TABLE OF CONTENTS
INTRODUCTION
Navigating your way through a family law case can be confusing during what is often a stressful and emotional time in your life. Not knowing what to expect can make it even harder. This article is intended to help you understand what you can expect when you have a case in a Texas family law court.
Please note that this guide is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.
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COURT APPEARANCE
At some point during your case, at least one of you will need to go in front of the Judge. This happens even if you and the other side reach an agreement.
What to Wear. It is important to dress appropriately when appearing in court. Everything you wear should be clean, pressed, and neat in appearance. Men should wear a suit, or pants and a shirt with a collar. Women should wear a suit, dress, skirt, or pants that are not too tight, too short, or too revealing. Shorts, t-shirts, sunglasses, or hats are not allowed in court. Excessive make up, jewelry, or hairstyles are not advised. If you are unsure about what you should wear, ask your attorney what is appropriate for the courtroom you will be in.
How to Act. A court hearing or trial is a formal legal proceeding and all persons are expected to be on their best behavior while in a courtroom. Always treat the judge and other court personnel with the utmost respect.
When you enter a courtroom, you should turn off all noise-making items such as smart watches, or cell phones. Food, drinks, and chewing gum are not allowed inside. You cannot bring magazines, newspapers, or any outside reading into the courtroom. Once the judge has entered the courtroom, you cannot talk, whisper or write notes to anyone, unless your attorney addresses you directly and needs a response.
When it is time for your court matter to be heard, you should speak clearly, politely and loud enough to be heard by the judge and the court reporter. All responses must be verbal (e.g. not by a nodding or shaking of the head.). If you address the judge directly or answer a question the judge has asked, always begin or end your answer with "Your Honor," "Sir" or "Ma'am." When referring to anyone else, even someone you know well, address him or her as "Mr.," "Mrs.," or "Ms." Never interrupt when someone else is speaking, especially the judge, even if you feel like what they are saying reflects badly on your case or they may be mistaken in their facts. You or your attorney will get a turn to speak. Sometimes during testimony, one of the attorneys has to make an objection. If this happens while you are speaking, stop talking until the judge can make a decision on whether you need to finish answering the question.
If you are asked a question that you do not understand, it is okay to respectfully ask for clarification. If you need a tissue, water, or a break, it is okay to respectfully request one.
Bringing Others to Court With You.
Friends and Witnesses – Court proceedings are open to the public and therefore you can bring any adult family members, friends, clergy, or anyone else who will provide you with support during your court matter. If these persons will not also be witnesses in your case, they can stay and watch the proceeding. If any of them will be called as witnesses, they will have to leave the courtroom until it is their turn to speak Witnesses are not allowed to discuss the case with anyone while they wait to be called to speak. Witnesses are allowed to bring books or magazines to read while outside the courtroom. If you are unsure about who to bring with you, you should discuss it with your attorney.
Children – You should not bring children to the courthouse, even if the family law matter being heard involves them, unless your attorney has directed you to or you have been ordered by the judge to do so. If you cannot avoid bringing your children to the courthouse, then you should bring a competent adult to supervise them while you are inside the courtroom, as the children will not be allowed inside while court is in session.
In very few instances, the judge will interview the children involved. There are special procedures for this to occur outside the actual court hearing if that is necessary. You should discuss with your attorney whether children's statements are needed in your family law matter.
ALTERNATIVE DISPUTE RESOLUTION (ADR) OPTIONS
All issues in a case are determined one of two ways. Either the parties reach an agreement or the court makes a ruling at a hearing or trial. ADR options are different processes that may be used to help the parties reach an agreement so that court proceedings to obtain a ruling are not necessary. They are often used in family law cases to help settle a case and avoid the expense and emotional stress of a trial. There are several ADR options, more fully described below. A case may be referred to an ADR process by one or both of the parties, or by a ruling of the court. Some judges require that the parties attempt to settle their case through one of these ADR options before they will hear a trial in that case.
Mediation is the most common form of ADR used for a family law matter. A neutral person, called a mediator, meets with the parties to help facilitate an agreement. The attorneys are usually present at the mediation but are not required to be. You should discuss with your attorney whether it is important for the attorney to be present during your mediation. An agreement is not required and the mediator has no power to force the parties to settle. However, if an agreement is reached, the parties sign a written binding contract that is enforceable in court.
Collaborative Law is a process where the parties agree to resolve their dispute without going to court. This process is most often used in a divorce. However, it can be applied in any type of family law case where the parties feel it will be beneficial. The purpose of collaborative law is to minimize the damage caused by litigation and to assist the parties in making a productive transition. Each party hires a collaborative law attorney and signs an agreement promising to be respectful toward each other during the divorce and settlement negotiations. All terms of the divorce are decided during a process of private negotiation meetings with the parties and their attorneys. If necessary, other experts such as accountants or counselors may also attend the meetings to assist with financial or communication issues. The primary advantage to collaborative law is that the parties direct the terms of settlement, not the lawyers or the judge. This tends to result in more satisfaction for the parties, and fewer trips back to the courthouse in the future. If an agreement is not reached, or if one of the parties decides to go to court, both parties must discharge the collaborative attorneys and new litigation attorneys must be hired by the parties before going to court.
Arbitration is a process where a neutral person, called an arbitrator, makes the final decision in the case instead of a judge. Arbitration is not used very often in Texas family law cases. An advantage to arbitration may be the possibility of a quicker trial date, quicker final resolution, and privacy, but arbitration rulings are usually considered final and cannot be appealed.
A Mini Trial is a process where both attorneys present a summary of his or her side of the case to a neutral person who sits as the mini trial judge. The mini trial judge then meets with the attorneys and parties, gives a recommendation on how he would rule based on the evidence presented, and then the judge acts as a mediator to try to help the parties reach an agreement.
A Summary Jury Trial is a process where a short summary of the case is presented to a real jury. The jury members typically do not know this is not the real trial until after they have heard the case and made a ruling. After the jury has ruled, the parties continue negotiating to reach a settlement. If jury members agree, the attorneys may ask the jury how their decision was reached. Often, the ruling of the summary jury trial is a good indication as to what the final outcome will be in the real case.
A Private Judge Hearing is when a retired judge is hired to hear the case. The advantage to hiring a private judge is privacy and expediency in reaching a final decision. Rules of evidence apply and the trial may take place at any location agreed upon by the judge and the parties. The ruling of a private judge is subject to the rules of appeal.
CHILD PROTECTION CASES
The following information was adapted from A Handbook for Parents and Guardians in Child Protection Cases created by the Child Abuse and Neglect Committee of the State Bar of Texas. It is available for free at www.texasbar.com under the Child Abuse and Neglect Committee, or by calling the State Bar of Texas Public Information department.
What is CPS? Child Protective Services (CPS) is a part of the Texas Department of Family and Protective Services (FPS), a State Agency set up by law to make sure children are safe at all times. All citizens in the community are required to report unsafe activity by calling 1-800-252-5400 or visiting the Texas Abuse Hotline Website.
If a report is received saying that your child is not safe, information about the reason for the removal of your child is outlined in a paper called a Notification for Removal, left at your home. The CPS caseworker from FPS may also explain why your child was removed from your care.
What if you disagree with the decision to remove the child from your home? If you disagree with the caseworker and the reason for removal of your child, you will have a chance to explain your side to a judge soon after the removal of your child.
Why should you talk to the judge? It is important to give the parties and the court your explanation of the events that brought your child into foster care. Remember that you may speak with the judge only during court hearings. You may not meet with the judge privately outside of court.
The purposes of the Child Protection Court is to keep children safe and to help families create a safe home for their children. The Child Protection Court is not designed to punish parents but to protect and safeguard children.
The judge can require you and your family to get help to ensure the safety of your child. The judge also can order that your child be temporarily placed in the custody of CPS. This means that, for the time being, CPS is legally responsible for your child and, with the approval of the Child Protection Court, can make decisions about where your child should live and what you need to do to have your child returned to you.
The same problems that brought you to the Child Protection Court could result in criminal charges against you, your partner, or someone else in your family. In that case, you may have to go to another court and see another judge. This handout does not deal with criminal cases. It is about civil proceedings (meetings and hearings) in the Child Protection Court. Anything you say in Child Protection Court may be used against you in a criminal case. If criminal charges have been filed against you, or you think they might be, you should talk to an attorney.
What happens after your child is removed from your home? If your child is removed from your home, you will be notified in writing and you will receive a copy of the paperwork that has been filed with the court. One of the forms you will receive is called a petition. The petition is written after a report is received and investigated by CPS.
The petition names you as a respondent. This is the term used by the Child Protection Court for the parent or guardian in a child abuse and neglect case.
The petition lists one or more allegations (usually located in the Affidavit attached to the petition). Allegations are statements of what happened and reasons why your child needs to be in the custody of CPS. If you do not understand the petition or any other paperwork, talk to your attorney.
Your rights:
You have the right to an attorney. If you cannot afford to pay for an attorney, and CPS is seeking to terminate your parental rights, you may ask the judge to appoint an attorney for you.
You have the right to admit or deny the allegations made about you and your family.
You have the right to be notified of all court hearings.
You have the right to attend all court hearings and meetings.
You have the right to an interpreter in court if you do not understand English or you are hearing impaired.
You have the right to talk to your CPS caseworker and your attorney. Remember, they may be busy with someone else when you call. Be sure to leave a message with a phone number where you can be reached or try to call them again. Keep track of the best times to call them.
Your responsibilities:
Take this seriously.
Attend all court hearings and meetings.
Cooperate with your family services plan.
Stay in touch with your attorney and your caseworker. Be sure they always have a current address and telephone number for you.
Things move very quickly in child abuse and neglect cases. Be sure that you know what you are supposed to do and when, and then do it. It could make the difference in whether your child is returned to you.
Who Will Be Involved in your CPS Case?
CPS Caseworker – When your child is removed from your home, you will be given a notice of removal and the name and phone number of the CPS investigative caseworker. After approximately two to three weeks, your investigative worker will transfer the case to another caseworker. The caseworker will:
Contact you to give you more information and ask you some questions;
Visit your child regularly;
Help you understand the problems that brought you to court; and
Help you work on your service plan, which lists the steps you must take to have your child returned to you.
If you do not hear from your CPS caseworker for awhile, or if you have questions or problems, call him or her.
Your Attorney – When you go to court, the judge will ask if you have an attorney. You have the right to an attorney. If you cannot afford to pay for an attorney, and CPS is seeking to terminate your parental rights, you may ask the judge to appoint one for you. Your attorney should:
Talk with you before every hearing;
Speak for you in court;
Help you understand your rights;
Tell you about the hearings you will attend; and
Tell you what to expect at each hearing.
If you do not hear from your attorney for awhile, or if you have questions or problems, call him or her. It is up to you to make sure your attorney can find you.
The Attorney for CPS – CPS also has an attorney. The attorney for CPS represents CPS in court, and must prove why your child should be in CPS custody now.
Your Child's Attorney – the Attorney Ad Litem (AAL) – Your child will have an attorney appointed by the court. This attorney is called an attorney ad litem (AAL). The attorney ad litem's job is to meet with your child and act as an advocate on behalf of your child. Often the attorney ad litem also serves as the guardian ad litem (GAL) for your child.
The Court Appointed Special Advocate (CASA) – The judge may also appoint a special advocate. This child advocate is a trained volunteer who will meet with you and your child, as well as others involved in this case. The child advocate reports to the court about how your child is doing and what they feel is in your child's best interest. Sometimes the child advocate may be called a guardian ad litem (GAL).
Mediators – During the case, the judge may order that your case be sent to mediation or family group conference. Mediation is a meeting between you, your attorney, the child's attorney, CPS, and the CPS attorney to try to reach an agreement instead of going to court. Mediators are independent, neutral individuals who have been specially trained to help people work out differences. Mediation is not a court hearing. If you wish to use a mediator to help with your case, ask if mediation is available in your area.
When will you have to go to court? You may be asked to attend several court hearings and other meetings so that the judge and others can listen to all sides and decide how to help your family. Each court hearing and meeting has a different purpose. Most child abuse and neglect cases have at least eight different court hearings and meetings during the first year:
Emergency Hearing
Adversary Hearing (Show Cause) or Mediation
Initial Permanency Planning Team Meeting or PPT
Status Hearing
Initial Permanency Hearing
Additional PPT meetings
Permanency Hearing
Final Hearing (Trial)
It is important for you to be on time for all these hearings. If you are not present in court at the time a hearing or trial is scheduled, the proceeding may begin without you.
Emergency Hearing – If your child has been removed from your home without a court order, the emergency hearing will be held within one working day of when the petition is filed in Child Protection Court and may take place without you being there. The hearing gives the judge the chance to find out why your child was removed from your home.
At the emergency hearing, the judge will decide if your child should stay in the temporary custody of CPS until the adversary hearing. The attorney for CPS will present information about the case to the judge. Information will include the allegations made and what the investigation by CPS has revealed so far. CPS will also let the judge know what actions have been taken to find a placement for the child, other than foster care.
Adversary Hearing (Show Cause) – The adversary hearing will be held no later than the 14th day after the date the child was removed. The Court may, for good cause shown, postpone the adversary hearing for not more than seven days to allow a court appointed attorney sufficient time to prepare and defend the suit filed. In that event, the Court will extend any existing temporary restraining order in effect until such time as the adversary hearing can be had. The purpose of this hearing is to determine whether the child's emergency removal was proper and to get temporary orders for the protection of the child until the case is over.
The judge may decide to return your child to you, or to place the child with a family member, a family friend, or another appropriate adult who is willing to help and cooperate in this matter. You should come to the hearing with the names, addresses, and telephone numbers of people who might be able to keep your child temporarily. Finally, the judge may decide that for the safety and protection of your child it would be best that your child remain in the care of CPS. This hearing is your chance to explain the situation from your point of view and let the judge know how you intend to protect your child now and in the future.
Permanency Planning Team Meetings – The Permanency Planning Team meeting (PPT) is usually held between 30 and 45 days after the removal of your child from your home and again in the 5th, 9th and 13th months. Although this is not a court hearing and the judge will not be present, all the people who are involved in the case, including the attorneys, the child if over 12 years of age, foster parents, parents, CPS staff and other caretakers can be there. Family members who are interested in your child are also encouraged to attend.
At the first PPT meeting (or staffing) a "service plan" will be developed and dis- cussed. The service plan will include the goal for the child that may be:
Reunification with parent(s);
Termination of parents' rights to the child;
Placement of child with relatives;
Placement of child in foster care;
Adoptive placement.
The purpose of this meeting is to talk about why your child was removed from your home. The other purpose of this meeting is to come up with a service plan for your child and your family that will help get your family together again, or whatever is best for your child. That service plan will be presented to the Child Protection Court. Be aware that the plan may change, but it will remain in effect until amended by CPS and approved by the court.
It is very important that you attend the PPT meetings, so that your ideas about what is best for your family and what can be done to make sure your child remains safe can be heard. You will receive a letter telling you about PPT meetings: the date, time and place. You may also call your CPS caseworker to find out about your child's next PPT meeting.
Status Hearing – You have the right to a hearing before a judge to discuss the service plan prepared by CPS. This hearing is called the status hearing. It will be held within 60 days of when your child was ordered into the temporary care of CPS.
The purpose of the status hearing is to make sure that there is a service plan in place for your child, that you are aware of this service plan and all of its contents, and that you understand that you must complete all of the requests made in this service plan (which the judge adopts) in order to have your child returned to you. At this hearing the judge may also ask about your current compliance with this plan.
You will be warned that unless you do what is asked of you in the service plan, your rights as a parent may be restricted or terminated. It is very important that you attend the status hearing.
Permanency Hearing – The initial permanency hearing must be held no later than 180 days after CPS is named as temporary managing conservator of your child.
The purpose of the permanency hearing is to evaluate the permanency plan for the child to ensure that a final order consistent with that permanency plan is rendered before the date for dismissal of the case.
The judge will review your case to make sure that the service plan is being followed. The judge will check to make sure you are doing what is ordered in the plan. The judge will check to make sure the CPS caseworker and others are doing what is ordered in the plan. If everyone agrees that the service plan needs to be changed, the judge may order those changes.
You will be told in court that your parental and custodial rights may be subject to restriction or termination unless you are willing and able to provide your child with a safe environment. If the judge believes your child will be safe, and that it is in your child's best interest to be returned to you at this time, the judge can decide to return your child to you.
At this hearing it will be decided what plans, services, or other temporary orders are necessary to ensure final orders are rendered prior to the dismissal deadline. At the close of the hearing, the judge may set a dismissal date and give notice in open court to all parties of that date, the date of the next permanency hearing, and the date the case is set for trial.
Subsequent Permanency Hearings – If the judge decides at your first permanency hearing that your child cannot be safely returned home, another permanency hearing will be held to allow you to continue with services and determine the progress you have made, or decide if your child's plan should be changed to adoption, or some other permanent arrangement outside of your home. Subsequent permanency hearings must be held no later than every 120 days until entry of a final order. The court can hold the hearing at an earlier date. The requirements and procedures are the same as for the initial permanency hearing.
Final Hearing (Trial) – The court must enter a final order before the first Monday after the anniversary of the order appointing CPS temporary managing conservator, unless on or before that date the court has granted an extension of no more than 180 days. A final order is one that:
Requires that the child be returned to the parents;
Names a relative of the child or another person as the child's managing conservator;
Without terminating the parent-child relationship, appoints CPS as the managing conservator of the child; or
Terminates the parent-child relationship and appoints a relative of the child, another suitable person, or CPS as the managing conservator. For all final hearings, testimony and evidence will be offered regarding your child's best interest.
ADOPTION
There are two steps to secure an adoption in Texas:
the court must terminate the birth parents' rights to the child; and
the adoption must be approved by the court.
What is the effect of a court order terminating a parent's rights? Termination of parental rights means a parent is no longer considered a legal parent to the child. The parent will no longer have any legal rights, duties or responsibilities to the child and the child may be adopted by someone else. A termination order is normally considered final and cannot be changed.
How are parental rights terminated? The termination of parental rights may happen with the agreement of each parent, or by a court finding it is in the best interest of the child to terminate one or both of the parent's rights.
How do the biological parents indicate an agreement? Birth parents, both father and mother, generally must sign forms (called relinquishments of rights) indicating their desire to place a child for adoption before a court will terminate their interests. The relinquishment must be freely and voluntarily signed after the child is at least 48 hours old. Properly signed relinquishments generally cannot be revoked for 60 days. Within this 60 day period, the court generally decides whether to terminate parental rights. A decision to terminate is, except in very unusual situations, permanent.
What if there is no agreement by one or both of the biological parents? The court will only terminate a parent's rights if the court finds the termination and adoption to be in the best interest of the child. An attorney will be appointed, called an Amicus Attorney, to investigate whether the termination would be in the best interest of the child. The court generally only grants an involuntary termination when a biological parent has consistently not participated in the child's life and has provided little or no support and there is evidence that a fit and stable person in the child's life is willing to adopt, or the biological parent has been determined unfit to provide for the care of the child due to abuse or neglect.
What actions must be taken before the court will grant an adoption? The court will require the report of a social study performed in the home of the adoptive parents. The adoptive parents must also obtain a Texas Criminal History Report. Courts also generally require that the child live in the home for six months before granting an adoption. This six month requirement can be waived only if the court finds "good cause." If the adoption is by someone other than a grandparent, aunt or uncle, or stepparent, the court generally requires a report to be compiled on the available health, social, educational, and genetic history of the child to be adopted.
What if the child is an American Indian? If the child is an American Indian, very powerful federal law called the Indian Child Welfare Act will apply and the adoptive parents must comply with all terms of this law. The Indian Child Welfare Act is very complicated and if you suspect the child may have an American Indian heritage, you will want to seek legal counsel to ensure the requirements of the Act are met. Normally, permission of the tribe must be given before an adoption under this act may be approved.
What if the adoptive parents and the child reside in different states? If the adoptive parents and child are not living in the same state, they must comply with the interstate compact law. The interstate compact office of each state regulates the movement of children from state to state for purposes of adoption. Failure to comply with these laws before removing a child from the State of Texas is a criminal offense.
Can the child's name be changed at the time of adoption? Yes. The name of the child may be changed in the order if requested.
Can the validity of an adoption order be attacked? Generally, the validity of an adoption order is not subject to attack after six months following the date the order was signed.
DIVORCE
You should consult an attorney regarding your divorce proceeding if the divorce is contested, you have a child custody dispute, or there are complex property divisions. For information on representing yourself in an uncontested divorce, you may want to review the Pro Se Divorce Handbook, created by the Texas Young Lawyer's Association, available for free at www.tyla.org or by calling the TYLA office.
Can I get a legal separation? No. Although a legal separation is available and sometimes required in many states, there is no legal separation in Texas. If you need to protect your interests regarding your property or your children while separated from your spouse, you must file for divorce and obtain temporary orders. Some Texas Counties have Standing Orders that go into effect immediately upon filing to protect property and maintain the status quo between the parties until an agreement can be reached or a temporary hearing can be had.
What if one spouse does not want the divorce? In Texas, if one spouse wants to be divorced, the divorce will be granted. Texas is a no fault divorce state, meaning fault does not have to be proven to obtain a divorce.
What if I am in a common law marriage? Common law marriage is when there has been no marriage license issued, but the law considers you married. Texas will find that you are "common law" married if you have lived together in the State of Texas, had a proven intent to be married and held yourselves out to others as husband and wife. There is no minimum time that you have to live together. Examples of holding yourselves out as husband and wife include introducing each other as husband and wife, the wife using the husband's last name as her last name, filing taxes together as husband and wife, and/or including the other person as a dependent on health insurance as a spouse. Living together and having children together does not automatically mean you are common law married under Texas Law. The facts and circumstance of each case must be considered to determine whether a common law marriage exists.
If I am common law married, do I need to get divorced? If you have been separated over two years, then you do not need a divorce. Once you have been separated two years, the law presumes you were not common law married. If you have property to divide, you may want to get divorced so the divorce court can divide the property.
How long does it take to get divorced? Texas has a minimum 60 day waiting period before a divorce can be finalized. The 60 days start running at the time the Original Petition for Divorce is filed with the court. However, most divorces take longer than 60 days. The time frame for divorce may take anywhere from three to six months if it is agreed, and up to several years in a highly contested matter. The more agreements reached between you and your spouse as to the terms of the divorce, the sooner your divorce will be final.
What is Collaborative Law? Collaborative law is a process where the husband and wife agree to get divorced without going to Court. The purpose of collaborative law is to minimize the damage often caused by a divorce and to assist the parties in making a productive transition without litigation. Collaborative law is more fully described above in the section regarding Alternative Dispute Resolution (ADR) Options.
What is considered community property and community debt? Texas is a "community property" state. In other words, all property owned by married persons on the dissolution of a marriage, whether by death or divorce, is presumed to be the property of both the husband and the wife. Likewise, any debts incurred during marriage are presumed to be community debt. This means that the debts are presumed to be owed by both the husband and the wife. Like community property, community debt must also be divided in a divorce. However, since the creditor is not a party to the divorce action, the creditor may still pursue either spouse for collection of the debt, as they are not bound by the terms of the divorce decree and the divorce court's allocation of responsibility for joint debts. If the divorce court orders a spouse to pay a community debt and he or she does not, the other spouse may file an enforcement action against the non paying spouse.
What is considered separate property? Generally speaking, separate property is property acquired before a marriage and property acquired during marriage through gift or inheritance, or with funds that qualify as separate property. Also, married persons may agree in a properly drafted written agreement to "partition" community property, in which case, that property becomes each spouse's separate property.
How does the court divide the property and debts? Community property and community debts are supposed to be divided in a manner the court "deems just and right, having due regard for the rights of each party and any children of the marriage." This does not mean that community property or debt must necessarily be equally divided. The judge dividing community property and debt may consider many factors, such as the size of your and your spouse's separate estates, and any fault causing the divorce.
What is a Temporary Restraining Order? Commonly referred to as a TRO, a temporary restraining order is a routine order at the beginning of a divorce that prohibits the other spouse from doing anything to transfer or destroy the property of the marriage or to cause harassment to the other spouse or the child. It is in effect for 14 days and normally becomes a temporary mutual injunction at the temporary orders hearing. The temporary orders hearing must be held within 14 days of the date the TRO is obtained.
What is a Temporary Hearing? A temporary hearing may be requested to ask the judge to make certain temporary orders while your divorce is pending. Temporary Orders set the "ground rules" for the parties' conduct during the divorce with regard to such matters as the preservation of property, the protection of both parties, who will live in the marital home, and issues pertaining to the children such as child support and visitation. The temporary orders usually remain in effect until the divorce is final.
What is Discovery? Discovery is a common method of investigation used to gather documents and information. Discovery may be sent as requests to the other side in writing, or may be done in person by depositions. Time deadlines apply in regard to the latest date discovery can be started as well as the number of days allowed to respond. Normally discovery is expected to be complete before a final court hearing or mediation begins.
What is Mediation? Mediation is a common method used to reach an agreement outside of court. A neutral person, called a mediator, meets with the parties to help facilitate an agreement. Mediation is more fully described above in the section regarding Alternative Dispute Resolution (ADR) Options.
What happens at the trial? A trial is the final court hearing. All issues that are in disagreement are presented to the judge or a jury who will make a final decision. The issues are presented through testimony of the parties, witnesses and evidence presented to the court.
Am I required to attend a parenting class? In a case involving children, most courts require parents to attend a specific class before a final order is entered by the Court. The purpose of the class is to assist the parties in being able to focus on the children's best interest rather than their own. Your attorney, the court, or the district clerk's office can provide you with information as to whether your judge requires this class, and how you can register and attend. You are not normally required to attend this class at the same time as your spouse. There is typically a small fee to attend the class.
What is a prove up? A prove up is the process of finishing your divorce in front of the Judge at an uncontested court hearing. At the prove-up, one or both of the parties tell the final terms of the divorce to the judge. The judge then has the discretion to approve the terms, grant the divorce and/or make any other orders the judge believes are appropriate.
When is my divorce officially considered final? Your divorce is considered final on the specific day the Judge signs the Final Decree of Divorce.
How soon can I remarry? Since one of the parties may appeal a divorce within 30 days after the date it was final, you must wait a minimum of 30 days after your divorce decree is signed by the Judge before you may get married again to someone else.
CUSTODY/CONSERVATORSHIP
Texas uses the term conservatorship to describe the rights, responsibilities and duties of parents in raising their children. This term also describes what most people think of as "custody." Conservatorship or custody does not define the amount of time each parent will have with the child. It only addresses the legal rights and duties of the parents.
In Texas there are two kinds of conservatorship: (1) sole managing conservatorship, and (2) joint managing conservatorship. The presumption is that joint managing conservatorship is in the best interest of the child. However, the court will consider many factors in deciding which type of conservatorship is appropriate. The "best interest of the child" is always the court's primary concern. The court is not allowed to discriminate against a parent because of sex or marital status. All factors surrounding the child's life may be relevant to determine what is in the child's best interest, including if there has been a history of violence between the parents or violence against the child. If the court finds credible evidence of a history or pattern of family violence, the court is not allowed to appoint the parent who committed the violence as a joint managing conservator, nor should the court appoint that parent as a sole managing conservator. Evidence of family violence may include testimony by the parent who was the victim, witnesses to the violence, pictures, doctors or hospital records, or counseling records or the issuance of a protective order against a parent.
Sole Managing Conservatorship In rare circumstances, one parent may be appointed as the sole managing conservator. When a parent has sole managing conservatorship, that parent has superior rights in raising the child. That parent also has the most responsibility in raising the child. As a sole managing conservator (often referred to as SMC,) that parent has the exclusive right to establish where the child will live, the exclusive right to consent to any medical treatments, the exclusive right to receive child support payments, the exclusive right to represent the child in any legal action, the exclusive rights to consent to marriage or enlistment in the armed forces, the right to make education decisions, the rights to any earnings by the child, and the right to apply for a passport for the child.
Examples of some reasons why the court might appoint a sole managing conservator:
there is a history of family violence, neglect or abuse by the other parent that might endanger the child;
there is a history of drugs, alcohol or other criminal activity by the other parent that might endanger the child;
the other parent has been absent from the child's life;
there is a history of extreme conflict between the parents over educational, medical or religious values;
a parent does not wish to be appointed as a joint managing conservator.
Joint Managing Conservatorship When a parent is appointed as a joint managing conservator (referred to as JMC), the parents will often share the above parental rights duties and powers. However, even in a JMC situation, the court may designate one parent who will be responsible for establishing the location of the child's primary residence and designate the geographic location within which the child's residence must be located. This parent is called the primary joint managing conservator, also referred to as the "custodial parent." The other parent is called the "possessory conservator," because that parent has the right to possession of the child at certain times, and is commonly referred to as the "non-custodial parent." Aside from the decision regarding the location of the child's primary residence, most other major parenting decisions are shared between the primary and possessory joint managing conservators. The presumption under the law is that joint managing conservatorship is in the best interest of the child.
Possessory Conservatorship The court will normally appoint the parent who is not the sole managing conservator as a possessory conservator. In rare circumstances, the court may find that it would not be in the best interest of the child to appoint the other parent as a possessory conservator. Usually this is only done in cases where the child may be in danger of physical or severe emotional abuse.
A parent appointed as a possessory conservator (PC) has the same rights and duties that any parent has to their child. The parent has the duty to support the child even if there is no formal child support order signed by the court.
The possessory conservator has the right to receive information from the other parent about the child's health, education and welfare, the right to talk to the other parent (if possible) before decisions are made about the child's health, education and welfare, the right to have access to the child's records, to talk to the child's doctors, the right to talk to the school about the child and attend school activities, the right to be designated on the child's records as an emergency contact person, the right to consent to medical treatment during an emergency, and the right to manage the estate of the child.
Can a Non-Parent or Grandparent ask for Conservatorship? In limited circumstances, a person other than the parent can be granted conservatorship.
Nonparent – A person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months has standing to ask for custody if the six-month time period has not ended more than 90 days prior to filing the suit.
Foster Parent – A foster parent can file for custody if the child has been in that person's home for at least 12 months, ending not more than 90 days preceding the date the suit is filed.
Grandparent – A grandparent may file for custody if there is satisfactory proof to the court that the child's present living environment presents a serious question concerning the child's physical health or welfare; or both parents, the surviving parent, or the managing conservator either filed the petition or has consented to it.
How do I get custody? When a parent wants to establish conservatorship the parent has the right to file a lawsuit called a Suit Affecting the Parent Child Relationship or a Suit to Establish the Parent Child Relationship. The lawsuit will ask the court to decide issues of parentage, conservatorship, visitation and child support. The parent who wants to pay child support or a parent who wants the other parent to pay child support may hire a private attorney or go to the office of the Attorney General (AG or child support office) and establish a child support order. This type of order may also be handled inside a suit for divorce. During the course of the suit, issues regarding parentage may be raised. If one of the parties claims the father is not the biological father, genetic testing may be ordered. The person asking for the paternity test normally pays for his/her costs for the testing, plus the costs for testing the child. The court will determine who will pay the fees for the other parent's test. Genetic testing normally determines if the man will be considered the legal father of the child. However, certain exceptions apply if the child already has a presumed father under the law.
Filing for custody through the Texas Attorney General's Office. A suit for child support may be filed with the Texas Attorney General's office. The Attorney General represents the state's interest for parents to collect child support. The Attorney General therefore represents the state, not either of the parents. Pursuant to a request by one of the parents, or the state if a parent is receiving state benefits, such as welfare or Medicaid, the Attorney General may file a lawsuit to establish a child support order. Once ordered, the child support will be deducted from the paycheck of the parent who is ordered to pay. When establishing the child support order, the Attorney General typically also addresses the issues of conservatorship and visitation. Often the parents are appointed as joint managing conservators and the parent ordered to pay child support is awarded visitation pursuant to the standard possession schedule. If the parents disagree as to conservatorship or visitation, then the parties should consider hiring private attorneys to ensure their concerns are properly brought to the attention of the court. The AG will not typically assist parents with these matters since they represent the State, not the parents.
Filing for custody when the parents are married to each other: When the child's parents are married to each other, and no prior court orders exist, each parent has equal rights to the child. This means that if one parent wants to move out and take the child, that parent has the right to do so. The police will not get involved without a court order. This remains the case until a court order establishes the rights and duties of each parent, determines which parent the child will primarily reside with, and when each parent shall have possession of the child. This can be done through a divorce action or through a separate suit affecting the parent child relationship (such as a Texas Attorney General's case).
Filing for custody when the parents are not married to each other but had a child together: When two people are not married to one another and have a child together, the father must legally prove he is the father in order to have parental rights under Texas law. The father's legal rights may also be established by the mother filing a suit to establish parentage and requesting child support.
One way to establish parental rights is for the father and the mother to sign an acknowledgement of paternity and file it with the paternity registry in the Bureau of Vital Statistics in Austin, Texas. The father is required to register before the birth of the child or not later than 31 days after the child is born. If the father fails to register with the paternity registry, he may be prevented from asserting any legal rights as a father to the child in the future.
The father may also file a separate lawsuit to establish that he is the father to the child. The court may require the father to have genetic testing done to prove he is the biological father. Instead of genetic testing, the court may accept an acknowledgement of paternity signed by the father and mother agreeing that the man is the father of the child. In either case, the father is then legally found to be the father of the child and a parent under Texas law. This gives the father certain legal rights and duties to the child, including the right to ask the court for custody.
Filing for custody when the parents are not married to each other, have a child together, and the mother is married to someone else. When the mother is married to someone else the man the woman is married to is presumed to be the father to the child. This means that the husband has all the rights and duties to the child and the man who thinks he is the father has none. The man who believes he is the father to the child still has the duty to register with the paternity registry. If the child has been raised by the husband, up until the time the child is four years old the man who believes he is the father may also file a separate lawsuit objecting that the husband is the father to the child. The court will order genetic testing to prove which man is the father to the child. If the man who believes he is the father is proven to be the father, he will have the rights and duties of a parent under Texas law and will have the same right to ask for custody as the mother. If the mother and husband are still married to one another but are in the process of divorce, the mother must notify the court of the possibility that there is another man who could be the father so that person can be notified. The husband also has the right to be tested to show he is not the father to the child. If it is proven that the husband is not the father to the child, and the court finds it is in the best interest of the child, then the husband will not be required to pay child support and the husband will not have any legal rights or visitation with the child.
Other potential issues in a custody suit. When the decision of where the child will primarily live is disputed, investigators may be appointed by the court to assist the court in reaching a decision. The court also may impose certain limitations or requirements on the parents to protect the best interest of the children.
Social Studies. The social study is a court ordered investigation of the circumstances and home life of the parents and the child. It is usually conducted by a social worker, who will visit the home of each parent and interview the child, the parents, and other persons involved in the child's life. When the investigation is finished, the social worker will write a recommendation to the court as to what would be in the best interest of the child, including where the child should primarily live and/or what type of visitation schedule would be best. Normally the parties are ordered to each pay for half the cost of the social study.
Psychological or Psychiatric Evaluations. A psychological or psychiatric evaluation is a court ordered evaluation of a person or child involved in the lawsuit. The evaluation is conducted by a licensed psychologist or psychiatrist who will provide a written report to the court. The judge will determine if one or both parties will be responsible for payment of the evaluation.
Amicus Attorney. An Amicus Attorney is an attorney appointed by the court to represent the best interest of the child. The attorney will meet with the child and each parent, and will investigate the concerns and facts of the case. The Amicus Attorney may call witnesses, ask questions and make an argument to the court the same as any other attorney in the case. The court will determine if one or both parties will be responsible for payment of the Amicus Attorney's fees.
Attorney Ad Litem. An Attorney Ad Litem is an attorney appointed by the court to represent the wishes of the child. Because the child is his client, he must adhere to the rules of confidentiality and undivided loyalty to the child. The attorney ad litem argues on the child's behalf. The Attorney Ad Litem may call witnesses, ask questions and make an argument to the court the same as any other attorney in the case. The court will determine if one or both parties will be responsible for payment of the Attorney Ad Litem's fees.
Guardian Ad Litem. A Guardian Ad Litem is a person appointed by the court to represent the best interests of a child. The guardian ad litem is usually a volunteer trained to be a Court Appointed Special Advocate (CASA) and is normally not an attorney.
Drug Testing. If allegations arise concerning a parent using illegal drugs, the court may order one or both parents to submit to immediate or random drug testing. The judge will determine if one or both parents will be responsible for payment of the testing. The judge may also impose an order prohibiting one or both parents from using illegal drugs or alcohol while the child is in his or her possession.
Prohibition on overnight visitors. Sometimes the court will prohibit one or both parents from having unrelated overnight visitors of the opposite sex (or the same sex if a parent is homosexual) while the child is in his or her possession. This order may be on a temporary or ongoing basis. The purpose for this order is to maintain stability for the child.
Child's Preference. When a child is age 12 or over, he or she may sign a statement choosing the parent with whom the child primarily wants to live. This statement is filed with the court and is considered persuasive evidence to the judge. However, the child's choice is subject to the approval of the court, and the court will make the final ruling as to where the best place will be for the child to live. The Court's decision will always be based on the best interest of the child.
Geographic (Domicile) Restriction. If the parents are named Joint Managing Conservators, the court is required to establish a geographic area for the child's primary residence. The court may order the child to maintain primary residence within that county, or that county and its surrounding counties for as long as the possessory parent resides in that county or a contiguous county. The courts favor this type of domicile restriction, and it is commonly ordered because it is normally in the best interest of the child to live close to both parents. If the custodial parent moves far away, it creates a hardship for the other parent to exercise his/her visitation and travel costs may be considered when calculating child support, for example. The court wants the child to have the opportunity to maintain close and meaningful relationships with both of his/her parents. If the primary parent does not want a domicile restriction on the children, that parent will have to show the court a compelling reason why a move away from the other parent would be in the best interest of the child.
VISITATION/POSSESSION AND ACCESS
Texas law describes visitation as possession and access. The parent who gets visitation is the person with whom the child does not primarily live. There are several types of visitation in Texas, (1) standard possession order, (2) modified possession order, (3) modified under three possession order, and (4) supervised visitation order. Generally the courts will allow the parties to work out an arrangement between themselves that they believe is best for the child. The parents can usually schedule visits by agreement, but when they cannot agree, the court order is considered the "back up." Sometimes the court will not allow visitation due to a history of family violence or a potential danger to the physical or emotional welfare of the child. If visitation will be limited, the court may order the visitation be supervised with a neutral third party or a private organization that provides supervised visitation options to parents. If a private agency is used, the visiting parent may be responsible for payment of the agency's fees to visit the child. Absent such a limitation, the parties may agree on different schedules and times even though they have a specific court order. Some believe it is best to follow the terms of the court order so each parent knows the schedule in advance and consistency is maintained for the child.
What is the standard possession order? Visitation arrangements can have many variations. In fact, parents may agree to almost any schedule regarding visitation, and some parent's schedules require specialized possession orders. However, if parents cannot agree, child visitation will generally follow a schedule developed by the Texas legislature that is designed to be fair and workable for both parents in most circumstances.
Generally, the standard possession order ("SPO") provides that the possessory (visiting) parent is granted visitation of the child beginning at 6:00 p.m. every first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, as well as every Thursday evening, from 6:00 p.m. to 8:00 p.m. The possessory parent may request an extended version of this schedule where he or she would have possession of the child from the time school is dismissed on the first, third and fifth Fridays until school resumes on Monday morning, and on Thursday evenings from the time school is dismissed until Friday morning. All holidays, including Thanksgiving, Christmas (winter) and spring break are divided between the parents, giving one parent the right to spend a particular holiday with the child every other year. The SPO also provides for the possessory parent to have 30 days with the child during the summer, or 42 days if the child lives more than 100 miles away from the other parent. If the visiting parent lives over 100 miles away, that parent would also be given possession of the child every year for spring break. The possessory parent is also guaranteed either the weekend of mother's day or father's day (as applicable) and a few hours of possession on the child's birthday each year.
What is a modified possession order? The modified possession order means the terms of possession are changed from the typical standard possession order (described above). The modified possession order terms will vary depending on the needs of the parents, the age of the child, and specific issues of the case. Some examples of modifications may be adding additional visitation time as the child increases in age, or accounting for a parent's work schedule.
What is a modified under three possession order? The court may consider the needs of a child to determine if visitation should be limited while the child is under the age of three. This modified order may state the child shall not have overnight visitation with the other parent until the child reaches a certain age. For example, the order may state the child visit on Saturday and Sunday from 10:00 a.m. to 4:00 p.m. or in the evenings from 6:00 p.m. to 8:00 p.m. The court will consider the age and needs of the child, including the child's normal structure and routine, as well as the history of each parent's involvement with the child. If the visiting parent has already established a schedule of caring for the child overnight, it is unlikely the court will put new limitations on the visiting parent's schedule. If such limitations are put in place until a child reaches a certain age, the parent who has primary possession of the child is expected to cooperate with the visiting parent to insure the visiting parent has ample visitation time without unreasonably disrupting the child's routine and environment. Both parents should also provide the other with a list of the child's schedule and routine while the child has been with him or her so the schedule may be maintained.
What happens if the parent refuses to follow the visitation order? If a parent refuses to let the other parent have possession of the child pursuant to the terms of the court order, the remedy is to go back to the court and ask the judge to make them comply with the order. The parent asking the court to enforce the order must show proof they did everything they were supposed to do and the other parent failed to turn over the child. For example, if that parent is supposed to pick up the child on Friday at 6:00 p.m., he must describe to the court each incident where he appeared at the right time and place and the other parent failed to surrender or release the child. If the court orders the parent to comply with the order and the parent still refuses, the other parent may also ask the court to issue a criminal contempt citation. If the court finds the parent guilty of criminal contempt, the punishment may be jail time and/or a fine.
What happens if the parent who is supposed to visit does not visit the child? You cannot force a parent to visit his or her child. There are no legal remedies to make a parent exercise his or her visitation rights. The parent with whom the child primarily lives has to make the child available according to the terms of the visitation order, but if the parent does not want to visit then there is nothing the court can do. However, failure of a parent to visit the child may become an important issue if there are later court hearings regarding conservatorship and possession issues.
What happens if I want to move? The geographical restriction is on the child, not the parents. This means if the parent who has primary possession of the child wants to move, he or she can, but the child cannot move if there is a geographical or domicile restriction in the court order. Normally, if the order has a specific geographical restriction on the child and the possessory parent still lives within that area, the parent who has primary possession of the child must get the written agreement of the other parent before he or she can move. This written agreement should be filed with the court. If there is no agreement, the parent wanting to move must obtain permission from the court. The court will require the moving parent to show what substantial change in circumstances is requiring the move and how the move will be in the best interest of the child. The parent must show the court why the move away from the other parent would be best for the child, and explain how he/she will assist in helping the visiting parent continue a frequent and meaningful visitation schedule with the child. If the possessory parent has moved away then it is possible the court's approval is not needed if the parent with primary possession wants to move, but this depends on the terms of the order and the moving parent should read over the terms carefully.
What happens if a parent disregards the geographic restriction? If the primary care parent disregards the order and moves without the agreement of the other parent or the court, the visiting parent can go to court and request the court enforce the terms of the geographic restriction. The court could force the parent to bring the child back to the location where the visits were supposed to take place, even if the parent has moved out of state. This may have the effect of the moving parent being forced to move back, or losing the right to have the child primarily reside with him or her.
What if there is no geographical restriction? If there is no geographical restriction in the order, the parent is free to move wherever and whenever he/she wants. The parent with whom the child visits may not prevent the parent from moving without going to court and getting the court to modify the prior order.
Do I have to make my child visit if the child does not want to go? YES! The only exception to this rule is if a parent believes the child may be in danger if the visit occurs. If the parent suspects the child may be in danger then he/she should contact the appropriate law enforcement or child protection agencies. The parent should also file an emergency motion with the court asking the court to suspend the visitation because the child is in danger. A parent cannot refuse to send the child for a visit because the child does not like the other's parent's house, neighborhood, spouse, boyfriend or girlfriend, or just because they are having a bad day. Texas law requires that the parent make the child available for visitation unless the parent goes back to court and gets a different court order. The parent is not allowed to alienate the other parent and, even if the parents do not like each other, the child should always be encouraged to visit the other parent.
Do I have to let the other parent visit if he/she doesn't pay child support? YES! The order for child support and the order for visitation are completely separate. The court looks at this from the child's point of view. No matter what, that parent is still the child's father or mother. Whether or not the parent is paying child support, the child still has a right to a meaningful relationship with his/her parent. Similarly, even if the parent ordered to pay child support does not or is not allowed to visit, he or she still must pay support.
What happens if the parent shows up late to pick up the child? The parent who is supposed to visit the child should make every effort to pick the child up on time. If the parent is going to be late, he or she should notify the other parent. If the parent shows up within 15 minutes of the appointed time, then the other parent should go ahead and let the child go with the visiting parent. However, if the parent shows up an hour late, then it is up to the discretion of the primary parent whether to let the child go. This comes down to what is reasonable. If the primary parent has other plans, he or she is not expected to wait all weekend for the visiting parent to show up. The court will consider what is reasonable, and what is in the best interest of the child when determining how to interpret these situations. The parents should use appropriate judgment and strive toward cooperation as much as possible.
CHILD SUPPORT
Who pays child support? Under Texas law all parents have a duty to support their child. This means the parent must provide the child with food, clothing, shelter, education and other necessary things to live. A parent who does not primarily reside with the child has the duty and obligation to support his/her child. The parent ordered to pay child support is called the Obligor. The parent who receives child support is called the Obligee.
When and how is child support paid? A child support order requires the obligor to make regular payments in a specific amount to the primary custodial parent. The court will not put limitations on how the custodial parent spends the child support. The child support is presumed to go toward the support of the child's household, either directly or indirectly, and therefore ultimately serves the child's best interest however it is spent. Normally the support is paid through the state registry and then sent to the custodial parent so there is a record of payment. If the court allows the payments to be sent directly to the custodial parent, it is important both parents keep a record of all payments sent and received.
What is the employer's order to withhold income for child support? The law in Texas requires child support to be taken directly out of the obligor's paycheck. When child support is established, an order called An Employer's Order to Withhold Income for Child Support (also called the Withholding Order) will be signed by the judge and sent to the obligor's employer. This order requires the employer to withhold income for child support out of each paycheck. Even if the obligor changes jobs, the withholding order will apply to any new employer of the obligor. The obligor is required to notify the court and the other parent of any changes in his employment situation including the new employer's name, address and phone number. If both parties agree, the withholding order may be suspended until such time as the obligor becomes behind in payment. In that situation, the obligor will be responsible for making the monthly payments on his/her own and the withholding order will not be sent to the employer until he/she is late in payment. Although it may take a few weeks to get the process started, once it is up and running. The withholding order often makes the process of paying child support smooth and simple. All child support payments are then sent by the employer to a central processing unit where the checks are processed and submitted to the parent to whom the support is owed.
Who pays for the child's health insurance? An additional required form of child support is health insurance, also called medical child support. It is the responsibility of the noncustodial parent to make sure that the child has health care coverage. This may be through private insurance, CHiPS or Medicaid. If the noncustodial parent does not have access to health insurance and the custodial parent does, the court will require the noncustodial parent to reimburse the custodial parent for the cost to insure the child. The uninsured medical expenses are normally divided equally between the parents.
How do I get a court order for child support?
Contact the Attorney General's Office. A parent seeking a court order for child support may go to the local office of the Texas Attorney General and fill out an application for assistance with child support. Most people call this the "child support office." The parent seeking child support should be ready to provide the noncustodial parent's home and employment addresses, telephone numbers, date of birth or social security number. The office of the Attorney General will then notify the noncustodial parent to see if an agreement can be reached regarding that parent paying child support. If an agreement cannot be reached, then the Attorney General's office will file a lawsuit asking the court to order child support. They will also ask that the child support be deducted from the parent's paycheck.
Contact a Private Attorney. A parent seeking a court order for child support may hire a private lawyer and file a lawsuit called a Suit Affecting the Parent Child Relationship. This is basically the same lawsuit the Attorney General will file. However a private attorney represents the parent and the Attorney General represents the State. A private attorney will cost more money because the Attorney General does not charge attorney's fees to the parent seeking child support. However, there are advantages to hiring a private attorney, such as the opportunity to reach a quicker resolution and the ability to address a parent's concerns about the standard joint conservatorship rights and duties and/or the standard visitation schedule.
How do I calculate the amount of child support? The amount owed by the obligor will depend on the obligor's income and the number of children for whom the obligor has a duty to support (both from the children involved in this court case as well as children from another relationship).
Texas has guidelines for determining how much a parent should pay in child support. The parent responsible for paying child support is allowed to deduct from his gross pay (the income before taxes or any deductions) federal taxes, social security, union dues and cost of the child's health insurance. After these items are deducted, the court uses a percentage of the obligor's net income to determine the amount of child support the obligor should pay. If the obligor does NOT have any other children to support and the obligor's monthly net resources are $9,200* per month or less, then the percentage of child support applied is as follows:
20% (from net monthly income) for 1 child
25% (from net monthly income) for 2 children
30% (from net monthly income) for 3 children
35% (from net monthly income) for 4 children
40% (from net monthly income) for 5 children
*The Guidelines for the support of a child are specifically designed to apply to monthly net resources not greater than $9,200 per Texas Family Code Sec. 154.125(a). You can calculate your child support amount by using the Texas Attorney General's Online Child Support Calculator.
The percentage continues to increase by 5% per child, however no parent may be required to pay more than 50% of his or her net earnings to fulfill all of his or her child support obligations. If the parent has other children to support from another relationship, the court will take that into account and the percentages will be less. Also, factors such as whether the noncustodial parent is intentionally unemployed, or underemployed (not earning as much as he or she is capable) will be considered by the court. Normally, unless the non-custodial parent is unable to work due to disability, the court will require some amount of child support. It is presumed the noncustodial parent is capable of earning at least minimum wage unless he or she can prove otherwise. On the other hand, if the obligor has monthly net income over $9,200, the court will apply the percentage guidelines to the first $9,200 of the obligor's net monthly resources, and may order additional amounts of child support as appropriate, considering the income of the parties and the proven needs of the child.
What if the parent does not pay the child support? As explained earlier with visitation, a child support order is an ORDER from the court. This means if a parent refuses to timely pay his or her child support, the other parent can go back to court and ask the judge to enforce the order. The parent who refuses to pay child support can be punished by contempt and put in jail and/or fined. A parent who is not receiving child support may seek assistance through the collection of the child support office at their local Attorney General's office or may hire a private attorney. More information on this topic may be found under Enforcement Remedies later in this booklet.
MODIFICATION OF A SUIT AFFECTING THE PARENT CHILD RELATIONSHIP
A Petition or Motion for Modification is a suit requesting a change from the last court order affecting the child. The modification may be in regard to child support, conservatorship (custody), and/or possession and access.
Who may file for a modification? A person affected by the prior court order, or a person who would have standing to sue in an original suit to affect the parent child relationship regarding the child, may file for a modification.
Where should the modification be filed? The modification suit should be filed in the court of continuing exclusive jurisdiction, i.e. the last court to issue a final order.
Who needs to be notified of the modification? Any party whose rights and duties may be affected by a suit for modification is entitled to receive notice by personal service of citation. Can temporary orders be issued in a modification? Yes, however, the court may not render a temporary order that changes the designation of the person having exclusive right to designate the primary residence of the child under the final order unless:
(1) the order is necessary because the child's present living environment may endanger the child's physical health or significantly impair the child's emotional development;
(2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or
(3) the child is 12 years of age or older and has filed with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, and the temporary order designating that person is in the best interest of the child.
Is a change in circumstances required to request a modification? There must be a material and substantial change in circumstances since the last court order to be able to request a modification. For example, there is an increase in travel expenses due to a parent's change of residence; a parent is convicted of child abuse or family violence; the needs, standard of living, or lifestyle of a parent or child changes; the child's residence changes; or military service changes a parent's living status.
What must I show to modify an order regarding custody or possession and access? You must show the modification would be in the best interest of the child, and either:
the circumstances of the child, a conservator or other party affected by the order have materially and substantially changed since the earlier of (a) the date the order was rendered, or (b) the date the mediation order or collaborative agreement was signed on which the order is based; or
the child is at least 12 years of age and has filed with the court, in writing, the name of the person who is the child's preference to have the exclusive right to designate the primary residence; or
the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
Can a modification be filed within one year of the order establishing the parent who has the exclusive right to designate the primary residence of the child? If a suit is filed seeking to change the person who has the exclusive right to determine the primary residence of the child not later than one year after the order is rendered or the mediated or collaborative settlement is signed, then the person seeking the modification must sign an affidavit stating facts supporting at least one of the following:
the child's present environment may endanger the child's physical health or significantly impair the child's emotional development;
the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or
the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.
If the court does not find adequate facts to support any of the allegations listed above, the court will deny the modification and refuse to schedule a hearing for modification. If the court determines the facts stated in the affidavit are adequate to support an allegation, the court will set a time and place for the modification hearing.
Can a modification be filed when there is an increase of travel expenses due to a parent's change of residence? Yes. If a change of residence results in increased expenses for a parent having possession of or access to a child, the court may issue appropriate orders to take into account those increased expenses and the best interest of the child. It is presumed that the parent whose residence has changed shall be responsible for payment of the increased expenses. However, the parent whose residence has changed may present evidence to the court to try to overcome that presumption.
What must be shown to modify a child support order? To change a child support order, you need to show the court the following:
there has been a material and substantial change in circumstances affecting a child or person affected by the order since the last court order, or
it has been three years since the last order and the monthly amount of child support differs by either 20 percent or $100 from the amount that would be awarded now under the child support guidelines.
If the person ordered to pay child support remarries can the court consider the income of the new spouse? No. The court cannot consider the income or needs of the new spouse when calculating the child support.
Can the change in child support be retroactive? Yes, but only back to the earlier of the date the opposing party is served with citation, or the opposing party makes an appearance in the suit.
ENFORCEMENT REMEDIES IN FAMILY COURT
The enforcement of family law related court orders involves complex issues of procedural law, criminal law, statutory interpretation, and case law. Depending on what kind of order is sought to be enforced, there are many different remedies available.
Contempt of Court. Contempt of court is defined as the failure of someone to obey a lawful order of a court, disrespect for the judge, or disruption of the proceedings through bad behavior. A judge may impose civil (a fine) or criminal (jail) sanctions for someone found guilty of contempt of court. Contempt of court is often referred to simply as "in contempt".
The two basic types of contempt, criminal and civil, are defined by the punishment imposed. For criminal contempt, the punishment is incarceration in the county jail for a time certain (maximum of 180 days per violation) and/or a fine (maximum of $500 per violation).
Contempt can be further classified into two categories based on when the offensive act occurred. Direct contempt is when the contemptuous acts occur in the presence of the judge. If someone is disrespectful to the court, the court has the authority to hold that person in direct contempt and assess a fine or incarcerate the person. If the acts occurred in the past and must be proven to have occurred, then the contempt is constructive. Child support and visitation violations are examples of constructive contempt.
Why is the original order important? The original order specifically spells out what must be done to comply with the order. The language must be clear, specific, unambiguous, directive, and cannot be subject to more than one interpretation or meaning. If these requirements are met within the original order, then the order may be enforced by contempt.
Motion for Enforcement. A motion for enforcement is a motion filed with the court to enforce a final order for conservatorship, child support, possession of or access to a child, property division, spousal maintenance, or other provisions of a final order.
What must be stated in a motion to enforce? The motion to enforce must be clear as to what type of punishment is being requested (criminal or civil or both), including how many days and/or the amount of the fine requested. If the punishment requested is incarceration for more than 180 days and/or a fine of more than $500, the person being sued for enforcement, called the respondent, may request a jury trial and may be entitled to a court appointed attorney if the court finds he does not have adequate income or resources to afford one.
A motion to enforce a child support order must:
include the amount as provided in the order, the amount paid, and the amount of arrearages; and
if contempt is requested, must include the portion of the order allegedly violated and, for each date of the alleged contempt, the amount due and the amount paid, if any.
A motion to enforce an order other than for child support, must, in ordinary and concise language:
identify the provision of the order allegedly violated and sought to be enforced;
state the manner of the respondent's alleged noncompliance;
state the relief requested by the movant; and
contain the signature of the movant or the movant's attorney.
What deadlines apply to getting a contempt or enforcement order? When bringing a motion for enforcement the first thing that must be addressed is whether a court retains jurisdiction to render a contempt order. A contempt order for failure to comply with orders must be brought by the following deadlines:
Enforcement of Child Support – A contempt order for failure to comply with a child support order can be brought in the last court to hear the case if the motion for enforcement is filed no later than six months after the date: (1) the child becomes an adult; or (2) the child support obligation ends under the order or by operation of law. However, if the enforcement suit is brought to collect child support arrearages, the statute of limitations does not apply and is indefinite.
Enforcement of Property Division – For personal property in existence at the time of the divorce decree, the suit must be filed before the second anniversary of the date the decree is signed or becomes a final order after appeal, whichever is later, or the suit is barred. For future property not in existence at the time of the divorce decree, the suit must be filed before the second anniversary of the date the right to the property matures or becomes final, whichever date is later, or the suit is barred. [Texas Family Code Section 9.003.]
Enforcement of Spousal Maintenance – The Texas Family Code is silent regarding the enforcement of spousal maintenance as it relates to a statute of limitations.
Enforcement of Visitation – A motion to enforce possession or access to a child must be filed not later than six months after the child turns 18 or six months after the right of possession and access ends under the order.
How must I notify the opposing party (the respondent)? The motion to enforce must be personally served on the respondent accompanied by an order to appear at a "show cause" hearing. The respondent is entitled to 10 days notice of the hearing. If the respondent is served less than 10 days before the court date, it is easy to avoid any problems by simply swearing the respondent to reappear at a later date, unless the respondent will waive the 10 days notice. If the respondent is served with the order to appear less than 10 days before the hearing date, the respondent must still appear in court on the hearing date, or a capias may be issued for his arrest.
Claiming affirmative defenses in an enforcement action? In defending against enforcement motions, the respondent has several affirmative defenses he or she may claim, including the following:
Child Support Defenses
Custodial parent (obligee) voluntarily allows child to live with the parent ordered to pay child support (the obligor). This is called voluntary relinquishment. If the obligee (the custodial parent) voluntarily gave actual control and possession of the child to the obligor (the noncustodial parent) for a longer period of time than the court-ordered periods of possession, and actual support of the child was supplied by the obligor, then the obligor is entitled to a credit up to the amount of the periodic payments previously ordered for the time the child primarily lived with him or her.
Inability to pay the court ordered child support. If the obligor can prove that he or she lacked the ability to provide support in the amount ordered, lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed, attempted unsuccessfully to borrow the funds needed, and knew of no source from which the money could have been borrowed or legally obtained, the court may dismiss an enforcement claim.
Money paid directly to the other parent is not included in the child support record, or the child support record is wrong. If the obligor (non-custodial parent) can prove that he or she was not given credit for all payments made, the court may dismiss an enforcement claim or give the obligor a credit for a portion of the enforcement claim brought against him. Proof may be in the form of cancelled checks or receipts from money orders or cashiers checks. However, many courts will not give the obligor credit for direct payments made to the obligee if the child support is ordered to be paid through the registry or if the decree contains the provision that any payments made outside the registry are deemed to be gifts.
Past behavior. The judge will consider past behavior in regard to punishment or sentencing. An obligor can also seek to introduce evidence that goes to punishment. Since the sentencing hearing is not in a separate hearing as in criminal cases, any evidence necessary for the court to impose a sentence less than the movant is asking for needs to be introduced at the hearing.
Spousal Maintenance Defenses. For the enforcement of spousal maintenance, these additional defenses apply: lack of ability to provide maintenance in amount ordered; lack of property that could be sold, mortgaged, or otherwise pledged to raise the funds needed; unsuccessful attempts to borrow the amount ordered; and lack of knowledge of a source from which to borrow or otherwise legally obtain the amount ordered.
Habeas Corpus Defenses. Habeas Corpus is a remedy to have the child immediately returned. Defenses that apply to habeas corpus suits include arguing that no valid order exists or that the other parent voluntary relinquished possession of the child in excess of six months.
Remedies available for enforcing Child Support Orders? When enforcing child support orders, Texas courts have several different options which include:
Income withholding – The court may order income be withheld from the paycheck of the obligor in an amount sufficient to pay off the judgment of arrearage in not more than two years. If the obligor is self employed, or otherwise not subject to wage withholding, the obligor must make periodic payments to the obligee in an amount sufficient to pay off the arrearage and discharge the judgment within a reasonable time. The obligee can request that the court require the obligor to post a bond to ensure compliance with a withholding order.
Child support lien – Another way to enforce a child support order is by placing a child support lien by operation of law against any real or personal property of the obligor for the amounts of the child support due and owing, including accrued interest. The amounts do not have to be confirmed in court before the obligee can obtain a child support lien. However, the lien is subject to the requirements for perfection as found in Section 157.312 of the Texas Family Code.
Suspension of license – A child support agency or obligee can file a petition to suspend the license of an obligor who has an arrearage equal to or greater than the total support due for ninety days under a support order. The obligee must first file the petition for suspension of the license and issue notice to the obligor of such filing. If the obligor responds, a hearing will be held from which an order suspending the license can be issued. The entity that issues the license will receive a copy of the order and will then notify the obligor of the suspension. Any license listed in Section 232.002 of the Texas Family Code may be suspended including: driver's license, plumbing, pharmacy, alcoholic beverage, architects, barbers, public accountants, pest control, engineers, polygraph examiners, nurses and doctors, attorneys, midwives, department of health and psychologists. Under Chapter 232 of the Texas Family Code, a court or the Title IV-D agency (Texas AG) may issue an order suspending a license if an individual who is an obligor: (1) owes overdue child support in an amount equal to or greater than the total support due for three months under a support order; (2) has been provided an opportunity to make payments towards the overdue child support under a court order or agreed payment schedule; and (3) has failed to comply with the repayment schedule. In addition, there are two other instances that warrant license suspension under Chapter 232: (1) when a parent or alleged parent has failed, after receiving appropriate notice, to comply with a subpoena; and (2) when a court has rendered an enforcement order with a finding that the individual has failed to comply with the terms of a court order providing for the possession of or access to a child.
Commitment – As discussed previously, criminal contempt can be punished by incarceration in the county jail for a time certain not to exceed 180 days per violation or a fine not to exceed $500 per violation. Civil contempt can be punished by incarceration for an indefinite period of time until the obligor performs or stops performing a specific act. Thus, if a child support arrearage is $3,000 a court can order the obligor incarcerated for up to 180 days under criminal contempt and a civil sentence of "day to day thereafter until the respondent pays the arrearage of $3,000."
Community Supervision – When an obligor is held in contempt, he or she may be sentenced to a period of incarceration with the sentence suspended so long the obligor meets certain terms and conditions instead of being jailed. Those terms and conditions may include things such as: visits from a community supervision officer, attending counseling, paying child support arrearages, court costs and attorney's fees, participating in mediation, or seeking employment assistance services. The period of community supervision cannot exceed 10 years.
Qualified domestic relations order (QDRO) – Payment of past due child support or spousal maintenance can also be secured by a QDRO. With this option, the child or spouse is named as the alternative payee from an operative and managed account and monies are distributed to the child or spouse. With child support, the plan participant (the obligor) is taxed for such payments. QDRO is more fully described in the definitions section of this handout.
Remedies available for enforcing visitation orders. When enforcing visitation order, Texas Courts have the following remedies:
Habeas Corpus – When a quick remedy is needed and contempt is not appropriate, relief can be sought through a habeas corpus proceeding. This proceeding is most useful when there is no court order and a child is in the possession of a non-parent or when a court order does exist and the child is wrongfully possessed by a parent who does not have a right to possession. This suit must be brought in the court of continuing, exclusive jurisdiction or in the county where the child is found. This suit invokes the authority of the court to end an unlawful retention of a child.
Warrant to take possession of child – Texas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which provides that a court of this state shall recognize and enforce a child custody determination of another state. Under the UCCJEA, a court of this state may use any remedy available under the laws of this state to enforce a child custody order. Thus, upon the filing of a petition seeking enforcement of a child custody order, the petitioner may file a sworn application for the issuance of a warrant to take physical custody of a child if the child is imminently likely to suffer physical harm or be removed from this state. If the court finds evidence of imminent physical harm or removal from the state, a court may issue a warrant to take the physical custody of a child. The respondent must be served with the petition, warrant and order immediately after the child is taken into custody.
Remedies available for Enforcing Property Divisions? When enforcing property divisions, Texas courts have the following remedies:
Clarification order – If the terms of an original order are not clear or specific enough to be enforceable by contempt, the court may render a clarifying order setting forth specific terms to enforce compliance with the original division of property. A court may issue a clarifying order on a party's own request or on the court's own motion. A court must provide a reasonable time for compliance, however, before it can enforce a clarifying order by contempt or other remedy.
Delivery of property – A court may make an order to deliver specific existing property awarded to a party, including an award of an existing sum of money or its equivalent.
Money Judgment – If a party fails to comply with a final decree of divorce and delivery of property is no longer a viable remedy, a court may order a money judgment for damages caused by a party's failure to comply. A money judgment rendered in this situation may be enforced by any means available for enforcement of judgment for a debt.
Right to receive future property – A court may enforce an award of the right to receive a payment or payments due to an owning spouse in the future. The subsequent receipt of said money by the non-owning spouse of such property imposes a constructive trust on property awarded to the owning spouse in a divorce decree for the benefit of the owner.
Attorneys fees and costs – The court may award costs in a proceeding to enforce a property division against a disobedient party. In addition, the court may also award reasonable attorneys fees as costs in a proceeding to be paid directly to the attorney.
Turnover Order – If the enforcement is sought for any award other than child support, the court has the authority to order the obligor to turn over all non-exempt property, documents, and records to the petitioner if three requirements are met: (1) the judgment debtor owns property, including a present or future right to property, (2) the property cannot be attached or levied on by an ordinary legal process, and (3) the property is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.
Suit for breach of contract or suit for declaratory judgment – Chapter 9 of the Texas Family Code provides a method for enforcement of the property division by allowing the filing of a suit for breach of contract or a declaratory judgment within two years of the signing of the decree.
Remedies to enforce court-ordered spousal maintenance (alimony) Lastly, to enforce court-ordered spousal maintenance, the Texas courts have the following remedies:
Income withholding – In a proceeding in which periodic payments of spousal maintenance are ordered, modified, or enforced, the court may order that income be withheld from the disposable earnings of the obligor. However, this does not apply to contractual alimony (agreements reached without a court order) or spousal maintenance unless (1) the contract specifically permits income withholding, or (2) the alimony or maintenance payments are not timely made under the terms of the contract. However, the court may order additional income be withheld above the current spousal maintenance to be applied toward the reduction of any arrearages. This additional amount withheld must be in a manner that will discharge the arrearages in the least amount of time: either (1) an amount sufficient to discharge the arrearages in not more than two years; or (2) 20% of the amount withheld for current maintenance.
Qualified Domestic Relations Order (QDRO) – Payment of past due spousal maintenance can also be secured by a QDRO. With spousal maintenance, however, the payee will be taxed for such payments so the benefits of a QDRO for the enforcement of a spousal maintenance order may not be the most cost-effective choice. QDRO is more fully described in the definitions section of this handout.
You cannot be held in contempt in all circumstances. Not all orders are enforceable by contempt. The following are restrictions on the enforceability of orders through contempt:
Orders for the payment of debts are not enforceable by contempt, as such would violate Article I, Section 18, of the Texas Constitution.
A person cannot be held in contempt for failing to perform an act he is incapable of performing.
The court cannot hold a person in contempt for something that is beyond its power to order.
A person cannot be held in contempt unless the judgment or order specifically "spells out" what the respondent is to do and how he is to do it.
Even if an order cannot be enforced with contempt, however, there may still be contractual remedies to enforce the terms of an agreed decree.
COMMON WORDS IN TEXAS FAMILY COURT
ADR Statement – Alternative Dispute Resolution Statement. A written statement to the court that you will try to resolve the issues in the divorce between you and your spouse before asking the Judge to make a decision. This document was previously required to be attached to the divorce petition.
Affidavit of Inability to Pay Court Costs – A sworn statement of your income, assets and expenses.
Alternate payee – A spouse, former spouse, child, or other dependent of a member or retiree who is recognized by a domestic relations order as having a right to receive all or a portion of the benefits payable by a retirement system with respect to such member or retiree.
Amicus Attorney – An Attorney appointed by the court to represent the best interest of the child.
Arrearage – Money that was court ordered to be paid and is overdue and unpaid.
Attorney Ad Litem – An Attorney appointed by the court to represent the wishes of the child as he would for an adult client. The rules of confidentiality and undivided loyalty apply.
Binding Agreement – An agreement between the parties that is signed by both of them, and is often also filed with the court. It is enforceable as a contract and the Judge may decide to make the agreement enforceable as a court order.
Child Support – Money paid by a parent to help the other parent support the child.
Collaborative Law – A method of alternative dispute resolution where all parties agree to resolve their disagreements without going to court. Each person hires his or her own attorney and everyone works together in a series of meetings to reach an agreement.
Community Property – Property owned by either party during the marriage.
Community Debt – Debts that occurred during the marriage.
Conservatorship – A court order deciding where a child will live and the rights each parent will have to make decisions regarding the child. Also known as "custody."
Court Clerk – The person who works for the Judge assigned to your case. He/she receives court papers and assigns hearing dates.
Court Reporter – Types and/or records a record of everything said during a court hearing. The court reporter will prepare a written record if requested for a fee.
Custodial Parent (Sole or Joint Managing Conservator) – The parent who has the legal right to determine the primary residence of the child.
Decree – Also known as Final Decree of Divorce. The legal document signed by the Judge that grants the divorce and describes the specific terms of the divorce.
District Clerk – Maintains the official court records for the county. The district clerk's office receives all court papers and keeps the divorce files.
Divorce – The legal end of the marriage relationship.
Docket Number – The number given to your case by the district clerk's office that specifically identifies your case.
Domestic Relations Order – Any judgment, decree, or order, including approval of a property settlement agreement, which relates to the provision of child support, alimony payments, or marital property rights to a spouse, former spouse, child, or other dependent of a member or retiree, and is made pursuant to a domestic relations law, including a community property law of the State of Texas or of another state.
Dual Role Attorney – An Attorney appointed in a suit by a governmental entity to represent both the child's wishes and the child's best interest.
Employer's Order to Withhold – A court order to deduct child support payments from someone's employment wages. All child support court orders must include an Employer's Order to Withhold.
Evidence – Proof given to the court.
Filing – Giving the district clerk your legal papers.
Guardian Ad Litem – A person appointed by the court to represent the best interests
of a child.
Insupportability – The most common reason given for a no-fault divorce.
Joint Managing Conservatorship – Also known as Joint Custody. A court order stating both parents have equal rights and duties to make decisions regarding the child.
Judge – The person who hears and makes the final legal decision in your divorce.
Law Librarian – The person who maintains legal reference and research materials for
public use.
Managing Conservator – The parent who has the legal right to determine the primary residence of the child. Also known as Custodial Parent, Primary Conservator or Primary Joint Managing Conservator.
Mediation – A process to help the parties reach an agreement.
Mediator – A neutral person who helps the parties reach an agreement.
Negotiations – An attempt to reach an agreement.
No Fault Divorce – The most common type of divorce, where no one needs to prove that the husband or wife caused the marriage to end.
Non-binding – A process where no specific result is forced on the parties. There is no penalty if the parties are unable to come to an agreement.
Non-custodial Parent – Also known as the Possessory Conservator. The parent that does not have the legal right to determine the primary residence of the child.
Obligor – The parent who is court ordered to pay child support.
Obligee – The parent who receives child support on behalf of the child.
Parties – The husband and wife, and anyone else who has filed a court appearance in the divorce.
Paternity – A court finding that a certain person is legally the father of the child.
Petition – A legal paper that starts your divorce case and tells the court and your spouse what you want.
Petitioner – The person who files for the divorce.
Possession Order – Also known as "visitation" or "access." A court order stating the specific days and times a noncustodial parent may spend time with the child.
Possessory Conservator – Also known as the non-custodial parent. The parent who does not have the legal right to determine the primary residence of the child.
Primary Conservator – The parent who has the legal right to determine the primary residence of the child. Also known as Custodial Parent, Managing Conservator or
Primary Joint Managing Conservator.
Process Server – A person approved by the court who gives official legal notice to another person by giving him/her an official copy of a court document.
Pro Se – Representing yourself without an attorney.
Prove Up – The process of finishing your divorce in front of the Judge at an uncontested court hearing. At the prove up, one or both of the parties recite the required information to the court. The Judge then has the discretion to approve the terms, grant the divorce and/or make any other orders the Judge believes are appropriate.
Psychological Evaluation – A court ordered evaluation of a person involved in the lawsuit. The evaluation is conducted by a licensed psychologist who will provide a written report to the court.
Psychiatric Evaluation – A court ordered evaluation of a person involved in the lawsuit. The evaluation is conducted by a psychiatrist who will provide a written report to the court.
QDRO – Qualified Domestic Relations Order – A domestic relations order which creates or recognizes the existence of an alternate payee's right or assigns to an alternate payee the right to receive all or a portion of the benefits payable with respect to a member or retiree under a public retirement system, which directs the public retirement system to disburse benefits to the alternate payee.
Respondent – The spouse of the person who filed for divorce the party being sued.
Retroactive Child Support – Child support that was not previously ordered, but should have been paid at a time after the child was born and the parties were separated.
Return – Also called a Sheriff 's Return. An affidavit signed by a sheriff or official process server stating the date and time he provided legal notice to the other party, or the reason as to why he was unable to provide legal notice to the other party. The return is filed with the Court.
Separate Property – Property that a spouse owned prior to the marriage, or property that was given to the spouse as a gift or inheritance.
Service – The legal method for giving your spouse a copy of the divorce petition.
Settlement – An agreement reached between the parties.
Social Study – A court ordered investigation of the circumstances and home life of the parents and the child. The social study is usually conducted by a social worker.
Sole Managing Conservatorship – Also known as sole custody. A court order stating one parent has more rights and duties regarding the child than the other parent.
Spousal Maintenance – Also called "spousal support" or "alimony." Money a court requires one spouse to pay to the other spouse for support during and/or after the divorce is granted.
Standard Possession Order – A specific possession schedule designed by the Texas Legislature and found to be in the best interest of the child in most circumstances. Temporary Orders – Court orders during the pendency of a divorce. Temporary orders may address any issues that need to be dealt with while a divorce is pending, such as custody, visitation, child support, use of property and responsibility to pay debt.
Temporary Mutual Injunction – Also known as a Mutual Injunction. A common order contained in Temporary Orders in a divorce that prohibits the parties from destroying or transferring any community property, incurring further debts, and from any type of harassment to the other party or the child.
Temporary Restraining Order – Also known as a TRO. A common order at the beginning of a divorce that prohibits the other spouse from doing anything to transfer or destroy the property of the marriage or to cause harassment to the other spouse or the child.
Waiver of Service – A legal document, signed by the Respondent in the presence of a notary, that states he/she accepts legal notice of the Petition without an official process server or sheriff or constable giving it to him/her. The waiver of service may also have other legal consequences depending on what is stated in the waiver.
RESOURCES
Texas Lawyers for Children - www.texaslawyersforchildren.org
Texas Rio Grande Legal Aid - www.trla.org
Protective Order Kit: www.texaslawhelp.org/protectiveorderkit
TexasLawHelp: www.texaslawhelp.org
Texas Legislature Online - www.capitol.state.tx.us
National Domestic Violence Hotline - www.ndvh.org
Office of the Attorney General Child Support Division - https://www.oag.state.tx.us/child-support
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