Family Law in Texas

1. After what duration of living together does a couple automatically become “common law” married?

It is not as simple as living together. An informal marriage may be proved in court by evidence that a man and woman: 1) had a present agreement to be married (as opposed to an agreement to get married later); 2) lived together after the agreement in Texas as husband and wife; and 3) represented to others that they were married. A couple may live together for decades and, without the other elements, never become informally married. On the other hand, living together for a very brief time period is sufficient if the other elements are satisfied.

2. Can a same-sex couple who married in a state that permits same-sex marriage get divorced in Texas?

Not at this time. However, that issue currently is pending before the Texas Supreme Court and the answer may change very soon.

3. If a party moves out of the marital residence, can the other spouse “claim abandonment?“

Abandonment is a fault ground for the granting of divorce in Texas, but it is not frequently pled. The court may grant a divorce in favor of one spouse if the other spouse: 1. left the complaining spouse with the intention of abandonment; and 2. remained away for at least one year. However, this is different from the concept of a party moving out of the house as part of the act of filing for divorce.

As to the final division of a house, the court likely will consider many factors, such as whether the house is the primary residence of the children, its character, the nature of other assets to be awarded, and the ability of the spouse to afford the house on an ongoing basis.

4. Does a party get to keep all of his/her income accumulated while the divorce is pending?

No. In Texas, the operative date for the division of the marital estate is the date the divorce is granted, not the date it is filed.

5. Does the judge have to divide the property “50/50?”

No. The trial judge has a great deal of discretion in dividing the community estate in a “just and right manner.” The court may award one party a disproportionate share of the community estate for reasons including fault in the breakup of the marriage, the benefits the innocent spouse may have derived from the continuation of the marriage, the disparity of earning power of the spouses and the spouse to whom conservatorship of the child is granted. Where a fault ground has been pled, the trial court has the discretion, but not the obligation, to consider it in making the final division.

6. What is “ full custody “?

The Texas Family Code and Texas family law courts do not use that terminology. Further, if a party uses that terminology as meaning “to the exclusion of the other parent,” that is not a likely outcome in most situations. It is a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. A finding of a history of family violence removes this presumption, as well as other presumptions related to a child.

The Family Code contains lists of rights, powers and duties that are allocated to the parties by the court to be exercised independently or upon their joint agreement. The exclusive right to designate the primary residence of a child is “custody” of the child, and that right is generally accompanied by the exclusive right to receive child support payments.

The Texas Family Code contains a mechanism for the calculation of guidelines child support and the resulting figure is presumed to be reasonable and in the best interest of the child. The child support guidelines are based on the assumption that the court will order the obligor to provide medical support for the child in addition to the guideline support.

It is a rebuttable presumption that the standard possession order provides reasonable minimum possession of a child for a parent and is in the best interest of the child. When deviating from the standard possession order, a trial court may consider the age, developmental status, circumstances, needs, and best interest of the child; the circumstances of the conservators; and any other relevant factor.

7. How much alimony will the court order?

On a temporary basis, the court often allocates the resources of the marital estate in order to meet its interim expenses. That allocation may include payments of interim spousal support from one party to the other, as well as payments directly to creditors.

On a final basis, the Family Code does not authorize alimony as it exists in other states. However, chapter 8 of the Code does provide for post-divorce spousal maintenance in limited situations, such as long-term marriages, where a party is disabled or where there is a history of family violence. Chapter 8 sets the conditions for eligibility for spousal maintenance, the factors to be considered in determining maintenance, and the permissible duration and amounts.

Jonathan J. Bates is a partner in Kinser & Bates in Dallas. This article also appeared in Texas Lawyer, an ALM sister publication of this newsletter.

1. After what duration of living together does a couple automatically become “common law” married?

It is not as simple as living together. An informal marriage may be proved in court by evidence that a man and woman: 1) had a present agreement to be married (as opposed to an agreement to get married later); 2) lived together after the agreement in Texas as husband and wife; and 3) represented to others that they were married. A couple may live together for decades and, without the other elements, never become informally married. On the other hand, living together for a very brief time period is sufficient if the other elements are satisfied.

2. Can a same-sex couple who married in a state that permits same-sex marriage get divorced in Texas?

Not at this time. However, that issue currently is pending before the Texas Supreme Court and the answer may change very soon.

3. If a party moves out of the marital residence, can the other spouse “claim abandonment?“

Abandonment is a fault ground for the granting of divorce in Texas, but it is not frequently pled. The court may grant a divorce in favor of one spouse if the other spouse: 1. left the complaining spouse with the intention of abandonment; and 2. remained away for at least one year. However, this is different from the concept of a party moving out of the house as part of the act of filing for divorce.

As to the final division of a house, the court likely will consider many factors, such as whether the house is the primary residence of the children, its character, the nature of other assets to be awarded, and the ability of the spouse to afford the house on an ongoing basis.

4. Does a party get to keep all of his/her income accumulated while the divorce is pending?

No. In Texas, the operative date for the division of the marital estate is the date the divorce is granted, not the date it is filed.

5. Does the judge have to divide the property “50/50?”

No. The trial judge has a great deal of discretion in dividing the community estate in a “just and right manner.” The court may award one party a disproportionate share of the community estate for reasons including fault in the breakup of the marriage, the benefits the innocent spouse may have derived from the continuation of the marriage, the disparity of earning power of the spouses and the spouse to whom conservatorship of the child is granted. Where a fault ground has been pled, the trial court has the discretion, but not the obligation, to consider it in making the final division.

6. What is “ full custody “?

The Texas Family Code and Texas family law courts do not use that terminology. Further, if a party uses that terminology as meaning “to the exclusion of the other parent,” that is not a likely outcome in most situations. It is a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. A finding of a history of family violence removes this presumption, as well as other presumptions related to a child.

The Family Code contains lists of rights, powers and duties that are allocated to the parties by the court to be exercised independently or upon their joint agreement. The exclusive right to designate the primary residence of a child is “custody” of the child, and that right is generally accompanied by the exclusive right to receive child support payments.

The Texas Family Code contains a mechanism for the calculation of guidelines child support and the resulting figure is presumed to be reasonable and in the best interest of the child. The child support guidelines are based on the assumption that the court will order the obligor to provide medical support for the child in addition to the guideline support.

It is a rebuttable presumption that the standard possession order provides reasonable minimum possession of a child for a parent and is in the best interest of the child. When deviating from the standard possession order, a trial court may consider the age, developmental status, circumstances, needs, and best interest of the child; the circumstances of the conservators; and any other relevant factor.

7. How much alimony will the court order?

On a temporary basis, the court often allocates the resources of the marital estate in order to meet its interim expenses. That allocation may include payments of interim spousal support from one party to the other, as well as payments directly to creditors.

On a final basis, the Family Code does not authorize alimony as it exists in other states. However, chapter 8 of the Code does provide for post-divorce spousal maintenance in limited situations, such as long-term marriages, where a party is disabled or where there is a history of family violence. Chapter 8 sets the conditions for eligibility for spousal maintenance, the factors to be considered in determining maintenance, and the permissible duration and amounts.

Jonathan J. Bates is a partner in Kinser & Bates in Dallas. This article also appeared in Texas Lawyer, an ALM sister publication of this newsletter.