custody or visitation dispute that may in fact be a child support dispute.

 Texas calculates child support based solely on the payer’s (called obligor) income.  Rarely, courts will deviate from guidelines.  The formula for calculating child support under Texas law is relatively straightforward:

Divide the payer’s annual income from all sources by 12.

 Subtract the required withholding and social security taxes for one person claiming one dependent, the cost of children’s health insurance (not the parent’s), and any union dues owed by the payer. The Attorney General of Texas provides charts showing the amount of withholding and social security taxes to deduct.

 After the deductions are subtracted, apply to the net monthly resources the following percentages based on the number of children for whom support is being paid:

 1 child (20%)

2 children (25%)

3 children (30%)

4 children (35%)

5 children (40%)

These percentages change if the obligor/payer is paying child support to another parent for other children.

How is a payor’s income determined for child support?

While we occasionally hear arguments about the children’s needs or the other parent’s financial irresponsibility, more disagreements regarding child support involve the calculation of the payer’s income.  To determine future income, we look to prior earning history.

 At times, the payor will argue that income is about to drop due to the loss of a big customer, overtime is no longer available, bonuses are about to be cut, or a recent change in career. However, earning history will be the biggest determining factor. If the payer, or obligor, has had the same employment position for a few years and has always earned a bonus, overtime, or commission, without clear evidence, a judge is likely to assume that the income will continue or could continue.  If the payer is intentionally unemployed or under-employed, a judge can base child support on what the payer is capable of earning.

What is the maximum amount of child support or is there a child support cap?

Beginning September 1, 2019, child support is calculated on the first $9,200 per month of the payer’s income. The caps per child are:

 1 child: $1,840;

2 children: $2,300;

3 children: $2,760;

4 children: $3,220; &

5 children: $3,680.

Can child support deviate from child support guidelines?

There are circumstances in which a judge may deviate from the child support guidelines. The most common are where the payer’s income substantially exceeds the guideline cap and the proven needs of the children justify more than the guideline amount.

Except by agreement, Texas courts rarely order less than the guideline amount. One instance that comes to mind is where the primary custodial parent wants to move the children away from the immediate area and a judge grants permission but reduces the payer’s child support obligation to account for transportation costs.

Deviating from the guidelines is case-specific and must be discussed in detail with a lawyer who knows and understands Texas child support law and has experience arguing the issues in court.

How is alimony or spousal maintenance determined?

Spousal support can be ordered during the divorce process, on a temporary basis, or long-term. The length of the spousal support obligation is typically related to the amount of time it will take for the lower-earning spouse to develop the skills necessary to support him or herself after the divorce.

The court will consider multiple factors in determining spousal maintenance, such as:

• Length of the marriage

• The extent to which the supported spouse contributed to the attainment of an education or professional license by the other spouse

• The presence of young children in the home

• Employment opportunities available to the spouse requesting support

• Assets available to the spouse seeking maintenance after the division of property

Even though spousal support may be a highly contentious issue in divorce, many couples are able to make fair and reasonable support agreements when they are in the interest of the parties and children.

What do these divorce terms mean?

Alimony, maintenance, and spousal support are legal terms for payments, usually made monthly, from one spouse to the other, often for a certain number of years. Payments may be ordered on a temporary basis during the pendency of the divorce. They also may be permanent obligations.

Child support is a phrase that generally refers to the amount of money one parent pays to the other to help support their common-children when the parents are not living together. The current state of the law takes most of the contention out of the child support issues. Child support guidelines make it primarily formulaic to determine whom is ordered to pay support, and in what amount.

Physical or legal custody and visitation are terms used when determining the amount of time children spend with each parent and how decision-making authority for major issues is assigned. For instance, a parent may have joint legal custody, the right to share in making decisions, such as in what religion the children will be raised, or what schools they will attend, whether or not they may get their driver license, join the military, or get married, but may have the children physically with them as little as every other weekend.

Divorce and dissolution of marriage are terms for the process by which the marriage of two people is terminated. It may also establish their right to remarry, distribute their property between them, determine whether either party will pay spousal support, and, if they have children, with whom the children shall live and whether one party will pay child support.

Prenuptial agreement is a legal term for a contract entered into by parties still contemplating marriage setting forth their intentions how their individual property will be divided should they ultimately separate. If not patently unfair to one party, most prenuptial agreements will be enforced in court so long as the court is convinced the parties entered into the agreement with full disclosure and no coercion, and if the agreement does not work a hardship on either of the parties.

Community property is a legal term that describes the law in Texas setting forth the prescribed ownership and division of that property that was acquired by the parties, either individually or as a couple, and includes the income of the parties.

Equitable division is a term that describes a process for the division of property of the parties. Taking into account all of the circumstances of the parties division or property is completed according to the equities of those circumstances.

Collaborative law is a process in which divorcing couples and their attorneys make a commitment to alternative dispute resolution instead of the normal process. If either party consequently decides to go to court all attorneys must withdraw, all disclosures and materials exchanged cannot be used, and the parties must find new legal counsel. Under most collaborative law agreements, an attorney hired by one spouse is obligated to disclose discussions and information with the other spouses’ attorney.