Going through a family law matter involving divorce, couples can disagree on many issues including: property division, child custody, child support, and visitation. Many a Houston divorce lawyer can tell you that divorcing parents and their children are better off to have an agreed divorce. Carl Selesky is one Houston family lawyer that encourages spouses to try to come to an agreed divorce to avoid the unnecessary emotional and monetary costs of a divorce in Houston, as well as other areas in Texas.
An agreed divorce is one in which the parties resolve all their differences without trial and ask the court to approve the terms of their agreement. Agreed divorces reduce the bitterness that may exist between the parties and benefit everyone. There are more and more couples that even try to navigate through an agreed divorce without the aid of a family lawyer; some succeed and some fail. Those who succeed may realize great savings and those that fail may have wasted their money and have to start all over again, having to use the services of a Houston divorce lawyer. Of course, family courts will hear any contested case and settle all disputed issues in a divorce; however, each party to a divorce should carefully consider if a compromise is possible prior to asking for a trial. One of the greatest benefits of seeking a meeting with Carl Selesky, a Family Lawyer in Houston, is that you can have a free consultation with a Houston divorce attorney to find out your legal rights in divorces in Houston, and Texas, and see whether an agreed divorce is right for you.
FAMILY CASES IN HOUSTON AND THROUGHTOUT TEXAS
Family cases in Houston, like many family cases in Texas, usually start when a divorce petition if filed by the family lawyer representing the party bringing the divorce. The petition for divorce is a formal legal document that contains background information (such as when the marriage and separation occurred and the names, ages, and social security number of any minor children), states the reason a divorce is desired, and requests relief (including child custody, property division, and other matters). Typically, the information contained in the petition is obtained by the family lawyer when the lawyer and client meet to discuss the background facts of the marriage and the reasons for divorce. The petition should be filed in the court in the county where one of the spouses has been a resident for 90 days. Also, at least one spouse must have lived in the State of Texas for at least six months. A good Houston divorce lawyer like Carl Selesky, will usually spend at least an hour or more in the initial consultation to make sure they have a thorough and accurate understanding of the history of the parties. The client usually derives a great benefit in the divorces since much of this information is obtained during their free consultation with Mr. Selesky. It is always a good idea to gather relevant financial records (income tax returns, pay stubs, checking and savings account information) so that the divorce process can start smoothly and the client can provide information for their family lawyer.
A divorce in Houston, and Texas in general, may be granted upon different grounds. Most Houston divorce attorneys will tell you that the majority of divorces are granted without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. While this sounds complicated, a good Houston divorce lawyer will tell you what this means is that you can file for a no-fault divorce in the State of Texas. A divorce may also be granted for adultery, abandonment, cruelty, imprisonment, conviction for a felony, living apart, or confinement in a mental hospital. A good Houston divorce attorney like Carl Selesky should go over the different reasons for a divorce during your initial consultation.
Typically, after the client engages a family lawyer, the divorce petition is filed and it must be served on the non-filing spouse. However, if the non-filing spouse waives service of the divorce petition in writing, service of the divorce petition is not necessary. The party against whom the divorce petition is directed has the right to answer the petition and file a counterclaim. The answer must be filed with the family court on the Monday following the expiration of 20 days after service of the divorce. In Houston there are family courts that exclusively hear family related cases; in other cities, many courts will hear many different types of cases.
If a divorce is not agreed, after a divorce is filed, either family lawyer representing the court can make temporary orders that will control the family situation while the divorce is pending. These orders might include such things as
(1) orders for counseling;
(2) orders enjoining one or both parties from committing acts of violence or harassment;
(3) orders enjoining one or both parties from disposing of, hiding, damaging, or mortgaging property;
(4) orders enjoining one or both parties from creating debt;
(5) orders providing for temporary custody of and visitation with children;
(6) orders for temporary support of children and spouse; and/or
(7) orders concerning the possession and use of property.
A divorce cannot be finalized by the court until the divorce petition has been on file with the court for at least 60 days. The best way to understand these issues is to consult with Carl J. Selesky, or other Houston divorce lawyers about your problem.
PROPERTY DIVISION IN A DIVORCE
In the divorce decree, the court must divide all the parties' community property. The court cannot give the separate property of one spouse to the other spouse, except with the owner's agreement. Therefore, the divorce lawyers must present evidence to help a court decide whether each item owned by the parties is community or separate property.
Unless otherwise agreed to in a written contract properly executed by the parties, community property is all property acquired during the marriage, except gifts and inheritances. The answers to some typical property questions asked of Houston Family Lawyers is as follows: Property acquired during the separation but before the divorce is final is community property. Money received during the marriage for personal injuries wrongfully caused by another is not community property, unless it is to repay for earnings lost during the marriage or for medical expenses incurred during the marriage. Unless proven otherwise, the court will presume that all property owned by the parties is community property.
Separate property is property acquired by one spouse before the marriage and property acquired during the marriage if it was a gift, inheritance, or received for personal injuries wrongfully caused by another, except when the personal injury recovery is to repay for earnings lost during the marriage or for medical expenses incurred during the marriage. Money received from the sale of separate property remains separate property if it can be traced to that separate property and has not become commingled with community property. Property purchased with separate property money continues to be separate property, even if the transaction occurred during the marriage. However, one of the problems in a divorce that Family Lawyers are faced with is if separate property and community property are commingled so that the separate property cannot be clearly traced and identified, then all commingled property will be deemed community property.
Unless otherwise agreed to in a written contract properly executed by the parties, income earned during the marriage from separate property, such as rent received from a separate property house, will be community property. However, the increase in value of one's separate property during the marriage, such as appreciation of a rent house, will remain the party's separate property.
In a divorce, the court will not always divide the community property 50/50. The Family Laws state that a Judge in a divorce is required to make a "fair and equitable" division of the community estate. Factors that divorce lawyers typically argue and may be considered by the court are the respective earning capacities of the parties, separate property owned by either party, child custody, and fault in the breakup of the marriage. The court has a great deal of discretion in making the property settlement.
It is important to make sure the court divides all the community property in a divorce because if it does not, the parties will own the property jointly, and either party will have to force a partition by a lawsuit to divide the property. Community property in a divorce that is often overlooked by the parties but should not be by Family Lawyers includes retirement benefits that may be due in the future although they are not presently being received, life insurance policies, potential lawsuits arising during the marriage, and prepaid federal income tax.
Debts created during the marriage by either party are usually community debts that both parties are obligated to pay. No agreement by the parties and no court order in a divorce case can affect the right of creditors to attempt collection for either party. While the Court can order one party to pay particular debts in a divorce decree, the creditors can still come after both parties.
The court may order one party to pay the other party's attorney's fees as part of the division of the property or as a necessity for the welfare of the children. However, it should be noted, that no matter how good your Houston Family Lawyer is, the court typically does not have to award attorney's fees and often does not.
A court cannot order alimony payments after the divorce is final, except by agreement. In some special circumstances, it is wise for the parties to agree to alimony, particularly when the amount of their future earnings will differ widely. A Family Lawyer’s advice is necessary to ascertain whether or not an alimony agreement would be beneficial in a particular situation.
Any wills should be reviewed at the time the decision to divorce is made. Although a divorce nullifies the portion of a will leaving property to the other spouse, this only occurs when the divorce is finalized by the parties through their divorce lawyers, and approved by the Court; not when the petition is filed.
In a typical Houston Family Law case, the parties usually submit a proposed division of property to the court for consideration if they can come to an agreement. Most divorce lawyers will tell you that although the court is not obligated to accept the proposal, it often will. The best way to really understand the issues facing the split of property owned by the parties is to consult with a Houston Divorce Lawyer like Carl J. Selesky.
CUSTODY, VISITATION, AND CHILD SUPPORT
There is no doubt divorce affects the lives of scores of children in Houston, and throughout Texas. With very few exceptions, divorcing couples with the help of their Houston divorce attorneys, can and should agree on the issues of custody and visitation. The agreement should ensure that the child or children maintain close and continuing contact with both parties after the divorce is final. If an agreement is reached, the child or children will be spared the unnecessary and destructive fighting between the parents. Most Houston divorce lawyers will tell you that most parents rank the priority of their children ahead of all the other issues typically involved in a divorce.
When custody and visitation issues cannot be resolved by agreement, the court will have to decide these matters in the divorce proceeding. In determining custody of the children, the court looks at what is in the "best interests" of the child. Some factors Family Courts use in deciding what is best for the children include:
(1) Parenting skills of the parties.
(2) Emotional and physical needs and stability of the parents and children.
(3) The desires of the children.
(4) Planning and stability of individuals seeking custody.
(5) Programs available to assist the individuals.
(6) Acts or omissions of the parent.
(7) Any excuse for the acts or omissions of the parent.
The person who is granted custody of the minor child in a divorce is called the Managing Conservator. The person with visitation rights is called the Possessory Conservator. The court may also appoint joint conservators and does in many divorces where the parents are of similar skills. Where joint custody is granted in a divorce, the court will designate one parent who will have primary possession and control of the child and who will designate the child's domicile (or the court will designate the county of domicile for the child). A good Family Lawyer in Houston will fight to ensure the non-designated parent will limit the domicile of the children to Harris or contiguous counties.
The visitation schedule established depends on the circumstances of the parties and age of the children. It often includes alternating weekends, alternating holidays, and 30 days in the summer. If the parties live more than 100 miles apart, the court may set a different visitation schedule. The State of Texas follows a standard possession order detailed in the Texas Family Code and a large number of divorces in Houston, Harris County follow this visitation schedule. For a detailed description of a standard possession order, you should consult with Carl J. Selesky, a Family Lawyer in Houston.
The Managing Conservator is under a Court Order to make the children available to the Possessory Conservator at the beginning of each period of visitation. The Possessory Conservator should closely adhere to the visitation schedule and promptly notify the Managing Conservator when he or she is unable to keep a visitation date. Children's plans for the weekend can’t be used by the Managing Conservator as a reason for denying visitation. If conflicting plans are in the best interest of the children, parents and children should work out the problems together. Visitation should help children maintain a positive relationship with the visiting parent.
The Managing Conservator cannot deny visitation because child support has not been received. The Possessory Conservator cannot fail or refuse to pay child support because of visitation problems. At the end of each period of possession, the Possessory Conservator should return the children to the Managing Conservator or make the children available for pick up by the Managing Conservator, depending on the terms of the divorce decree. If there are continued problems with visitation or support, you should consult with Carl J. Selesky, or other Houston divorce lawyers about your problem rather than using the children.
Both parents of the minor child are under obligation of support. Usually, the non-custodial parent pays child support for his or her children and is required to provide health insurance. The amount of the child support depends primarily on the financial resources available to the Possessory Conservator, however, other factors are considered such as financial resources available to the Managing Conservator, expenses, extraordinary needs of the children, and the number of children the Possessory Conservator is legally obligated to support. The Texas Family Code provides a formula for setting child support which is presumed to be in the best interest of the children. This formula many times is effective in reducing the fighting and friction associated in deciding what should be paid in a typical divorce.
Provisions for custody, visitation, and child support can be modified if circumstances dictate that the child's best interests would be served by such modification. Consequently, a court has the power to change custody, visitation, and support of minor children after a divorce is final. A modification should not be considered lightly. If there is a substantial reason you think a modification is beneficial to the children after the divorce is final, you should consult with Carl J. Selesky, or other Family Lawyers in Houston about your problem rather than using the children.
ENFORCEMENT OF COURT ORDERS
The parties to a divorce case have a wide range of remedies to enforce and carry out the terms and conditions of a divorce decree. The most widely used method of enforcing orders is through motions for contempt. If a person violates a specific and unambiguous court order (or portion thereof), this person can be held in contempt if he or she had the ability to comply with the order. Upon holding a person in contempt, the court can sentence the person up to six months in the county jail and can assess a fine up to $500 for each violation. Contempt actions are most commonly used in connection with failure to pay child support; however, they are also used to enforce visitation. A motion for enforcement by contempt must be filed within 6 months after the child reaches the age of 18 or the date on which the child support terminates. As mentioned above, if there are continued problems with visitation or support, you should consult with Carl J. Selesky, or other Houston divorce attorneys about your problem rather than using the children.
A common remedy for enforcing child support orders is an action to reduce the child support to a money judgment. This action may be brought at the same time as a motion for contempt. A motion for enforcement by contempt must be filed within 6 months after the child reaches the age of 18 or the date on which the child support terminates. Texas courts also have the ability to garnish wages to facilitate child support collection in a divorce case and it is possible to Order employers to deduct child support directly from the wages of the person owing the support if at least one month's total child support has been unpaid for a period of at least a month.
CHILD SNATCHING AND PARENTAL KIDNAPPING
The Federal government, as well as the various states, have recognized the dangers and tragedy of parental kidnapping. Texas adopted the Uniform Child Custody Jurisdiction Act, which is designed to discourage one state from changing another state's custody order. Further, when it appears that one party might violate the court's order concerning returning the child from a visitation period, Texas courts may cause the visiting parent to file a bond or post security with the court to ensure compliance with the court's order. The bond or security will be forfeited if the child is not promptly returned. If a child is not returned, the custodial parent may also file an application for a temporary restraining order and/or file a motion for contempt.
Parents in Texas, by law, are allowed to sue for money if another person interferes with a legal right to possession of the child. The statute applies when a person takes, conceals, or keeps the child in violation of a court order, or if a person wrongfully withholds visitation from a conservator who has a legal right to visitation.
Under this same Texas statute, a person is entitled to recover any cost or expense incurred in connection with enforcing the conservatorship order. This includes but is not limited to attorney's fees, travel costs, detective fees, and lost wages. Parents should not take the law into their own hands. If there is a serious problem with custody or visitation, you should consult with Carl J. Selesky, or other Family Lawyers in Houston about your problem rather than using the children. Mr. Selesky will give you a free in-person consultation and will spend a considerable amount of time with you going over all of your legal rights in a divorce.
All information in this website is not legal advice, is not intended to be legal advice and is for informational purposes in order to help you in your decision to hire an attorney only. You should consult with as many attorneys as you feel necessary before you choose to hire one. The attorney-client relationship is only formed by written agreement and consent of both of the parties. Any and all medical bills or other costs are your responsibility regardless of the outcome of the case or any contingency fee arrangements with Carl J Selesky. All trademarks and copyrights are reserved. Carl J. Selesky is a licensed attorney in the State of Texas, in State and Federal Courts. Mr. Selesky is not licensed in any other State.
Carl J. Selesky is not certified by the Texas Board of Legal Specialization.