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Areas of Practice - Family Law
The area of Texas family law encompasses a wide variety of legal issues ranging from divorce to child custody and visitation. Family law also includes adoption, child support, spousal support, modifications to previous family law orders, paternity determinations, and even prenuptial agreements. Divorce and child custody issues can arise whether or not two people are married, consider themselves "common law married", or have biological or adoptive children together.
Because Texas family law is such a broad area, we have provided the following definitions as guidance into the potential areas in which attorneys at Jodi Head Lopez & Associates, P.C. may be able to assist you.
Information - Family Law
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Adoption is a legally recognized way of forming a family. Adoption options include international adoptions, domestic adoptions, agency adoptions, independent or private-placement adoptions, stepparent adoptions, blood-relative adoptions, surrogacy-related adoptions, open adoptions, and closed adoptions.
Maintenance and spousal support are legal terms for income provided by one spouse or former spouse to the other during a separation or after divorce. Although once traditionally awarded primarily to wives for an indefinite period, alimony awards are now awarded to either spouse if he or she needs financial assistance and the other is able to provide it, and they tend to be temporary, for a period of rehabilitation that enables the recipient spouse to become self-supporting.
Child support is generally ordered by the court in situations in which a child lives with one but not both parents. The non-custodial parent, or the parent with whom the child does not live, is responsible for contributing a certain portion of his or her income, based on state child support guidelines, to help support the child, even if the custodial parent has income of his or her own.
Children's rights cover a broad spectrum, which includes not only the rights afforded to all U.S. citizens, but also those rights that are theirs due to their status as children, such as the right to food, clothing, shelter, medical care, and education. Children are not, however, guaranteed all of the constitutional protections that are provided to adults.
Custody and visitation issues can arise when parents are divorced or separated, when the parents have never been married, or when some type of reproductive technology, such as surrogate motherhood or sperm and egg donation cases, complicates the issues even further. Courts generally apply a "best interests of the child" standard when determining to whom custody should be awarded.
Divorce is the legal process by which a marriage is terminated. In a divorce proceeding, the parties' marriage is legally ended and the related issues, such as spousal and child support, child custody and visitation, and property and debt division, are resolved, either by the parties' voluntary agreement, through the assistance of a mediator, or after a court trial. A divorce may be appropriate even where two people consider themselves "common law married".
Domestic violence and neglect include physical, mental, and sexual abuse of children, mates, elderly persons, or other vulnerable adults in the perpetrator's household. Abuse and neglect have long-term consequences, but there are legal mechanisms through which victims or interested third parties can seek protection.
Juvenile law relates not only to juvenile delinquency proceedings, in which the juvenile is charged with an offense that would be a crime if committed by an adult, but also to juveniles charged with status offenses, abused and neglected children, and children in need of social services.
Paternity refers to a legal action to establish that a man is the father of a child. A paternity action may be brought in order to impose a child support obligation, establish a right to inheritance, secure consent for the child's adoption, or gain or prohibit custody or visitation rights.
Prenuptial agreements are contracts entered into by a couple in contemplation of marriage. They usually address property issues that may arise in the event of divorce or death, and are often used as vehicles to provide for greater awards of property to children from previous marriages, or when one spouse brings substantially greater assets to the marriage.
Frequently
Asked Questions - Family Law
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How long does it take to get a divorce?
If the spouses have reached an agreement on all of the relevant
issues, a divorce may be obtained on the 61st day after the divorce petition
was filed. If an agreement is not possible and the case must be tried,
the length of time is primarily dependent on the Court's docket. In Harris
County, most divorce cases are set for trial within six to twelve months
after the divorce petition is filed.
Do I need a "legal separation"
from my spouse?
While some states recognize a legal status known as "legal
separation," Texas does not. Under the Texas Family Code spouses
are married until the Court grants a divorce.
Where can I file for divorce?
You can file for divorce in a county in which either you or your
spouse has lived for at least 90 days, as long as that same person has
lived in Texas for at least six months.
How is property divided between spouses in
a divorce?
The Texas Family Code requires that the Court divide the community
property of the spouses "in a manner that the Court deems just and
right." This means the Court is not required to divide the property
50-50 and can consider a variety of factors in deciding what is "just
and right." These factors can include fault in the divorce, disparity
in earning power, disparity in amount of separate property, etc.
What is the difference between separate
and community property?
Generally, a spouse's separate property is property that was
either:
• owned by the spouse before marriage
• acquired by gift or inheritance, or
• certain kinds of recoveries for personal injuries
Community property is all property other than separate property. All property
owned by either spouse during the time of marriage is presumed to be community
property. The party that is asserting the claim of separate property has
the burden of proof on that issue.
How is child support calculated?
In most cases, child support is calculated using a formula in
the Texas Family Code. The payor's monthly "net resources" (a
term defined by statute) is multiplied by a percentage which is determined
by the number of children at issue (e.g., the percentage for one child
would be 20%). The payor is entitled to a reduction if he or she is also
responsible for the support of another child.
What is "standard" visitation?
Most divorces involving children name one parent as the primary
Joint Managing Conservator and grant the other parent (also a Joint Managing
Conservator) a "Standard Possession Order" for visitation. The
visitation is spelled out in great detail in the statute (Texas Family
Code Section 153.312) and should also be spelled out in detail in the
Final Decree of Divorce. A very short hand version of a typical visitation
order (assuming both spouses reside within 100 miles) is as follows: the
1st, 3rd, and 5th Friday of every month from Friday (beginning at either
school dismissal or 6:00 p.m.) until the following Sunday at 6:00 p.m.,
every Thursday beginning at either school dismissal or 6:00 p.m. and ending
either at 8:00 p.m. that night or when school resumes the following morning),
as well as 30 days in the Summer, and additional visitation periods for
Spring Break, Thanksgiving, and Christmas, depending on whether it an
odd or even numbered year. While the Standard Possession Order is the
most common visitation schedule, it may be inappropriate depending on
the particular case. You should consult with your attorney to determine
whether or not a Standard Possession Order should be applied in your case.
How does a court decide which parent will
get custody of a child?
When the parents cannot agree on a custody arrangement, the court
will make the decision for them after considering the totality of the
circumstances, with the overriding consideration being the child's best
interests. To make that determination, the court considers:
• The child's age;
• The child's gender;
• The child's physical and mental health;
• The parents' physical and mental health;
• The parents' lifestyles;
• Any history of abuse;
• The emotional bonds between the parent and the child;
• The parent's ability to give the child guidance;
• The parent's ability to provide the basic necessities,
such as food, shelter, clothing, and medical care;
• The child's routines, including home, school, community,
and religious;
• The willingness of the parent to encourage a healthy,
on-going relationship between the child and the
other parent; and
• If the child is above a certain age, the child's preference.
In many cases, a consideration of these factors
results in awarding custody to the parent who has
been the child's primary caretaker. Although this is often the child's
mother, any preference for the mother strictly
on a gender basis is outmoded.
What are temporary orders?
Temporary orders are orders issued by a court, after either a
hearing or an agreement by the parties, which are designed to last until
the divorce is final. Practitioners sometimes refer to them as "band
aid" orders. Temporary orders commonly address issues such as child
support, custody and visitation of the children, exclusive use of the
marital residence, exclusive use of vehicles, alimony, and interim attorneys
fees.
If my spouse and I have agreed to all the
relevant terms, what is the general procedure for obtaining and finalizing
the divorce?
It is common for spouses to believe that they have an agreement,
but they actually have not addressed all the necessary terms, such as
child custody or support, or property division. Assuming all required
terms are agreed to in advance of filing, the divorce can be a relatively
simple legal procedure. The attorney for the Petitioner (the filing spouse)
files the divorce petition and either has the petition served on the other
spouse or the other spouse executes a Waiver of Service. The Petitioner's
attorney then drafts an Agreed Final Decree of Divorce and any other necessary
documents which are reviewed and signed by the other spouse. The other
spouse is free to hire or consult with an attorney of his or her own.
After the necessary papers are signed by the parties and attorneys, the
Petitioner and his attorney then go to court for a hearing to have the
Court enter the Decree and other documents.
Do I have to show fault to get a divorce?
Texas is a no-fault divorce state which means that it is not
necessary to show that either party was at fault in order to obtain a
divorce. It is only necessary to show that there is marital discord and
there is no reasonable expectation of reconciliation. However, many fault
issues (adultery, cruelty, etc.) are frequently relevant factors in divorce
cases because they can have an impact on how the community property is
divided, or how custody is decided.
What Is Mediation?
Mediation is a voluntary process which allows both you and your
spouse to maintain control over your destiny and the terms of your divorce
settlement. Both parties and attorneys attend either a four-hour or eight-hour
mediation session, depending on the complexity of your case.
What Is The Role Of A Mediator?
The role of the mediator is to facilitate an agreement between
the parties to prevent the necessity for a trial.
Is The Mediator A Lawyer?
Although some mediators are social workers, most commonly the
mediator is a lawyer who acts as a neutral person to help you settle your
case.
How Is A Mediator Chosen?
The mediator is chosen and agreed upon by the attorneys. Every
Family Law attorney has a "short list" of competent mediators
who specialize in family law with whom we are familiar, whose style we
are comfortable with, and who we have found to be effective, particularly
considering the individual aspects of your specific case.
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Jodi Head Lopez & Associates, Located in the Schertz Law Center, 206
FM 78 Schertz TX, 78154 (210) 658-7799 Fax: (210) 658-9299