Family Law
Divorce, Child Support, Child Custody, Modification
Telephone: 214.521.9100

     Sadly, for some of us the joy of marriage doesn't last forever, or future plans don't pan out as hoped and living together becomes intolerable. When compatibility no longer exists and differences can not be reconciled, the strain on one's personal life can and often is severe. Divorce is not always the solution, but when it is, the importance of choosing the correct attorney to navigate and litigate you through your divorce cannot be overemphasized or understated. Sometimes the decision to part is joint and mutual and a cooperative divorce arrangement is desired. Other times a stronger and more aggressive approach is necessary for especially difficult spouses. Whatever your situation, however difficult your spouse may be, the law offices of Wyde & Associates handles all types of divorce and child custody, which is generally considered by most lawyers to fall under the broad category of Family Law.

Thus we offer legal services in the following areas:

DIVORCE INFORMATION

     A court’s ultimate responsibility is to divide the property in a manner that the court deems just and right. The vast majority of divorce actions in Texas are settled between the parties and never go before a Judge or jury.

     Judges in the State of Texas have broad authority when it comes to dividing property and rarely will their judgments be overturned on appeal as long as they use some guiding legal principle in dividing the property. A common misconception is that the court must divide the property 50/50. This is not true. A court must only divide the property in a “just and right” manner. The court will also divide debt that has accumulated between the parties and incorporate that division into the property division. Almost without exception the court will require an Inventory and Appraisal, sometimes called an "Inventory" that each party will file with the court prior to trial. Once the inventory is completed and filed, the next step is to prepare a proposed property division for the Judge. The court can not divide the property without some evidence as to the value of the property. Evidence that can show valuing of property can come from expert testimony, the parties inventories, the parties own testimony and financial statements. When there is a disagreement over the value of property, generally a court is within its discretion to value the property somewhere between the parties own valuations. But a court must value the property based upon some evidence presented to it, a court can not value property at a value where there has been no evidence presented to substantiate that valuation.

 CHARACTERIZATION OF ASSETS

     Possibly the single biggest determination during a divorce is how to characterize marital property. There are two general types of property in Texas. Community property and separate property. If property is determined to be the separate property of one spouse, then the Court does not have authority to divest that party of that property. (But the court can use separate property as a basis in dividing property). Community property can be divided by the Court. There is a general rule that property acquired prior to the marriage, inherited or given to one spouse during the marriage is the separate property of that spouse. Generally any property accumulated during the marriage is considered community property. There is a presumption that all property owned by a party at the time of divorce is community property and that a party alleging he or she owns separate property has the burden to convince a court otherwise.

TEXAS PRENUPTIAL AGREEMENTS

     A prenuptial agreement is a contract between couples contemplating marriage that enumerates how a couple with handle the financial part of their marriage. Contemplating a premarital agreement does not mean you are anticipating a divorce. It does mean you want to have a meaningful discussion of your financial matters prior to marriage. It will also inform you if you and your perspective spouse have similar philosophy regarding the handling of your finances.

     There is another avenue for characterizing property as the separate property of one spouse. Any money that was earned prior to divorce is separate property. If that same money is used to purchase property during the marriage then that property that was purchased with separate property funds is also considered separate property. As long as the spouse alleging separate property can trace the money to the property purchased, without surmise or speculation" then the separate property claim will hold. "Without surmise of speculation" can be conceptualized as what most people would call a paper trail.

CHILD CUSTODY IN THE STATE OF TEXAS

     Child custody proceedings are complicated and can't be comprehensively explained here. There are some general conceptions that we attorneys at Wyde & Associates  feel are generally accepted as guiding principles in Texas custody proceedings.

     Generally speaking, the term "custody" refers to the parent (or person) who will have the exclusive right to determine the primary residence of the child(ren) or who the children will live with. The person who has this right is often called the custodial parent and the parent who has visitation is often called the non-custodial parent.

     Under Texas law there is no presumption that a woman or a man, based on gender alone, is either more or less fit to be a custodial parent. By law, gender can not be used when making a custody determination.

     A custody proceeding is started by the filing of either a Divorce Petition (if the parties are married) or a Suit Affecting Parent-Child Relationship, also known as a SAPCR. The filing of either of these lawsuits is very similarly to filing a lawsuit in civil court, with the exception you are suing to be designated the custodial parent of a child. It’s very important to consult with a lawyer if you are faced or will face a child custody proceeding before taking any action.

     The Courts guiding legal principle in deciding who should be the custodial parent is the child’s “best interests.” What exactly is in the child’s best interest is not particularly well defined, but Texas Court’s have provided guidance. In one case, the court came up with a non exclusive list of factors to look at in determining the best interests of the child.

The Court found some pertinent factors are:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the future;

         (C) the emotional and physical danger (of one parent) to the child now and in the future;

         (D) the parental abilities of the individuals seeking custody;

         (E) the programs available to assist these individuals to promote the best interest of the child;

(F) the plans for the child by these individuals;

(G) the stability of both parties homes;

(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and     

(I) any excuse for the acts or omissions of the parent. 

     Other factors which a Court will look to are who has been making the educational decisions of the children, who has been making any medical related decisions, who generally prepares for and feeds the children, which parent regularly meets with the teachers if the child is school age, has one parent been alienating the child from the other parent, who gets the child up in the morning and puts him/her to bed at night, and who participated in extracurricular activities.  Other factors that a Court will always look at are if either parent has or is using drugs or has either parent been involved in any criminal activity. Either of these will almost always result in an adverse ruling and sometimes a restriction in the amount of visitation the non-custodial parent has.

VISITATION

     Texas has a set schedule for the non-custodial parent’s periods of possession which the Court’s presume to be in the best interests of the child. Of course this can be changed, and frequently is, if either parent can not act in the children’s best interest. The non-custodial parents possession schedule is often call “Standard Visitation.” Standard visitation applies to children over three years of age. The schedule is generally: the 1st, 3rd, and 5th weekends of each month beginning at 6 p.m. Friday and ending 6 p.m. Sunday. Friday determines which weekend is the 1st, 3rd, or 5th (Not Saturday!) Every Thursday night from 6 p.m. until 8 p.m. There is also time for summer and holiday provisions that supercede the above described possession periods. Summer is 30 days in the summer, and Thanksgiving and Christmas are generally alternated every year. The mother always gets the full weekend that Mother’s day falls on and the father always gets the full weekend that Father’s day falls on regardless whether it’s his/her weekend. The one week spring vacation is alternated between the parties yearly. Of course there are many nuances to the visitation periods but this gives the general idea. One of the most important features of Texas Standard visitation is if the parents can agree on a different possession schedule, then the parents are always free to change it. The Court’s encourage this!

TEXAS CHILD SUPPORT INFORMATION

    Texas law provides for specific ways of determining the amount of monthly child support. The law as currently written determines the amount per a simple calculation.

    Generally, child support is calculated at (the person who pays support net monthly income) multiplied by (either 20% for one child, 25% for two children, 30% for three children, and so on). The Texas Family Code determines how many and how much the monthly deductions are to determine gross monthly net income. Obligors are entitled to deduct from their paycheck FICA and Social Security Taxes as well as the cost of maintaining health insurance for the children. Generally, 401(k) contributions or any type of loan repayments deducted from the paycheck are not allowed to be deducted in determining net monthly income.

     Additionally, the percentage that is applied in determining the amount of child support will be reduced if the obligor has other children that are not before the court and the person has a legal responsibility to pay child support.

      The question of how to determine net monthly income is sometimes difficult to determine if the obligor (per who will be paying support) has been unemployed or changes jobs frequently. Generally, Court’s will average a person’s monthly income over a period of time if there has been fluctuations in the amount of income a person receives. Additionally, if a person is unemployed at the time a child support order is established the Court’s will base child support based upon the federal minimum wage at 40 hours a week. The Court’s and our society impose an absolute duty to financially support one’s children. When special circumstances exist or there are gaps in employment, there isn’t a hard and fast rule as to how to calculate current child support and factors such as what County you reside in, what Court you are in and ultimately what Judge will hear your case play a factor.

      The penalties for not paying child support are severe. This includes civil penalties, attorney’s fees, judgment liens on a person’s house (even if they are remarried), liens on federal income tax refunds, and ultimately jail terms.

     If you are a single parent trying to get child support or enforce a child support order that is being ignored by the person who is supposed to pay, then contact the lawyers of Wyde & Associates immediately to assist you.

     If you can not afford a lawyer please contact the Texas Attorney General at http://www.oag.state.tx.us/child/index.shtml.

      If you are paying child support and your income changes to the point that you can not afford to pay your monthly child support obligation to contact a lawyer to lower your child support. As described above it’s relatively simple to calculate current child support (unlike other states that have complex child support

 

MODIFICATIONS

    This  information is in the process of being updated.   If you have any questions on this matter please contact the firm directly.

TEXAS PATERNITY

     Paternity is generally the mechanism that determines the identity of the biological father of children, thus a Paternity lawsuit is a lawsuit to determine who the biological parent is and to establish a legal relationship with the tested parent. If paternity is contested, the Court will Order a paternity test to be done. A paternity test is the means by which the DNA of the child is compared to that of the alleged father to see if there are similar DNA markings.

Children's Bill of Rights

Some Final Tips for Improving Post-Divorce Co-Parenting When Conflict Prevails

STATUTES & CODES

  Texas Family Code

Dallas County Family Court Services

CASE LOOK UP

Dallas County Family District Courts

Dallas County Family Case Information

Collin County Family Case Information

Tarrant County Family Court Information

Denton County Family Case Information