HOW DOES A JUDGE TREAT ADULTERY /INFIDELITY IN A TEXAS DIVORCE
As with most questions in family law, the answer is “it depends.” It is true that adultery may influence the division of the marital, but that is not always the case.
A judge may consider several factors at divorce when dividing the marital property, one of which being fault in breaking up the marriage. While a judge has discretion to consider fault when dividing the estate, the judge is not required to do so. A judge is unlikely to put substantial weight on the fact that a spouse had an affair without compelling evidence that the marital estate has suffered financial harm or other equitable reasons.
So how do you show evidence of financial harm? Show the receipts (bank statements, transfers of marital property, etc.). For instance, if your spouse has made sizable gifts to a paramour from the community funds—such as cash, a car, payment of bills, vacations, etc.—then you may establish fraud on the community. If you establish fraud on the community, then the court may order your spouse to reimburse the community for the funds spent on the extra-marital relationship(s).
A common way to determine whether a spouse’s affair will have an impact on the property division is identifying how much community assets were spent on the extra-marital relationship. The strategy pertaining to your claims may be different depending on whether you are going to trial or mediation.
TEXAS PARENTING AGREEMENTS AND CHILD CUSTODY AGREEMENTS
What makes up a parenting agreement?
A parenting plan is key when sharing custody of a child in that it incorporates key elements that are vital to the care of your child. In addition, most parenting plans also outline the process for decision making, communication and managing contentious situations with each other. The idea behind a parenting plan is that the child’s care will remain as consistent, and uninterrupted as possible. A parenting plan should be detailed.
Key elements to a parenting agreement should include:
• The process for making decisions
• How you will communicate with the other parent
• How disagreements will be managed
• The child’s visitation schedule with each parent
Why do I need a parenting agreement?
The parenting plan should always keep the child’s best interests at the forefront. A parenting plan can help the process of shared parenting be a smoother one and ultimately reduce the amount of conflict that you stand to face. Putting together a plan with your children in mind can ensure that you are able to make agreements that work for you and your family.
What if my spouse and I cannot agree?
When there is no parenting agreement present, the courts may take it upon themselves to draw up a plan for you. By failing to come to an agreement surrounding the plan, you put yourself at risk for losing control over the process, and allow the courts to make the final decision.
REDUCING CHILD SUPPORT PAYMENTS DURING COVID-19. WHAT CAN I DO?
With so many Texans out of work or experiencing a decrease in hours and pay in light of Coronavirus (COVID-19), many individuals my seek modification of their child support order. The Texas Family Code provides, if “the circumstances of [a] child or a person affected by the order [to pay child support] have materially and substantially changed” since the order was entered, then the court may modify a child support order. The amount of child support may also be modified if it has been more than three years since the child support order was entered or if the “monthly amount of the child support award under the order differs by either twenty percent (20%) or $100 from the amount that would be awarded in accordance with the child support guidelines.”
Job loss and a significant decrease in pay are considered a “material and substantial” change in circumstances that would allow a court to modify a child support order. Your ex may petition the court to modify his/her monthly child support obligation. Modifications or adjustments of child support do not occur automatically—one party must file a petition with the court in order to effect the change.
If your ex does file a modification, it is important to seek help from the OAG or from a private attorney to ensure your spouse is calculating his/her new income correctly. Child support is calculated based on a percentage of an obligor’s (the person paying child support) “net resources,” as defined by the Texas Family Code. Included in this calculation is all wages, salary, tips, bonuses, and self-employment income. Importantly, also included in calculating child support is any severance pay and any unemployment benefits received. A certain amount of state and federal income taxes, as well as expenses for the cost of health insurance and dental insurance, is deducted from the calculated income to determine the obligor’s “net resources.”
SUBSTANCE ABUSE CAN LEAD TO LOSS OF CUSTODY IN TEXAS
Many children in Texas are affected by parents who abuse drugs or alcohol, or both. The concern is the impact substance abuse has on children.
The Children’s Bureau says that a parent with substance use disorder may be ineffective or inconsistent at parenting due to:
• Physical impairments caused by drugs or alcohol
• Reduced ability to respond to a child’s needs
• Difficulty controlling one’s anger
• Difficulty controlling one’s emotions
• Disruption in the healthy attachment between parent and child
• Spending the family’s funds on drugs and alcohol instead of buying basic necessities like food, etc.
• Spending time drinking alcohol or using drugs
• Incarceration, which can cause the child to be inadequately supervised;
If a parent is alleging that their child’s other parent has a substance abuse problem, it can have a major impact on the using parent’s rights. For example, if you are getting a divorce and you’re concerned that shared physical custody would place your child in harm’s way because your spouse abuses drugs or alcohol, the court may find that your spouse’s substance abuse can harm your children or at least place them at risk.
If the judge is convinced that your spouse abuses drugs or alcohol and it negatively impacts the best interest of your children, it can cause their parental rights to be limited, or in severe cases, your spouse’s parental rights may be revoked indefinitely.
PARENTS CANNOT DENY VISITATION DUE TO UNPAID CHILD SUPPORT
TEXAS Family Code 154.011: SUPPORT NOT CONDITIONED ON POSSESSION OR ACCESS.
A COURT MAY NOT RENDER AN ORDER THAT CONDITIONS THE PAYMENT OF CHILD SUPPORT ON WHETHER A MANAGING CONSERVATOR ALLOWS A POSSESSORY CONSERVATOR TO HAVE POSSESSION OF OR ACCESS TO A CHILD.
A Custodial Parent cannot refuse or cut back on visitation of a non-custodial parent just because child support has not been paid. Many custodial parents use denial of visitation as an effective way of getting child support paid. Such conduct is against the law and punishable by contempt.
A child has an absolute right to visitation and child support. Absent compelling reasons, visitation with both parents is always considered in the best interest of the child. Non-payment of child support should be dealt with and enforced in a proper court. The non-custodial parent is still very important to the child’s life and must be allowed to participate in her/his life.
Conversely, a non-custodial parent cannot stop paying child support just because a custodial parent is denying visitation.
Unpaid Child Support and Visitation with a child are two separate and distinct duties indigent of one another. The non-custodial parent cannot be denied visitation for unpaid child support
HOW IS COMMUNITY PROPERTY DIVIDED BETWEEN SPOUSES IN A TEXAS DIVORCE?
While both spouses are entitled to community property, it isn’t the case that the spouses just get half of everything. Instead, Texas courts divide property in a “just and fair manner.”
A couple can voluntarily agree to this division or a court can make a ruling which is based on a specific set of factors.
Along the way, it’s important that the couple agrees on a property’s value, or the court will establish the value. Valuations can be best guesses, or the parties can hire experts, such as appraisers, to value property. These valuations play an important role in the legal property division process.
If a mutual agreement cannot be made, then the judge will decide how the property will be divided. Similar to the factors used in determining spousal support, a court may consider each party’s earning capacity, educational background, childrearing responsibility, age, and/or health differences, and each spouse’s post-divorce needs.
Again, the focus is on overall fairness rather than a clean split down the middle.
For example, one spouse may reap a larger portion of the value if that spouse is going to be the primary caregiver for children. A court might also unevenly divide the property if one partner has committed economic misconduct (such as fraud or financial squandering).
Property division in Texas allows both parties to receive a portion of their shared property.
WHAT NONCUSTODIAL PARENTS NEED TO KNOW ABOUT CHILD SUPPORT
As a noncustodial parent, here is a breakdown of what you need to know about child support:
- If you receive a court summons in the mail, it is important that you attend the scheduled court appearance. If you fail to show, the family court can make decisions about paternity and child support in your absence.
- Do not sign any legal documents until you understand the legal consequences of signing. Once you sign a legal document and it is filed, it can be very difficult to change – sometimes it is impossible.
- If you open a child support case with the Office of Attorney General (OAG), it may help protect your rights. The court can issue orders that address child custody and visitation, and the amount of child support that you must pay the other parent each month.
- If you or your child’s other parent decides to open a child support case with the OAG, and the OAG finds it necessary to order a DNA test to confirm paternity, the test is usually free of charge.
- If you are concerned that an unrealistic amount of child support will be imposed, the best solution is to provide the court with as much information about your current financial situation.
- If you are not able to pay the full amount of child support one month, pay what you can. By making a partial payment, you show the court that you are trying. To go a step further, contact the child support office that handles your case and explain your circumstances.
- If you lose your job or your income is reduced significantly, you may be best served by asking the court to review your case and consider a downward modification.
- If your child moves in with you, petition the court to change your status to the custodial parent. Bear in mind that you must continue paying child support until the court says you no longer need to.
WHAT DOES TEXAS CONSIDER AN “UNFIT” PARENT
Parents in Texas who are getting a divorce may want to become familiar with matters related to child custody. This includes understanding what an “unfit parent” may be, along with how Texas legally defines and determines who an unfit parent is.
There is a broad definition of unfit parenting. Additionally, each specific state has its own definition which is used in court to determine who unfit parents are. It typically means that the parent in question does not provide for the child’s best interest, or take them into consideration in their decisions, actions, behaviors, or habits. By Texas law specifically, an unfit parent is considered anyone who could potentially have a significant and negative impact on a child’s emotional development or physical health.
Examples of behavior that could get a parent labeled unfit include neglect, abandonment, or active abuse. It can also involve the parent having an addiction or showing no interest in holding responsibility for the care of the child in question through their words or actions.
In particularly severe cases, a parent might be considered unfit from the beginning. They will have to prove that this isn’t true through clear evidence, rather than being innocent until proven guilty. This includes if a parent has three or more felony convictions or if they have been convicted of a crime of depravity such as sexual assault.