Family Law FAQ

• What is the Standard Possession Order?
• How much child support will I receive or pay?
• Can I obtain access to my grandchildren?
• Can I receive spousal support?
• What are temporary orders?
• How long does it take to get a divorce?
• Who will pay for my child's medical care after the divorce?
• What is community property and separate property?
• Who claims the children on the taxes after the divorce?
• Can my spouse adopt my child?
• Can I stop visitation if I am not receiving child support?
• Can I relocate with my child?
• What is collaborative law?
• If circumstances change, can an existing child support or visitation order be modified?
• What are the residence requirements for divorce?
• What is the process for filing a suit to determine paternity?
• Can I receive retroactive child support?
• What are parenting plans & parenting coordinators?

• What is the Standard Possession Order? (top)

The legislature established a possession schedule to guide courts when parents cannot agree to a schedule. It applies to children 3 years old or older. It sets a minimum schedule for possessory conservators (and for joint managing conservators who do not have primary custody of the children), unless the court finds another schedule to be in the child's best interest. The schedule is set out in §§ 153.311-153.317 of the Texas Family Code. Here is a brief summary:

When the parent who does not have primary possession of a minor child (the possessory conservator) lives 100 miles or less from the child, he or she shall have possession:

• During the first, third, and fifth weekend of each month, beginning Friday at 6 p.m. and ending the following Sunday at 6 p.m.;
• Each Thursday from 6 p.m. to 8 p.m.;
• During the child's spring school vacation in even-numbered years;
• 30 days during the child's summer school vacation (a) exercised in no more than 2 separate periods of at least 7 days if the possessory conservator gives notice by April 1 or (b) from July 1 to July 31 if the possessory conservator does not give notice;
• If the parent who has the right to establish the child's primary residence (the managing conservator) provides notice by April 15, then the managing conservator may select one weekend during the possessory conservator's period of summer break possession to have possession of the child;
• If the managing conservator gives notice by April 15 or 14 days notice after April 16, the managing conservator may select one weekend during the summer break that the possessory conservator would otherwise have possession as an additional period of possession.

When the possessory conservator lives more than 100 miles from the child, he or she shall have possession:

• Either (a) during the first, third, and fifth weekend of each month, beginning Friday at 6 p.m. and ending the following Sunday at 6 p.m. or (b) one weekend per month designated by the possessory conservator on 14 days notice, if the possessory conservator makes this election within 90 days after the parties begin to live more than 100 miles apart;
• Each year during the children's spring school vacation;
• 42 days during the child's summer school vacation (a) exercised in no more than 2 separate periods of at least 7 days each if the possessory conservator gives notice by April 1 or (b) from June 15 to July 27 if the possessory conservator does not give notice;
• If the managing conservator provides notice by April 15, then the managing conservator may select one weekend during the possessory conservator's period of summer break possession to have possession of the child, or two non-consecutive weekends if the period of possession is longer than 30 days;
• If the managing conservator gives notice by April 15, the managing conservator may designate 21 days that may be exercised in 2 periods of at least 7 days during which the managing conservator will have possession of the children. This period supersedes the possessory conservator's weekend possession but cannot interfere with the possessory conservator's summer break possession.

The following supersedes weekend and Thursday provisions:

• The possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day school is dismissed for the Christmas school vacation and ending at noon on December 28 and the managing conservator shall have possession for the same period in odd-numbered years;
• The possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;
• The possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;
• The parent not otherwise entitled to possession of a child on the child's birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day;
• If a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father's Day and ending on Father's Day at 6 p.m; and
• If a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother's Day and ending on Mother's Day at 6 p.m.

• How much child support will I receive or pay? (top)

The legislature has established guidelines for courts to use in determining the amount of child support a parent who does not have primary possession of the children must pay. It is based upon the first $7,500 of the Obligor's Net Resources. Net Resources is defined in § 154.062 of the Texas Family Code. In general, an Obligor's Net Resources equal the Obligor's income from wages, salary, interest, dividends, self-employment income, and other sources of income less social security taxes, state and federal income taxes, union dues, and health insurance premiums paid on the child's or children's behalf.
The guidelines are then applied as follows to the first $7,500 of the Obligor's Net Resources:

CHILD SUPPORT GUIDELINES
BASED ON THE MONTHLY NET RESOURCES OF THE OBLIGOR

• 1 child 20% of Obligor's Net Resources
• 2 children 25% of Obligor's Net Resources
• 3 children 30% of Obligor's Net Resources
• 4 children 35% of Obligor's Net Resources
• 5 children 40% of Obligor's Net Resources
• 6+ children Not less than the amount for 5 children

MULTIPLE FAMILY ADJUSTED GUIDELINES
(% OF NET RESOURCES)

The court may vary from these guidelines if the court deems the variance justified and if the court finds the variance in the child or children's best interest. Section 154.123 of the Texas Family Code sets out the factors the court may consider:

• The age and needs of the child;
• The ability of the parents to contribute to the support of the child;
• Any financial resources available for the support of the child;
• The amount of time of possession of and access to a child;
• The amount of the obligee's net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;
• Child care expenses incurred by either party in order to maintain gainful employment
• Whether either party has the managing conservatorship or actual physical custody of another child;
• The amount of alimony or spousal maintenance actually and currently being paid or received by a party;
• The expenses for a son or daughter for education beyond secondary school
• Whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;
• The amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;
• Provision for health care insurance and payment of uninsured medical expenses;
• Special or extraordinary educational, health care, or other expenses of the parties or of the child;
• The cost of travel in order to exercise possession of and access to a child;
• Positive or negative cash flow from any real and personal property and assets, including a business and investments;
• Debts or debt service assumed by either party;
• Any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

• Can I obtain access to my grandchildren? (top)

In the U.S. Supreme Court decision, Troxel v. Granville, 530 U.S. 57 (2000), the court ruled that the right of a parent to decide with whom the child would have contact is one of the fundamental rights of parenthood, and that a trial court must presume that a fit parent makes such decisions in the best interest of the child. Following the Troxel case, the Texas Attorney General, Greg Abbott, issued an opinion stating that the Texas grandparent access statute is constitutional on its face and in order to avoid an unconstitutional application of the statute, a court must require a grandparent to "overcome the presumption that a fit parent acts in the best interest of his or her own child." To overcome the presumption, "a grandparent has the burden to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child's physical health or emotional well being." As a result the legislature amended the statute in 2005 to read as follows:

A court shall order reasonable possession of or access to a grandchild by a grandparent if:

• At the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;
• The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that the denial of possession of or access to the child would significantly impair the child's physical health or emotional well being;
• The grandparent requesting possession of or access to the child is a parent of a parent of the child and the parent of the child:
  • Has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;
  • Has been found by a court to be incompetent;
  • Is dead;
  • Does not have actual or court-ordered possession of or access to the child.

Tex. Fam. Code § 153.433

• Can I receive spousal support? (top)

Absent agreement by your spouse, the Court can order spousal support paid after the divorce is granted only in certain circumstances. The court may order maintenance for either spouse only if the spouse seeking maintenance will lack sufficient property, including the spouse's separate property, on dissolution of the marriage to provide for the spouse's minimum reasonable needs and 1) if the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.044, committed during the marriage against the other spouse or the other spouse's child and the offense occurred within 2 years before the date on which the suit for dissolution of the marriage is filed or while the suit is pending; or 2) the spouse seeking maintenance is unable to earn sufficient income to provide for the spouse's minimum reasonable needs because of an incapacitating physical or mental disability, has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse's minimum reasonable needs; or is the custodian of a child of the marriage of any age that requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs. Tex. Fam. Code § 8.051

The Court may not order spousal maintenance that remains in effect for more than 5 years after the date of the order if the spouses were married less than 10 years and the eligibility of the spouse for whom maintenance is ordered is based on the criminal conduct or family violence of the other spouse during the marriage or the spouses were married to each other for at least 10 years but not more than 20 years. The Court may not order spousal maintenance that remains in effect for more than 7 years after the date of the order if the spouses were married to each other for at least 20 years but not more than 30 years. The Court may not order spousal maintenance that remains in effect for more than 10 years after the date of the order if the spouses were married to each other for at least 30 years or more. Tex. Fam. Code § 8.054

The court may order maintenance for a spouse who is unable to earn sufficient income to provide for the spouse's minimum reasonable needs because of an incapacitating physical or mental disability or is the custodian of a child of the marriage of any age that requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs for as long as the spouse continues to meet this criteria. Tex. Fam. Code § 8.054

The court may not order maintenance that requires the paying spouse to pay monthly more than the lesser of $5,000 or 20% of the spouse's average monthly gross income. Tex. Fam. Code § 8.055

• What are temporary orders? (top)

Temporary orders in a divorce case usually address issues such as spousal support, payment of attorney's fees, creating an inventory and appraisal of real and personal property, awarding a spouse use of the residence, or awarding a spouse control over a party's business while the final terms of the divorce are being determined. Tex. Fam. Code § 6.502.

In a suit affecting the parent-child relationship, temporary orders usually address issues such as temporary conservatorship of the child, temporary support of the child, or prohibiting a person from removing the child beyond a geographical area as well as other issues that arise during the pending suit. Tex. Fam. Code § 105.001.

• How long does it take to get a divorce? (top)

The earliest a court can grant a divorce is the 60th day after the suit was filed. If the parties cannot agree to the terms of the divorce, then they must obtain a trial date, the timing of which depends on the trial court's docket. Tex. Fam. Code § 6.702.

• Who will pay for my child's medical care after the divorce?(top)

It is assumed that the parent paying child support will also be ordered by the court to provide medical insurance if it is available at a reasonable cost. However, if it's not available at a reasonable cost, then the parent will have to pay a reasonable amount in addition to the amount of support calculated according to the guidelines. Tex. Fam. Code § 154.064 & § 154.182.

• What is separate property and community property? (top)

Separate property is:

• Property owned or claimed by the spouse before marriage;
• Property acquired by the spouse during marriage by gift or inheritance;
• Recovery for personal injuries sustained during marriage, except for recoveries for lost earnings or earning capacity during marriage.

Community property consists of the property, other than separate property, acquired by either spouse during marriage. Tex. Fam. Code § 3.001 & § 3.002.

• Who claims the children for income tax purposes after the divorce? (top)

The parent entitled to establish the primary residence of the child.

• Can my spouse adopt my child? (top)

A child living in Texas may be adopted by a stepparent. However, the other parent must be deceased or have his or her parental rights terminated.

The court must find termination of the parent's rights to be in the best interest of the child by clear and convincing evidence. Examples of proper grounds would include:

• Abandonment of the child;
• Abuse or neglect;
• Parent's use of a controlled substance which caused damage to the child;
• Failure to support the child during a period of one year ending within six months of the date of the filing of the petition;
• Certain criminal conduct.

A parent may also sign an irrevocable affidavit relinquishing his/her parental rights. Tex. Fam. Code § 161.001 & § 162.001.

• Can I stop visitation if I am not receiving child support? (top)

No. In fact, a court may not render an order that conditions the right of a parent to possess or have access to a child on the payment of child support. Tex. Fam. Code § 153.001.

• Can I relocate with my child? (top)

When the court appoints parents as joint managing conservators, the order must designate which parent has the exclusive right to choose the primary residence of the child. The order itself can, but does not have to, establish a geographic area within which the parent must maintain the primary residence.
Orders specifying geographic location may be modified by the court. Decisions about relocating the child will be considered on a case-by-case basis. Tex. Fam. Code. § 153.133.

• What is collaborative law? (top)

Parties agree in writing to use their best efforts in a good faith attempt to resolve their divorce and child custody agreement without judicial intervention except to have the court approve the final settlement agreement, make legal pronouncements, and to sign orders as needed. Tex. Fam. Code § 6.603 & § 153.0072. This allows couples to find their own solutions and leads to greater confidentiality.

A collaborative law agreement must include provisions for:

• Full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case;
• Suspending court intervention in the dispute while the parties are using collaborative law procedures;
• Hiring experts, as jointly agreed, to be used in the procedure;
• Withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute;
• Other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.

• If circumstances change, can an existing child support or visitation order be modified? (top)

Yes. A court can modify an order that provides for conservatorship, support, or possession of and access to a child.

An order establishing conservatorship of a child can be modified, if the modification would be in the best interest of the child and the circumstances of the child, a conservator, or other party have materially and substantially changed. An order can also be modified if a child is at least 12 years old and has expressed to the court in chambers the name of the person the child prefers to have the exclusive right to designate the primary residence of the child, or the conservator who has the right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another for six months. Tex. Fam. Code § 156.101.

An order establishing child support may be modified if the circumstances of the child or a person affected by the order have materially and substantially changed. Alternatively, if it has been three years since the order was last rendered or modified and the monthly amount of child support would differ by 20% or $100, then a court can modify the child support order. Tex. Fam. Code § 156.401. The court may consider the child support guidelines listed above to determine whether there has been a material or substantial change warranting a modification. Tex. Fam. Code § 156.402. If the parent having the right to determine the residence of the child has voluntarily relinquished the primary care and possession of the child, then the court must, on the motion of a party or the other person having possession of the child, modify an order providing for support of the child to provide that the other person having possession of the child shall have the right to receive child support. Tex. Fam. Code § 156.409.

• What are the residence requirements for divorce? (top)

One spouse must have lived in the state of Texas for 6 months and in the county where the suit is filed 90 days before filing. Tex. Fam. Code § 6.301.

• What is the process for filing a suit to determine paternity? (top)

A proceeding to determine the father of a child may be brought by the child, the mother, the man whose paternity is in question, an authorized government agency, an authorized adoption agency, or some other interested party. If a child has a presumed father, then the paternity suit may not be brought later than the child's fourth birthday. Otherwise, there are no time limitations for bringing a suit to determine parentage. Genetic testing can be used in order to determine paternity. However, a court has authority to deny a motion for genetic testing when it would be inequitable to disprove the father-child relationship. For example, in a situation where a man knows a child is not his genetic child but has assumed the role of the child's father, a court can deny genetic testing. Further, a man can execute an acknowledgment of paternity when a child has no presumed father. A determination of parentage is binding on all parties to an adjudication by a court and the signatories to an acknowledgement of paternity. A proceeding to determine parentage may be commenced before the birth of the child, but cannot be concluded until after the birth. Tex. Fam. Code §§ 160.601-637.

• Can I receive retroactive child support? (top)

A court may order a parent to pay retroactive child support if the parent has not previously been ordered to pay child support for the child and was not a party to a suit in which support was ordered. The court applies the child support guidelines when ordering retroactive child support. A court may also order a parent subject to a previous child support order to pay retroactive child support if the previous child support order terminated as a result of the marriage or re-marriage of the child's parents, the child's parents separated after the marriage or remarriage, and a new child support order is sought after the date of the separation. The court can order the retroactive support back to the time of separation. Tex. Fam. Code § 154.009.

• What are parenting plans & parenting coordinators? (top)

A parenting plan is the part of an order that includes the rights and duties of the parents, the amount of time each parent will spend with the child, and how future problems might be addressed. Parenting Coordination is the process whereby a mental health professional with specific training in parent coordination and family violence, assists the parents in implementing the parenting plan. The coordinator provides for a method of conflict resolution that is faster, less expensive, and less anti-therapeutic than litigation. They are designed for high-conflict cases, and they help parents keep court appearances to a minimum.

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