Archive for August, 2017
Understanding the way property is divided is very important in a divorce. This is often the most disputed issue in a divorce, after child custody.
Every state in the nation has a law about how to divide the couple’s property during a divorce. In most states, the law follows a standard known as equitable division, meaning that the division must meet guidelines of fairness. However, Texas follows a different standard known as community property when overseeing asset division in a divorce.
Community property is a type of joint ownership. Assets purchased by the married couple are combined with assets that were earned by the couple during their marriage. The husband and wife own them equally and all debts are incurred equally. This is true regardless of who has the title in the assets. This is in contrast with equitable division states, where couples can show the contributions they made to the marriage and property.
Generally, each spouse in Texas gets an equal share of community property and also incurs the marital debt equally. However, this does not mean that everything is always split 50-50. While some types of assets, such as a joint checking account, may be relatively easy to split in half, others are not. Complex assets, such as retirement plans, stock options and ownership stakes in a business, can be very difficult to divide fairly.
Another important fact to note about property division is that the law gives the court some discretion in how the property will be divided. Courts are instructed to order a division of property in a manner that the court considers fair and just. Therefore, when deciding on property division, courts can consider the needs of the parties and any children they may have.
Modifying Child Custody Orders and Visitation Rights
Texas family law states that a court may modify a child custody order if the change is in the best interest of the child and one of the following applies:
1. The circumstances of the child or parent have materially or substantially changed since the date of the original child custody order or order to be modified.
2. The child is at least 12 years of age and will tell the court in private chambers with the judge that he/she would like a change.
3. The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.
Material or Substantial Change
What could be acceptable as a change for the Texas family courts? Some examples could be a parent’s remarriage, a medical condition the affects a parent’s ability take care of the child, a parent’s criminal acts or convictions, a parent’s change in residence that makes visitation a hardship for the other parent, family violence, drug or alcohol related issues, absence of supervision, and other material changes concerning adequate care and supervision of the child.
Child Wants Change
The child must be at least 12years of age and maybe interviewed in the judge’s chambers. The court will consider the child’s desire but only make a change if it is in the child’s best interest.
This happens when the custodial parent has voluntarily given up custody of the child to another person for at least six months. This does not apply to a period of military deployment or duty.
After finding one of the three prerequisites, the court must still consider whether the change will be in the child’s best interest. The court will consider factors affecting the child’s physical, emotional, mental, education, social, moral or disciplinary welfare and development. The factors considered for this evaluation are:
1. Child’s emotional and physical needs.
2. Parenting ability of the conservators or potential conservators
3. Plans and outside resources available to persons seeking the modification
4. Value to the child of having a relationship with both parents
5. Visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities
6. Stability of the person’s home seeking the modification
7. The child’s desires
8. Child’s need for stability and need to limit additional litigation in child custody cases.
Modification within one year of prior court order
A parent who files a motion to modify a child custody order within one year after a prior order was entered must also submit an affidavit to the court. The affidavit must contain, along with supporting facts, at least one of the following allegations:
1. The child’s present environment may be endanger the child’s physical health or significantly impair the child’s emotional development.
2. The person who has the exclusive right to designate the child’s primacy residence is the person seeking or consenting to the modification and the modification is in the child’s best interest.
3. The person who has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primacy care and possession of the child for at least six months and the modification is in the child’s best interest.
WHEN CAN YOU MODIFY YOUR CHILD SUPPORT
Child support orders can only be changed by the entering of a new court order. Informal agreements between the parties are not effective to change the amount of court ordered child support. Therefore, while you and the other party may agree to a change in the amount of child support to be paid, unless the agreed to amount is recited in a new order signed by the court, the party obligated to pay the support could be required to pay the amount originally ordered by the court if a dispute arises and could also be held in contempt of court and jailed.
If you and the other party are unable to agree to a change in the amount of child support to be paid, then the issue will be determined by the court.
FILING THE MODIFICATION
A child support order may be modified under two broad conditions. Specifically, the child support order may be modified if:
• A child support order is more than three years old and the amount of the monthly child support calculated using the statutory child support guidelines in the Texas Family Code would change by more than 20 percent, or at least $100; or
• The party requesting the modification proves that there has been a material and substantial change in the circumstances of one or more of the parties to the support order, or the child, since the date the last child support order was entered with the court or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.
The following changed circumstances are the most often asserted by a party seeking a child support modification:
• An increase or decrease in income;
• Loss of employment;
• The party paying support is legally responsible for the support of additional children;
• Special needs of the child such as medical, educational or psychological;
• Changes in medical insurance or coverage; and
• A child’s living arrangements have changed.