Family law is a broad area of law that addresses those legal concerns that affect one’s family. This includes the terms of a divorce, but it can also mean post-decree modifications, child custody concerns outside of marriage, paternity, adoption, and more. When your family is affected, it is a very personal matter, which makes family law exceptionally important. Family law concerns tend to be quite complicated, which makes working closely with an experienced family law attorney from the outset in your best interest.
The Terms of Divorce
Divorce is unique to the family involved, but the terms of the divorce that need to be hammered out do not vary. These same terms – other than the division of marital property – can require modifications with the passing of time, and these modifications are also the purview of family law.
The Division of Marital Property
Once you marry, the property that you begin to acquire as a married couple becomes marital property, and it does not matter who writes the check, signs on the dotted line, or has his or her name on the deed. If the property came to you while you were married, it is marital property. There are, however, two important exceptions that include:
Any inheritances that either of you receives in your name alone
Any gifts that either of you receives in your name alone
Marital property must be divided equitably upon divorce, and this means fairly (taking specific factors into consideration), including:
Any disparity in earning power between you and your divorcing spouse
The physical and mental health of both you and your divorcing spouse
How your parenting time is divided between the two of you
You and your divorcing spouse’s level of education, employability, and earning potential
Whether or not fault played a role in your divorce
While separate property that you bring with you into your marriage and that you keep separate throughout your marriage will remain your separate property, it is important to note that keeping separate property separate through the financial ups and downs of a marriage – and through the intermingling of assets that commonly ensues – can make the separate property bar exceptionally high. Even if you do manage to keep property separate, however, any increase in its value is likely marital, which means it must be divided equitably. The division of marital property has the potential to be one of the most challenging terms of the divorce to resolve, but once it is determined, modifications are not a possibility (only an issue such as fraud has the potential to propel the court to revisit the original division).
Your Child Custody Arrangements
In Texas, your child custody arrangements are addressed in terms of conservatorship (legal custody) and possession (physical custody). This, however, does not alter how the arrangements play out.
Legal Custody of Your Children
Legal custody determines who will be making the primary parenting decisions on behalf of your children post-divorce, and you can share this responsibility entirely, or you can adopt one of the following options:
You and your ex can make the decisions together, but if a problem that cannot be resolved between the two of you arises, one of you has tie-breaking authority.
One of you can make the decisions entirely on your own.
You can divide the decisions between you according to the category of the decision being made, and each you can make the decisions designated to you alone on your own.
The kinds of decisions that legal custody concerns itself with include the following categories:
Your children’s schooling
Your children’s health care
Your children’s extracurricular activities
Your children’s religious education
Those decisions that are more mundane, such as where you will be eating dinner and whether or not your children are allowed an extra hour of screen time remain the purview of the parent who is with the children at the time. In other words, there is no need to check in with your ex for every decision that you make just because you share legal custody equally. If there is a compelling reason to seek a post-divorce modification regarding your legal custody arrangements, the court will likely consider your modification request.
The Physical Custody of Your Children
Physical custody determines the schedule by which you and your children’s other parent divide your parenting time. While there are a limitless number of scheduling options, they all fall into one of two primary categories that include:
You can split the number of overnights you have with your children evenly or nearly evenly between both of you.
One of you can become the primary custodial parent with whom the children spend most of their overnights while the other parent has a visitation schedule.
If you are able to resolve the issue of how you and your ex will divide your parenting time, you have the leeway to get as creative as you would like. If, on the other hand, you need the court’s intervention, you can expect to receive one of its standard parenting schedules.
The court recognizes that the child custody terms you hammered out of were handed down with your divorce may not withstand the test of time. In fact, it is unlikely that a parenting schedule that suits everyone’s needs when your children are babies and toddlers will remain relevant when your children are reaching the teen years, and the law handles these issues with child custody modifications, which are commonly addressed by family law.
Child support is a common concern of both divorces and of children born outside of marriage. Child support is calculated using a state calculation methodology, and while the primary factors include the number of overnights the children spend with each parent and each parent’s income, there are wide-ranging factors that affect the amount of child support paid, including:
Each child’s age and physical and mental health
You and your children’s other parent’s financial standing (including the ability of the payor to pay and the level of need experienced by the payee)
The income and resources available to the payee
The cost of childcare necessary to allow the primary custodial parent to join the workforce (as applicable)
The amount of time each parent has the kids
Your children’s health insurance expenses and who covers them
Your children’s education expenses
Any extraordinary expenses – such as counseling, extracurriculars, tutoring, and more – being covered by the payor or payee
The amount of debt carried by each of you
Any other factors the court deems relevant
Although child support seems fairly cut and dry, the court has considerable discretion in the matter if it determines that altering the state’s standard calculation is both warranted and in the best interest of the children involved. Generally, child support is ordered until the covered child either graduates from high school or turns 18 (whichever comes later), but in specific situations, such as if a child is disabled and requires ongoing care and supervision, child support may not have an end date.
Finally, as children’s needs evolve and parents’ financial situations change, child support modifications are common and represent an important element of family law.
Alimony is called spousal maintenance in Texas, and it plays a role in divorce only when the spouses experience a financial imbalance with the divorce. If one spouse will experience an economic downturn and the other has the funds available to help, alimony may be ordered, but it is generally a temporary fix that is designed to allow the recipient to gain greater financial independence via job training, experience, and/or higher education. The determination of alimony is based on diverse factors that can include all of the following:
The number of years your marriage lasted
You and your ex’s ages
You and your ex’s separate ability to provide for your own reasonable needs moving forward
You and your ex’s level of education, employability, and earning potential, and the amount of time necessary to improve the recipient’s financial independence
Whether or not child support plays a role in the divorce, and if so, the payor’s ability to meet his or her own financial needs
You and your ex’s separate properties
Whether either of you contributed significantly to the other’s education, training, or overall earning status over the course of the marriage
Any contributions either of you made as a homemaker and/or childcare provider for your children
Any marital misconduct on the part of you or your spouse that contributed to the demise of your marriage (a spouse who is proven to be at fault for the divorce in Texas may be found ineligible for alimony – even if he or she would have otherwise qualified)
Any pattern or history of family violence in the marriage
Alimony is by no means a given in any divorce, but when it is deemed applicable, it can play an important role. Further, if either ex-spouse’s financial situation changes, a legal modification may be in order, and if the recipient remarries, alimony ceases (with no court order required).
Paternity establishes a child’s father, and it is particularly important for all the following reasons:
Paternity helps to establish the father’s parental rights.
Paternity helps to ensure that the child will be supported financially by both parents.
Paternity helps to ensure that father and child can forge a strong relationship.
Paternity helps to ensure that the child benefits from inheritance laws, from the father’s work-sponsored health insurance, from the father’s military benefits, and more (as applicable)
In the State of Texas, when a couple has a child while married, paternity is presumed. Otherwise, paternity must be established in one of the following ways:
Paternity is acknowledged by both parents when they sign the necessary legal documents together.
Paternity is established by court order, which is typically achieved with genetic testing.
The matter of establishing paternity in Texas can become very complicated very quickly, and having a family law attorney in your corner is an excellent place to start. Paternity issues feature prominently in family law.
Family law also addresses the important matter of adoption. Adoption laws are complex, and because the matter involves growing or making your family, the stakes are naturally high. To begin, there are specific requirements for adopting a child in the State of Texas, including:
You must be at least 21 years old.
You must complete the state’s application to adopt.
You must be financially stable.
You must fully participate in a home study.
You must share critical lifestyle and background information with the court.
You must provide positive references from family members, loved ones, friends, and neighbors.
You must submit to strenuous background checks, including child abuse checks, for every adult who lives in your household.
When it comes to adoption, there are three primary options that address the basic needs of children and their adoptive families. These include:
Domestic infant Adoption – Domestic infant adoption refers to the adoption of an infant who was born in the United States. Texas couples can opt for open adoptions in which the birth parents are known, closed adoption in which the birth parents are not known, and semi-open adoptions in which the adoptive parents can send the birth parents photos and updates via a liaison.
Foster Care Adoption – Foster care adoptions refer to the adoption of children in the foster system who do not have the option of being returned to their birth parents – generally after the adoptive parents serve as foster parents.
International Adoptions – The international adoption process depends primarily upon the country from which you are adopting, and some countries are far more challenging than others.