Texas Family Law Questions and Answers

Family law issues may sometimes be confusing and complex, and you may get conflicting information from friends or other sources. You might want to know some basic concepts about family law. Or, you may have questions about how to choose an attorney or how to contact and hire our office. Although the facts of each case are always unique and each client is different, there is some general, basic information about family law and attorneys that may be helpful to know.

Q. Do fathers really have a chance of winning primary custody?

A. Yes! Fathers' chances of winning custody have greatly increased compared to previous years. While it is true that mothers still have an advantage in the minds of many people, you can definitely win if you have a good case. For examples of cases I have won, see my "Case Results.” Having excellent representation is critically important in these cases. Call me and let me help you decide whether and how to obtain primary or shared custody of your child.

Q. Can I get 50/50 custody?

A. Yes, often times you can. The law doesn't presume it, even though your title will usually be that of a “joint managing conservator,” and you usually have to be willing to fight for it, but it is an oft-negotiated outcome for many custody cases. I have achieved this for many clients. Ask me how I do it.

Q. What Does Joint Custody Mean?

A. In Texas, there is a presumption in a divorce that the parents be appointed as "joint managing conservators.” However, this does not necessarily mean that the court divides custody equally with no support being paid. Usually, although I don't agree with this, the court decides that one parent has "primary" possession of the child and has the right to establish the child's residence while the other parent has visitation rights and is ordered to pay child support. Other parental decision making powers are allocated.

While "joint custody" does not automatically mean exactly equal possession of the child with neither side paying child support, this can and often does occur in settlement of contested custody cases. Or, if you go to trial, the judge can and sometimes does order that kind of arrangement if the court finds both parents live in close proximity to each other, can cooperate, have both been closely involved in the child's life and neither has any bad facts about them.
I happen to strongly believe, personally and professionally, in co-parenting and sharing the child equally if at all possible and my practice is devoted to those who want to be actively involved in their child's life.

Q. Should I settle my case out of court? And, what is mediation?

A. Settlement should remain an option. But, it is not the only option and often times not the best option. You have to evaluate your case, compare what is being offered to what you think you could achieve in court, and factor in the costs of trial, the emotional considerations and everything else. If you decide you want to settle, mediation is usually the best method of doing so. It is a controlled settlement conference. The parties and their attorneys go to the mediator's office and try to negotiate a settlement in the case with the assistance of a mediator. If a settlement is not reached, the mediator reports only that the case did not settle. If an agreement is reached, it is written and signed. After it is signed, it is generally considered to be irrevocable. Most other agreements, even those in writing, are revocable.

Will you go to mediation? Very likely. Many family law judges require the parties to attend mediation before the case will be permitted to proceed to trial. Even when it is not required, the parties will usually attend mediation because it is typically the best vehicle for settlement and the most binding type of agreement the parties can make. Whether you settle, what terms you should settle for, and how the settlement agreement is worded, all require the skill and guidance of an experienced attorney.

Q. I already have an attorney but am dissatisfied -- can I change during my case?

A. Yes, you are permitted to change attorneys. It is not uncommon for clients to change attorneys during family law cases. I am called upon quite often to come into a case after a client has started with another attorney. If you are dissatisfied with your present counsel or don't feel like he or she is properly representing you and you have decided to change attorneys, feel free to call. However, use caution. Try not to wait too long and change right before trial. Also, don't change too often. This is for informational purposes only. Nothing in this is intended or should be construed as a solicitation of another attorney's client.

Q. How are visitation and child support handled in Texas?

A. There are presumptive guidelines for visitation and support, which constitute general rules for the courts to follow. There is a visitation schedule known as the Standard Possession Order, which sets forth the presumptive minimum amount of time for a person named as a joint managing conservator. Likewise, there are somewhat standardized child support guidelines so that, generally, child support is presumed to be set as a percentage of the obligor's net income.
It is important to know, however, that there are certain instances where the "presumed" guidelines may not be applied. By agreement or court order, the actual visitation or support ordered can deviate from the guidelines. This is where having competent legal representation can be crucial. Call me for more information.

Q. Can my spouse move out of the area of my county with my children without my permission?

A. In the absence of a court order restricting the residence of the children to a certain area, yes! That's why it is usually very important to obtain a residence/domicile restriction in court. If you request, many courts will order that the other party cannot move your children away without the court's permission or your written agreement. In other counties, however, some judges feel differently and are not inclined to restrict the child's residence. Currently, you have the right to put the issue to a jury if you fear the judge will not rule in your favor and the jury's verdict is binding on the judge. This is one of my favorite areas of law. Please see me for more information.

Q. How is property divided in a divorce?

A. The judge in a divorce case has the discretion to divide the property in a manner that he or she deems "just and right.” This usually means that the Judge starts out with the presumption that the community estate will be divided equally. However, in certain cases, depending on certain factors such as fault in the break up of the marriage or disparity in earning capacity of the parties, the judge, in his or her discretion, may divide the property in a disproportionate manner. This is why you should have an excellent attorney on your side.

Q. How much child support do I have to pay?

A. There are "standard guidelines" for child support based presumptively on a percentage of the obligor's net income. "Net resources" generally is defined as all gross income (which is defined broadly and includes virtually all income, including, for example, overtime and part-time jobs) less the permitted tax deductions indicated in the Attorney General's published tax chart and the cost of the child's health insurance coverage. The percentage depends on the number of children, both before the court and otherwise. Note, however, there are exceptions or certain special circumstances where the support may be more or less than the percentage guidelines. Call me if you have a question, and I'll explain further.

Q. How are contested family law cases decided?

A. Much in family law cases is left to the individual discretion of each judge. The way the Court is managed, the time and manner in which cases are set and heard, and most importantly the decisions which are made, are all largely within the judge's personal discretion. For example, custody of children is to be generally decided based on "the best interest of the child.” What does that mean? It will depend on numerous factors, but will depend primarily on the facts of your case. Therefore, in order for me to give you a valid opinion on this issue, it is necessary for me to consult with you at length about the facts of your particular case. I have to have some basic understanding of the positive and negative aspects of the case in order to give you a legal opinion on this issue.

Property division in divorces is to be made "as the Court deems just and right." How a judge interprets and applies these legal standards or tests in a given case is entirely up to the judge. Applying these guiding principles to the particular facts of each case, the judges make these critical decisions. Which facts are presented and how they are presented, therefore, become crucial.

Q. Should I get a paternity test?

A. Absolutely. The trend in Texas is that even if you are found later to not be the child's biological father, the court will not reverse the child support order. It's better to be 100% positive up front. An ounce of prevention is worth a pound of cure.

Q. Do I need a Board Certified Family Law Specialist?

A. Rarely, in our opinion. Under the rules of the State Bar, attorneys may choose whether they wish to limit his or her practice to a specific area of law with or without seeking “board certification.” We have chosen to limit our practice to family law, but have not sought board certification. Other attorneys choose certification. Does that make them better attorneys? Not necessarily. We handle a large number of family law cases and attend the same continuing legal education seminars as do board certified specialists. We are highly experienced and provide excellent representation. So do some certified attorneys.

On the other hand, while there are excellent board certified attorneys, we have had cases against more than a few certified family law specialists whom we frankly do not feel were particularly effective attorneys, despite their creating more work and charging higher fees. In sum, board certification can sometimes be, but is not necessarily, a guarantee of better legal representation, but it will almost always be a guarantee of higher fees. We suggest you interview with us and see for yourself whether we can handle your case. Choose wisely.